Proceedings of the Special Senate Committee on
Senate Reform

Issue 5 - Evidence - (Morning meeting)


OTTAWA, Thursday, September 21, 2006

The Special Senate Committee on Senate Reform met this day at 9:01 a.m. to study the content 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 this meeting to order. This is a meeting of the Special Senate Committee on Senate Reform. I welcome our guests and our television audience. For the benefit of our listeners, I will briefly explain the purpose of our deliberations.

Last June, the Senate asked our committee to study the substance of Bill S-4, the government's proposal to limit the terms of future senators to eight years, as well as a motion by Senator Lowell Murray, seconded by Senator Jack Austin, to increase the representation of the Western provinces in the Senate.

[English]

Our first guest this morning will be Professor Patrick Monahan, Dean of Osgoode Hall Law School.

[Translation]

Afterwards, we will welcome our former colleague, the Honourable Gérald-A. Beaudoin, Professor Emeritus, Faculty of Law, University of Ottawa, and Mr. Gérald Tremblay, from the at McCarthy Tétrault, law firm.

I now invite our deputy chair, Senator Angus, to say a few words.

Senator Angus: I would simply like to add a personal comment as the deputy chair of this committee.

[English]

In my respectful view, the Senate of Canada has served Canadians very well since it was established in 1867. More than 850 distinguished Canadians have passed through the upper chamber and they have rendered, for the most part, valuable service to Canadians in a wide range of ways. As in most areas of our socio-economic life, our institutions should, and in many cases do, eventually evolve with the times.

Bill S-4, which the chairman has referred to and we are reviewing, is but the first stage of a long overdue reform process that the present government has undertaken to implement, with a view to renewing the Senate of Canada. These hearings are designed to afford Canadians a unique opportunity to hear informed debate on the specific issues involved with the bill and on a wide range of other issues related to Senate reform and renewal.

[Translation]

We sincerely hope that these sessions will represent the first step in a process that will result in a reformed Senate, one which will be able to play its role as a House of sober second thought as far as legislation and the production of excellent public policy for all Canadians and all regions of the country are concerned.

[English]

The Chairman: Professor Monahan, please proceed.

Patrick J. Monahan, Dean, Osgoode Hall Law School, as an individual: Thank you, Mr. Chairman and Mr. Deputy Chairman. It is my great pleasure to appear once again before the committee where I look forward to another vigorous and stimulating discussion.

By way of disclosure, I should indicate that earlier this year my advice was sought as to whether Parliament, using its powers under section 44, could introduce a change in the tenure of senators to an eight-year or other term from the current mandatory retirement at age 75. I was consulted by the government and my view expressed at the time was that Parliament does have the authority to do so under section 44. However, I was not retained by the government and I appear this morning on my own behalf. I am neither appearing on behalf of anyone else nor constrained in any way in what I am able to indicate to the committee.

Senator Angus: Of course, you will not be changing your opinion today.

The Chairman: We will see.

Mr. Monahan: There will not be much suspense, Senator Angus, about my view. Although I will discuss the certain subsequent developments that could impact my view, I still hold that the proposed legislation is constitutionally valid.

I apologize for not having prepared a written brief. Given the difficulties of my current day job, I was not able to do so. Nevertheless, I hope this discussion will be of some assistance to members of the committee.

The beginning proposition is to examine Part V of the amending formula in the Constitution Act, 1982, in order to determine whether Parliament or some other institutions have the capacity to enact a measure such as that set forth in Bill S-4 — to limit the term of senators to eight years rather than the current retirement age of 75. The relevant provisions have been discussed with you. I have seen transcripts of the earlier testimony and, as my colleague Professor Hogg indicated, section 44 of the Constitution Act, 1982, states that subject to sections 41 and 42, Parliament, through statute, may change the Constitution in respect to the Senate of Canada. Sections 41 and 42 contain a number of matters listed; including the method of electing senators and the powers of Senate, but the tenure of senators is not identified. Therefore, it would seem that, on the face of the provisions, Bill S-4 is valid pursuant to section 44 of the Constitution Act, 1982.

One question that has been raised — yesterday by Senator Murray and previously by others — is the fact that in an earlier decision, the 1980 decision of the Supreme Court of Canada in the Senate reference, the Supreme Court of Canada there said that fundamental or essential features of the Senate could not be changed by Parliament alone, at that time acting under section 91(1) of the Constitution Act, 1867, or as it was then known the British North America Act, 1867.

So the question has been raised as to whether, in addition to the matters identified in sections 41 and 42, which are carved out of the power in section 44, it could also be argued that a fundamental change or a change in the essential character of the Senate would similarly be carved out of section 44 on the reasoning of this 1980 Senate reference decision by the Supreme Court of Canada. Indeed, Senator Murray, I believe referred to a passage in the second edition of my textbook on constitutional law, which he seemed to believe supported that view, namely, that there was a carve-out of section 44 of any matters that are fundamental or essential to the Senate. With the greatest respect to the honourable senator, I do not feel that is the correct interpretation of the relationship between section 44 and the other parts of Part V.

My view would be that the enactment of Part V by Westminster Parliament in 1982 has superseded the Senate reference or indeed attempted to codify, to identify those matters that were found to be fundamental or essential and to specify those matters in sections 41 and 42. In fact, there is nothing in section 41 that deals with the Senate; it would be matters in section 42. Going forward, then, we have clarity as to who or what institution has the power to change the Senate. Those matters that are fundamental or essential are identified in section 42. The Parliament of Canada, through section 44, may enact changes to the Senate, including the tenure of senators.

That is consistent with the pre-1980 situation or the pre-1982 situation. In 1965, Parliament enacted a change in the tenure of senators by introducing the retirement age of 75. The provinces did not consent or participate in the enactment of that change to the tenure of senators. Even if we were to take a different view about these fundamental or essential characteristics, the pre-1982 history supports the proposition that Parliament may act in these matters. Of course, the Senate itself must agree to any such change because, although on certain matters the Senate may be overridden or on certain Constitutional amendments has merely a suspensive veto, section 44 changes require the concurrence of the Senate. Presumably, the drafters of the 1982 Constitution regarded as an appropriate safeguard that the members of the Senate would ensure that proper regard for the institution of the Senate would be given in any proposed change.

Is there any other argument that could be made against the validity of Bill S-4? There could be other arguments. Let me deal briefly with the most significant one, although my view is that this argument would not be accepted by a court. A change to the tenure of senators as a stand-alone measure can be enacted by Parliament under section 44. However, this is not, in reality, a stand-alone measure because it is part of a larger package intended to achieve the election of senators. Parliament or the government would not be proceeding with Bill S-4 in isolation because of certain consequences that might flow from the bill if it were enacted in isolation. Therefore Bill S-4 should be viewed as part of a larger package that is about the method of selection of senators.

If I were to make this argument, I would say that as a stand-alone measure Bill S-4 has certain significant consequences. Gordon Gibson, in his testimony yesterday, identified some of the issues that might arise. For example, as Mr. Gibson pointed out that under Bill S-4, if enacted as a stand-alone measure, within eight years a Prime Minister would be able to appoint all the members of the Senate. This would mean subsequent governments could face a Senate appointed 100 per cent by the previous prime minister. As no prime minister would want such a situation, this must be part of a larger package. There must be something else that fits with Bill S-4 to make it a complete package. What is that something else?

The Prime Minister appeared before the committee on September 7 and indicated that this fall the government intends to introduce legislation to provide for advisory elections to assist — and I am assuming this would be the interpretation — the Prime Minister in advising the Governor General as to who should be summoned to the Senate. To lay out the argument again, one could say: We have not seen the full package yet, it is behind a curtain. We have only had the parlour curtain, half the stage is revealed. Here is part of the package, which is Bill S-4, but behind the curtain there is another part, which is this legislation that the Prime Minister spoke of.

Therefore, it could be argued, that Bill S-4 is really about the election of senators and thus goes beyond a section 44 matter and is really in section 42.

Now I will tell you that I do not believe that is the correct view. This is what we do in law school — on the one hand and then on the other. Now it is on the other.

Senator Dawson: We do that in politics too; sometimes we have three hands.

Mr. Monahan: Having read the media reports of the Prime Minister's testimony at the committee, I thought it was important to review that carefully. He indicated to the committee that although the government does intend to introduce legislation this fall, that Bill S-4 is worth doing on its own merits. He stated:

The government has proceeded with this first because it believes Parliament can act, without engaging other levels of government in a complex constitutional discussion or amendment process. Quite frankly, I would put it to you that terms of this duration —

— namely eight years —

— even if nothing else happened, would enhance the legitimacy of the Senate.

The Prime Minister has indicated that in his view, and in the view of his government, this is a matter that they regard as worth doing even if nothing else happens. I also think it is relevant and persuasive that the 1984 joint committee of the Senate and House of Commons, co-chaired by Senator Molgat and then member of Parliament Paul Cosgrove, recommended a comprehensive package of reform to the Senate. Recognizing that that comprehensive reform would engage the amending formula and would require discussions with the provinces the committee went on to recommend that Parliament, acting under section 44, should amend the terms of senators such that senators would sit for a nine-year, non-renewable term.

They also recommended some other interim changes of a non-constitutional nature. For example, they recommended that the Senate, through changes to its rules and practices, operate to act as though it had a suspensive veto only, and to work with the House of Commons to change indirectly or through practice to diminish the legal powers that the Senate has by acting in accordance with a certain limited conception of the powers of the Senate in relation to the House of Commons.

However, the point is that a joint committee of Parliament in 1984, in a very learned and scholarly report, recommended the enactment of a term limit similar to this term limit and said it was worth doing on its own. Therefore, the Prime Minister's statement is supported by that; it is a credible position. Whether or not one agrees with a term limit as a policy matter is not a matter for the courts. Whether a term limit should be eight or 10 years, whether or not it should be renewable, is a matter for Parliament and not for the courts.

Therefore, the better view is that Bill S-4 is a stand-alone measure. In fact, it is being presented as such. It is not linked to any other legislation. There is no guarantee that if other legislation is introduced, that it would be enacted by Parliament.

Although there is this argument that I think could be made, the better view is that Bill S-4, as a stand-alone measure, is valid and can be enacted by Parliament pursuant to section 44 of the Constitution Act, 1982.

Let me briefly refer to the resolution that Senators Murray and Austin have introduced to increase the membership in the Senate, which is being introduced as a constitutional resolution pursuant to sections 42 and 38. It requires the support of seven provinces representing 50 per cent of the population, as well as the Senate and House of Commons. It is also subject to Bill C-110, the so-called regional veto legislation, in that if a minister of the Crown wishes to introduce a resolution providing for the enactment of that amendment, the consents referred to in Bill C-110 must be obtained, which are known to honourable senators. That would only apply if a minister of the Crown introduced the resolution. If a member of the House of Commons who is not a member of the government wished to introduce the resolution, he or she could do so but I assume the government will wish, as a matter of policy, to abide by the policy underlying Bill C-110.

Honourable senators, those are my opening remarks. I would be delighted to answer questions or comments that members of the committee may have.

Senator Austin: That is a very helpful contribution to the discussions we are having, Dean Monahan. On the last point, to be clear, this resolution is introduced in the Senate. Should it be passed by the Senate, it would be received in the House of Commons as a message from us and, therefore, would not need introduction by a minister of the Crown in that chamber to be properly before the House of Commons. I think you would agree with that. I want to make that clear on the record.

Mr. Monahan: That is fine. I have no difficulty with that. I would simply say that I would assume that the government would wish to abide by the underlying intention of Bill C-110, which is to secure the consent of the provinces set forth in Bill C-110 before proceeding with an amendment under section 42.

Senator Austin: I would agree with that and that is probably good political advice as well. Otherwise, the measure would look quite hypothetical at a political level.

What I was thinking while you were evolving the alternate, but not acceptable to you, argument with respect to the constitutionality of Bill S-4, is that we saw in the media in the last few days a statement by Premier McGuinty of Ontario that while he has no comments to make about the term, Ontario would aggressively oppose any measures that would introduce the selection of senators by election, whether direct or indirect. We have also seen Quebec take the position that the only acceptable method of "electing" senators would be by the National Assembly.

Suppose Premier McGuinty consulted you and asked you to make your best argument with respect to that aspect. That is not before us in Bill S-4, necessarily. What would the arguments be about the overall scheme, of which Prime Minister Harper has acknowledged this may be a part — it is severable, it may or may not be a part — but what would Ontario's best constitutional argument be?

Mr. Monahan: This is in reference to legislation that has not been tabled at this moment, which is legislation to provide for some kind of consultation of an advisory nature with Canadians with respect to the selection of senators. I think the argument would be straightforward. It would be that this is, in substance, an attempt to elect senators. Therefore, although styled as an advisory consultation, it is in substance an attempt to change the method of election of senators.

I think it will be important to review the terms of any legislation that the government introduces, with a view to examining whether this is genuinely an advisory process that does not legally constrain the ability of the Prime Minister to advise the Governor General.

Senator Austin: What if the Prime Minister constrains himself politically by saying — as he certainly would be asked if such legislation were before Parliament — "Will you select those people chosen by the electorate in whatever manner is deemed to be chosen?" In other words, he concedes that his power of recommendation to the Governor-in-Council is committed to the scheme.

If the Prime Minister says, as I understand your argument, "I may or may not, that is strictly up to me. It is my decision under the 1935 Mackenzie King Order-in-Council whom I might recommend to the Governor-in-Council." However, he will be asked, "How can the scheme be valid if you are not committed to make the appointment?" That was, of course, the argument that finally led to Senator Waters' appointment out of Alberta. I agree that Prime Minister Mulroney made it clear that he was not committed before he made the appointment, but that was the argument. You have my point.

Mr. Monahan: I distinguish between legal constraints and political commitments of various kinds. Any attempt to legally constrain the ability of the Prime Minister to advise the Governor General in respect of appointments to the Senate would require a constitutional amendment pursuant to section 42. As for a political commitment by the Prime Minister, it depends on the precise nature of how that political commitment was expressed and in what form it occurred. If it was truly of a political nature and not legally binding, then it seems to me it would therefore be appropriate to say that you have not in fact changed the amending formula. Again, it would require, senator, me to comment on a hypothetical bill or some other set of arrangements that we do not have before us, so I would not be able to express a view on that at this time other than to say that I think that would be the appropriate test to apply in the circumstances.

Senator Austin: I recognize that none of us can be categorical, but you have introduced the argument, and I appreciate it, with respect to a scheme of arrangements that might purport to do indirectly that which could not be done directly. It would have to be done under section 42. We are looking at the steps. If a provision in such legislation committed the Prime Minister to appoint whomsoever the electorate chose for the Senate, I am hearing you say that would be a section 42 legislative project.

Mr. Monahan: No question, because there Parliament by statute, or the government by some other instrument that bound the Crown, purported to limit the ability of the Prime Minister to advise the Governor General, and yes, that is a change to the amending procedure. To clarify, I raise this issue of election only to say that that is relevant to Bill S-4 because, in my view, Bill S-4 must be a stand-alone measure to be properly seen as falling under section 44. If it is not a stand-alone measure, if it is inextricably bound up with some other measure, then it must be assessed from a different perspective. I indicated to you that it is my view that there is a better argument to say that it is in a fact a stand-alone measure. The negative consequence that Mr. Gibson identified yesterday, namely the fact that a Prime Minister would appoint all of the senators within eight years, is a policy matter for this Senate and the House of Commons to deal with, not the courts.

Senator Austin: I appreciate what you have said. I am not trying to lead you away from that proposition, but simply to clarify for this committee some of the constitutional precepts on which we are basing our discussion.

We found Chief Justice Dickson's decision making it clear that there were constitutional conventions that the court would govern. You may remember how unhappy Mr. Trudeau was with the decision in 1981, which was an advisory decision.

Mr. Monahan: I do remember. I was a law clerk to Justice Dickson at that time.

Senator Austin: I am asking the right person. Do we still have that Supreme Court approach? I hesitate to call it a doctrine. Is there within our constitutional process still a set of precedents or a major precedent of the Supreme Court of Canada that indicates that while Bill S-4 may be legal, it is contrary to the conventions of the constitutional amending process which call on anything that affects the provinces? The Senate has always been the subject of provincial importance. Is there anything in the conventions that could apply to Bill S-4?

Mr. Monahan: First, the issue of constitutional conventions is that they continue to exist and play a central role. Indeed, the conventions of responsible government themselves surround section 24 of the Constitution Act, 1867; namely, that the Governor General, in summoning to the Senate, will always act on the advice of the Prime Minister. However, your question, I take it, is whether there is some constitutional convention that would say that a change in the retirement or tenure of senators could not be enacted without the consent of the provinces. I say the only precedent or the leading precedent is the 1965 amendment to the retirement provisions for senators which imposed a retirement age of 75, to which the provinces did not consent and did not participate. I see no precedents for such an approach, and I see no statements by a prime minister or other senior figure in the Canadian government that would indicate that such an approach is binding on the government. Therefore, senator, I would want to consider more if there were further arguments, but my initial reaction would be that I do not think that a constitutional convention could be sustained.

Senator Austin: The argument —

The Chairman: I am sorry, but if we are to stay on time —

Senator Austin: The whole discussion leads to this one topic.

The Chairman: We are quite a bit over time.

Senator Austin: I will not intervene again this morning, but I would like to put this question.

The argument is that the independence of the Senate, which is an essential feature or character of the chamber, is affected by the change from the 75 age limit to a term, whether it is eight or whatever it turns out to be. There was no essential change from life to 75 because the age expectation was roughly, at that time, 75, but here the argument is that essentially the independence of senators can be affected by the nature of the term proposed in this bill.

Mr. Monahan: It is helpful to articulate the argument in those terms. I would say, though, that there is still no evidence of a constitutional convention. The fact that the term proposed is of eight years, which is the term proposed in Bill S-4, is relevant to this. You referred to the independence of the senators and the Senate, but one could say that the powers of the Senate require that the Senate can act as a chamber of — to use the phrase — sober second thought, or independent thought. It also represents regional interests. However, there is an important role dating back to the original negotiations of the Senate that is removed from the House of Commons, and it plays that role.

Senator Austin: It is a check and balance on the executive.

Mr. Monahan: Yes. If, for example, the government or this bill were to propose a term of two years for senators, then I think an argument could be made that that potentially impairs the powers of the Senate, which is a matter under section 42. That argument would not be based on some sort of nebulous argument about the conventions, which, with all due respect, senator, is not a persuasive argument, but rather that in so changing the terms of the Senate's tenure, you could be said to have touched on the Senate's powers and senators' ability to act in the constitutional manner as intended. I do not think that could be said of a term of eight years. The Molgat-Cosgrove committee thought a non-renewable term of nine years would be appropriate, and we are close to that. Although I can see how that argument might work, if someone were to challenge Bill S-4 in the courts using that as one of their arguments, I do not think it would be the persuasive argument of the final decision.

Senator Angus: Thank you, Mr. Monahan, for taking the time to read the transcripts of yesterday's sessions, which were quite focused on constitutional law matters as opposed to general public policy. I would like to take advantage of your presence this morning to ask you three specific legal questions. You will have noted in the transcript some discussion about whether it would require unanimous consent of the provinces to abolish the Senate or whether the 7-50 formula would be adequate. Could you comment on that, please?

Mr. Monahan: Yes. I noticed that discussion, senator, and in my view such abolition could be achieved under the 7-50 general amending formula. There is a serious question to be debated on that issue because it is not a clear open and shut case. It could be argued that the abolition of the Senate would change the amending procedures because the amending procedures contemplate and refer to the Senate. Therefore, because section 41 includes reference to changes to Part V, as falling under section 41 and as requiring unanimous consent, it could be argued that unanimous consent would be required. It is not an easy question on which to express a firm view.

Senator Angus: It would be a fairly drastic step to abolish this fine chamber.

Mr. Monahan: If I were to argue this point, I would say that the amending formula is difficult to work with and the procedures are quite cumbersome. I would favour a policy that limited the interpretation of those matters requiring unanimous consent. Therefore, where doubt exists, I would try to argue against an expansive view of the unanimity provisions. I do not think it would be possible to express a clear view. I would favour a better view such that it would require 7-50 but the courts could easily reach a different view on that.

Senator Angus: Mr. Monahan, you will have noted as well some discussion about at what point a prime minister has the constitutional duty to fill vacancies in the Senate. Today, we have approximately 10 vacancies in the Senate. The Prime Minister has made it quite clear that he made one appointment and, if he considers it necessary, perhaps legally necessary, he will make other appointments. He has also said that he does not intend to make any appointments unless those appointees come before him as the result of either a direct or indirect election process. Is he bound at this time to recommend appointees to the Senate? I believe that Professor Hogg said that he is not bound to do so at this time.

Mr. Monahan: Certainly, I would agree that he is not bound at this time. Last night, in addition to reviewing the transcripts of yesterday's testimony, I reread, in its entirety, the Molgat-Cosgrove report. As an aside, it was interesting that at that time, January 1984, there were 23 vacancies in the then 104-seat Senate. Regardless of any statements that might have been made by the Prime Minister, the fact that there are 10 vacancies could by no means be seen as a failure to properly advise the Governor General. You can imagine the scenarios, some of which were discussed yesterday, of quite drastic changes in terms of the membership of the Senate if you were not to make any appointments for a period of five years. For example, half the membership of the Senate could potentially disappear. I do not think we are at that point and that we could speculate as to what circumstances might arise. I agree with Professor Hogg that there is nothing improper or there are no constraints that would require the Prime Minister to recommend appointees to the Senate at this time.

Senator Angus: The word "shall" is a relative term in this sense, I suppose.

Mr. Monahan: It says "The Governor General shall on the advice of the Prime Minister...." The Prime Minister has not advised, therefore, the Governor General has not summoned.

Senator Angus: Perfect. My next question is associated more with this morning's discussion on the stand-alone nature of Bill S-4. At what point could the stand-alone aspect be poisoned, if you will, by the introduction in the same Parliament of proposed legislation that would not be, necessarily, within the competence of an election process? Obviously, we do not know what such a bill would say or whether it would be introduced in the Senate or in the House of Commons. However, is it at some time analogous to the fruit of the poisoned tree — that other doctrine in respect of evidence in law? Could you comment on that, please?

Mr. Monahan: At this time, Bill S-4 is a stand-alone measure and would stand and fall on its own merits. Therefore, if other proposed legislation, hypothetically to provide for a method of election, were found to be invalid, that would be the worst-case scenario. Would that take Bill S-4 down with it? No, it would not take it down because if Bill S-4 is indeed a stand-alone measure, then it stands separate and apart from any other proposed legislation. Therefore, under normal principles the courts will even sever parts of the same bill if some part is a bad part they will say if the rest can stand on its own we will allow the rest to stand. In this hypothesis we have two separate bills, Bill S-4 and another later introduction, so I see no reason why, even on this hypothesis, that the other proposed legislation would pose a constitutional difficulty, or the validity of Bill S-4 would be impaired.

Senator Angus: I agree. However, given the fact that the Prime Minister has so clearly stated that Bill S-4, albeit a stand-alone measure, is part of a larger process and is but one step in an incremental series of measures designed to reform the Senate, it could be argued legally that it would impair. You are quite clear in your view that it would not impair Bill S-4; is that correct?

Mr. Monahan: That is correct, senator.

Senator Hubley: We have heard many witnesses in the last short while and it has troubled me that when we are speaking of the representation in the Senate of each province, we seem to be forgetting the regions of Canada. I think one witness said that regions were dead, which I believe is really incorrect.

When we look at Canada as a country, we take great pride in referring to it as being from sea to sea to sea; we are very careful to do that. We are a country of provinces and territories.

I come from Prince Edward Island. We have four Senate seats and four House of Commons seats. In their wisdom, the Fathers of Confederation protected Prince Edward Island in that we are the small under the great, which is reflected in all our provincial symbols, but we are also an equal partner in Canada. There are 10 provinces and three territories. We have the same rights for representation that every other province has. Our premier sits at the first minister's table. If we change the numbers, if we somehow play a numbers game in this exercise, do we not diminish not only our constitutional right to representation, but also what that would do for the other regions?

I would like to link Prince Edward Island with the North. The North is large in area but small in numbers. If my vision of the Senate does not include that kind of representation, I do not think we are honouring our role to represent regions and minorities. I know Prince Edward Island would not be satisfied with three, four or five. If it is to become a numbers game, let us have the same numbers that every other province has.

Mr. Monahan: Are you suggesting in reference to the resolution introduced by Senators Austin and Murray that there should be either no change or some change? I know there has been reference many times and indeed yesterday to the so-called Triple-E Senate. Is this what you are suggesting?

Senator Hubley: I am suggesting that if we change the numbers, if we add more to one part of the country, we are automatically decreasing the constitutional powers of other provinces, or other areas.

Mr. Monahan: Let me simply say, senator, that I do not favour a Triple-E Senate; I do not think it is appropriate in a country such as Canada. I understand that in the United States, Switzerland and Australia, the Senate has equal representation for the member states or constituent parts of the federation, but they are quite different from Canada. We have Ontario with a very large proportion of the population. We have the province of Quebec with a distinctive character and role to play. Therefore, I do not think it appropriate in Canada to have a Triple-E Senate.

That being said, the Senate is not simply to mirror the House of Commons. There is the necessity to balance the House of Commons — which is supposedly on the basis of representation by population, although it deviates significantly from that — at least that was the intention of the drafters of the Constitution Act, 1867, to balance that against a second chamber with regional representation. It is therefore appropriate to have some counterbalancing, but I do not think it would be appropriate to have a Triple-E Senate.

Is the precise formula of Senators Murray and Austin justifiable? I really have not thought that extensively about it. I do note that the 1984 report of the joint committee recommended an increase to 144 senators and increased representation to the Western provinces, as well as to certain other regions. That was a careful report studied over an extensive period of time, almost two years of hearings. There have been many other reports.

All I would suggest is that there should be time taken in consideration of that question, and care taken to address the concerns that you identify, which I think are important concerns. I am not quite sure what the exact formula should be, but I think we need to balance the need for regional representation with the realities of Canada.

Senator Hubley: Thank you very much. I do agree.

Senator Tkachuk: In regard to the eight-year term, the reappointment is silent so we assume that the Prime Minister can reappoint a senator who is serving an eight-year term. Could you extend the term before the term ended?

Mr. Monahan: I have not thought about that, senator. I suppose the Prime Minister could indicate his intention to advise the Governor General to reappoint the person. Could the Governor General issue an order appointing someone for a second term when the first term had not yet expired? I would want to reflect on that; I am not sure what the answer would be.

I suspect we would have to look at the terms in which an appointment to the Senate is now made and the terms on which it is held. However, I suppose it would be open to the Prime Minister to indicate that it was his intention to advise the Governor General some time before the termination of a member's initial eight-year term.

Senator Tkachuk: My assumption would have been that there would have to be a vacancy first, but the devil is always in the details so I thought I would ask. Maybe it is something we might want to think about here.

Mr. Gibson made much of the eight-year term and the Prime Minister being able to appoint all of the senators over two terms. I argued with him yesterday on the basis that there is not much difference between a house being filled with one political party over eight years or it being filled over three terms, which has been the case.

More important, is there enough of a constitutional convention — I think there is, although I think there would also be political pressure on a prime minister in those cases — to ensure there is a viable opposition in the Senate?

Mr. Monahan: I would want to reflect on that. Prime ministers obviously have appointed members from other parties over the course of the history of the Senate. Is there a constitutional convention that they do so? I have not turned my mind to that. I would want to reflect on it a little more and look at some of the statements that might have been made by prime ministers to that effect. Is there sufficient support to indicate that a prime minister would feel himself or herself to be bound? That would be an essential part of that test, so I am not really confident I could give you a clear answer to that question this morning.

Senator Tkachuk: We have officers of Parliament; we have opposition leaders. I suppose there have been instances provincially where the electorate has been very generous and given a legislature all the members of one party with the exception of one or two and, therefore, they sort of set up their own little opposition. You say that you want to think about this a little while.

I am not sure how we deal with that. Should we ask you to think about it and perhaps write back to us? It is something that we should think about, or perhaps there can be an amendment to this bill to ensure that.

Mr. Monahan: Let me reflect upon it a bit more, having not thought about it previously. It is the case that even in previous instances where a government had appointed a very significant majority of the senators because that government had served in office for a long period of time, there has always been some continuity of an opposition in the Senate, simply because there have been senators, up until 1965, who served for life or, since 1965, who served to age 75. Even at the time of Mr. Mulroney's term or the end of Mr. Trudeau's term or the end of Mr. Chrétien's term, there were members of opposition parties still in the Senate. They did from time to time appoint members of different parties, but it was a relatively infrequent occurrence. The existence of that opposition contingent, if you will, was not a product of the conscious decision of the Prime Minister to say, "Well, I have to appoint these opposition members so that there is a viable opposition in the Senate," because there always was a viable opposition in the Senate.

The scenario we would now face under Bill S-4, if enacted, is, how would a Prime Minister approach that in the future? You identify a serious question. It would seem to raise a difficulty if all of the members of the Senate had been appointed by a single Prime Minister. We would look to the Prime Minister at that time to exercise his or her responsibilities in a constitutionally appropriate manner, and there may well evolve some convention in the matters you describe, senator. However, I am not confident we could say that there is now such a convention.

Again, I would want to do some research and think about it. I am not asking for an assignment, senator. Before I express a view on it, I would want to look at previous precedents and statements that have been made to see whether there is support for that. My inclination would be to say that at this time there is no constitutional convention because there has not been a necessity for a Prime Minister to appoint members of a different party to maintain an opposition in the Senate. Prime Ministers do that perhaps for political considerations in terms of appearing to or perhaps actually appointing members in a non-partisan way to the Senate.

Senator Tkachuk: There is a grandfather clause, so it is not an immediate priority.

Senator Munson: I have but a simple question. Do you not think we should have the right to know what method of selection or election would happen in phase two before we pass judgment on term limits? You talked about something behind the curtain, and it has been written that incremental change is laudable but only if the final picture is in place. Do you not think we should have the right to know where we are going before we say something today?

Mr. Monahan: I am here as a constitutional lawyer. I am really straying off my terrain by getting into this type of question. Obviously, it would be desirable to see whatever legislation is to be enacted or proposed before this bill were approved. I would not put it at the level of there being a right to know. I think it would be desirable.

Senator Munson: To me, it would be a courtesy to senators because it is about us and our future.

Senator Watt: Mr. Monahan, my question refers to the amending formula. It does not seem to be clear in my mind as to what applies and what does not apply. Section 44 is a statement that Parliament can do this. Section 42 pulls back from section 44 by the fact that the power of the Senate and the method of selecting senators are dealt with under section 42. You are saying that Bill S-4 is constitutional, but there is doubt whether it is a constitutional document per se merely looking at the procedures that are laid out under the amending formula, unless we give more interpretation to what does not really exist under section 44.

I can understand the Prime Minister of the country running the government and using Parliament to kick off initiatives and move forward, but the minute you start to get into the role of the Senate, such as the selection of senators and its power, I believe this kicks us back into section 42.

During the last negotiations, in which you were involved, sir, I remember dealing with this particular aspect. At that time, we were doubtful as to whether the interpretation would go in that direction or the other direction. I remember this as being a matter that would have to be left to the Supreme Court of Canada to provide a ruling. I am trying to bring our memory back to a few years ago when you were dealing with this particular subject matter.

Does that affect your earlier statement that there might be something else behind the curtains that is not anticipated, or it is being anticipated now but not spelled out in terms of what will really happen? There are many ifs, ands and buts.

I would like to raise another issue as well. We have always said that whatever happens, happens. I refer to the fact that Quebec did not sign the accord. Does that hinder what this government is trying to do?

Mr. Monahan: With regard to the first matter concerning the interpretation of sections 42 and 44, you referred to some earlier proposals. I believe you are referring to the Charlottetown Accord.

Senator Watt: Yes.

Mr. Monahan: That accord had a comprehensive set of changes to the Senate, including the powers of the Senate and the method of selecting senators. Obviously that is a rather different proposal from what we have before us today.

I do not think that the Charlottetown Agreement, or indeed the Meech Lake Accord, which also required unanimous consent, is really relevant to assessing the constitutional validity of Bill S-4. For the reasons I have already expressed, I think it is within Parliament's power under section 44 and does not engage the matters identified in section 42.

As for Quebec's failure to agree to the 1982 Constitution, that, of course, has been reviewed by the Supreme Court and although it may be a matter of political concern, it does not impair the validity of the Constitution or the amending formula as it now exists. Bill C-110, which is not part of the Constitution, but is a statute, is an attempt to protect Quebec, and other regions, from changes enacted under section 42 to which they did not consent. Therefore, the change that Senators Austin and Murray have proposed would be subject to Bill C-110. Quebec would have to consent to that. However, that is not the case with respect to Bill S-4 because it is enacted under section 44 and Bill C-110 does not require the provinces to consent to changes under section 44.

Senator Fraser: This is a lay question about what is proper. The bill before us amends the Constitution of Canada. There is an argument, which I find increasingly persuasive, that this bill, despite the assurances that it stands on its own merits, is in fact trying to do almost two contradictory things. On the face of it, it is trying to deal with the Senate which is an appointed body, functions in a certain way and has certain roles; the only change would be to the tenure of senators. On the other hand, we have also been told that it is preparing the way for an elected Senate.

It seems to me that, by the nature of things, the way you want to set up an appointed chamber and the way you want to set up an elected chamber are quite different. Appointment normally would suggest longer and non-renewable terms so as to guarantee the independence of the person once appointed rather than their being beholden to whomever. Whereas people are not elected for unbelievably long terms because the popular mandate will dissipate, it will not be legitimate. I am not at all sure that you can do both those things in one bill.

Would it be constitutionally ludicrous or inappropriate to say you have to do this in two stages, even if the two stages come quite closely together? Using section 44, could the terms be changed now, establishing term limits in the light of an appointed chamber, then quite soon thereafter, perhaps six months, do another constitutional amendment to effect the same thing? Would we look like jerks if we changed the same clause of the Constitution twice, basically, within a short period of time?

Mr. Monahan: It would certainly be unusual to do that. I am not sure it would be necessary because if we look back at the Molgat-Cosgrove report, they envisaged a nine-year term, eight or nine years, as setting the stage for further reform toward an elected Senate. They favoured an elected Senate. They thought that was an interim measure that could be justified on its own terms.

I am not sure that even if there is some change made at a second stage that the eight-year term would be inappropriate. On balance, I think it would be better to have non-renewable terms, although you did not ask me that, for precisely the reason that everyone is aware. If a renewable term is available, one has that in the back of one's mind and it may colour how one carries out one's duties and responsibilities. I would prefer, as did the 1984 committee, a non-renewable term. I think that is a slight preference. It is a matter of policy for the government and for Parliament. I do not think that it would likely be necessary to make a further change. In any event, even if it were, that would be for Parliament to so provide.

Senator Fraser: I have a couple of observations, if I may. Those with long institutional memories around here tell me that the Senate never adopted the Molgat-Cosgrove report.

This is a personal observation, but I think it is pertinent. I have been here eight years this month. Under this bill, if I were not grandmothered, I would be leaving. Let me tell you, the thought that I would be the most senior senator present is terrifying. A great part of the value of this place, which one appreciates more when one is here, resides in that longer institutional memory and weight of experience and expertise that comes with time and cannot come in any other way.

Senator Chaput: Mr. Monahan, I want to ensure I understand. Bill S-4, as it is now, is a stand-alone measure and can be addressed under section 44. If an amendment was made to Bill S-4 in regard to, for example, 12 years non-renewable and that was the only amendment brought to Bill S-4, would it still be a stand-alone measure and could it still be addressed under section 44?

Mr. Monahan: Yes, that would be my view.

[Translation]

Senator Chaput: Since the term of office for senators is closely tied to the election process, it is difficult to tackle the issue of senate tenure without tackling that of the election process.

Would it be acceptable to move an amendment that would make Bill S-4 conditional on the election process, since one could not occur without the other? Would this kind of amendment be receivable? If so, would Bill S-4, amended in this way, still come under section 44?

[English]

Would it still be a stand-alone measure?

Mr. Monahan: Senator, if I understand, you are proposing to link the term under Bill S-4 with some other provision around the manner in which senators are selected, or elected.

[Translation]

Senator Chaput: For example, if the Prime Minister appoints a senator, his or her term cannot comply with Bill S-4 until the election process has been implemented.

[English]

I am not a lawyer as you can see.

Mr. Monahan: The concern is that by trying to link Bill S-4 with the method of selection, you run the risk of saying that Bill S-4 is not a stand-alone measure but is part of a larger set of proposals. Therefore, it must not be regarded as one change in tenure but as an element of a larger change in the method of appointment of senators. If that were so, then the danger would be that Bill S-4 would fall because it could not be deemed a stand-alone measure. In fact, the other proposed legislation would also fall. There would be a danger that by linking the two bills to consider them part of a package designed to change the method of appointment because it would be said that it is not appropriate to elect senators for life or to age 75, and that the change in tenure is part of a larger package, then the risk would be the courts would say that it is an attempt to change the method of selection of senators, which cannot be done under section 44.

Senator Angus: That flows directly from my earlier question on at what stage the stand-alone measure becomes effective by written or unwritten linkage. I understood your answer to Senator Chaput to mean that once there is a specific reference in Bill S-4 — amended as it would have to be to have that reference — linking it to the other bill, at that point do you feel that it would be prejudiced?

Mr. Monahan: Yes. I do not know what the terms of the amendment would be but the risk is that at the point when a court says that the bill is part of a larger package and not a stand-alone measure, there would be a much stronger argument and it would more likely be the case that the courts would come to that conclusion.

Senator Angus: I rather like the idea, but none of us knows what is behind the curtain, although it would be useful to know. Eight years seems to be a fairly appropriate term in conjunction with an elective process. However, we do not know when or if there will be such a process and so my preference is a non-renewable 10-year term. The Prime Minister seems to be flexible on the point. In that respect, I do not feel I am going against his wishes. He wants senators to be involved in the process, to be the masters of the destiny of this place and to help him to make it better.

I was pleased with your answer that you think that the bill is fine as it is and that if there is no provision or statement by the Prime Minister to indicate that it is part of an incremental process to be followed by another bill, you do not think that that kind of linkage would render it unconstitutional; is that correct?

Mr. Monahan: No. I do not need to repeat what I said earlier. The matter of eight or 10 years is for senators to determine. An eight-or nine-year term seems reasonable. Ten years would probably be one of the longest Senate terms of any upper chamber in the world. I am not sure if there is an upper chamber with a term of ten years.

Senator Austin: The House of Lords is a life term.

Mr. Monahan: Yes, but apart from that chamber. The sentiment in favour of a term, be it eight, nine or 10 years, as articulated by the Prime Minister reflects the fact that, notwithstanding Senator Fraser's comment about the value of seniority and experience, Canadians view an appointment for life or to age 75 as something that is inappropriate. Such a term does not enhance the reputation of this chamber to have members appointed to age 75. To have senators appointed for a term, recognizing the balance between experience and so on, is desirable. It would enhance to a degree the sense that the Senate is not there to provide individuals with a position for the remainder of their working lives.

Senator Tkachuk: I have a supplementary to my earlier line of questioning. With regard to the eight-year term, current senators are grandfathered or grandmothered in Bill S-4 so there would be no opportunity for a prime minister, over eight years, to appoint anyone. Some 90 of us will retire over the next number of years so the appointment process would take place over time as senators retire.

Mr. Monahan: Yes, with due respect, senator, that is not an answer to the point.

Senator Tkachuk: I am asking the question.

Mr. Monahan: Over time, these grandparented senators would eventually retire and then you would be faced with, assuming no other change, a situation wherein the entire membership of the Senate would turn over in an eight-year period. It seems appropriate to have a term of that nature or magnitude and I would favour a non-renewable term.

The Chairman: Dean Monahan, thank you for taking the time to appear today. Your testimony will be useful to the committee's deliberations on its report on Bill S-4.

[Translation]

Honourable senators, we shall resume our hearing. We will now welcome our former colleague, the Honourable Gérald Beaudoin, Professor Emeritus at the Faculty of Law of the University of Ottawa, as well as Mr. Gérald Tremblay, a partner with McCarthy Tétrault. Welcome, Senator Beaudoin. The floor is yours.

Hon. Gérald-A. Beaudoin, Professor Emeritus, Faculty of Law, University of Ottawa, as an individual: Mr. Chairman, it is with great pleasure that I appear before you today. I am very pleased to be testifying on a subject of constitutional law, because that is what I have been teaching for most of my life.

[English]

It is a great pleasure to be back in the Senate today to say a few words concerning Bill S-4.

Many countries have reformed their upper house — the Americans in 1913, the Germans and many others — but we are the only great democracy, together with Great Britain, to have a second house that is not elected. Prima facie, I am here as a professor and a former senator, but I am dealing with legality only. If you ask me whether I am in favour of an elected Senate, I will say yes, for just one reason — it is more democratic. Perhaps we missed the boat and we are very late to do it, but still I am in favour of an elected Senate.

Is Bill S-4 constitutional? Yes, in my opinion, I have no doubt that it is constitutional.

[Translation]

The wish is to limit the term of office of senators. It was done in 1965, and the desire is to do so again soon, or this year. We do not know the future, but in my opinion, it is the same thing once again. It is much broader in scope, of course, but this is still an issue of Senate tenure.

I believe that section 44 of the Constitutional Act applies. In the Supreme Court decision of 1980, it says that the fundamental aspects of the Senate must not be tampered with. This is true. But we must not forget that in 1982, when we repatriated the Constitution, we created an amending formula with sections 41, 42, 43, 44, and so on.

In my opinion, that is what should guide us. The Canadian Parliament may unilaterally state that from now on, a senator's term of office will be eight years.

I discussed this with my former colleague, Senator Murray, who suggested going before the Supreme Court. I have nothing against the Supreme Court, I have a great deal of regard for that institution, but if there is something that should be decided by Parliament, then that is indeed what Parliament may do.

I thus conclude that Bill S-4 may be passed without it being necessary to turn to the Supreme Court. Section 44 states:

[English]

It is only the length of senators' terms, which is before us. The federal government can act unilaterally, subject to sections 41 and 42. Section 41 is unanimity; section 42 is 7-50 and is in four parts: the powers of the Senate; the number of senators per province; the method of the selection of senators; and the residence qualifications of senators. However, under section 42, there are four domains that we have to follow.

In this regard, I do not see any problem, but some people have raised an important point. We know that Bill S-4 is possible; we know that Bill S-4, in itself, is constitutional. However, we do not know what will happen in the fall; we do not know what will happen with the next piece of legislation. I have come to the conclusion that phase one, although related to phase two — if we come to phase two — stands alone. It is a phase in and of itself.

I repeat that I think it is constitutional, but the minute we hear about what will take place after that, then we are into phase 2, and of course phase 2 is 7-50. We cannot change the number of senators per province except with 7-50. If we change the number, if we change the mode of selection, it is 7-50.

One point that is really difficult is what if you want to abolish the Senate? In my opinion, it is unanimity because it is in section 41. The Senate is an institution and is part of the amendment formula, and to change the amendment formula you need unanimity as stated in section 41. Consequently, if you want to abolish the Senate, you need Ottawa and the 10 provinces on side. Some people say, "Yes, but it could be challenged in the Supreme Court." Perhaps the court will not be so severe, if I could use that term.

However, section 41 is there, it is the amendment formula, and there is no doubt that the Senate is involved in the amendment of the Constitution — differently from the House of Commons, but the Senate is there. For the number of seats for each province, the method of selecting senators, the powers of the Senate, is always 7-50, but the abolition is, in my opinion, a question that comes under section 41. To abolish the Senate you need unanimity.

The provinces are divided. That is part of federalism. Some people say all avenues are blocked, so we should forget about this, there is no solution; some provinces are talking about abolishing the Senate and so on. However, in my opinion, we have to do something. The Senate is very important because it improves the legislation of the House of Commons. It is an institution. The raison d'être of the Senate is to change and to improve the system. I am strongly against the abolition of the Senate, but I am obliged to say that to abolish the Senate requires unanimity. That is important, because unanimity and 7-50 are very different.

This is all I have to say to start with. I have heard my good friend, Mr. Monahan, this morning, and yesterday I heard Mr. Peter Hogg, and we agree on many aspects, except perhaps the abolition of the Senate and except perhaps the Supreme Court. I was surprised yesterday when some people asked what happened to the Supreme Court. The Supreme Court is right in section 41. You cannot change the composition of the Supreme Court except by unanimity. If you cannot do that, you cannot be against the existence of the Supreme Court.

I will end there, and I would be quite pleased to answer your questions.

The Chairman: Thank you, Professor Beaudoin.

[Translation]

Gérald R. Tremblay, partner, McCarthy Tétrault, as an individual: Mr. Chairman, I am very honoured to have been invited to come to speak to you. We are discussing a very important stage in our evolution as a country. I must thank those who thought to invite me.

[English]

For me, this is very humbling, because the person who spoke before me is the person who formed me. Despite the fact that he looks younger than me, I studied law at the University of Ottawa, and he was my teacher. Everything I know, I owe to him. Besides that, we have the same first name in the common, Gérald-A. and Gérald R., so you have to know that Gérald R. was formed by Gérald-A. The only thing missing, and I say this with all humility, is that I am not "honourable." What can I say?

Mr. Beaudoin: It will come.

Mr. Tremblay: Then we cannot have an elected Senate, can we?

[Translation]

At the outset, I would say that it is important for a democracy, from time to time, the review its institutions. That is an important aspect of life.

[English]

You need to take stock of where you are and ask whether you should go somewhere else.

[Translation]

These introspective reviews are very important.

We must also be open to reform, but it must be motivated by the right reasons. A public opinion a consensus will have to be reached or brought about in the Canadian electorate among Canadian citizens, that Senate reform is needed, not because the Senate has not played its role, nor because the Senate is a useless institution; quite the contrary.

I know several of you. I have good friends who served as senators and some who serve today. Over the years, I have followed the deliberations of the Senate. Anyone following these things closely realizes to what extent a second house is useful, and is in fact essential.

Over the course of Canadian history, extremely important events have unfolded here in the upper chamber. Very significant amendments to some legislation were made here. Public debates were provoked by positions that were taken in the Senate. The debates surrounding the free trade agreement are one example of that. It was in the Senate, rightly or wrongly, that an extremely serious debate was held that forced a second substantive debate, one that finally brought about understanding across the country of why the Free Trade Agreement was passed and the reasons why some supported it and others opposed it. The Senate was the important setting for this debate, which was of paramount importance.

We are therefore discussing reform, but not necessarily in order to court public opinion.

If you think that Senate reform will appeal to public opinion, look at current American public opinion regarding the United States Congress. The level of dissatisfaction is such that people say the Houses are ineffective. According to the polls, almost 60 per cent of American citizens feel that the system does not work. That therefore says that a better system will not necessarily improve public opinion.

Reforms should not be carried out because there is a temporary call from public opinion, they should be carried out because after giving it sufficient thought, we have arrived at the conclusion that it must be done.

Democratically speaking, I agree with Professor Beaudoin. It is clear that it should not be the norm that, in its absolute discretion, the executive appoint the legislator. In the general theory of the separation of powers, the legislators legislate and the executive carries out the intentions of the legislators.

There is coherent system in which the executive appoints the legislator who subsequently gives the exit instructions. All of this reflects 500 years of history; taking us back to the English barons and the House of Lords, the British Upper Chamber which was the most important.

What was it to be a real citizen at that time? The most important people of that era were those who owned land, that was the most important thing, and a true Englishman was a landowner. It is for this reason that it is mentioned in the Constitution that a senator must be a landowner. That is the tradition.

However, we do not get rid of a tradition in a cavalier fashion; it must be done circumspection, as it may sometimes unbalance the organization overall. This means that in time, we should have an elected Senate. But in order to do so, it is true that constitutional amendments are necessary, but much can be done without constitutional amendment.

Incidentally, there are practices that have been established over the years that have become constitutional conventions without the texts ever having been touched. Take, for example, the appointment of judges. The Canadian Constitution simply states that the Governor General will appoint judges. Nowhere is it written that there will be a judicial council or committees of the Bar.

If we want to appoint a judge, a committee of the Judicial Council must be consulted. I do not believe that a superior court could deem the appointment of a judge by the Governor General, signed by her hand, to be illegal because a committee was not consulted. Today, no government would do so without organizing a committee. Mechanisms can be put in place that would not require any of those big constitutional sessions, where everyone wants to bring his or her particular issue to the table, which means that nothing never comes of these sessions.

As far of the legality of Bill S-4 is concerned, we can say without hiding our heads in the sand that Bill S-4 alone, without being tied to a bigger project, would not have been proposed. I agree with Professor Beaudoin. If it is legal to move from lifetime appointments to those which end at the age of 75 years, it is also legal to do something else. As lifetime appointments were not written in stone, neither would terms of office until the age of 75.

The way in which the Constitution Act of 1867 is drafted is interesting. In one section, it says that a senator is appointed for life and in the next section it says that a senator is appointed until the age of 75. That means that in order to respect the intention of the legislators, a senator, in order to be in office for life, would have to die before the age of 75.

Historically speaking, we understand where this incongruity comes from, but it is still amusing for someone reading the text to realize that life must necessarily end before the age of 75.

At the time when the legislative council existed, care was taken in section 72 to state the following:

The Legislative Council of Quebec shall be composed of Twenty-four Members... each holding office for the Term of his Life, unless the Legislative of Quebec otherwise provides...

If we apply the general principles of interpretation and section 72 gives the legislature the power to "otherwise provide," are we to infer that the federal legislator did not have the same power because it was not stipulated in the Constitution Act of 1867? We cannot say that it did not occur to them because the rest of the text deals with senators.

The Qualifications of the Legislative Councillors of Quebec shall be the same as of those of Senators.

In 1867, the Parliament in London had thought of giving the power to reduce the term to the legislature. When we look at the provision in the 1867 Constitution Act on the Senate, we see that this reservation does not appear. It could be argued that Parliament's intent was to make that untouchable. However, it is too late to argue that that was the intent, because the term was set at age 75, and this went unchallenged.

I would also like to say that we have to give some meaning to all of the provisions regarding constitutional amendment. Section 44 states:

Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate.

There would be a strong legal basis for saying that it can do everything regarding the Senate, except that which is excluded in the other sections.

Those are my comments. Once again, I thank you for inviting me to appear before the committee, and I will be pleased to listen to your questions and to Senator Beaudoin's answers. If I can add anything, I would be pleased to do so.

[English]

Senator Austin: I appreciate having this opportunity to question our two witnesses. My old colleague and friend Senator Beaudoin and I have had discussions even on television with respect to these issues. I will come to that in a moment.

I want to ask each of you a question.

Senator Angus: You are on television now, by the way, senator.

Senator Austin: I like to ignore that because I am not somebody who wants to be a celebrity. I am more interested in the substance than the presentational side of this.

My question is about the $4,000-dollar qualification; would you explain to us that if we introduced a bill removing that property qualification, could that be done under section 44?

Mr. Beaudoin: I think so. As Professor Tremblay said, it is based on the question of property.

Mr. Cartier was very conservative, in a way. He said that the House of Commons, although very important, had to be "stopped," to a certain extent, and so he thought about a second house, which is our Senate.

Senator Austin: I will explain my question further. If in 1867 you had asked the so-called Fathers of Confederation, particularly those from Quebec, whether the property provision of $4,000 was an essential characteristic of the Senate they were creating, would they have said yes?

Mr. Beaudoin: Yes.

Senator Austin: You both agree that they would have said yes.

Can an essential characteristic of the Senate be changed under section 44 or does it have to be interpreted into the convention? Take the 1980 reference in which the Supreme Court said that it was a fundamental and essential characteristic. Surely that precedent would apply to the $4,000 property qualification. If that was an essential characteristic then, it is an essential characteristic today and could not be changed by section 44. An essential characteristic is something that the provinces have control over under the amending formula. Would you accept that argument?

Mr. Tremblay: Could you say in 2006 that $4,000 is an essential characteristic of anything?

Senator Austin: Could you say that the Constitution and provisions of the Constitution are subject to a doctrine of atrophy?

Mr. Tremblay: Maybe, yes.

Senator Austin: Is that where you are going with your question? I would not agree with that. A constitution stands until it is amended.

Mr. Tremblay: I will give you an example. At one time, $200 for jurisdictional purposes was the threshold for a provincially appointed judge. More than that was deemed so much that it applied to a superior court justice appointed at the federal level. The Supreme Court said $200 in 1867 and the Quebec legislature said it will be $5,000 or so now, although I do not remember the exact figure. The Supreme Court approved that because you have to adapt with the times, and today it stands at $75,000. Things evolve.

Mr. Beaudoin: In response to the question, I say that it falls under section 44.

[Translation]

Subject to sections 41 and 42, Parliament has exclusive jurisdiction to make laws amending the Constitution in relation to the Senate.

[English]

In 1867, $4,000 was a good deal of money and could equate $150,000 in today's terms, although I do not know for certain.

Senator Angus: Someone said $750,000.

Mr. Tremblay: No one would accept the job today.

Mr. Beaudoin: However, they never changed it and sections 41 and 42 are special — unanimity and 7-50. All the rest falls under section 44. We are not talking about the $4,000 so it comes under section 44.

Senator Austin: They did not change it in 1982 and kept the $4,000 figure in our Constitution. When we are elevated to the Senate, we are obliged to sign a legal declaration that we are of the net value of $4,000. You are saying that we could change that amount under section 44.

Mr. Beaudoin: Yes, of course. Why not?

Senator Austin: As well, we could reduce the age of senators, which is what Bill S-4 proposes; is that correct?

Mr. Beaudoin: Yes.

Mr. Tremblay: That raises the question: Could we dispense totally with that? The fact that you attach a dollar amount to it is one thing but could a person who has declared bankruptcy be a senator? The Charter of Rights would say that because you were bankrupt once does not mean that you cannot be raised from the ashes.

Senator Austin: We could make the provision unilaterally in Parliament that $4,000 should be $750,000, if we wanted to do so. That is the essence of your testimony.

Mr. Beaudoin: It is only in Quebec, do not forget.

[Translation]

Senator Dawson: In Quebec, it is in a district, while in Canada it is anywhere in the province.

Mr. Beaudoin: The situation is different in Quebec.

Senator Dawson: In Quebec, it is in a district, but in the other provinces, it is in the province.

Mr. Beaudoin: People say that Quebec is distinct. That is true for the Civil Code and the French language. That is so obvious that I will not go into it. But this is also true of the "$4,000," to some extent. As far as I am concerned, this clearly comes under section 44.

[English]

I do not understand how it could be fall under sections 41 or 42.

Senator Austin: Allow me to read something expressed by Professor Guy Tremblay, Faculty of Law at Laval University. He wrote to this committee:

In my opinion, Bill S-4 cannot be passed by Parliament alone, section 44 of the Constitution Act, 1982 notwithstanding. I do not think that the Act nullified the Supreme Court's 1980 ruling that "it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics of the Senate." This opinion is set out in greater detail on pages 229-233 of the textbook that I published with Henri Brun (Droit constitutionnel, 4th ed., Éditions Yvon Blais, 2002). Bill S-4 would in my opinion alter a fundamental feature of the Senate. Senators who can currently sit until the age of 75 have, overall, more maturity, wisdom and independence than senators would have who were appointed for a renewable eight-year term. This feature cannot be dissociated from one of the roles originally defined for the Senate, that of giving legislation "sober second thought."

That is why I started with the $4,000 provision that is, within this definition, an essential feature. I gather each of you does not agree with Guy Tremblay.

Mr. Tremblay: That is because the amending formula of 1982 has precedence over everything. If section 44 states that Parliament can modify the Constitution, with respect to the Senate, then look in the other provisions where it states the powers of the Senate, their mode of selection and the number of senators versus the number of members of the House. There is no provision which deals with conditions like that. I assume that inclusion is unius est exclusius alterius and if they saw fit to put specific matters on other provisions it means that it is untrammelled under section 44.

Senator Austin: We have opinions going in all directions.

For example, Professor Beaudoin, we had a discussion here, led by Senator Murray, on whether the Supreme Court Act, which is an act of the Parliament of Canada, could be removed. What you have done is referred to section 41, which is a constitutional reference to the composition of the Supreme Court of Canada, however, it says nothing about its existence. It says you cannot change the composition of the Supreme Court of Canada, but it does not say Parliament is barred from abolishing the Supreme Court of Canada Act.

Mr. Beaudoin: The Supreme Court of Canada did not exist in 1867. It was created in 1875.

Look at section 41. The decision of the court in 1980 is superceded because in 1982 we patriated the Constitution. We enshrined in the Constitution, finally, after 50 years, everything in the field of amendments. Look at the amendments: Section 44, section 41 and section 42. They apply to the Senate. With section 41 there is unanimity. The Supreme Court is there.

Senator Austin: We are referring to its composition.

Mr. Beaudoin: If you cannot deal with the composition of the court, a fortiori you cannot destroy the court.

Senator Austin: I do not know why you make that argument.

Composition is one category and the nature is another.

Mr. Beaudoin: No, the Supreme Court is in the Constitution, because of section 41. It is the same reasoning as the abolition of the Senate.

Senator Austin: You are arguing intention. The moment you argue intention you are saying the amendment, referring to section 41 composition, suggests an intention to constitutionalize the Supreme Court of Canada, but you have to argue intention. When you argue intention then you move to Guy Tremblay's arguments.

Mr. Beaudoin: Mr. Tremblay is not the Supreme Court or the Constitution. If the Constitution states that the composition of the Supreme Court cannot be dealt with except with unanimity, a fortiori, it is the same thing for the existence of court. The court is enshrined in the Constitution now.

The Supreme Court is there. You cannot even touch the composition, except with unanimity. If you want to set aside the existence of the court, it is unconstitutional, and I would plead that in the Supreme Court.

[Translation]

Senator Angus: I would like to extend a very warm welcome to both of you.

[English]

It is very refreshing to have both of you here at the same time. It is helpful to have a view from the private sector in terms of the practice of law.

Mr. Tremblay, thank you for coming. I address my first question to you, if I may.

You made a good point. It warmed the cockles of all our hearts when you indicated that the alleged public opinion about the Senate is not necessarily accurate and that we should not be stampeded into reforming or making amendments to the structures of the Senate for the wrong reasons.

You then indicated that, in the current environment of democracy, it is probably anomalous to have senators appointed. However, I thought you opened the door to a form of appointment that might pass muster when you alluded to how judges, for example, of our federal tribunals are appointed these days. You indicated the committee of the bar and the committee of the judicial council, et cetera. Could you elaborate on that? Professor Beaudoin, if you have a comment as well, I would like to hear it. I have been grappling, as have others, to find ways that we might address this democratic issue — flaw, if you will — without having a huge comprehensive constitutional conference.

Mr. Tremblay: When I read the transcript, and also the text, I was a bit surprised by the importance given to the notion of the senators being independent. If you have, for instance, a renewable mandate it could affect the independence of the senators because they will want to please the master of the day.

This notion of independence is between the judiciary and the legislative branches, but we are talking about a subset of independence within the legislative body, which is the Parliament of Canada. Today, with party caucuses, you are independent as much as you want, but you belong to, let us say, a trend where that is part of yourself.

There is nothing wrong with somebody, who has a power to appoint establishing conditions within which he will appoint. If, in his or her wisdom he or she decides to create mechanisms which allow for consultation, for instance, before appointing the Chief Justice of Canada, it is considered a good idea to consult the attorneys general of the provinces, there is nothing to prevent one from doing it.

That is why I gave the example of the Canadian Judicial Council. The Constitution states that the Governor General will appoint judges along with the same wording that the Governor General will appoint senators. There is a whole body of rules, regulations and even laws, which give some guidelines to the ultimate decider, the Governor General. I do not see why it should not be feasible on a practical standpoint, pending the day that everyone will agree to everything in Canada. There is nothing wrong with improving the situation by putting together mechanisms that get closer not to perfection, but to a more perfect system.

As I said, if you do it long enough, 10 years or 15 years, then it becomes a convention and part of the way of doing things. The cabinet is not mentioned in the Constitution, and there is nothing more important than the cabinet.

Mr. Beaudoin: Responsible government is not mentioned.

Senator Angus: Professor Beaudoin, did you want to add to that response?

Mr. Beaudoin: Yes. The Constitution is composed of the constitutional statutes, the decisions of the Supreme Court and the conventions of the Constitution. If we go against the text of the Constitution, we may go before the courts and the courts have full power.

Regarding the conventions of the Constitution, the court may identify a convention but it cannot do more than that. In other words, the remedy, if you go against a convention of the Constitution, is Parliament. The matter has to be settled there. However, if it is in the text of the Constitution or the decision of the courts, then the court will rule.

We have conventions. The liability of the government is a convention of the Constitution in the sense that if the government is defeated on a budget, it is a convention of the Constitution and we know what happens in a case such as that. However, if you go against the text of the Constitution, then you may go before the courts.

We have many conventions of the Constitution but the remedy is different. If you go against a convention, the remedy is Parliament. If you go against the Constitution, the remedy is the court. This is our system.

The Prime Minister has very strong powers of appointment, but we do not yet know what phase two of this process will be. Suppose phase one is adopted; in my opinion, Bill S-4 is constitutional. However, the second phase is much more difficult than the first one because you need seven provinces with 50 per cent of the population. I have attended many constitutional conferences. It is very interesting, but the fact is that sometimes we do not succeed.

To change an institution like the Senate is like changing the division of powers. It is like many things of that sort.

Yes, the Senate would be more democratic if it were elected, and the Prime Minister would be losing a lot of power because the last word would be with the population and not with the Prime Minister. Do not forget that point. I do not know what will happen in October or December, but I will be reading the outcome very closely.

Senator Angus: Among the witnesses who have shared their interesting thoughts with us, several raised the concept of a citizens' assembly. I do not know whether either of you saw that. I am referring principally to Mr. Gibson from British Columbia, where they actually implemented the concept of a citizens' assembly to study electoral reform in that province. It piqued our curiosity because if one is looking for an ultimately conventional vehicle, it is short of a 7-50 type of amendment to the Constitution to provide for a more democratic way of getting appointments made. What do you think about that proposal?

Mr. Beaudoin: I am sure that they do not want to make a convention. We have an appointed Senate and some people say we should have a Senate that is elected; it is quite a change. It is fantastic. It may be done with Ottawa and seven provinces encompassing 50 per cent of the population. If you do not have it, there would be no elected Senate.

If the first one is adopted, Bill S-4, it will stay there. I do not know what the reaction will be. That is political. I am more interested in law than in politics, although politics is very important.

We have two phases here. Bill S-4 is the first step and is the easy one. Phase two is not yet here. We do not have a bill regarding elections, a bill that enshrines in the Constitution the concept that the population will have the last word. However, I know, legally speaking, what may take place and we are here for that reason.

Mr. Tremblay: On the question of democracy, I suppose a citizens' assembly is akin to consensus building, but to do that in a country like Canada is extremely difficult. It is one of those countries where elections every two to five years followed by leadership, although it squeals and yells at certain places, is better than a general referendum, which is what a citizens' assembly amounts to.

Senator Angus: I think the concept was that there would be one in each region. There might be four or five regions of Canada and each would have a citizens' assembly.

Mr. Tremblay: I see what you mean; maybe.

Senator Angus: It is a concept that was raised earlier.

[Translation]

Senator Dawson: I would like to start by thanking you for accepting our invitation, because, unless I am mistaken, you are our first witnesses from Quebec. We will be hearing from another very important one this evening.

As you mentioned earlier, Mr. Tremblay, the main objective is to move public opinion forward. You have been working on this issue for many years, Mr. Beaudoin, as both a professor and a senator.

I would also like to thank the Prime Minister for tabling the bill in the Senate so that we could discuss it.

Mr. Beaudoin, your work as a professor is precious, and would doubtless be even more precious if you were still here with us in the Senate.

A few days ago, the Prime Minister was seated exactly where you are and told us that within a few months or perhaps even a few weeks, he was going to be tabling the second phase of his reform package. We already know that the second phase is coming and that it is not purely hypothetical. It is a firm commitment made by the Prime Minister during his appearance before a Senate committee.

You have said that you would "distinguish between the two topics." My difficulty is this. As you know, we have Senate districts in Quebec. Senator Watt's Senate district does not appear on this map, because the map reflects the situation that existed in 1864 and it did not include Northern Quebec. If we start talking about elections without having dealt with the problem of the practical application in Quebec of an electoral map that dates back to 1867, that was drawn up based on the situation in 1864 — and this is part of the Constitution; there is no section 44, 42 or 41 in Quebec, it is clear that there is an exception — how can you state that you could accept that senators would be appointed for eight years, since we know that eventually senators will be elected, but we do not know how they will be elected in Quebec?

I would also like to let you know, Mr. Beaudoin, that your name has been mentioned several times. One of the first witnesses said that one of the good things that was done during the discussions on Meech Lake was the appointment of four people from Quebec by Mr. Mulroney. They had been recommended by the Quebec premier for positions in the Senate. Once again, you acknowledge the distinct nature of Quebec, as Mr. Mulroney did. And the witness said that two of the four individuals appointed were excellent, and one of them was yourself. He did not say what the poor appointments were.

You are saying that we must make a distinction, and I am wondering what electoral process will take into account Quebec's distinct situation, with 24 districts, in order to ensure that the regions of Quebec are represented in this chamber.

Mr. Beaudoin: I understand your point, but there are two phases to the process. What can I say, I am not directing things. Initially, the government wants to limit the mandate of senators. The idea is to have an elected Senate someday. That is true. However, for the time being, we know that the term of office of a senator will be eight years. An eight-year mandate makes much more sense.

I have read a great deal on Upper Chambers and I sat as a senator for 15 years. I even made some speeches. I said that we should be elected, someday. I also said that those who had already been appointed would remain in the Senate until age 75. At the time, things were going much better. However, technically speaking, a good democracy should have an elected Senate, because most Senates are elected bodies. And that makes sense. Long live democracy, after all!

There are two phases in this package: the first is important, and I believe it is constitutional; I cannot say what will happen with the second, I cannot say what it will be. Will the Prime Minister lose his power to appoint senators? Will there be an election with a federal law? Or will we leave this decision up to the provinces? I am sure this will not be left up to the provinces. So senators will be chosen during an election.

Phase two begins when the legislation is tabled in the fall. Then we will know where we are going. If the Prime Minister says that he wants an elected Senate, then he will have to follow section 42. That is very difficult. It involves changing the number of senators for each province, changing the method of selection and changing the powers of the Senate. I do not think they will touch the powers of the Senate. There are enough problems as it is, without creating others.

Senator Dawson: Mr. Beaudoin, the government House leader in the Senate has said that this bill was important and that the intention was to have a stronger Senate. Given that there is a distribution of powers, someone is going to lose out. It will be either the House of Commons or the provinces or the Council of the Federation. If we strengthen the power of the Senate by appointing senators or electing them for eight years, somebody somewhere is going to lose out. You say that we should pretend that the Prime Minister did not tell us that he intended to have senators elected. I cannot do that. I must take the Prime Minister's comments into account.

Mr. Beaudoin: We cannot deal with everything at once. There is a phase one and a phase two. You say that we do not know what phase two will be and that we will not comment on phase one until we know what phase two involves.

Senator Dawson: If the bill is to be tabled in November, why not wait?

Mr. Beaudoin: You do what you like. You say that this will give more power to the Senate, and you are right in that. There is nothing to say that the House of Commons will approve, because this takes power away from it.

Senator Dawson: Does it take power away from the House of Commons or from the provinces?

Mr. Beaudoin: Nothing is taken away from the provinces.

Senator Dawson: If the Senate is strengthened, possibly with a role as a regional representative because senators will be elected, senators will inevitably say: "I was elected in Quebec or in Ontario and I am going to defend the interests of that province."

Mr. Beaudoin: Yes, but let us come back to the House of Commons. The House of Commons is important. It has the last word in many areas. Members of Parliament will say that this takes power away from them and gives more to the Senate, so will they go against the bill?

At the time of Sir George-Étienne Cartier and Sir John A. Macdonald, the number of senators was 24, 24 and 24. Later, in 1915, there were 24 senators for the west. The west is much stronger than the Maritimes and yet it has fewer senators. People say that this makes no sense. We will give 12 senators to B.C., seven to the other provinces and not touch the numbers elsewhere. Some people in Quebec and Ontario say that they already have 24 senators and that this package gives them absolutely nothing. So some are even in favor of abolishing the Senate.

The Chairman: I am sorry, but I must interrupt you dear former colleague. Would you care to add something, Mr. Tremblay?

Mr. Tremblay: It depends on how it is done. When it was based on 24, 24 and 24, clearly the Parliament of the day wanted a regional balance with these numbers. In the United States, the state of Iowa has two senators, and so does New York. The idea was to achieve that objective. It depends how it is done. If you have a set number of senators for Quebec, they will be elected in Quebec, and that will allow the regions of Canada to offset the mathematical results by adding Canadians throughout Canada and the breadth of Ontario. It all depends how it is done.

There is something that disturbs me personally. I understand the step-by-step, theory, but is it not true that this is a doomed reform for the following reason: we will proceed and make some progress — a Senate with limited terms — and since the rest is too complicated, nothing will be done?

Mr. Beaudoin: That could happen.

Senator Dawson: That would be unfortunate.

Senator Chaput: It is always a pleasure to see you again, Mr. Beaudoin. I believe Mr. Tremblay mentioned in his presentation that it is important for democracies to review their institutions and that we must be open to reform. However, reform must be carried out for the right reasons. I considered the reasons that brought us here today?

To begin with, we cannot have to ignore that this bill is the result of an election promise made by the government in power and that it wants to keep its promise. I respect that. Any government that makes a promise during an election must keep its promises, that is a very important principle. It is a very good reason.

The other reason, which is very important to me, is that Canadians want Senate reform. In my province, Manitoba, the francophones I meet at the corner café and in shopping centres, for example, want Senate reform, despite the fact that those who know me know that Senate reform is a great deal of work.

I have always believed in and continue to believe in set terms. However, in this case, given that corporate memory is so important for this Senate, I think eight years is too short. However, I will come back to this point later.

It is difficult to focus solely on Bill S-4 without thinking about what will happen to us, because we are well aware that the Prime Minister will be coming forward with another bill on electing senators. So it is very difficult to completely separate the two phases.

The first one, Bill S-4, concerns me less, because the bill can be amended to make the term longer and non-renewable. What disturbs me is the election process. I have already discussed this with you several times, Mr. Beaudoin. The great strength of the Senate is its current composition. Let me give you a few examples of the people we have in the Senate: on my left, we have Senator Watt, who is always telling us about the needs and the priorities of the communities he represents; we have my colleague, Senator Hubley, who does the same thing for her community, Prince Edward Island. Personally, I represent the francophones of Manitoba, a minority official language community.

We are talking here about small numbers, and that is what worries me when elections are mentioned. How will we continue to have senators who represent minority groups? It is much easier when the person is familiar with a minority situation. We hear a great deal about this in the Senate. You told me, Mr. Beaudoin, that at some point the political party would look after this. I disagree, because major decisions are always based on numbers. Is it possible to think that in a democratic electoral process consideration could be given to the Senate in its present form, where one of its great strengths is its composition and its representativeness?

Mr. Beaudoin: The only reason I am interested in this problem is that democracy is involved. In my view, legislators must be elected. Judges must be appointed, and ministers must govern. The Senate of Canada, together with the House of Lords in Great Britain, are the only unelected bodies among the great democracies. It is true that the Senate does some amazing things. For example, when the Prime Minister appoints a senator, he can appoint a man or a woman and achieve equality. That is great. I agree with that. It also makes it possible to show far greater respect for minorities. That too is a good thing. If ever the Senate were elected, clearly the people will be deciding. Then it would be like the vote. At one point, only men could vote, but people decided that that made no sense and that women had to have the right to vote and to run as candidates. This was enshrined in law. If we have an elected Senate, we will have to protect our minorities, and if we want to preserve equality between men and women, that would be a good thing, because I teach that almost every day. I think all of this is up to the political parties as well. A solution can be found. As Lincoln said:

[English]

Government of the people, by the people, for the people...

[Translation]

That is our democracy. I believe in it. I think we have to preserve equality between men and women and we must have laws and principles that are very clear and that we must protect minorities. There are Supreme Court rulings on this matter.

I think that if an elected Senate were to come about, it could work and it would be more democratic. That is all I can say. I cannot foresee the future. Who can?

Mr. Tremblay: I have just one brief comment. There is some confusion here. I understand your concerns, they are quite legitimate and that is why a Charter was passed. It was passed so that hard-line democracy would not affect those who do not have the opportunity that exercise their vote because they are not elected representatives. At that time, even if there were only white Caucasians in Parliament, the fact that there were no persons of colour would not mean that we could pass legislation taking away their rights. The purpose of the Charter is purely and simply to protect people against the excesses of pure democracy.

Having said that, I understand your concerns very well. But I am not aware of any electoral system that allows one to say that you have the right to vote but that amongst those voting there must be two women and in another region, in your riding, you must have Catholics, Protestants, et cetera. It would be never-ending. It is true that, the lobbying process and the efforts of political parties result in the creation of a movement and in the end things change without the principles of democracy being altered.

With the appointment process, in principle, if you one day found yourselves with a Prime Minister who went off his rocker and decided to make appointments without women, and with no regional representation, it would be no better.

Mr. Beaudoin: He would be beaten the next time around.

Mr. Tremblay: But there is no perfect system that allows one to say that women, aboriginal people and persons of colour would be well-represented. Democracy is "One man, one vote; one woman, one vote." If we do not have an elected Senate, it will be an appointed Senate until the end of time — but based on what criteria, that is the issue.

Senator Chaput: With the application of our current charter, in our day-to-day lives, would you agree with me when I say that if we take the example of Senator Watt, when he is in the Senate, no one is in a better position to make us aware of the needs than someone who comes from that reality?

Mr. Tremblay: I agree with you. Absolutely. But I do not know how to create a system that allows for that in law.

Mr. Beaudoin: The Supreme Court, in a very important decision, had referred to the equality between men and women; that is what section 28 of the Constitution is about, it is very clear. Rights are entrenched in section 28 of our Constitution. A prime minister who pays no attention to that, in my opinion, will not last long. Canada is a democratic country, let us not forget it; Canada is a great democracy. For the Senate, we must do the same thing.

[English]

Senator Segal: I apologize for having arrived late for our two distinguished witnesses. I had duties relative to welcoming a group of Jesuit clerics from the United States on behalf of the government. While I was struck that it was quite an unlikely assignment for me, I was delighted to take it on and I apologize for not having been here for the formal presentation. I did have to tell them I was educated by the Oblate Fathers at the University of Ottawa and so I was sceptical of Jesuits on occasion, but they were very understanding.

I want to step back from the two specific items before the committee, the motion and Bill S-4, and ask both of our colleagues from Quebec to reflect on that I think will end up being the core question in the debates that will take place, both on these two pieces of proposed change and what may emerge from the government in due course.

The core philosophical question, about which the law is specific but the courts might not agree, is: Who owns the Senate? Clearly it is part of the federal legislative process. However, because of the process by which the Senate came together, the articles of Confederation and the pre-Confederation debates, a view will be advanced — I expect in a few hours — by a federal minister from the province of Ontario that the Senate does not belong to the Government of Canada, or to this committee or even to Parliament and the Government of Canada, even for the most limited of changes.

The principle articulated a few moments ago was that a prime minister can decide to limit his appointment powers, which is what I believe this Prime Minister is trying to do, by establishing a shorter term. If the committee had difficulty with reappointment, the Prime Minister indicated he would gladly give up that power. The term would become non-renewable and legislation would be introduced similar to the 1992 legislation with respect to referendum on constitutional proposals at the federal level. The referendum was not constitutionally binding. The fact that it would take place was agreed to by first ministers as a means of advising them about the content of the Charlottetown Accord, whether or not it would proceed.

We have a Prime Minister who clearly anticipates an appropriate means of public consultation if the bill passes the House and then the Senate, so that the public can be canvassed, perhaps at the time of the next federal election, on vacancies that might exist in their respective jurisdictions in Ontario or Quebec.

Should that pass the House, the Senate and the prima facie constitutional challenges — sure to emerge as Ontario has signalled to that effect — the core question will be whether to change the Senate is within the purview of a federal prime minister and Parliament and Senate. Some would allege that when a prime minister seeks public advice on how to discharge his or her constitutional obligation regarding a non-change of constitutional format, that this is ultra vires: one cannot prescribe that core constitutional right without constitutional amendment under the appropriate section, 7-50, et cetera.

It will come back to the matter of the distinctive nature of the institution. Is it a kind of coaxial institution shaped by the provinces and Ottawa as part of the Constitution Act, 1867, or, despite the way in which a prime minister seeks advice on whom he or she might appoint, is it a body that can be affected possibly and potentially by convention in that way without violating the core constitutionality?

I will add a second small question because it is relevant to the point that Senator Chaput raised. In New Zealand, which has a dual system of first-past-the-post and proportional representation, the national lists put out by the parties do reflect the minority question, thereby ensuring that at least one third of that list are from the Maori community in keeping with their national consensus on respect for minority rights. I would be interested in your views on the referendum process, which is anticipated. If the referendum anticipates proportionality, would we face a Charter of Rights challenge because it would be a different approach to that which exists under the Canada Elections Act?

[Translation]

Mr. Beaudoin: We must not forget that it is the Prime Minister who appoints all senators. In future, if it is truly an elected Senate, the people will have the final say. And that is the definition of an elected Senate. I do not know what will happen, I am waiting just as you are, Senator Dawson. I am not involved in the process, but one thing is very clear in my mind: either our Prime Minister carries on with the powers he has, and he will be the one to appoint all senators, or electoral legislation will be tabled, and the final word will be that of the Canadian people. It is a huge change!

Senator Segal: But Mr. Beaudoin, if the intention is not to change the Prime Minister's power of appointment, but only to allow him to consult the public before making his appointments with the Governor General —

[English]

Mr. Beaudoin: We will wait to see because we do not know at this time.

[Translation]

Senator Segal: That is what I am asking. There is a difference between an elected Senate and a Senate that retains the same powers, but where the Prime Minister seeks advice before making his appointments, as Mr. Tremblay said on the subject of judges. Attorneys general —

Mr. Beaudoin: But in your scenario, would the Prime Minister have the final word? Would he be the one to appoint them?

Senator Segal: I am saying that if he is guided by the people, he will have the final say.

Mr. Beaudoin: That is not an elected Senate. In the United States, in 1913, it was said that for the Senate, there would be a six-year term and that they would be elected one third at a time; the American people approved. The President of the United States does not appoint, the people vote. That is an elected Senate.

Some provinces are for and some provinces are against an elected Senate. I spoke to people from Ontario and from Quebec. Some say that as they already have 24 senators nothing much would change for them. It would, rather, be of assistance to the others. Therefore, they are not very interested. But the provinces that are becoming stronger, like British Columbia, say that this makes no sense. They have a population of some four million and only have six senators. This must change.

The Maritimes have 24 senators, and when the province of Newfoundland and Labrador joined Confederation, they were given six. And so the Maritimes have 30 senators and western Canada has 24, and they are a far more populous area.

If we therefore truly want an elected Senate, we will have to determine how many senators there will be per province and that, means using the 7/50 formula. We cannot get away from it. In a nutshell, with an elected Senate, the people have the final say. But with the Senate that we currently have, the Prime Minister has the final say.

Mr. Tremblay: To answer Senator Segal, I would say that either reform is constitutional in the strictest sense or it is something else entirely. It is either a reform of the Constitution or it is something different. The question you were asking seemed to indicate that if it were something else, this other thing could also be unconstitutional if we do indirectly what we are not able to do directly. I think that if the power of appointment is not taken away from the Governor General, and she or he keeps the final say, as is the case for the appointment of judges, there is much that can be done.

When we look at the evolution of our institutions — and this comes back to what Senator Austin was saying earlier — when we look at section 101 of the Constitution, it simply provides for the creation of a Supreme Court, should the need arise. Only if we want to. It is no more necessary than that. The Parliament of Canada established a Supreme Court and the rule that three judges must come from Quebec. And that is simple legislation; it is not in the Constitution at all. No one has touched it for a considerable time. Since 1982 — this is a rather extraordinary technique — the amendment formula states that the composition of the court can no longer be altered.

Senator Segal: Without unanimity.

Mr. Tremblay: It is extraordinary. What that means is that simple legislation, through the evolution of institutions, at some point in time becomes entrenched in our system.

Senator Fraser: Welcome to you both, and a special hello to Senator Beaudoin, with whom I had the opportunity of doing in committee work and from whom I have learned a great deal.

My questions concern only the situation of Quebec in the Constitution insofar as the Senate is affected. Alberta and others have raised questions on the subject. I am talking about Quebec and very specifically about the issue of electoral divisions for Quebec senators.

Earlier, we spoke about the property qualification. And we know that according to the Constitution of 1867, a Quebec senator — and I will read it in English because it was written in English:

[English]

A senator from Quebec:

... shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

[Translation]

Am I right to conclude that if we abolish the $4,000 property qualification, we affect the residential qualifications, and in order to do this, we will need the agreement of the province and 50 per cent of the population? Is the 7/50 formula required because of the Quebec situation in order to change that?

We know that the 24 electoral divisions that were set out in the Constitution Act of 1867 did not include the northern part of the province because in 1867, this region was not yet part of our territory. Therefore, the districts that were established in the Constitution only affect the south of the province; but there are Quebecers that live up there! Therefore, if we move to a system of direct elections or direct public consultations, in the case of Quebec, would this have to be done division by division as is done in the ridings for the members of the House of Commons? If so, what will happen to the people in the north? Are they are to be deprived of their vote?

Mr. Tremblay: As we speak — and I would like to draw everyone's attention to this — if you look at paragraph 42(c), it refers to residency requirements. Now, if you take paragraph 23.5 of the Constitution Act of 1867, the word "resident" is mentioned. The person must be a resident.

Senator Fraser: But also in paragraph 6.

Mr. Tremblay: You are right.

Senator Fraser: But it is paragraph 6 that concerns me.

Mr. Tremblay: It seems as if the legislator, with his amendment procedures, was very precise when he wanted to be and equally as vague when he wished as well. However, when the issue was residency requirements, the legislator was reading section 23, and was not including all of the section 23 requirements. In section 23, the word "residence" is mentioned only in paragraph 5. It is as though one could be subject to section 44 if the other requirements of paragraph 5 are called into play. That is pure law. That is teleology, text analysis.

On the other hand, how could we have an electoral system with these 24 divisions? We cannot do so without going through the other amendment formulas, and therefore, that becomes a debate.

Mr. Beaudoin: At the time of my appointment to the Senate, I represented the riding of Rigaud. However, I did not live in Rigaud; I lived in the Gatineau region. I was then informed that I must buy land in Rigaud. I bought a piece of land for $4,000, perhaps even $5,000. I had to be from Rigaud or I had to own property in Rigaud.

When the federal government enlarged the Quebec territories — in 1912 if memory serves me well — there were at least two or tree cases where Quebec and Ontario were expanded, but the people on these territories were represented, they had a member in the House of Commons. It could be the same situation for senators.

Senator Fraser: And do they not have a right to have a senator?

Mr. Beaudoin: Yes.

Senator Fraser: All other Quebecers have the right to their senators.

Mr. Beaudoin: There are senators everywhere. There are 24 districts in Quebec.

Senator Fraser: But they do not encompass the north, the area that was added in 1912.

Senator Dawson: The electoral map of 1867 does not include northern Quebec.

Mr. Beaudoin: So we have to correct the situation.

Senator Dawson: But the district of Rigaud has not been changed, and neither have Alma nor Lauzon.

Mr. Beaudoin: There is one person who represents the region that extends from Lac Saint-Jean to Ungava.

Senator Dawson: No. The boundaries were drawn in 1867, and ended at Lac Saint-Jean.

Mr. Beaudoin: It has to be in the Constitution.

Senator Dawson: It is in the Constitution, and those people are excluded.

Mr. Beaudoin: We have to settle that.

Senator Dawson: If we want to comply with the Constitution and if we are to hold an election, we must resolve the problem.

Mr. Tremblay: You are right. It is clear that it is wrong to say that Senator Riel represented Shawinigan. I believe that he never set foot in the area. In fact, he once spoke out in the House on this topic. He explained that a senator is appointed and must own property in a given district, but that he does not represent this district more than any other; he represents the entire area. If we are to hold an election, the entire region of Quebec will have to be redrawn.

Mr. Beaudoin: All we have to do is expand the region.

Senator Dawson: Senator Angus, who is the senator for Alma, has 3 million voters living in his district. In the district of Lauzon that I represent, there are perhaps 50,000 voters. That is not a small problem, it is a big problem.

Mr. Beaudoin: We must attend to this.

The Chairman: Honourable Senators, I am afraid that our time is up. In closing, I would like to thank our witnesses for their testimony. Their presentations will be very valuable and helpful in our study of Bill S-4, as well as Senators Murray and Austin's motion.

This hearing is adjourned until this afternoon at 2:00 p.m. We will be hearing from the Ontario Minister of Intergovernmental Affairs.

The committee adjourned.