Proceedings of the Special Senate Committee on
Senate Reform

Issue 4 - Evidence - Afternoon meeting


OTTAWA, Wedsnesday, September 20, 2006

The Special Senate Committee on Senate Reform met this day at 2:00 p.m. to examine the subject-matter of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), and the motion to amend the Constitution of Canada (Western regional representation in the Senate).

Senator Daniel Hays (Chairman) in the chair.

[Translation]

The Chairman: Honourable Senators, I call the meeting to order. We will continue this afternoon with our second group of witnesses. We welcome John Whyte.

[English]

He is a Senior Policy Fellow from the Saskatchewan Institute of Public Policy, and by video conference we have Professor Richard Simeon, William Lyon Mackenzie King Visiting Professor of Canadian Studies, Weatherhead Centre for International Affairs, Harvard University.

I welcome our witnesses and would invite them to make a presentation, following which we will have an opportunity to have a dialogue by way of questions from senators.

John Whyte, Senior Policy Fellow, Saskatchewan Institute of Public Policy, as an individual: Thank you, very much Mr. Chairman. It is a great honour to be here and it is a joy to constitutional lawyers when the Constitution gets back on the political agenda.

I must say, it is like being in Tiananmen Square, with a huge picture of Chairman Mao looming over us only in the form of Professor Simeon.

The case for Senate reform is overwhelming. Political power in legal democracies is accountable power. It is constrained by constitutional rules, by structures of oversight and by electoral consent and sometimes by all three. I know that the Senate practises prudential constraint in the exercise of its power. That constraint may partially close the gap in democratic legitimacy and accountability but far better it is to formally subject that power to the standard mechanisms which, for legislative bodies, is elections.

Here are four accountability problems and they are all serious. The legislators are not elected. They are not in power through direct democratic choice. Worse, not being elected, there are no elections and hence there is little attention paid to the Senate. It is not a transparent legislative body because its opacity flows from the lack of a political process and perhaps a lack of interest — an unfounded lack of interest, but a lack of interest.

The Senate labours under popular distrust of the members' loyalty, sometimes cast as loyalty to appointers and sometimes cast in Canadian political science myth as loyalty to major commercial interests. I know these are unfounded and unfair. They are bases, though, of a legitimacy gap.

The work of senators is not democratically reviewable. It is not electorally supervised. Senators are not directly accountable for the decisions they make. Senate reform is urgent and many witnesses have said that, too.

This situation is not tolerable in a self-respecting liberal democracy and the only cure is elections and elections solve all four of those legitimacy problems.

There are other cures — radically truncated powers of the Senate or its sheer abolition — but costs of this cure are the loss of bicameralism and the loss of representational diversity, both of which I think are intolerable losses.

Robert Dahl, the American political scientist, said that democracy is premised on two features: The first is electoral consent and the second is due process in judicial and legislative and administrative processes, by which I mean exercising power under constraints.

The representational diversity that we would lose is not clear. In terms of the Constitution Act, 1867, it was seen to be the representation of property interests.

Most of the comments you have heard have presented the representational added value as being regional or provincial; that is as a manifestation of an element of the federal structure of Canada. Ned Franks thought the representational advantage might be that classes of under-represented citizens would be represented in Parliament. Those issues are both valuable, so valuable that considering abolition should be off the table.

Since we must reform the Senate, how should we go about it? There are two constraints. The first constraint relates to equality: One person, one vote is a serious constraint. We do not come close to it in the Senate, but it is a constraint. You should not ignore it entirely and one needs to not think that the American model is satisfactory in a 2006 modern democracy; that some votes count for 50, or 40 or 30 times more than some vote. It is a problem. Senate structure needs to work to accommodate equality with other representational interests.

The second constraint is Quebec's role in national politics, under which Quebec traditionally has one quarter of the legislators. That is a proposition we often forget about or think may not be important. When we forget the elements which structured bi-nationalism, by which we built the moral foundations of Canada, we become unstuck.

I suppose the 1982 constitutional amendment and the wonderful debate and letters between Premier Levesque and Prime Minister Trudeau tell us a bit about how intense the feelings were regarding traditional accommodation and how costly it may be to put them aside.

Charlottetown focused, inordinately or otherwise, on the quarter representation. It drove everything that was done in Charlottetown around Senate and Commons reform, and rightly so. Therefore, the size of the Senate should not go above 108, with 24 Quebec senators. That is the gap on the quarter representation. Maybe I am overstressing that, but I think not.

Consequently, we need to reduce the size of the Atlantic provinces, both for the need to keep the Quebec representation at about one quarter and to do better on the equality provision. That may just be the most naive statement you have heard, that you could touch any vested Senate representation. However, even under the model I have set out in my submission, the Atlantic provinces are represented two and a half times the size of population as opposed to the West, which is one and a quarter times the size of its population. There is a limit to this representational deviation. We need to consider proportional representation. That is the best way to get diverse representation through incentives on parties to create lists that respect diversity. It not only enhances democratic reward, but also enhances representation.

We need to put constraints on the Senate through giving the first minister, the Prime Minister, power to oppose electoral burdens on senators in crucial circumstances. I indicated there ought to be a residual emergency power of dissolution for the Senate. I do not know if that is workable. It might be far better just to limit the number of terms. My idea for a term is that half the senators get elected every four years. It is important to preserve the structure of representational democracy and parliamentary responsibility, and eight years is just not sensible from that perspective.

My fifth point is that to carry on an eight-year term is too long. Some say nine, or six, as if there is a sort of ``who knows?'' But we do know. We know that representative democracy and parliamentary responsibility are vital to the democratic structure in this country. It is the way in which we conduct elections intelligently and the way in which we hold governments accountable intelligently. There is no diffusion of responsibility. We do not want to introduce a great deal of governmental responsibility diffusion. Six years represents about as much distance between the term of government and the Senate appointment as I feel the traffic will bear. Electing half the Senate every three years helps compress the responsibility lines between the government and the legislators. Maybe that is all a little complex; I will deal with it later if you wish.

The non-renewability of an eight-year term — if it is non-renewable — introduces no accountability constraint. Even worse is renewable eight-year terms because of the significant level of displaced or wrongly placed loyalty that that will induce. Senators' loyalty will be, or will be seen to be, entirely directed to appointers. It would expand the legitimacy deficit significantly.

Sixth, in Issue No. 1 of the Legal Committee, I have a quibble about the evidence you heard that proposed section 29(1) allows renewable appointments. It is only a quibble about the assurance with which that is said, and I do not want to spend time dealing with that now.

Point seven: I believe the eight-year limit as included in proposed section 29 of Bill S-4 cannot possibly be amended under section 44. I have a very long, complex legal argument on that point and, at the end of it, I would say I am not sure. There are real concerns about its legality. Given the time, I will not go through that legal argument. I am willing to put it in writing and submit it later or talk to you about it later.

Ninth is a prospective point, which may not have much bearing on your current situation, but when we come to talk about elections, I do not believe the device of calling elections advisory will pass muster to preserve the legality, the constitutionality and the legitimacy of an election measure that does not obtain constitutional approval under section 38 (1) of the Constitution Act, 1982. The court is not interested in words nearly as much as they are interested in principles and reality.

The final point is that you are being urged to make this amendment because it is possible, and broader reform is either not possible or it will be possible once we make the initial modest change.

Here are my concerns about that strategy: First, it may not be legal. Second, we do not know that we cannot make constitutional change to the Senate. Senator Murray made the point in the Senate chamber that we do not know what we can do as a nation by way of our self-determination practices unless we approach politicians and the people of Canada about what is important to them. I know there are many Quebec political imperatives that lead us to not be sanguine about making even the most needed and logical change, but we do not know that we are not capable of fashioning ourselves into a modern, effective legislative apparatus. We should not assume that we are not.

Third, effecting this limited change will cause harm to Canada's democratic principles, I believe, and fourth, doing this and not doing more later on would do even more harm.

I urge Senate reform, not this gesture.

The Chairman: Thank you very much.

I will now ask Professor Simeon for his presentation.

Richard Simeon, William Lyon Mackenzie King Visiting Professor of Canadian Studies, Weatherhead Centre for International Affairs, Harvard University, as an individual: Thank you for inviting me to appear here today. It is an honour and privilege.

I would like to apologize for not having submitted a paper in advance. I am afraid a rather short deadline, together with other obligations and my move to Harvard, made it impossible, but I have submitted a short paper and will speak to that this afternoon. I hope senators will find that helpful.

Once again, we are debating Senate reform. It is not exactly clear to me why. It is hard to see citizens clamouring for reform in the streets; Senate reform is arguably much less important than other elements of paying down the democratic deficit in Canada, such as reforming the electoral system or the House of Commons. Yet Bill S-4 is before us, as is the proposal by Senators Austin and Murray to adjust the assignment of seats. There is more to come in terms of the possibility of an elected Senate. The question is whether to make a few modest adjustments now — not making the wholesale change that Professor Whyte suggested — or whether, inevitably, once we have embarked on this road, we will have to look at all the issues including the method of appointment, powers and such.

Let me start with a few general thoughts: How far we go in renovating the Senate depends a great deal on what role we expect it to play. Two were mentioned in the preamble to the bill: responding to the needs of Canada's regions, usually referred to as regional representation, and acting as a chamber of independent, sober second thought.

Sober second thought, as many witnesses have pointed out, is what the Senate does best today. This includes the careful scrutiny of legislation that the House might not have the time or inclination to carry out and the broad general inquires into important public issues the Senate now carries out. Prime ministerial appointment, on its face, seems to undermine independence. However, in practice, the Senate does generally act with considerable independence. Maintaining sober second thought does not seem to require much change. Eight-year terms would help by ensuring some turnover of ideas. Better regional balance would also help a great deal by diversifying the voices heard. It would be a big improvement to have senators appointed through a non-partisan process. I do not believe the sober second thought role generates strong pressure for change.

Regional representation at the centre is the classic rationale for a second chamber in linguistically and regionally divided societies such as Canada. This is the role our Senate has failed to accomplish. This is not to say that individual senators do not do a good job speaking for their regions or provinces. Clearly, many do. It is to say that their ability to play this role is vitiated by the method of appointment and by the fact that the Senate has no legitimate democratic base. It neither represents provinces and their governments, as in Germany or South Africa, nor their peoples, as in Australia or the U.S.

This failing is especially important in Canada where the House of Commons also falls down on the job of effective regional representation. This is the result of the combination of our first-past-the-post single member district electoral system, which radically distorts the relation between seats and votes, and the parliamentary system that concentrates so much more power in the hands of the government. The former helps create a highly regionalized party system; the latter means that it is always possible that some regions or provinces feel frozen out of power in Ottawa, enhancing regional alienation and conflict.

A more regionally representative Senate that is fully legitimate is clearly one way to correct this problem, although not easy to achieve. Again, Commons and electoral system reform can help address it as well.

Recently, two other potential roles for the Senate have received much attention. The first is the idea that the Senate can be used to give political voice to members of minorities who might not otherwise be represented, especially with our current electoral system and distribution of Commons seats. We might call these the electorally disadvantaged — I am thinking here of Aboriginal people, visible minorities, residents of our large urban areas who are hugely under- represented in our current system.

Several senators and witnesses have pointed out that the current Senate, despite its flaws, is in some ways more representative of these kinds of minorities than is the House, simply because the Prime Minister does have such wide latitude as to who to choose rather than depending on the vagaries of electoral results. Building this role is a legitimate purpose for the Senate and I would like to see it strengthened.

The other alternative role for the Senate is that it becomes a fully fledged legislative chamber, as in the U.S. This is not often politically expressed in Canada, where we tend to shudder at the dangers of divided government and gridlock and where we believe so strongly in the principle of responsible government. However, that model is implied by the fully developed Triple-E proposal, in which an elected Senate is endowed with at least as much democratic legitimacy as the House.

In that scenario, we would almost certainly go down the American road. The government, while still primarily responsible to the House, would, in fact, become responsible to two Houses, and the present deference of the Senate to the Commons would almost certainly disappear.

The obvious way to address this problem is to limit the powers of the Senate so it would no longer be coequal with the House, except on money matters. As in South Africa, the Senate could have broader powers on bills that directly affected the provinces, thus enhancing its regional representational role; or Senate vetoes could be made only suspensive in most cases; or there could be provisions for a Commons override.

However, I am not sure any of these devices to limit the power of the Senate would work in the long run. Whatever their formal powers, once the Senate is elected, with its members holding longer terms than MPs and elected from the province as a whole rather than individual ridings, then their political weight would be difficult to resist, whatever the assignment of powers.

With these general thoughts in mind, let me turn to the specific proposals before you.

I will turn first to the subject of Bill S-4. Changing the term of office to eight years, I believe, can be made by Parliament alone. Here I disagree with Professor Whyte. It would be simple to achieve. I have no strong views about seven-, eight-, nine- or 10-year terms. I do believe strongly that in the interests of bringing fresh viewpoints into the chamber and maintaining independence, these terms should not be renewable.

I am not sympathetic to the view that such terms would alter the essential role of the Senate in a serious way. I think the role of sober second thought could survive that quite well and, again, I do not see a serious constitutional objection.

However, even the simplest sounding proposals can raise deeper problems. I have been struck in reading the debates by the possibility that a long-serving Prime Minister — and we have had many — could end up appointing the entire Senate, which is not good for independence. I think it is extremely important to couple the shorter terms to a better method of appointment, which I will come back to.

Second, altering the allocation of seats is another matter because I believe it would involve the general amending formula and that opens up everything else. This is unfortunate because bringing Senate representation better into balance with the population, and even more with the expected population trends, is obviously long overdue and greatly to be desired.

Federations vary greatly in the number of members per state or province in the second chamber. Almost all see one role for the Senate as tempering in some way the power of majorities, thus giving greater weight to smaller units and over-representing them. That is desirable, but given the enormous disparities that Professor Whyte referred to, I think it is very hard to defend equal representation. Somewhere in between, as in Germany or Australia, seems more reasonable, although I agree it is impossible to know exactly where to draw the line.

I am sympathetic to the views by those from some of the Maritime provinces in particular that the existing distribution of seats was part of the original Confederation bargain and therefore should not be tampered with lightly. However, I do not think this should mean that it should be frozen in time.

To sum up, I believe that both Bill S-4 and the Austin-Murray resolution are modest, incremental and desirable reforms, and I support them.

Finally, let me turn to the broader method of appointment. I accept that election is the only legitimate path in a modern democracy, but we might at least want to consider whether a reformed appointment process might address some of the democratic legitimacy problems while avoiding others. If we do go toward election, we need to be very careful about how we do it.

If we are to stick with appointments, it is difficult to defend the current practice, which is a relic of the past. There are ways to retain appointments while still passing the democracy and legitimacy test and enhancing the Senate's capabilities in its primary roles of sober second thought and regional representation.

One way would be to emulate in some ways how Ontario, and no doubt other provinces, chooses provincial judges. Candidates could be nominated or apply; they could be vetted by a non-partisan group, which then would submit a short list of possible nominees to the Prime Minister, who could make the final choice. This could be done easily under the current rules.

Alternatively, Professor Franks suggested a panel that would have one-third of its members appointed by the Prime Minister, one-third by provincial legislatures and one-third representing the great and the good, drawn from members of the Order of Canada. The Order of Canada aspect of this proposal strikes me as a little too reminiscent of our old aristocracy.

My own, not yet fully thought out, idea is that legislation could set up a Senate nominating council in each province. The council could be made up of representatives of each party from the province holding seats in the House of Commons and in the provincial legislature concerned, or it could be based on the per cent of the vote in the last election. For example, every party with 10 per cent or more of the vote in each of the legislatures could be represented on the council. Representatives of municipal government could also be included. The panel could either suggest a single name to the Prime Minister or a list.

A law that required the Prime Minister to appoint the panel's nominee would, of course, require amendment. The law could also explicitly require that the council have regard to urban-rural, male-female and other minority concerns in their choices.

Such an appointment method has a number of advantages. It would enhance the independence of the members; it would improve the Senate's capacity for regional representation and other kinds of difference; and it would be immensely easier to achieve than election would be.

As I said, election is the default position in a democracy. In an ideal world, I am strongly for it, but how to do it? We have not seen the legislation to be proposed by the government, but if it suggests a seriatim process in which a province-wide election will be held whenever a vacancy occurs, I would have serious problems. There would be a real danger that the majority in a province would continue to elect members from the same party. Therefore, it would be unlikely that the province's Senate delegations would reflect the real diversity that exists in every province.

It would heighten rather than reduce the already existing perception that provinces are homogeneous in their political views. Thus, a problem that exists already in the House would be reproduced and exacerbated in the Senate.

It would be much better to have a province-wide senatorial election either every eight years, or better, on a staggered basis — perhaps one-half every four years. Such elections should not replicate the existing first-past-the-post system. Rather, it could be a Canadian test for proportional representation.

We know that PR is fairer because it reduces the disparity between seats and votes, and comparative experience also tells us that PR yields more diverse representation, especially of women and minorities. PR would also help to counterbalance the discrimination against urban areas found in the existing system, because a person's vote would count the same wherever he or she lived. It would be hard to achieve pure proportionality, especially in provinces with fewer seats, but we could approximate it.

Getting agreement on an elected Senate will be difficult, but it also poses some thorny new problems. That is why I think a reformed appointment process, rather than election, is a feasible second best to consider. I must confess that this is not where I expected to be when I started preparing for this appearance today.

In conclusion, if I were to choose a package of Senate reform, it would include the revised distribution of seats suggested by Senators Austin and Murray, the eight-year term, retention of appointment — but only with a much more democratic, transparent method as I have suggested. I would also ideally alter the Senate's powers to reflect a clear, but modest reaffirmation of its primary dual roles, but that would be a difficult process. It might be more doable than some of the alternatives.

The Chairman: Thank you. We will begin comments and questions with Senator Angus.

Senator Angus: Professor Simeon, I will begin by asking you a question. I am intrigued that you came down to appointment for getting into this upper chamber. Are you familiar with the concept of a citizen assembly?

Mr. Simeon: Indeed I am familiar.

Senator Angus: Could you elaborate? We have heard from witnesses from British Columbia who, I believe, were the first ones to actually develop such a system. Could you tell us what you know about them? Is there something within that concept that might be helpful for the new appointment process?

Mr. Simeon: The main lesson of the B.C. process is that there are alternative ways of engaging in democracy and elections are not the only part. B.C. was a fascinating experiment. They wanted to keep the partisan interest of the parties and the government out of the process. They wanted a process insulated from those pressures. They devised an incredibly interesting idea of randomly selecting interested citizens. Those citizens then went through an extended, deliberative process and came up with a suggestion, which was submitted to the people in a referendum. It lost, although not by much. Nevertheless, while that mechanism might not apply everywhere, it does illustrate the kind of imagination and creativity that we need to develop to find alternative ways of practising democracy in a country as complex as Canada.

Senator Angus: Dr. Whyte, your thesis was on the fact that you do not like the process that the government has devised — a kind of staged approach to Senate reform starting within Parliament and doing what our jurisdiction allows us to do. You have to bite the bullet and come up with comprehensive reforms all in one package; is that fair?

Mr. Whyte: Yes. I do not want to be naïve about political reality, but this first step has every chance of being counter-productive to reform and should not be pursued. Yes, Senate reform needs to be done comprehensively because constitutions are never about anything other than supervisory relationships and the articulation of power preferences in order to get a result. Constitutions are about the structuring of power to make government safe and non- tyrannical, meaning you should do it all. You should design it. It is a clock. It is called statecraft for a reason, which is not because you pull a straw out and hope things get better. That is one of the reasons that Charlottetown and Meech Lake faltered because the dynamics created by the 10 straws could not be happily predicted by the people. Perhaps we should have gone down that road. I am here to repent my opposition to the Meech Lake Accord but the non-structural approach was one of the vulnerabilities of that accord.

I like the idea of imaginative, alternative ways of doing democracy, but I am skeptical. I will not continue in that vein because that is not the question.

Senator Angus: I am glad to hear you acknowledge publicly that you were opposed to the Meech Lake Accord and that you now wish to repent.

Mr. Whyte: I am ambivalent. Let me say that I repent the fierceness of my opposition.

Senator Angus: The Meech Lake Accord was a comprehensive approach to an important national problem but it did not work out, just like the Charlottetown Agreement. This government is quite sanguine about the fact that Bill S-4 is a tiny step. Recognizing that the status quo is not an option, the government proceeded in this way. I am troubled that you would reject that out of hand. Prime Minister Harper appeared before the committee two weeks ago and stated clearly that he does not plan to stop at the eight-year tenure. Rather, he intends to bring in a new process for appointment through an electoral process or a consultation process later this fall.

We must take the government in good faith at this time. To have someone of your stature and intellectual renown come here and disrespect the whole thing bothers me a bit. I know that you speak to the bill in good faith when you sound such warnings that we might be getting into deep water. Perhaps you are prepared to repent early in this game and come around.

Mr. Whyte: Not today anyway. I do not think that I have rejected Bill S-4 out of hand. I would like to think that my view is that Bill S-4 is not a prudent step because it is a change that, if left alone, will further debase the legitimacy and the functioning of the Canadian Senate, and that would be a serious problem. In short, it tends to erode confidence in national politics.

Senator Angus: What about the status quo as opposed to that alternative?

Mr. Whyte: The status quo is not eroding confidence in national politics in the sense that it is just a Canadian tradition. It is not increasing the erosion but it is not a happy circumstance. We deserve a modern legislative process that reflects democratic principles throughout. We are a self-determining nation, and we should be able to construct a legislative process that meets basic principles of national legislatures. We should address the deficiencies in our public national government and try to deal with them.

Senator Angus: That is an admirable statement and no one in a perfect world would disagree with that. Nearly all of us, because of the nature of Canadian democracy, are familiar with the phrase ``politics is the art of the possible.'' This is a political environment in which we can only do what is possible.

With respect, I have trouble with your approach, Mr. Whyte. The committee has heard testimony from witnesses that Senate reform is not as great an issue today as it was 10 years ago because measures have been taken to address western alienation. The architects of the Triple-E Senate are saying that movement is no longer a movement and, perhaps, the only mover left is Burt Brown. They say that reform of the House of Commons and electoral reform is a greater priority in their minds.

Mr. Whyte, a complete overhaul and upgrade of the Senate would be out of synch in terms of priorities. Could you comment?

Mr. Whyte: You did not invite me here because of my acumen with respect to the political context in which Canada now finds itself. Unashamedly, I adopt a constitutionally purist line, which is that the legislative arrangements in Canada are undemocratic. The constitutionally created Senate is hobbled in its operation and, let me be blunt, it is not responsible to begin to address the deficiencies in the nation's legislative arrangements and not do it on the basis of basic constitutional principles. It is irresponsible to play with any Constitution and not do it on the basis of serious, understood and commonly accepted constitutional principles.

Allow me to deviate from my non-political awareness and say that we do not know that Senate reform is not attractive as a political project in this nation. We fear that Quebec will say: ``We will not amend the Constitution with respect to the Senate unless we can deal with our other outstanding grievances.'' We fear that Quebec will say: ``Since we did not sign on to the Constitution Act, 1982, we cannot participate in any amendment process that uses the formulas found in the 1982 Constitution.'' That would hamstring, or at least exacerbate, the bi-national tensions in the country.

We do not know that talking to Canadians, including Canadians in Quebec, about making the legislative process at the national level more responsive to basic democratic values is unattractive to them and is unimportant to them. It could be both attractive and important. It could be a matter of some pride for a nation that seeks to act as a nation with respect to its fundamental operation.

I could be the worst romantic voice you have heard calling on the spirit of Canadians to make their national political apparatus work effectively and in a sensible and principled manner according to democratic ideas; but I do not know that I am that. Why not take a risk?

Senator Angus: That is most interesting and bold.

Senator Harb: One would suppose, from Mr. Whyte's comments, that the whole exercise would restore the public confidence and trust in government institutions if we were to turn around and have an elected Senate. One would argue, if that were the case, why is it that even though the other House is elected by people, politicians are still viewed behind journalists, lawyers and car salesmen in respect of lack of public trust? Assuming the exercise is to restore public trust, bear in mind that it is not working on the other side. I would like to hear your comment on that.

My second question deals with the issue of proportional representation. How would that serve democracy in Canada because, since the 1950s, election after election we have seen a decline in the percentage of voters to the point that it has hit 58 per cent to 62 per cent. The trend is irreversible. How do you envision the PR method of selection will improve democracy? What do you think if we were to introduce compulsory voting, thereby creating a better chance for proportional representation?

Mr. Simeon: The most obvious way that proportional representation serves democracy is the direct relationship between the votes cast and the seats won. Currently we have enormous distortions in that regard. People are regularly elected with much less than the majority of the vote. As a result, many Canadians believe that their votes are wasted and voting will do no good because the vote will not count. By far, that is the most important advantage.

There is another advantage. International comparisons demonstrate that proportional representation is much better at representing groups such as women and minorities than our first-past-the-post method. The result is a more representative and diverse legislature, which is good for democracy. There are different ways of implementing proportional representation. We should remember that it is overwhelmingly the most widespread system in the world's democracies.

I never gave much thought to whether compulsory voting would be an improvement but, certainly, it would do nothing to solve the representation problem that proportional representation solves.

Mr. Whyte: The lack of trust in politicians is because too often they do not have the courage to do the right thing. They have not the courage to take on the governance projects, which a nation demands, and act on them and they seek instead a quotidian advantage, including potentially destructive and non-comprehensive reforms of the Constitution. I do not mean to say that the distrust level of politicians is visited on the current Senate. Rather, I mean to say that the current Senate does not exist on political radar, to a large extent. I know senators work very hard and they are a wonderful second thought. They hold hearings, they travel the country and they hear citizens, but that does not register.

The Senate is a legislative chamber partially responsible for federal legislation. The Senate should play its broader role of second thought and the changed representation of function. That is my comment on politicians and trust.

Senator Harb: Mr. Whyte, you mentioned reform in the other House. I would be interested in hearing your comments on how the system works in the other place. Proposed legislation comes from the executive and is introduced in the House of Commons and voted on. This is the way our system works. One can take the position that perhaps part of the cynicism comes from the fact that even in the other House there is conflict. If you truly want to introduce proposed legislation and allow the legislators to deal with it, then you would not vote on your own legislation but allow them to do so.

Comparing both Houses, it is only in the Senate, with the exception of the Leader of the Government in the Senate, all legislators are not in a conflict of interest. Therefore, they will deal with the merit and substance of the proposed legislation as it is. Do you think that reform of the other House should include the executive not voting on proposed legislation?

Mr. Whyte: Responsible government is a poor manifestation of the constitutional principle of separation of powers, for sure. However, that is the way we want it because we get some other advantages.

The two big advantages are that, first, when one votes, one votes for an understood and comprehensive political package, depending on the integrity of the election process and the campaigning process. Second, when it comes time to supervise, review or validate what a government has done, we know that the government is responsible. By virtue of responsible government. We know that the government's program is what people have experienced and blame just does not get shifted off on to Congress, the Senate or the House of Representatives. Of course, it could get shifted off to the court nowadays.

Responsible government is a fine democratic mechanism. With respect to the Senate, I absolutely believe that responsible government can be diluted. I do not recommend it be diluted in the House of Commons.

A very interesting thing happens when the Senate becomes independent and votes as it thinks and is caught in conflicts of interest; that is, we may well lose the capacity to pursue a legislative agenda to govern fully. We may have some form of paralysis.

For that reason, we need to hope that a number of things happen. First, we need to hope that the Prime Minister has some levers. I suggested some extreme instance of dissolution — perhaps active campaigning in the triennial elections; perhaps payroll appointments — sorry, that is an English term that sounds pejorative but it is not; it is just that members of the government would be sitting in the Senate in bigger numbers than they are now — in an elected Senate. In fact, it would seem to me highly improbable that there would not be.

A fourth instrument by which the independence of the Senate would not paralyze government would be the Senate's practice of restraint, that is, to choose to hold up the government when it matters, not to just frustrate government.

My answer is, no, I like responsible government in the House of Commons and I like responsible government in the Senate, although I recognize that an elected Senate will be much more independent.

Professor Simeon quite rightly says that the current plan eradicates the independent voice of the Senate. It throws everyone into a short-term appointment.

Responsible government is not nearly as powerful in the Senate, but there are some mechanisms that would develop which would constrain the sheer bloody-minded autonomy of senators.

Mr. Simeon: I would disagree with Professor Whyte a little bit. I think he underestimates the extent to which a Senate whose members were elected for a considerable term on a province-wide basis would develop a political legitimacy and political clout that would — not immediately, perhaps, but over time — come to compete with that of the House of Commons.

Given that, it is very difficult to operate responsible government, as we now know it. It may, as I have suggested, be possible that you could create a politically powerful elected Senate but limit its powers by saying no, it only votes on certain kinds of issues, or it can be overridden by a certain vote in the House of Commons, or it could only suspend and not destroy legislation from the House of Commons.

My sense is that once you have that democratic legitimacy, those kinds of constraints and limits would not have much effect. We would be going down a road — and some people might want that; it is not necessarily a negative thing to say — toward an American congressional system.

Senator Tkachuk: We are a democracy that is 139 years old. The American democracy is well over 200 years old. The British democracy is I do not even know how old. Nonetheless, changes happen incrementally.

I was a little concerned about your fear of the eight-year term. It is a legislative change. It is not a constitutional change, which means that it could be amended in the future if the state of the nation is perilously close to falling apart because of eight-year Senate appointments, which I highly doubt.

In Canada, we have moved along and made changes to our democratic system. Diefenbaker tried to and thought he could repatriate the Constitution. He had the Bill of Rights. We then had the Charter of Rights and Freedoms. All our other changes have been slow and incremental. Bill S-4 is simply a bill that establishes a tenure of eight years for senators rather than retirement at 75 years of age.

I understand the arguments of those who have said that even on its own, prime ministers would have the right to appoint all of the Senate over a two-year term. In reality now, over a three-year term, a large majority of senators are appointed by one prime minister. Prime ministers have been very careful in ensuring that there is an opposition.

I do not quite understand why there would be any concern and why you think we need a full-blown constitutional meeting to talk about Senate reform when we can do a lot of the things piece by piece and see how they work out. That is the traditional Canadian way.

Mr. Whyte: I think that appointing a senator for life purchases for you legislative independence — no accountability. Appointing a senator to an eight-year renewable term purchases for you two things, as Senator LeBreton pointed out — a higher level of legitimacy and more power. One has more legislative self-confidence without any increase whatsoever in accountability.

Second, it purchases for you a very high level of loyalty to the executive government, the people who steer Governor General Orders-in-Council. It takes a Senate around which there is a legitimacy gap and compounds the extent of that gap.

The first three clauses of the preamble to Bill S-4 talk of Canada's democratic tradition, the need to enhance the democracy of Canada. When Senator LeBreton talked about the bill, she did not talk about the democratic legitimacy. She talked about senators actually being fresh, livelier, more connected and a more effective body, all of which is right, but it is not dealing with the legitimacy and the democratic gap.

I do not mean to argue. It could be that an incremental increase will turn out well for Canada, but I do not think so. I think it will turn out badly for Canada if we cannot do anything about its deficiencies because of the barriers to constitutional amendment. If we think there are barriers to constitutional amendment today that preclude us from thinking about the Senate comprehensively, what will change tomorrow so that we will be able to overcome our problems?

You say that we can go back with another section 44 bill and restore the Senate the way it was. We will not do that. We will just have a badly organized constitutional body that we will learn to cope with. If I may say so, it is just not prudent.

Mr. Simeon: I disagree with that. I agree with the senator that if you look at the growth of democracy in countries like Britain and Canada, it happened in an incremental, step-by-step process.

Professor Whyte is right about the legitimacy issue. If you conceptualize or see the Senate as a fully fledged legislative body in the same sense that the House of Commons is, a body that would have that degree of influence over legislation and so on, to the extent that that were the case, then I would agree with him that fully elected, democratic legitimacy is the only way to go.

However, as I tried to suggest in my remarks, if one has a more limited view of what the Senate is about, if your view is that it is sober second thought, the ability to study major public issues, the ability to scrutinize the minutiae in legislation that the members of the House do not have the time to do, if that is all it is doing, it is not being a major legislature. Even if it has those other roles, which I strongly approve of, which is to give a political voice to the people who are electorally disadvantaged, and if it has a role of bringing the provincial voice closer into the deliberations of the national legislature, again, neither of those require it to be the fully fledged second chamber in our system.

That is why I think I am generally more accepting of more incremental methods of reform than Professor Whyte is.

Senator Tkachuk: When the Americans went to elected senators, they simply moved a constitutional amendment and elected them. There was no big constitutional conference about that was there? I am not sure. I think that is all it was. It was a constitutional amendment to elect senators, and they elected senators. They did not have a full-blown constitutional conference on what the Senate was about.

Mr. Whyte: The American amendment process requires a bill to be passed by the Houses of Congress and by either two-thirds or three-quarters of the state legislatures. I assume, although I do not know, that the constitutional amendment to elect senators was passed through the multilateral structures of a federal state that are created in that Constitution, as it should be.

Senator Murray: It was even more incremental than that, Senator Tkachuk. I have been told, and I think it is true, that in the early days, the state legislatures or governments appointed the members of the United States Senate, and then Oregon started putting it up to popular election. The others gradually followed. Whether eventually they succeeded in amending the Constitution, I do not know.

Senator Tkachuk: Oregon simply took the advice of their electors.

Senator Fraser: Professor Whyte, you said you did not believe that Bill S-4 was do-able under section 44, and you said you had a long constitutional argument to bolster that. I would like to see the long version but, in the meantime, could you give us now an executive summary of your position?

Mr. Whyte: Let me try my best.

The argument is based on the rule of constitutional or statutory interpretation which says that when there is a legislative identification of particularities within a general class, there is implicitly a legislative exclusion of all other particularities in that class.

When section 42 says that amending the Constitution of Canada under the section 38 formula is necessary for the method of appointment and the function and purpose of the Senate, the implication is that every other bit of Senate reform is not amended under section 38 but falls to be amended under section 44. That is the argument.

Here is why it is false. Often a set of particularities are mentioned in a class not to exclude all other particularities but to give those particularities special treatment. That is the case in section 42(2). In subsection (2), this class is mentioned, at least arguably, for the purpose of telling you that the opt-out formulas in section 38(2) and 38(4) are not available for some amendments which provinces might otherwise think they could opt out of. There is a reason for that list being made, which is not the purpose of excluding from 38 other things.

Second, one could say that section 42 is just a phrase you put in there so people do not wonder about these things that do not relate to section 91 and 92, which are clearly in 38, and are there any other things relevant to the federal arrangement? Yes, here are some things, and they are in there. That is another purpose, which means it is not to exclude.

Third, section 42(b) says that the selection of senators is within it. I think it could be argued that the selection of senators includes the appointment for life or the appointment for eight years. The selection of senators is quite a large concept. When your role is to select senators, maybe within the concept of selection of senators is selection to what and for what and for how long. It is not clear that it is not within section 42(2).

Fourth, I admit the Senate reference is pre-1982, so why are we talking about it, but the Senate reference, as you have heard a great deal already, was to the essential character of the Senate. This is such an essential character as to be beyond debate. I know it is an average of 12 years down to eight years and we treat it as small and incremental, but to set term limits, as Senator LeBreton said, is a big thing in terms of the legitimacy of senators, in terms of the functioning of the Senate, and in terms of the spirit in which the Senate conducts its job. She is right; it is not trivial.

Fifth, the structure of the Senate is part of the deep federalist accommodation of Canada. It is a crucial part of the federal mechanism of Canada. Significant changes to Senate structure, by virtue of its role within the federal structure, require approval under section 38 — that is, just taking a principled look at what section 38 is about and what the Senate is about suggests that there is congruence between section 38 and this particular bill.

Finally, if you look at Senate provisions in sections 24 to 36 of the Constitution Act, 1867, there is a lot there, and by no means is everything there amendable by Parliament alone under section 44, except for the two or three things mentioned in 42(2) and 42(3). There are things mentioned in sections 24 to 36 which clearly Parliament cannot amend and which are not in section 42. Therefore, when 44 says ``Senate,'' it does not mean every darned thing about the Senate. What is there? The number of supernumerary senators is not there. It is beyond belief that it can just be tampered with by the Parliament of Canada. The total number of senators and the qualifications of senators are part of serious Confederation arrangements. The location of senators in Quebec is a serious constitutional arrangement. They are not amendable under section 44, even though they do not appear in section 42.

I think this idea that section 42 tells us that we can proceed with Bill S-4 is un-thought-out as a matter of legal analysis. It is superficial legal analysis.

I want to finish with four words: I could be wrong.

Senator Fraser: Thank you very much. Professor Simeon?

Mr. Simeon: I would not dare to challenge Professor Whyte on constitutional law, not being a lawyer myself.

Senator Fraser: You made the point that proportional representation tends to produce greater representation of minorities. Incidentally, I would note that the minority that is the largest minority is systematically underrepresented in the House of Commons and has done better in the Senate, that is women.

However, my impression of proportional representation is that it works best to bump up the representation of minorities, where the districts are very large, or the lists are very large; the number of candidates available to be put up by each party is very large. I am not aware of systems where, when vying for two, three seats or even half a dozen seats, parties will voluntarily ensure that their winning or top candidates will be from minorities. Do you follow where I am trying to go? Am I right or wrong?

Mr. Simeon: I am afraid I do not know of any evidence on that point but I agree very much generally with your larger point, that PR in order to work requires multiple and large constituencies with many members and the more members you have the easier it is to get those kinds of representational benefits from it.

In countries like Israel or South Africa, you get an almost perfect match between seats and votes and also more representation. Other countries are divided up, but still into large constituencies. And I agree that, especially in the Maritime provinces where they will not have as many senators, it will be difficult to get pure proportionality. I also agree there would be some pressures on party leaders to fall back into the unrepresented ways that party nominations get under our first-past-the-post system.

We cannot get away from the fact that we will have these provinces with small numbers of senators and therefore it is less workable. We can make progress in that direction and that is probably what we should do. It does not solve the problem entirely, I agree.

Senator Murray: Professor Simeon, who used to be at Queen's and Toronto is now the William Lyon Mackenzie King Visiting Professor of Canadian Studies at Harvard, I cannot forbear to recall that Mr. Diefenbaker used to quote Mackenzie King, whether accurately or not, I do not know, as having said that the best way to reform the Senate was to appoint live Grits for dead Tories; a very partisan approach to fulfilling his perennial commitment to reforming the Senate.

Professor Whyte, if I understand the logic of his position, does not have a good word to say for the proposed amendment that Senator Austin and I presented to increase Western representation. I would take it that he would be opposed to that because it is not part of something more comprehensive.

Professor Simeon supported it.

Am I correct in deducing that you do not support it?

Mr. Whyte: No, that is not quite correct. I do see that as a change which does not impair the basic legislative function of the Senate. I do not see it as a change which impairs the legitimacy of the Senate or the representation function of the Senate.

I am not against incrementalism. I am against damaging incrementalism. I do not consider this damaging incrementalism. However, having said that, I would like to increase representation of the West. I think that we should work very hard at maintaining a maximum in the Senate which is under 110. I think there are good reasons for that. There are bi-national reasons and I think those are very powerful in Canadian politics.

In my recommendation I suggested that the two western provinces get 12 each, the two prairie provinces get six each and that there be a reduction in the senatorial representation from New Brunswick and Nova Scotia. I know how appalling it is to take away anything from anybody, but it is the way that, I think, you can preserve Quebec's traditional legislative position, do better on one-person one-vote and increase western representation.

I know that Senate provisions are written in terms of 24 from region A, region B, region C and region D. We tend to think of the Senate as regionally constructed. I think we are paying a price to cling too much to an apparatus of congruent regions. I think we should look at provinces and decide what seems suitable for the province in a very rough way. As it is, Senator Murray, you had to create half a region, in terms of numbers, in order to get the regional idea sustained. I have nothing against calling B.C. a region; I just do not see the point of it. I think we should find a set of numbers which satisfies other criteria: The Quebec criteria, the maximum criteria, the equal vote criteria and the democratic representation criteria.

Senator Murray: Under our proposal, I should mention that both Ontario and Quebec, each of which now has 22.8 per cent of the seats in the Senate, would then have 20.5 per cent of the seats.

Mr. Whyte: Maybe it is not huge.

Senator Murray: It is not, I think.

Mr. Whyte: Am I, a boy from Regina, going to tell you what is sensitive to Quebec? I worry about it.

Senator Murray: You are on solid ground there.

As I understand it, you do support an elected Senate, but as I also understand your presentation you believe there are serious constitutional problems about federal legislation that would purport to set up a ``consultative'' election process for the Senate. I would like you to elaborate on that because we have not heard much about the constitutional problems that might arise.

Mr. Whyte: I think that the real problem is that there is such a powerful democratic imperative around elected senators that we can assume that it is not feasible to create an apparatus to Senate elections and for a prime minister to then announce to the jurisdictions: ``That is really interesting, but it does not quite satisfy my idea of a great Senate; X would be a better senator.''

I think that the concept of advisory or consultative elections is only rhetorical and would be only rhetorical and I do not think that you treat the Constitution that way. I think that if you wish to change the method of appointment, if not de jure or even de facto, our constitutional interpretation cares about reality, cares about the actual imperatives and the actual conducts that take place, if you change the process de facto, you need to accord with the constitutional ideas relating to amendment.

I want to say this answer comes from my general stance on this, which is the bravado stance — just do it. Make the changes. Engage the nation.

Senator Murray: But make them through the constitutional amending process.

Mr. Whyte: Yes, absolutely.

Mr. Simeon: I agree very much with what Professor Whyte just said there and I would add that the more demanding the legislation is — in requiring the Prime Minister to follow the results of the vote — then the more obviously a constitutional amendment is required. If the legislation were worded so loosely that it did not put any pressure on a prime minister, then why do it? How would one be sure that some subsequent prime minister would pay attention to the election? He is exactly right: Once you say that it is a constitutional principle, that will become the rule. Therefore, that cannot be done without amendment.

[Translation]

Senator Chaput: My question is directed to Dr. Whyte.

[English]

You said that the Senate does not exist on the political radar. I understand that is because we are not an elected Senate. Should the Senate be on the political radar because if it is not, Canadians will not believe in the legitimacy of the Senate. If it were on the political radar, would it continue to be a chamber of sober second thought?

[Translation]

Can one go with the other? What price the Senate would have to pay to get legitimacy before Canadians? What would be the consequences? Would we have to modify the raison d'être of the Senate when we speak of a second thought chamber?

[English]

Mr. Whyte: Professor Simeon said, although not in this way, that I had a kind of all or nothing view of the Senate. The Senate is part of the legislative apparatus and let us simply accept that. Indeed, I tried to work out some of the relationships with the government that would follow if it were a full part of the legislative apparatus legitimated by elections.

Senator, you have raised a similar question. Saying that the Senate is a significant, elemental part of the legislative process in Canada and, therefore, needs elections and that this will change the Senate, I do not think it will. Bicameralism anywhere in the world is there for the purposes of second thoughts. That is the way democracy works. You have first thoughts and then you subject power to second thoughts because they are valuable. They are valuable because they are second thoughts and because they bring different intelligences and virtues to the second thought. Courts bring legalism, an auditor brings notions of accountability and the Senate brings different representation, perhaps.

The second thought function of the Senate is exactly what it is, but I think that is a full legislative function, which I think it ought to be. Two full legislative chambers are of value in Canada and I do not mind the restraint that this creates. I mind the paralysis that it might create. Professor Simeon and I have already disagreed on whether there are a whole host of small instruments by which that paralysis could be overcome and the Senate's power suppressed a bit. Three of those could be payroll members, conferencing and restraint. Professor Simeon says that the Senate has tons of legitimacy but will not exercise it. Well, there is not an elected person in this country who does not think his or her legitimacy also depends on making choices that are good for the governance process in Canada. People do not exercise their power willy-nilly; rather, they exercise it in light of what people perceive the national need to be, including the Senate.

I am not worried about the loss of the second thought function of the Senate as it is now constituted. We would have another legislative chamber that would exercise its power in a more legitimate and, perhaps, a more powerful way.

Mr. Simeon: I do not think it is possible to say who is right here. I think we just have very different emphases. I consider a full legislative role for the Senate to be a very different kettle of fish than the provision of sober second thought. They are quite different functions. Therefore, which one of those models one goes with will have a lot of influence on what you think is or is not an acceptable method of appointment. The more the Senate remains a full legislator and equal chamber, the more it needs to be elected and the more challenge we will have in developing a design for the ways in which the two chambers will coexist.

Senator Watt: I will try to describe to both of you what I have experienced as a senator over the last 23 years. My question applies to the matter of an elected or appointed Senate and the legitimacy of the Senate as a chamber of sober second thought. I have seen and been a part of the problem that I think needs to be addressed.

Professor Simeon stated clearly that it would be a big improvement if senators were appointed through a less partisan process. This is the basis for my comments and questions. From time to time, as much as I have developed many allies, partisanship becomes a hindrance.

At times others have agreed with me on new elements raised by my sober second thought that I felt needed to be included in the central system. I am from the Far North and I speak fluently in Inuktitut dialect, but I try to speak English. This has been a problem at times. Even though others might agree with me on a point that needs to be dealt with, addressed and rectified, they cannot do anything about it because it is a partisan matter. At times I have been approached and asked, for the party's sake, to hold my nose and vote in favour. This is like asking me to forget about the people I know so well and just let them die off slowly because they are no longer important. They do not say that but it seems implied. We need to put a stop to that. If the country is to survive economically, we will have to look at some of those little people that have something to contribute.

They were the first inhabitants of this country. Nowhere, other than in section 35 of the Constitution Act, are their rights enshrined but they are not defined. Further work needs to be done to complete those rights.

Mr. Simeon, could you elaborate on how we could make improvements with regard to the partisan matters I raised? What process needs to be put in place to have non-partisan appointees to the Senate?

I have also witnessed the independent senators. I would not go that route because you become a very lonely person if you become an independent senator within the Senate at the present time. I do not favour that.

We need to find a new set of mechanisms — I can only call it a missing link between the first inhabitants and the system that exists to run the system today. I wonder if you could both elaborate a bit on the premise of what you have stated in your introductions.

Mr. Simeon: First, I should warn you that I am not totally against partisanship and political parties. I happen to believe that Canadian democracy is fundamentally party democracy. However, we certainly expect the Senate to be a less partisan body than the House of Commons.

It is true that the Prime Minister often exercises his judgment in such a way as to appoint people with specific expertise, or people who are members of specific minorities or even leading members of other political parties. We have examples of that but, overwhelmingly, domination by the Prime Minister is now partisan. I do not think there is any doubt about that; and I agree it would be desirable if there was less partisanship.

That is why I believe it is very important, even with what I call the minor change of an eight-year term, that we get away from one person, who already controls the political executive in this country, having this degree of power.

There are various methods whereby you can do this. I have just played with the idea of the possibility of having senatorial nomination committees, councils or commissions — or whatever you want to call them — in each province, which would ensure that a wide range of party, governmental and regional interests would be taken into account in the nomination of senators. That is because my council would have people from the parties represented in the House of Commons from province X, people from the legislature of province X and perhaps some others, such as mayors of major cities.

There you would get a lot of voices. First, it would be unlikely that any one party would dominate that body. Second, they would be under strong pressure to try to nominate a person who was widely acceptable and who was unlikely to be an outright partisan.

If we stick with the appointment process, I think we need to go down that particular road. That also, as I said, strongly enhances the regional representation role of the Senate by giving provincial legislatures a real hand in deciding who is going to be a member of the house.

Mr. Whyte: Democratic political processes certainly have a tendency to honour majorities and tyrannize minorities. Political parties are not any real alleviation of that. They reflect precisely that incentive for tyranny, or that reality. Certainly, non-partisanship would dilute that, although as Professor Simeon says, you pay quite a high price in terms of political transparency through non-partisanship.

What can we do? I agree with Professor Simeon's plan and Professor Franks' utterances to you. It is attractive to think of the Senate being a place where minority communities are better represented and their interests are defended far better. We could certainly ban parties, although that would not work.

We could design an altogether different Senate, one built around minority communities. However, we do know that the political resentment around specialness is strong and that would be a problem.

I do not have an answer for the place of historical constitutionalized minority communities within the Canadian constitutional arrangement apart from the answer we already have, which is the answer of federal structures and Part II of the Constitution Act, 1982, Aboriginal rights. Finally, there is the answer of parties and political leaders understanding that the needs of Canada are best served in the long run through the realization of the self- determination rights of Aboriginal peoples. I do not have a deeper answer than that.

In my submission, I deliberately chose not to think of the Senate as the antidote. However, you make a point I had not thought of, and that is that the enhancement of partisanship, which clearly would happen under elections, could make things worse.

Senators are now deeply independent. There is room for people to say no, I am not doing that. That is a good point and a worrisome point. The only antidote I have is the hope for enlightened political choice within the current structures, and I know that is not a very satisfactory answer.

The appointment process of the sort that Professor Simeon described might well answer that. I have two problems with appointment processes. They are never transparent — consider the judicial appointment process; we have no idea what that Department of Justice process does in Canada with all superior court judges or what all the provincial judicial commissions do with respect to provincial things. That is totally lost from sight and, furthermore, it is not non- partisan. I am probably not talking about your province, where judges are always chosen on the basis of the person who is best able to be a judge, but there are some jurisdictions where that process has done nothing to dint partisanship.

I do not mean to be negative about the structure Professor Simeon advanced. It would be facile and quick of me to condemn it before I have thought about it more. However, it is wrong to think that appointment processes build transparency or non-partisanship necessarily.

The Chairman: To my colleagues and to the witnesses, we are now five minutes past the time we had planned to adjourn to go to our next witnesses. However, Senator Hubley has been waiting patiently. With your understanding and patience, perhaps we could have a brief intervention and comment.

Senator Hubley: I have a quick question. I believe the number of senators that Canada should have or that we should consider was mentioned. I think you mentioned 108. We now have 105 and, under the Murray-Austin motion, we would go to 117.

Is the number of senators sitting in the Senate of Canada an issue here?

Mr. Whyte: Yes, it is an issue because of the Senator Murray motion on western representation. He has met the western representation challenge through increasing western representation without any impact on any other representation. It has changed the number. Certainly 12 more senators does not sound like a horrible step forward for Canada, but I think there are two problems with it.

You have to admit that I am being, from beginning to end, nothing but a purist, completely unrestrained by any sense of reality. My purist view is that we need to worry about Quebec representation, and we need to worry about perpetuating the significant democratic inequality of the number of senators representing the Atlantic provinces. In the same sort of purist vein, while we are engaged with Senate reform, let us address that and get a number that works more rationally. Although I am not the person to do it, let me say that rationality might take a back seat to reality any day.

Mr. Simeon: The distribution of numbers is where it seems to me that do-ability looms pretty large in the calculations. Obviously the Murray-Austin resolution moves in the right direction. The politics of getting an amendment on that will be incredibly complex. The do-ability and the ability to negotiate are central as long as we move in the general direction of righting the imbalance that now exists.

Senator Hubley: The Yukon, Nunavut and Northwest Territories each have one Senate position. Do you feel that is a fair representation of that particular area?

Mr. Whyte: Absolutely. It is the right representation of that area. They are jurisdictions in Canada. They need to be represented in the Senate. The Senate is committed to jurisdictional representation. One seat gives them a highly inflated representation factor, but it is tolerable. It is the lowest number. Should it be more? You might argue that there are such distinctive conditions in northern governance and such phenomenally diverse communities, particularly in the territory of Nunavut with so many different peoples, that it could be more. However, more is a problem.

The Chairman: Did you want to add something, Professor Simeon? If you did, I will give you a moment.

Mr. Simeon: I completely agree with that.

The Chairman: Thank you, witnesses. You have been very good to prepare and spend this time with us. We thank you for the assistance you have given us in our work. We appreciate it.

Senators, before we hear our next witnesses, I would like to put to you a question because it will need unanimous approval. A photographer from The Hill Times has asked for an opportunity to take photographs for a couple of minutes at the beginning of our next session. Do you agree?

Hon. Senators: Agreed.

The Chairman: Thank you. We will give him a few minutes as we begin the next session.

We are privileged to now have with us our final witnesses of the afternoon, Professor David Smith, professor emeritus, University of Saskatchewan; and Professor Daniel Pellerin, visiting assistant professor of political science, Colgate University. I will ask for your comments and then we will go to the senators for their interventions. I will start with Professor Smith.

David E. Smith, Professor Emeritus, University of Saskatchewan, as an individual: ``A Constitution similar in principle to that of the United Kingdom'' — this phrase in the preamble to the Constitution Act, 1867, is frequently cited to support the claim that the Senate of Canada was modeled on the House of Lords. This is an exaggeration, if not an actual error in interpretation.

The Senate was an appointed, not a hereditary body after 1867. While membership in each body lasted for life until the retirement age of 75 was introduced for senators in 1965, the truly significant difference between the two chambers lay in the Senate's fixed membership, save for the provisions of section 26 of the Constitution Act.

There were historical reasons for this provision but the intent was clear, to limit executive influence in the affairs of the upper chamber of Canada's Parliament. Here, as in the minimum age and property requirements senators were to meet, can be found evidence of the concern the Fathers of Confederation had for the independence of the Senate. Men of property, it was reasoned, stood apart from men of political power.

Real property of $4,000 may seem derisory as a qualification for appointment to the Senate 140 years after Confederation, but the principle underlying that, and the minimum age provision, remains incontrovertible. Senators should stand apart from the political fray.

Why they thought this way can be explained, first, by the role assigned the new Senate, to protect sectional and minority rights; and second, the experience Canadian legislators had been through in the 1850s and 1860s, when government instability had become a hallmark of politics in the united Canadas.

Agreement on the structure and composition of the Senate took far longer to achieve at Quebec City than did agreement on the form of the lower house. This is a well known fact, and often commented upon today, but the significance of the prolonged debate goes unexplored.

In the 1860s in Canada, 35 years after passage of the great reform bill in Britain, no one disputed that the house of initiative and responsibility would be the Commons. Yet, unlike in Britain, where a House of Lords problem was beginning to emerge — determining its function in a new world of electoral democracy — in 1867, the year of Confederation, at Westminster we saw the second enlargement of the franchise in Great Britain.

There was no doubt in Canada what the Senate's role was to be. It was to protect vulnerable minorities. It had other tasks, such as to scrutinize legislation coming from the Commons, but protection was its primary role. It was this role that particularly required an assured measure or sphere of independence.

So certain were some Fathers of Confederation — for instance, George Brown — of this role for the upper chamber of the federal Parliament that they pressed for a unicameral provincial legislature. Ontario had no need of local bicameralism since the Senate stood ready to come to the aid of any threatened minority.

This is a discursive introduction to a specific proposal to replace the requirement that senators retire at age 75 with an eight-year term. This is a substantive change, since it is possible under existing provisions for a senator appointed at minimum age 30 to sit for 45 years. In reality, such longevity in office is rare. Most senators sit in the chamber for about 12 years.

Substantive, yes, but does the proposal found in Bill S-4 qualify in the words of the Supreme Court of Canada in the Senate reference of 1980 as ``a radical change in the nature of one of the component parts of Parliament''? If it does, then the Supreme Court advised a quarter of a century ago that such change could not be achieved by the Government of Canada acting alone to amend the Constitution under section 44, but rather following consultation and with the support of two-thirds of the provinces and 50 per cent of the population. In short, can the government unilaterally replace the age limit with a term limit for senators?

The issue to be determined is whether a term limit appointment compromises the independence of senators. Do term limits conflict with the Senate realizing its role in the political system as a repository of experience and independence? Is a 12-year term to be preferred to an eight-year term? Is that question moot if term-limit senators might be reappointed? Yet if they may be reappointed for another term of whatever limit, does that possibility compromise their independence, since the career of senators beyond the initial term depends upon renomination by the government?

Before the Prime Minister appeared here 10 days ago and confirmed his government's intention to introduce an electoral component to the appointment process, it might have been possible to argue that a term appointment of substantial length would not undermine the Senate's character as an independent legislative body. Nonetheless, the argument for independence of term-limit senators by way of comparing them with the independence of term-limit officers of Parliament, which I understand was presented here by one witness, is unpersuasive to me if only because senators are legislators, not ombudsmen.

Election, in whatever form, challenges that assumption because it links the senator to a constituency to which he or she is accountable. Such a change fundamentally alters the federal system and the arrangement of Parliament's parts as set down by the Fathers of Confederation. This is one reason why the Supreme Court of Canada needs to be asked for an opinion on the government's course of action.

Another issue is the constitutional sleight of hand that is being advocated. In the absence of national senatorial elections, the Prime Minister would recommend to the Governor General persons who have won provincial ``advisory'' or ``consultative'' elections conducted along the lines of earlier such contests in Alberta. How far can the Prime Minister's prerogative, in the selection of senators, be alienated from the people under the Constitution? How apt is the analogy sometimes heard that advisory elections, which would dictate the Prime Minister's senatorial recommendations, are on a par with the conventions that inform the operation of constitutional monarchy? On the contrary, these changes would affect the contribution of the Senate to the legislative process. Would that effect be such as to fall under the prohibition on unilateral action enunciated by the Supreme Court of Canada in 1980?

Several other uncertainties surround the matter of advisory elections. First, are senatorial terms to become part of the electoral cycle? Second, the government has promised to introduce fixed election dates for the other place. What would be the nexus regarding the election dates between the two Houses of Parliament? Some provinces have talked of holding senatorial elections at the same time as they hold municipal elections. Third, would provincial electoral laws and not the Canada Elections Act regulate senatorial contests? Although it might not be possible to answer at this time, does the possibility of some provinces moving to a proportional representation electoral system while others maintain plurality elections present a problem for elections to a chamber of a national Parliament? Would there not be a compelling argument for uniformity in this matter? What laws on campaign financing would apply to Senate elections? Fifth, what provisions would regulate the transition to an all-elected or all-appointed term-based chamber? Sixth, how frequently might senatorial elections be expected in a province like Ontario or Quebec, each of which has 24 seats in the upper chamber? Seventh, are the elections contemplated to be held at large or in districts? What provisions are to be made to accommodate the Constitution's requirements for senators to represent specified districts in the province of Quebec? Eighth, could an elected Senate force a government to go to the people? If the answer were no, then what principle would be enshrined by making the change?

Frustration with the pace and progress of Senate reform is a familiar complaint, although it needs to be said that the push for an elected Senate is less than two decades old. It is a truism bordering on the trite to say that institutions are difficult to change. Yet, it is a reality that demands study. The easy responses — that self-interest is at work or that multiple but conflicting interests act to paralyze reform — are incomplete explanations. Even where there is a committed will and a resigned acceptance to the inevitability of institutional change, it still might not happen or it might become frozen in medias res.

A prime example is reform of the House of Lords. The government of Tony Blair, in power for nine years and at its beginning backed by one of the largest parliamentary majorities in British history, has been unable to carry through its program to transform the Lords in a unitary system. The heredities are gone but the representative chamber envisioned by the Wakeham commission and subscribed to in principle by the Blair government remains unrealized. Reform takes time and concentration, while a government's perspective is dictated by the electoral cycle and the diffuse and conflicting demands on its attention. When the Blair government moved on the second stage of Lords reform after dealing with the peers, its draft legislation came under vehement attack as much from its own ranks as from those of the Conservative opposition. The reason was intra-Labour division over the Blair government's policy on Iraq.

Moreover, there was no extra-parliamentary countervailing pressure to keep government on the track of reform. In Britain, as in Canada, there is no organized public opinion in support of reform of the upper house. This is not to say that public opinion supports the status quo, but rather that it has no view on the matter of reform of the Senate unless, of course, the public is specifically asked whether the upper chamber should be changed. Left to their own priorities, the public in Canada and the United Kingdom never volunteer upper chamber reform as a pressing issue.

This is not a new phenomenon. It was the lack of a sense of purpose for an upper chamber and of its place in a Westminster-type parliament that explains the extraordinarily long time that the Fathers of Confederation spent reaching agreement on the Senate's design. The phrase ``sober second thought'' is frequently employed when describing the role of the Senate. No doubt scrutiny and deliberation are important aspects of the Senate's work but its raison d'être, at the beginning and today, is the protection of minority and sectional interests. Canada is a country historically attuned to societal diversity, especially when grounded in territory. Then, as now, members of Parliament were understood to be tribunes of the people, and the people of Canada in 1867, as they are today, were distributed unevenly among the federating colonies. A principal attribute of the Senate in its founders' eyes was that it would compensate for the leavening effect of representation by population in the lower house. They skilfully achieved their objective not just by agreeing to give smaller provinces more senators than they ``deserved'' when compared to larger provinces, but also by harmonizing the procedure through the invention of senatorial districts or regions. A variant on this theme, senatorial districts in Quebec, offered further evidence of the Father's constitutional and institutional astuteness as well as their paramount concern for protecting minority interests.

Contrary to the critics of the Senate, who label it as ``partisan'' and depict its activities as an extension of the battles in the lower house, partisanship in the upper chamber has been comparatively muted. One reason is that it took more than a decade for partisan politics in the new Dominion to take form. The impressive national parties followed Confederation. Another was that the new senators knew that they had to make their unique institution work. The experience of the elected legislative council of the Parliament of a united Canada, introduced in stages after the mid- 1850s, had not been propitious. Good candidates would not stand and the lure of the assembly proved too strong.

There was a third reason — more compelling over the long term — why a party analysis of the Senate proved to be flawed: Early in its history, the Senate developed a corporate loyalty that resisted the claims of party unity coming from the Commons. Rephrasing in Canadian language an observation once made by Disraeli: A Prime Minister may make senators, but he or she cannot make a Senate.

The foregoing comments are relevant to the contents of Bill S-4 because they provide historical evidence for the proposition that the independence of senators is fundamental to their function. Whether either an appointed term of office, renewable or not, or an elected term of office is consistent with that function, and whether an amendment to the Constitution to effect that change can be carried out under section 44 of the Constitution may authoritatively be answered only by the Supreme Court of Canada.

Separate from the preceding remarks on Bill S-4 are the following comments on the motion to amend the Constitution of Canada — Western provincial representation. According to the terms of this motion, the present Western senatorial region would be divided into a prairie Senatorial region consisting of the three prairie provinces with 24 senators — 10 for Alberta, seven for Saskatchewan and Manitoba, and a new British Columbia senatorial region with 12 senators. The intent of the motion is to lessen Western Canadian discontent at the perceived unfairness in present provincial representation in the Senate. Each of the four Western provinces has six senators currently, the same number as Newfoundland and Labrador, and fewer than the less populous provinces of Nova Scotia and New Brunswick; yet, British Columbia and Alberta are the third and fourth most populous provinces in Canada.

To my knowledge, there is no evidence to support the link which this motion purports between numbers of senators a province has in Parliament and the contentment or discontent of its residents with the political system. Westerners may complain that federal public policy is inattentive to their needs, yet federal public policy does not emanate from the Senate or from the House of Commons.

On the matter of numbers of senators, the proposed allocation is dictated by the Constitution's requirement that the senatorial regions each have 24 senators. Saskatchewan and Manitoba, whose populations are close to static, each receive one additional senator, while Alberta, whose population is growing rapidly and is close to three times that of either of its prairie neighbours, receives an additional four senators. British Columbia's senators double in number, while the new B.C. senatorial region is half the size of other regions.

Half a century ago, British Columbia and the prairie provinces were treated in popular parlance and by such agencies as the then Dominion Bureau of Statistics as separate entities. I suspect this latter practice came about because of the federal government's control of the prairie provinces' natural resources until 1930. A reading of the report of the Royal Commission on Dominion-Provincial Finances, the Rowell-Sirois report, published in 1940, conveys the viewpoint of the day. This perspective began to change after the Second World War, in part because of democratic shifts that brought about the urbanization of much of the West's population.

More than that, after 1970, the four Western provinces began to work together in many areas, transportation being one example. The Western Economic Opportunities Conference called by Prime Minister Pierre Trudeau in the early 1970s propelled this shift in perspective, particularly among the governing elites of Western Canada. For these reasons and others that I am happy to elaborate upon during questioning, I find the proposal to create a separate senatorial region antique and unrooted in current Western economic and organizational practices.

While disparate provincial populations are not the foundation of the motion, they do provide an indirect rationale for the proposal. To the extent that population enters the discussion of Senate reform, it also raises the question of representation by population in the House of Commons. This last has always been carried out within the boundaries of the provinces and has, for a number of reasons, markedly diverged from a strict rep-by-pop standard. The linkage between the two Houses in this matter may not be germane to the present discussion, except in one respect: The question of a nexus — that is, a relationship between the two — will undoubtedly be raised at some point if the motion is adopted and proceeds as a proposed amendment to the Constitution.

I do not find the argument in support of this motion compelling. For this reason, I do not think the committee should recommend its adoption by the Senate.

The Chairman: Thank you.

Daniel Pellerin, Visiting Assistant Professor, Political Science Department, Colgate University, as an individual: Mr. Chairman, allow me to express my heartfelt gratitude for this invitation. It surprised me as much as it may some of you. It is a great honour and an even greater pleasure for me to have this chance to appear here today.

I would say right off the bat that, like Professor Smith, I am quite unreceptive to the populist animus that is often directed against this chamber and that my disagreements with him are mostly because I have more expansive ideas about the glories to which the Senate might aspire. While I would not take us back to the days of the toga, I certainly believe that a modern variation on the ancient theme of an upper chamber in the best sense of the word is both possible and desirable, I would venture, perhaps more so in Canada than anywhere else at the moment.

Speaking after Professor Smith, who reviewed the ground before us so ably and extensively, I am in the fortunate position of being a little briefer at the end of the day. I will speak mostly about the general choices that we are facing today. If you would like me to comment on the specifics, then I leave that to the question of time.

It has been claimed repeatedly, especially by the government, that the specific proposals before us today are intended to stand and to convince on their own merits, but I am unconvinced. It seems to me that their tactical nature would be evident enough, even if the Prime Minister had not made quite explicit in his own testimony to this committee that the real action for which the government is looking is the move toward some unspecified mechanism for election. Therefore, instead of devoting all my time to the diversionary tactics, I will look ahead to the broad outlines of the fuller debates that we will need to have once these opening skirmishes and the diversions have passed, all the more so since I may not be here to contribute when that happens. I trust you will not mind too much if I outline the guiding principles that, in my view, are vital in making progress toward a truly well calibrated reform of this august institution.

First and foremost, allow me to stress that the alternative with which we are so often presented between, on the one hand, direct popular election and, on the other hand, the current appointment system is false on theoretical, practical and historical grounds.

One could say, as Professor Smith has in his writings on the Senate, that the reservations or the recoiling from prerogative appointments owes much to republican prejudices. I think that is true. He lays out very ably in The Invisible Crown why this mechanism of prerogative appointments has its legitimate place in Canada, as perhaps under more republican mechanisms it would not.

At the same time, there is no getting around the fact that these prerogative appointments are liable to be treated as spoils in the game of party politics. Even if such a body were constituted very well, if its members were truly senatorial in calibre, public perception will hamper its function and ability to speak to the hearts and the minds of the people. I trust that so far most of us can agree.

What almost always goes unnoticed is that the classic, modern, republican alternative to appointment — when I say ``republican,'' I do not mean the Grand Old Party of the United States, but ``republican'' it in the widest sense — is not popular but rather indirect election. I could cite the Federalist Papers on this, but I will not. An ungenerous spirit might find those papers too elitist in tone and too American in substance, so I will instead quote to you a little passage from Thomas Jefferson. He is the author of the Declaration of Independence that has often been thought of as not all specifically American but quite universalist. He was a friend of the French Revolution as well as the more British inheritance. He was a spurner of parties and said that if he could only go to heaven with the party, he would rather not go at all. Finally, he was the first American president who was comfortable with being called a democrat and can therefore not be so easily dismissed as an old elitist. Reflecting on provisions for a Senate in Virginia, Jefferson wrote the following:

I have ever observed that a choice by the people themselves is not generally distinguished for its wisdom. This first secretion from them is usually crude and heterogeneous. But give to those so chosen by the people a second choice themselves, and they generally will choose wise men.

Wise men and, of course, wise women, esteemed senators — that is what this country needs. That is what every country needs for its upper chamber. The verdict of the ages before we lost our memory in such matters was clear, and it was and remains in favour of indirect not direct election.

If we took this possibility seriously, what might appear at first sight as shortcoming of indirect election, namely that it does not confer the same level of democratic legitimacy as its direct popular cousin, is a great advantage in the setting in which we are discussing it. We need to be quite wary, and Professor Smith has written extensively about this, of giving such added political clout to the Senate that it might end up rivalling the Commons as a confidence chamber, and such concerns are once again staples in the classic republican literature.

The fact that if we did go to indirect elections we might expect less aggressive electioneering, and hope for less party dominance of the process, would add to the attractiveness.

Third, where would we turn for mechanisms for indirect elections? The obvious place would be provincial legislatures, because many would deem them to be the most vibrant and healthy institutions in Canada today, but also for the practical political reason that the provinces would have to be won over to any comprehensive reform. I will have something to say about that once we get to the questions.

Is it not the best prospect for winning provincial support to go with a scheme that would give provinces a significant role in the process, even if it would not give them all that they have been dreaming of these past two or three decades?

My fourth point is something that I developed in my own scheme and I talk about it here because that is the only significant contribution I have made, such as it is, and that would be to have an indirect election, but to focus not so much on the provinces but on regional assembles who seriously take this compromise reached at Confederation and to be able to innovate, at the same time, that we can pay homage to that compromise. It would take seriously the claims made for regional identities, because they tend not to be presented as provincial grievances but as regional ones.

Under any such scheme the provinces would not become equals. They will not get everything that they want, but to my mind those hopes are very unrealistic and a scheme that would treat regions equally and provinces equally within them is a good compromise between what is possible and what can be defended on grounds of principle.

Finally, one could think of various technical refinements using proportional representation, a system of free, nation- wide selection that would help to foster and support the election of minorities and of truly senatorial personalities throughout the country.

It is to be hoped, at the end of such a process, that we would have senatorial elections stand as a genuinely unifying moment in the nation's political calendar and no longer as a source of division and grievance.

This is not the time to elaborate on the specifics of my own proposal. I recognize that..

Let me conclude with the general lessons that are to be drawn from the scheme. Whether we might want to move in that direction, it teaches something more general, which is that it is possible to construct a viable upper house on the basis of cogent and classical principles using the institutional materials that we already have.

The underlying passion that motivated me in devising that model and that animates me today is the conviction, or at least the hope, that we can move beyond what has become all too familiar, the quick and superficial fixes, the longing but perfunctory glances at other countries' institutions. What Canada needs is not mere tinkering. It does not need an American Senate or Australian or German, much as we might admire or learn from them. Canada needs a bit of imagination at last, a bit of straying from the established patterns, a dose of truly conservative institutional pride, and a serious sense that is pragmatic and hopeful of what may be possible now and in the future.

I do not think we get anywhere with the kind of complaining, the bickering, the vying for advantage that seems to play itself out in the wider Senate debates, in general. I do not mean to say that that is what is happening here, but in the country, at large, it often plays out that way.

It is not fruitful to waver, as Canadians too often do, between grand but barren dreams on the one hand and, on the other, a kind of morose minimalism that borders on the apathetic and resigns itself to a dubious status quo — what Mr. Smith has called ``invertebrate proposals for reform'' — just because we fear that the paralysis that might result from pursuing more ambitious designs might end up as debilitating.

What is at issue is, in the end, something grander than institutional corrections. It is the political maturity of this country, one long in the making, and one that has been scarred by the rounds of constitutional negotiation that are perceived to have backfired.

I think we can do better than that. Perhaps not today, but certainly in the days to come, we need to be more ambitious, we need to heed that ancestral call to strength and freedom, to good order and good government and to do so not anywhere but right here; not at some other time but in the ensuing days and weeks and months.

What Canada needs is not just a changed or slightly improved Senate but the best Senate we can bequeath to posterity. That is our call and our duty and we should aim for nothing less. Let us make Canada proud. I have my doubts whether the proposals before us accomplish that, but that and only that can be the standard by which our work has to be measured and by which we will stand or fall before those in the years to come who will ask themselves, what did those ladies and gentlemen do for Canada at home?

Senator Fraser: Professor Smith, there was a line in your statement that interested me referring to Canada's only experience with an elected upper house which was prior to Confederation. You say that that experience was not propitious. ``Good candidates would not stand. The lure of the assembly proved too strong.'' Why?

Mr. Smith: That is a good question. Partly, it was the mid-19th century, and it was difficult finding candidates who would stand for this chamber; a chamber whose history was either as a rather arbitrary body or one that really did not have much clout. By the 1850s there was never any doubt in the Canadas, and not just in the St. Lawrence region but in Maritime Canada, that the lower house was where the action was.

I would not generalize for all systems, but where there is a second chamber and it is an electoral base, there is a calculation. If one has political ambitions, where are they best realized? That is legitimate and reasonable. That is the way one would look at this and I presume Australians do the same thing; I mentioned them because of their system.

I think that where the upper chamber is perceived not to really have much influence, or likely to have influence, it is hard to find candidates. It was not a highly literate society in the mid-19th century; that would not be true today, but it was then.

Senator Fraser: I like your comments and would like you to add in another thought.

My very scanty acquaintance with the Australian Senate and some Australian senators is that, because they have an enormously elaborate system of proportional representation, people from minority parties will run for the Senate because they know they stand a better chance of getting in than they do in the lower chamber.

Mr. Smith: That is particularly true in small states.

Senator Fraser: How would that transfer to the Canadian system?

Professor Pellerin, in light of the notion that if the lower chamber is the one with all the clout, do you think your proposals for indirect election would have an impact on the kind of people who want to serve in the Senate of Canada?

Mr. Smith: I will answer first about the Senate in Australia, if you want. I was just the external examiner on a Ph.D. candidate from the University of Western Australia on senators. It was called ``Party Professionals as Senators.''

The point you make is an important one. One cannot separate the Australian Senate from the electoral system. The electoral system they have was introduced in 1949 by a Labour government because they knew they were going to lose the election in the lower house. They had a majority in the upper house and they changed the electoral system so they would have more seats after the election of 1949. That worked for a time. However, that only works when you have two parties. When the Labour Party split in the 1950s, third parties began coming in.

In any case, what the PR system allows is that the top two candidates on that list are always elected. These are assured because that is the way PR works. The third position is more chancy, so you get into negotiations if there is a third party.

That is very important. What has happened, according to this study- and I think it is probably quite true — is that often senators are people who have earned their stripes in the House of Representatives and then are elected to the Senate. It becomes a basis very often where they use their resources to help marginal seats, both Senate and House of Representative seats. That is not to say it would always be like this, but I think it is a feature.

Returning to your first question, candidates were not attracted to the upper house in the mid-19th century because they did not have these kinds of resources and they did not see that role.

Australia can attract candidates to their upper house because the position is a different kind of career. One needs to look at the length of time and longevity as a senator as opposed to a representative.

Senator Fraser: Professor Pellerin, what would be the impact of indirect election on the kind of people who wanted to come here?

Mr. Pellerin: That is one of key reasons why indirect elections should be taken seriously. We tend to think of direct elections as the obvious remedy to everything that ails us. What we forget is how bruising, sometimes bordering on the brutal, and how filled with indignity that process of direct election can be. The question, to my mind, is a very serious one: Are not senators cut from a different fabric, or do we not want them cut from a different fabric?

There is a wonderful 19th century formulation; the exact words elude me but it was something to the effect that sensitive souls might be uncomfortable with this electoral process, and we tend to brush that away. It is something well worth considering — whether someone with a keen sense of his own dignity or perhaps a bit quieter and reflective, not so pleased with the cut and thrust and the brutalities of the political arena — whether somebody like that, under contemporary conditions, would be willing to run. I would say there are often cases where somebody would not. In many ways, precisely the people whom we would want in the Senate are the ones who are least prepared to go through that.

Indirect elections produce different results because they get around that problem. Legislatures tend to be far freer to select eminent individuals who do not have to go through that process. I do not think it is a character defect to shrink away from the process of popular election — on the contrary. I would have the suspicion — and this is an ancient one — that those who seek political power too much are probably the ones who deserve it least.

You could go back to Plato with this. Do not give power to those who want it; give it to those who shrink away from it. We have moved away from that model and I think it is a great mistake. The most worthy characters are almost guaranteed to fall through the cracks; they will not run, I think, and that is a shame.

Senator Fraser: University tenure is not usually granted for renewable fixed terms. If tenure were renewable, what would be the effect on the independence of university professors?

Mr. Smith: My own view is that the independence that is often cited of university professors is over-cited. I do not think it would have that great an effect.

Mr. Pellerin: I am probably the wrong person to ask because I am an itinerant academic who is nowhere near tenure. I would imagine that it would be more comfortable. One wonders whether the pressures that are brought to bear on academics are so forbidding. I think the pressures that are brought to bear on political figures can be much more serious.

If I think of what I have to go through in the worst-case scenario in the classroom, it does not compare in the least with what political figures have to put up with. Personally, I would simply not be prepared to take that kind of risk with my private life, where these halogen lamps might be put into every nook and cranny of my life. I do not want that, and who does? Something has to override that.

What is most likely to do that? Political ambition. There is nothing very wrong with that, but there is nothing very right either. When it comes to the Senate, that is not what we want. There we want senatorial personalities who can rise above all that.

Senator Tkachuk: I have a curiosity about something that perhaps either one or both of you can answer before I ask specific questions.

Professor Smith, you talk about the Fathers of Confederation and the establishment of the Senate. You talk about the property provisions, and also the question of minority interest protection as being a large part of the thinking.

We have had discussions here about the British influence on the Fathers of Confederation, on the establishment of the Senate. Would there not have been a strong American influence on the Fathers of Confederation when they talked about how the Senate should function? Did that exist? Their Senate was appointed, although by legislative bodies.

Mr. Smith: I cannot give an authoritative answer because it is hard to know. We do not have a written record of what occurred. There is the Pope book of hitherto unpublished documents. It is quite valuable but does not tell you very much.

They certainly were aware of the United States. In fact, they were very aware of political events in Europe. There were great political events and experimentation following the defeat of Napoleon, up to the 1860s. They knew about Belgium; they knew about the languages and the religion and all of that. They knew about the changes in France that had gone on; they knew about Mexico and about the expanding franchise in Britain.

I do not recall any one reading saying listen, let us follow what the Americans do, which is that we should have the new provinces make the selection or that it should come that way. I suspect, and it is only a suspicion, that you have to read the debates of the united Canadas, which have been largely reconstituted from 1840 to 1857. They talked about an upper chamber because they moved from an appointed upper chamber, beginning in 1855 or 1856, to the introduction by stages of an elected one. They talked more about this stuff than you might think. Maybe it is a Canadian trait. They were quite involved in an institutional dialogue, so they were aware of that.

I do not ever recall reading anyone saying this is what we ought to follow. The big question is why was Ontario unicameral. This was the largest English-speaking colony in the British Empire. It is the one that saw itself as so imperial in its attitudes. Why did it not follow the British example? This is a very important question and I think it tells us much about how the Fathers of Confederation saw the link between provinces and the central government.

As I say, Brown thought the Senate was very important to Ontario, as to all provinces. They did not see this need for some kind of separate body whose selection they would control.

Mr. Pellerin: It is safe to say that Confederation was in large part a response to continuing fears that Canadians had of their neighbours to the south. The Americans were never far from the minds of those who were debating these issues. At the same time, they would have been keenly aware, more so than we are, that they were living in a constitutional monarchy and that the Americans were republicans and their democratic instincts were worrisome. They would have had a different set of presuppositions. They would have used the American example but, unlike today, their look would not have been wistful but rather a kind of monarchical snobbery. They would have said that they are not like the Americans precisely because of being less republican and, therefore, we can go to a chamber that has prerogative appointments without feeling terribly conflicted about it.

Senator Tkachuk: Professor Smith, when you speak to minority interests, I find the property qualification intriguing. I read that Canada was a very democratic country for the time in 1867, even though British white men were the only ones who had the vote. Most men had property then, and so it was quite universal that most men were eligible to vote. Would the provision to establish the Senate not have been so much to protect minority interests but to protect their own interests? In establishing the financial criterion for appointment to the Senate at $4,000, which was significant given that people made money in those days by accumulating property, a person's wealth and influence offered protection from the commoner ever aspiring to the Senate.

Mr. Smith: Certainly, people have said that and I cannot necessarily refute it, but there is another way of looking at it. By having those qualifications or criteria for appointment, you were assured of people who were not in the pocket of or dependent on government, et cetera. What is the proof? There is a consistency in what they were doing with the upper house. It was more than a simple question of protecting economic interests.

One of the important points about the development of Canadian politics — we know that women and First Nations were excluded — is that there was a full franchise for white males. That was not true in Britain until the 20th century. With each broadening of the enfranchisement, there was a ripple effect in the political development of Britain, and that is when the Labour Party came into play. What happened to the strange death of Liberal England was the expanding franchise.

Senator Tkachuk: Despite your retirement, you are still a darned good teacher.

With respect to Bill S-4, Professor Smith, would you support an eight-year term if the constitutional requirements were satisfied? In your paper you raised the argument that it was not constitutional.

Mr. Smith: When I was first asked to do this, I had those questions. The first question was on the term limit and the second question was the term renewal. If tenures are to be open to renewal, then it alters how one might respond to the third question. Then a third question came along when the Prime Minister spoke about elections: To what degree is this term proposed? Is this only a first step of three or four steps? It was not clear to me. If you consider only terms, then I think that eight years seems rather short, but these numbers all seem arbitrary. In another publication, I had talked about 12 years.

Senator Tkachuk: For professors and senators that is a short term, but for most people that is a long time.

Mr. Pellerin: Allow me to give a broader answer to that question than you might be looking for. We have lost sight of what the Fathers of Confederation and the American founders would have had in mind when they designed these institutions: The classic theory of the mixed Constitution in which there are different component parts. There is a democratic part, an aristocratic part and a monarchical part. The rationale for the upper chamber has always been that it be the aristocratic chamber. That is unpopular in Canada today, but it is possible to give a modern interpretation to that that would serve us all well. If that is true and the Senate is an aristocratic body in distinction to the Commons and those who might not run for elections are the quieter more judicious citizens, then it needs long terms. Just as Mr. Smith has argued, I would say that eight years is too short to accomplish that and 12 years would be better. If the term is renewable, it raises those other questions.

The fundamental problem is that we need to be clear about what we want this chamber to do. Do we want a chamber that is independent and has certain traditional features and distance from the people, but not too much? In other words, it can be a classical upper chamber, even though we might want to give it a modern interpretation. In that way, we could shrink away from this idea that it is aristocratic. The contemporary debate is all about tearing into privileges and any notion of an upper chamber in that elevated sense. If we are going there, senators need long terms.

Senator Tkachuk: That might be difficult to sell in Ituna, Saskatchewan, but that is an interesting argument nonetheless.

Senator Hubley: It is important to revisit the origins of the Senate to remind us not only where we come from but also what the role originally was, and I believe that is our role today. As described in Professor Smith's presentation, protecting vulnerable minorities is its primary role.

To that end, how does an elected Senate versus an appointed Senate give us that protection? What are the advantages to both of those systems as we relate to your description of the Senate's primary role?

Mr. Smith: My initial response would be that I think an appointed body, if that is the primary role, is probably better structured to do that. I do think that elected bodies, by definition, imply obligation, duty and interest to be satisfied. An appointed body would probably play that role better.

I thought a long while about this subject years ago. People echo the phrases, ``sober second thought, sober second thought.'' I do not know that anyone in the 19th century used that phrase. I have more to do than to try to find out, but I do think this is a recent phrase. The Senate also has sober first thought, not just sober second thought. In a way, it downplays what it does and puts itself in a secondary role when it does that all the time.

With regard to interests, I see senators trying not so much to represent but to protect, they are maybe more than regional. In some ways, the Senate has developed individual rights. The Senate has shown in recent years a great sensitivity to the question of individual rights. I think back to renegotiating an extradition treaty with the United States, and the Senate raising concerns about the treaty because it looked as though individuals could be extradited to a jurisdiction where there might be capital punishment and what that meant with regard to the Charter. Eventually, the Supreme Court echoed the Senate, but the Senate said it first. The Senate, for a variety of reasons, because of time and experience, seems to hone in on these kinds of questions more directly than the lower house. The lower house has those interests, but they have other interests as well. They have constituency interests, and they have to be re-elected. Until we have fixed elections, elections can occur at any time. The radar equipment of members of the House of Commons is fixed a little differently, which is a nice balance.

Mr. Pellerin: We need to ask ourselves more often why we need a Senate. I know some figures out there do not think we do. The whole reason for having one is a certain wariness of the wildness and unruliness that democracy can produce. If we do not have that worry, we do not need an upper chamber. The founders certainly had that. It was not just minorities in our contemporary sense — visible minorities, the handicapped, women or whatever. Then it was also the protection of privilege and wealth, because there was a real fear that the mass would gang up on the few. That would have permutations throughout society.

The logic is that democracy has its place, which is why you assign the most important body democratic mechanism, and we need a counter balance to that. That logic will not fly if we are so naive in our belief in democracy. We have to say that democracies often go wrong. They are not sober or terribly reflective; they are impulsive. Politicians are chasing the vote. There is this constant hubbub. There is no room for the kind of dignity that other systems have made room for. The logic of the mixed constitutions is that we need a blend of those two. Yes, let us, by all means, make the confidence chamber one that is directly elected, but let us have a counterweight of some sort, not one that will govern from day to day but one that puts in place an alternate principle. That alternate principle is an aristocratic one, whether or not we like it, because it presupposes that the people, when in electoral mode, might go wild or, at the very least, might be prone to injustices. We do not want to hear that. If we do not hear that, I do not think we can have a discussion that gets to the bottom of the Senate because then it is not clear why we need it. If democracy is fine and there is nothing to worry about, we do not need a second chamber.

Senator Angus: Gentlemen, thank you very much for two well-balanced and creative presentations.

I would like to address some questions to the itinerant academic. I do not know from whence you come, but I suspect it could be Quebec originally; is that true?

Mr. Pellerin: That is a good guess, but quite far off.

Senator Angus: Where are you from?

Mr. Pellerin: That is a long story. I am originally from Berlin. I do have a French-Canadian wife, but she is from Ontario. I live in the United States, and I have lived in other places. It is a long story.

Senator Angus: You have a very refreshing approach to this problem. To use the vernacular, I might be tempted to say you are my kind of guy. I would like to drill down a little bit on the concept of indirect elections. What I get from both of your presentations, in slightly different ways, is that the status quo is a pretty good place to start, and then let us see what we can do to find a measure of renewal that makes sense and dispel some of the myths out there about the nature of this beast. Indirect elections seem to be fundamental to you, Professor Pellerin. Could you share with me your thoughts on how that would work?

Mr. Pellerin: The difficulty is that you cannot really give that power to the legislatures directly. That is not useful. The devil is in the details, and I spell this out in that paper.

The broad idea is that the Fathers of Confederation came up with this perhaps somewhat curious but certainly creative idea of having regions. To some extent, that logic still holds today, because even when we confront the kinds of complaints we get about what ails us, it is not usually that Manitoba complains, it is that the west complains. It is not usually that Nova Scotia has a problem, but the East. These broad categories hold up quite well. We have Ontario, Quebec, the two regions of the west and east. My proposal would be a kind of Tory reform proposal to take those regions seriously and have the senators elected by regional assemblies.

With Quebec and Ontario, the region and province would coincide, so it would be the legislatures. Some would say we cannot have that because that is precisely what we do not want. We do not want the big elephants to be dominating our affairs all the time. I understand that sentiment, but they are the big elephants and you will have to learn to live with that. They will not agree to anything that really circumscribes their power within the Confederation. That is where the cultural capital is. That is where the history is. That is where the germ of Confederation is. On practical terms, you will not be able to do much about that.

What can we do? The idea would be to gather representatives from the provincial legislatures of the two western and eastern regions — the details are spelled out — and have them form a regional assembly that would then elect senators from those regions. We would have four equivalent regions electing their senators out of those assemblies. There would be balance between perfect equivalence between those four regions. There would be perfect equivalence between the states within the eastern and the western regions. We would have a scheme of dual equality, equality within the regions and equality among the regions.

What we cannot get under that scheme is that all provinces be treated strictly equally. However, I think that is a chimera. It will never happen, and it is not fruitful to keep harping on about that.

Senator Angus: We have heard about the concept of citizens' assemblies. I am sure you are familiar with that. Is the analogy that in each of these four regions there would be created a citizens' assembly that might have other things to do besides electing senators, but one of their functions might be that?

Mr. Pellerin: The analogy is quite close. In Quebec and Ontario, it is easy because you take the legislature as it stands.

Senator Angus: I think that would be bad.

Mr. Pellerin: We could talk about that. In the regions, you would take delegations. It is close to the citizens' assembly because I would just draw them at random, draw an equal number of representatives from the provincial assemblies and have them form this regional assembly and have them elect the senators. The question then becomes, what kind of system do you use in that election?

Senator Angus: The Prime Minister was here the other day, and he was sort of dancing around and not sharing details with us, because it is a work in progress. The electoral process he was suggesting we would be seeing later in the fall. He did say one or two things specifically. One was that it would be a national electoral process, and another that the consultative vehicle would be created by the federal government. That was my sense of it. Could that work? Could the federal government create the so-called citizens' assembly for each of the four regions?

Mr. Pellerin: It is not really created by the government.

Senator Angus: If it was the Legislature of Ontario or the National Assembly of Quebec?

Mr. Pellerin: I think it would be national in a different sense. You would have these legislators in the regions, but under my scheme they would be free to choose nationwide. No one would know what the outcomes would be.

The unifying moment would be that there would be a Senate election day. We could all sit in front of the television, and we would not know at the beginning of the day who might get elected. How that works in detail I cannot spell out, but it would be eminently national because you have a national Senate election day and no one knows what is going to happen.

It would also take seriously the regional identities because it would be in regional assemblies these elections are made, but it would build upon the strength of the provinces because the provincial legislatures would actually sit in those assemblies.

The electoral mechanism I have in mind, which would be the single transferable vote that is a kind of proportional representation, and the kind of distance from party that indirect elections generally produce, would produce a much wider range of choices.

Therefore, these legislators and their assemblies could decide who they really want to choose as a senator. Then they would vote secretly, by a proportional system, and there would be repeated balloting. I think it would be possible at the end of the day to get their best choice.

Senator Angus: At the end of the day, would it be mandatory for the Prime Minister to appoint those people?

Mr. Pellerin: This would have to be worked by amendment. I think an amendment could work because —

Senator Angus: If it were not mandatory, I am told that an amendment would not be necessary. You could do it under section 44.

Mr. Pellerin: Possibly. It would work with the contemporary elements, but it would recast them in such a way that the honest thing would be to go to the provinces and tell them this is the best deal they will get. They can keep chasing the Triple-E Senate until everyone is green in the face, but you will not get it.

This proposal is not ideal and only gives some of what is desired, but it gives everyone something and nobody everything. I hope they might at least be prepared to negotiate on that basis. This is where the proposal comes from. If they are not prepared to negotiate on that basis, if it is always me, me, me, we can forget this entire enterprise of living together. It does not work that way.

You have to be prepared to make concessions to your neighbours and be prepared to question what a fair principle is and not always look to your own advantage. If we lose that, then we have a much bigger problem than the reform of the Senate because then we must ask ourselves if this is a political community or a kindergarten full of squabbling.

Senator Angus: That is food for thought. I have one more specific question. I think Senator Tkachuk was going in this direction and you went off on an interesting side track.

If Bill S-4 were to be linked to an indirect election process, would you be able to support it in principle as a first step?

Mr. Pellerin: The key would be how it is linked. I still think that an eight-year non-renewable term is too short and eight years renewable is too problematic. That has something to do with the fact I think length of tenure is essential. I also think 50 per cent more is quite a bit.

Senator Angus: You think a 12-year non-renewable term is just fine?

Mr. Pellerin: Yes, if you could find a way to link it up. I would propose a 12-year non-renewable term, as would Mr. Smith and many others.

Senator Murray: There has been passing reference in the last couple of days to various aspects of the United States Senate and the Australian Senate. I want to recall for the record and for possible comment by our witnesses the fact that the state governments in Australia and the United States are far weaker in terms of constitutional powers than are our provinces.

When we were in Australia six or seven years ago, Senator Fraser and I under Senator Hays' leadership, we were told that 70 per cent of all the revenues collected in Australia went to the central government.

I think it is fair to say that the existence of a strong, equal and elected Senate with real powers in Australia, as in the United States, is to some extent to compensate for the relative weakness of their constituent states in constitutional terms.

Professor Smith, you will not be surprised to hear me say that I found your arguments against the government proposal to be lucid and compelling and your arguments against my proposal to be utterly without merit.

No one pretends that the Senate was ever intended to be based on representation by population, nor are Senator Austin and I trying to move in that direction. However, from the beginning, provision was made by the framers of the Constitution to increase Senate representation of Manitoba, Saskatchewan, Alberta and I believe British Columbia as their respective populations increased. The problem was that we stopped doing that in 1915.

Every proposal that I have seen for an overall reform of the Senate has included in it some measures to increase the representation of the Western provinces, principally British Columbia and Alberta, in the Senate because that imbalance stands out so blatantly as an inequity here. The issue is not whether we are creating a new region or half region with British Columbia. That was done in terms of the regional vetoes act, post-1995 referendum.

Therefore, I think that a strong case can be made and must be made for increasing the representation of Western Canada in the Senate, that it can be made now and we should give it a try. We are doing something that has never been tried before. We are initiating a process in the Senate. If we pass the motion, it goes on to the other players in the process and we will see what happens.

Prime Minister Harper says that his proposal, Bill S-4, stands on its own merits and should be passed even if nothing else were done by the Senate. I do not agree with him there.

I do say that even if no other change is made in the Senate, a strong case can be made for increasing the representation of Western Canada. I will not go through the numbers in terms of percentage of the population and seats in the Senate, but it is not a radical change. However, it would improve representation.

Professor Pellerin, you have been asked a number of questions in the last few minutes, some of which I was prepared to ask myself. The one matter that remains unaddressed is whether you have thought through the powers that you attribute to the indirectly elected Senate.

Mr. Smith: You mentioned in your opening remarks that in the United States and Australia there is equal representation in the Senate in those countries. That is all quite true, but those are not state houses. They do not act as state houses.

I have reason to know Arkansas rather well. If you think of Arkansas and Senator Fulbright, you think of that individual not as a senator of Arkansas but as a national and international political figure. Senator Church of Idaho was a national figure. Those senators are not state representatives. If you want localism, you must go to the House of Representatives.

Senator Murray: I think the United States is the only country in the world that could afford a Senate such as they have. I appreciate what you have to say about people like Fulbright and Church and many others, but the fact of the matter is their ability to pile on budget proposals and appropriations proposals is enough to make a fiscal conservative despair.

They do act as state representatives. Look at Alaska. Ted Stevens is a very important senator in national terms, but boy, does he look after his state.

Mr. Smith: In Australia it is usually said the Senate is a party house and not a state house. It is a state party house. The state parties control who sits in the Senate at Canberra.

I recall during the election campaign when the Prime Minister was speaking, I believe in British Columbia, about seeing the Representation Act altered so British Columbia would have additional members in the House of Commons. I am not sure if it is appropriate for me to ask a question.

With respect to the degree to which the House of Commons became more in tune with rep by pop, it is so far out of tune with rep by pop —

Senator Murray: British Columbia, Alberta and Ontario are the only provinces that are not overrepresented in the House of Commons.

Mr. Smith: Saskatchewan should have nine representatives. To the degree you brought the House of Commons back to a rep by pop basis, how would that affect the arguments regarding restructuring of the Senate?

What has happened in Canada is that the House of Commons representation has been used to satisfy two quite different imperatives, rep-by-pop and region. It has reached the point where it is almost impossible to marry these in any intellectually coherent way. It is also when you come to draw the boundaries within the province for the seats of the House of Commons.

Senator Murray: Tolerance of 25 per cent is far too much.

Mr. Smith: It is not people being represented. When I read John Stuart Mill I thought it was people. What are we representing here?

Senator Murray: Communities of interest.

Mr. Smith: ``Community of interest'' has multiple definitions. There are real problems with representation, and that is part of the difficulty here and part of bicameralism.

The Chairman: What about powers in a directly elected second chamber?

Mr. Pellerin: Let me say something about the U.S. Senate because the Senate is always the model looming in the background here.

We need to recognize what a different institutional genius that body is part of. The U.S. system is not parliamentary but presidential. The logic focuses on obstruction of government at every end. That is by design and it is not compatible with peace, order and good government as we understand. This great compromise that is always brought up in this debate was in fact not a much of a great compromise at all. If you read Madison, he was displeased. It was a great extortion. This was only possible because the United States was coming out of a system of government that had almost lost them the war of independence, the articles of Confederation in which all the states were represented equally, and it was because of that status quo that the smaller states were able to push on the bigger states this supposedly great compromise because it was for the greater states an improvement. However, the greater states did this grudgingly and it had everything to do with the historical context. Under other circumstances, they would never have accepted it and under contemporary Canadian circumstances, it is difficult to see how they would accept it here because the status quo is not much more attractive.

On the subject of power and functions, I would not want to change drastically the powers and functions of the Senate. It is not necessary.

The body as it works has many things going for it, but it needs its resolve stiffened and needs to be able at times to have the confidence to speak on issues with more authority without the fear of being told they do not have the legitimacy to do so. Indirect election would give them some level of authority when they pronounce on things but not so much that they would be an actual counterweight to the government. If that were in place, the balance between the institutions would be just right.

One could go beyond that. There are certain lacunae in the Canadian system of government that one could address by means of a reformed Senate but not the present one, the appointment process for the Governor General, perhaps, or the appointment of justices — these are areas where by default we always go to prerogative appointments. Is it because we think it is brilliant? No, it is because we cannot think of anything better to do and the Senate might give us something better to do.

The current Senate would not work. You cannot do that. You could do it if it were upgraded slightly by this device of indirect election. If the calibre of senators was beyond question, if it were not a partisan body and not answerable to the day-to-day political pressures, then Canadians would look to it with a great deal of pride, which at the moment, they do not, but which they ought do. Then we could think about whether we could use that Senate to solve our other problems. Start with the Senate, build out to use it as a device for fixing much of what ails us. There is a lot ailing us. There is a real lack of good solutions, and when we cannot think in Canada of a better thing to do — it has been true for the last 150 years — we go to prerogative appointments. Everyone hates them, but we stick to them because we cannot think of anything better. That is not good enough.

Senator Watt: Let me start off by saying that maybe the North is an elephant, not being able to deal with matters that are of concern to the North over the last number of years, since I have been in the Senate for 23 years, even though I have made some achievements, but never quite get to the point where I should.

That is the reason I say that maybe the North should be considered an elephant because it does not quite fit. Their concerns and their lifestyles are different from the southern atmosphere.

The North requires an increasing voice, and a voice that should be heard. At this particular time, I do what I can, but I feel at times I do not get my message across in a way that the message should be understood. What is happening in the North will have an influence, and it will impact on the future to come to the South.

For that reason we should try to find a solution to increase the voice of the Inuit and to be heard at the same time.

Professor Smith, you indicated that the Aboriginal people are not a minority in this country, but rather, they are the first inhabitants and have specific rights recognized and affirmed in the Constitution of this country. I believe you made that statement.

I was here when Senator Pitfield made a statement in the Senate, talking about sectorial interests, meaning a class of people with a common interest. You have also stated that fact, that that is something that we should be looking at.

Do you agree that Aboriginal people are truly examples of sectorial interests? Knowing the fact at this present time, the Senate does not provide a guaranteed seat for the appointment of Aboriginal people in the Senate. I am an individual Inuk from the North, appointed not because I am an Inuk person but because the person that appointed me felt that I could do a job and represent the people in the North. That was one reason I was appointed to the Senate.

I would ask both of you to try to help us to find some solution. How do we deal with sensitive issues, not only some sensitive issues, but also very important issues?

Let me go back to a piece of legislation I dealt with, namely, cruelty to animals. It does not matter how much I tried to express the fact that this will have an impact on our people's economy and well-being. Nonetheless the bill went through.

A gun law was also put forward by my own party. That had a great deal of impact economically on our people. In other words, we were set back. We were at the point of putting ourselves in the position of bankruptcy.

Due to the fact that we are very small in numbers, we do not hold significant political weight, but the fact is we are part of Canada. I am trying to find some way to integrate myself into the system so I can have a more effective voice within the system and that does not exist today.

You speak of regional proportional representation. I am not sure whether that would answer my concern, but it might to a certain extent because at this point I do not really care whether candidates are elected or appointed. I still have the problem whether senators are elected or appointed. This is an important matter. If we are to help to advance this country's well-being, then we Inuit have to have a place. I cannot speak for the First Nations at this time, although their concerns are similar. How do we accommodate that? This has been a preoccupation of mine for the past 23 years of trying to find a solution to overcome these hurdles. I leave that question with you.

Mr. Smith: Senator, you raised a number of issues. First, Inuit and First Nations people are a numerical minority and in any kind of representation by population system they will have a small representation.

You mentioned PR, which one would have to look at more closely. I am not sure that PR would work all that advantageously for numerical minorities. Usually, where PR exists, it is controlled by political parties. It is the nomination that matters because it matters in our own plurality-based system. That determines where your name is on the list. If you are at the top, then you are elected; if you are in the middle, you might get elected; but if you are at the bottom, you will not get elected. It depends where the party puts you on the list.

You raise the question of territorial interest and representation. In some ways it seems that the Senate, as currently constructed, does a better job of that than perhaps a system of territorial representation would do because it is not territorial representation. The Senate has pointed out that proportionally there are more women in the Senate than in the House of Commons, or that there are more First Nations individuals, et cetera. Some people might say that this is not good enough and perhaps it is not good enough from the point of view of equality in electoral politics. However, it might be on the road to being good enough in terms of getting a voice, to some degree. There are always multiple interests.

Canada has a large territory with relatively few people that are distributed evenly. Any system that tries to deal with it in an equitable way in terms of numbers will not work. How do you counterbalance that? There was a time when there were dual-member seats, such as in the Maritime Provinces to take into account Catholic and Protestant populations. Parties would nominate one candidate each and they would be elected from one or the other of the predominant religious groups. Some people have suggested that they should have dual-member seats in respect of gender whereby one candidate would be male and the other female.

To some degree, the NDP has talked about nominating a certain number of women. You can get into these structural discussions but it is not of much help to you; and I am sure you have thought about all of this. I am sorry that I do not have an answer to the problem. It is a question of how adequately representation can serve your purposes.

One thing that distinguishes Canada from Australia and the United States is that it has representation from the territories. That goes back to 1885 when the Northwest Territories was given representation in Parliament in Ottawa when it was still a territory. There was no representation for Puerto Rico in Washington and no representation for the Northern Territory at Canberra. There, representation in the national Parliament signifies that you are a full member of the federation. It has never meant that in Canada, although I do not know why that is. There is something about the way Canadian politicians have perceived representation that, if not distinctly Canadian, is certainly unusual. It is important but it tends to be overlooked because we are talking about small numbers.

Mr. Pellerin: Everyone recognizes that the North is central to this country's identity and to its mythology and because of that mythology, to its culture. Everyone understands that and it is important. We see it all around us, even in this chamber. At the same time, this is also an immigrant society with layers of people who have arrived at various times throughout history. The principle of who was here first cannot be the only consideration. While numbers cannot be the only consideration, either, I put it to you that my proposal would preserve single senators for the Northwest Territories, Yukon and Nunavut. That means that whereas in those territories, a single senator would represent 30,000 to 40,000 inhabitants, nation-wide it would be closer to 300,000 inhabitants. I accept the cultural weight and how serious an issue this is but we cannot ride roughshod over the interests of the rest of the country. This must be balanced.

I do not know whether senatorial representation at the current levels is adequate. It might go up under my scheme, but I am prepared to bet that it would not go down. We should not go down the path of setting up quotas. This could be done and will be done if popular feelings are represented in the kind of indirect scheme that I have in mind. It will filter through what we value today, which is our Aboriginal heritage, which was not always the case. I want that preserved but we cannot drastically over-represent and still find it inadequate. This happens in Canada all the time. The Atlantic Provinces are drastically over-represented and it is still not enough. The West says that it is under- represented relative to the East, but it is over-represented relative to Ontario. We are always playing the game of seeing what the Joneses have. I do not see principles behind that. We have to say enough. If there are one or two senators from the North, relative to their numbers they are over-represented tenfold or more. To speak of a glaring problem of under-representation in light of those figures downplays the equal weight that all the citizens in this country are entitled to.

The Canadian problem is not undue attention to minorities, although it might have been the problem before. Today, the problem is that we focus so much on minorities and we are so keen on carving out either explicit or informal quotas that we lose sight of the fact that one person's over-representation is someone else's under-representation. It is not right to lose sight of that. It requires a delicate balance. One has to be careful that where there is over-representation, those de facto privileges must be appreciated and acknowledged.

The Chairman: I thank Professor Smith and Professor Pellerin for appearing before the committee today.

The committee adjourned.