Proceedings of the Special Senate Committee on
Senate Reform

Issue 5 - Evidence - (Afternoon meeting)


OTTAWA, Thursday, September 21, 2006

The Special Senate Committee on Senate Reform, to which was referred the subject matter of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), met this day at 2 p.m. to give consideration to the bill and to a motion to amend the Constitution of Canada (Western regional representation in the Senate).

Senator Daniel Hays (Chairman) in the chair.

[English]

The Chairman: It is a great pleasure to welcome our witness this afternoon in the person of the Minister of Intergovernmental Affairs for the Province of Ontario. She is also responsible for democratic renewal in that province.

Minister Bountrogianni, please proceed.

Hon. Marie Bountrogianni, Minister of Intergovernmental Affairs and Minister Responsible for Democratic Renewal, Government of Ontario: Honourable senators, I thank the committee for its invitation and I appreciate the opportunity to put Ontario's views on the record on the issue of Senate reform.

As I am sure members of the committee have heard, Senate reform is not a priority for Ontario or for the 39 per cent of Canadians who live in Ontario. Among all of the critical issues facing the country, changes to the Senate should not be a high priority.

Let me anticipate one question before I continue with my remarks. You may ask: If it is not a priority, what are you doing here? What is a minister doing here if this is not a priority? The answer is simple: We are genuinely concerned that the issue of Senate reform will lead us into unexpected places and reopen constitutional questions that should not be reopened at this time. Ontario wants to ensure that the attention of Canada's leaders are focused on the right issues. We cannot allow our attention to be misdirected toward constitutional discussions that could last a long time and yield no real benefits for Canadians.

We believe focus is important. In Ontario, we have focused on improving results in our education system, in our health care system, and in terms of employment, infrastructure, the economy and prosperity. The current federal government has also attracted praise for having a focused agenda. We would urge the federal government to focus on the priorities of Canadians, and we are concerned that a constitutional debate on the Senate is not something that Canadians would welcome at this time.

Debating the future of the Senate distracts the federal and provincial governments from dealing with Canada's more pressing needs, such as reforming our fiscal architecture in meaningful ways, strengthening the economic union and investing in our people and infrastructure to ensure that Canada and Canadians remain prosperous in an increasingly competitive global economy.

[Translation]

Meaningful Senate reform requires constitutional change. Currently, Ontario is not in favour of re-opening the Constitution.

[English]

Meaningful Senate reform requires constitutional change and Ontario does not support reopening the Constitution at this time.

The process of Senate reform inevitably leads to new rounds of constitutional discussions and Ontario does not believe that this would be in Canada's best interests. Countries around the world are focusing on investing in their people and infrastructure. We need to do the same.

While Bill S-4 may seem to be a small step, the Prime Minister, in responding to a question from this committee, said it was his "frank hope" that this process would eventually "force the provinces" to "seriously address other questions of Senate reform" that require constitutional amendments.

The Prime Minister may favour a constitutional discussion focused on only the Senate, but I think we all know that these proposals have a good chance of leading us down the path travelled during the Meech Lake Accord and Charlottetown Agreement debates. These issues distracted governments and Canadians for over five years. These constitutional debates divided Canadians in ways that took an enormous toll on the country and the government of Ontario does not support reliving these experiences. We urge the federal government to not embark on this path without a full appreciation of the likely consequences.

If the federal government insists on reopening the Constitution to deal with the Senate, Ontario's preference is for abolition. Alternatively, any reform designed to make the Senate a more meaningful democratic body would need to deal with the under-representation of Ontarians in the Senate. If Senate reform is to proceed, the under-representation of Ontario citizens must be addressed. Electing senators under the existing system would entrench and exacerbate inequities that are acceptable for an appointed body acting as a "chamber of sober second thought," but clearly would not be acceptable in a body that would become a potential democratic competitor to the House of Commons.

The proposed reforms would see a legislative chamber much like the House of Commons, one with similar powers and one which would likely be seen by voters and senators themselves as democratic and legitimate. However, it would also be an institution in which Ontario has just 23 per cent of the seats while having 39 per cent of Canada's population.

When the Senate was established at the time of Confederation, it was established on the basis of appointed senators, lifetime tenure, and regional equality, rather than representation by population. Clearly, changing any of these pieces is a significant departure from the intended role of the Senate, that of "chamber of sober second thought," and requires a full national discussion and the consent of the Canadian public.

Once Canada has elected members in the Senate, much like the members of the House of Commons, and with similar powers and responsibilities, there is a real risk of gridlock between the two chambers, especially if the partisan composition of the two differs, as we so often see in the U.S. Congress. Canada currently has no mechanism for breaking deadlocks and the current proposals do not address the danger this poses to the effectiveness of Parliament and effective government.

We would also suggest that if the federal government is interested in parliamentary and democratic reform, it should address the under-representation of Canadians living in Ontario, Alberta and British Columbia in the House of Commons. This change was promised by the governing party during the last election. It is a reform that would not require constitutional change and would significantly enhance democratic representation in Canada. As a result, it is Ontario's position that rather than pursuing Senate reform, addressing this under-representation in the House of Commons would be a much better use of time and energy.

The Ontario government believes that all Canadians are equal. We believe in the principle of one person, one vote. We believe that all Canadians deserve equal representation in the House of Commons. As we know, Canadians living in Ontario, Alberta and British Columbia are significantly under-represented in the House of Commons and the federal government has promised to address this issue.

Ontario's 106 constituencies in the House of Commons represent just 34 per cent of the chamber's 308 members of Parliament. This means Ontario, with 39 per cent of Canada's population, falls well short of a fair share of the seats in the House of Commons.

One of the founding principles of Confederation was the principle of representation by population and a proportionate distribution of seats in the House of Commons among the provinces. However, in 1991, the federal Royal Commission on Electoral Reform and Party Financing criticized the formula then in place for distributing seats, saying that it:

...substantially modified the principle of proportionate representation to an extent never before experienced.

Since the publication of the Royal Commission report in 1991, two redistributions have further reduced Ontario's share of Commons seats compared to its proportion of the population. We are moving further away from the principle of one person, one vote. Canadians who live in Ontario, Alberta and British Columbia are increasingly being underrepresented in the House of Commons, and, as a result, new Canadians, Canadians whose first language is neither English nor French, and visible minorities are also underrepresented. I know the federal government is aware of this, and Ontario urges it to act on its commitment to the people of Ontario, Alberta and British Columbia. I quote once again from the Royal Commission report:

Discriminating against provinces with populations that are growing relative to national population growth can only cause unnecessary friction within our country.

This therefore represents our overall position on Senate reform. It is not a priority for the government of Ontario or for Canadians living in Ontario. It leads to a process of constitutional reform which is not in the interests of the country. Abolition is preferable to tortured attempts at finding national consensus on reforms, and there are real reforms to our House of Commons that would significantly enhance the quality of our democracy that do not require constitutional change.

Once again I thank the committee for its invitation. I am grateful for an opportunity to provide an Ontario perspective on the issue of Senate reform.

The Chairman: Thank you, Madam Minister, for your presentation and for coming before our committee. We appreciate the views of Canada's largest province in a matter as important as that before us.

Senator Austin: Welcome, minister. I would like to ask you to explain to the committee the statement you made about Ontario's preference being abolition. Almost all of the evidence we have received from experts, both in constitutional matters and in governance matters relating to Canada, indicates the importance of a second chamber, which, as you have said in your presentation, deals with representation of regions rather than population as a check and balance. The lower population provinces have had, as we discover if we read the papers that led to 1867, great concern about being overwhelmed by the majorities in the two central Canadian provinces. Is that not a real concern? That is also a concern for Western provinces, I might add.

The second part of my question relates to checks and balances. We are a very diverse country — diverse regionally and diverse in terms of our minorities, because we are a country of minorities. The concern has always been to have a second chamber that would deal with the control by a majority in the democratically elected lower house and the control of that majority by an executive which would not permit the kind of debate and assessment of minority rights that is important in a country of minorities.

Another reason for an upper chamber related to its role as a revising chamber for legislation. Here again, it is a country that has made its best advances on the trade-offs amongst its constituent members, and part of that trade-off is the opportunity of a revising chamber. Finally, we have the role of the Senate, which I think has virtually universal approval today, in developing policy relating to medium and longer-term public policy development issues.

I would argue that those are valid roles. When Ontario calls for abolition, how does it answer to those issues?

Ms. Bountrogianni: Let me be clear. We are not here to advocate abolition of the Senate. We are saying we do not want to even talk about Senate reform. This is not the time to change the Senate. If we had to, we would prefer abolition rather than opening up the Constitution. Let me clarify that. Our position is similar to British Columbia's, Saskatchewan's and Manitoba's. We do not want to go there. If we have to, we would prefer to abolish the Senate rather than open up the Constitution and have that kind of debate at this time.

With respect to checks and balances, we believe that the issue of representing minorities can also be addressed through the Prime Minister's promise on more representation through the House of Commons.

On the policy issue, I reassure you that I have a great deal of respect for individual senators. I worked with Senator Pearson and Senator Kirby when I was children's minister for the Province of Ontario, and I know their tremendous contribution to Canadian society, to children and to mental health issues. I know the contributions of those around this table and of senators over the years.

Ours is a simple message. You will probably be bored with me very quickly. The request from Ontario is, do not do this now, please. Let us look at infrastructure. You are all distinguished world travellers, and you know how we have fallen behind in this country with respect to our roads, buildings and institutions. We used to be the envy of many countries and western jurisdictions. We are no longer that. Others have not only caught up, but ones that I would never have dreamed of as a child having European parents are actually surpassing us. We need to focus on those matters.

I was at an event a few days ago where an OECD report was presented indicating that Canada is one of the worst countries with respect to spending on early childhood development. I am not talking about child care but children. We need to address those issues as a country. As to post-secondary education, I do not need to tell this distinguished committee about our competitors in China and other parts of the world. We need to focus on post-secondary education. Now is not the time for Senate reform. We have a lot of other challenges.

Of course, I am biased. Ontario is biased with respect to another big issue, which is the fiscal imbalance. I know you do not want to hear about that; because that is all you have been hearing, at least from me, over the last few months. However, it is an important issue to Ontarians getting $86 less than any other Canadian in any other province for health care, post-secondary education and social services.

I respect the Senate. I have worked with senators. This is not about lack of respect for senators or the Senate. It is basically, please, do not do this now. There are many other important issues, and, if I may, with respect, there are other ways of dealing with the issues you have brought forward through the House of Commons and through other avenues. We can do this without opening up the Constitution and without having those gut-wrenching discussions across the country.

Senator Austin: I can go with you easily in the table of priorities that you contained in your answer. It has always intrigued me that some provinces have stated they are for abolition but have never really addressed the substantive reasons for a Senate existing and the roles that it performs. I am sceptical, frankly, that the functions that have been performed by the Senate, and which I have listed, can be performed in the House of Commons. I might add that reform of the House of Commons has appeared frequently as a priority in the evidence brought to us by experts.

I want to put something to you and I hope it does not sound cynical. My understanding of the major reason for some provinces calling for abolition is that it is an easy political answer to avoid becoming engaged in the very issues you do not want to be engaged in.

You are making an argument for a population ratio even for the upper chamber. I think that is logical, if I take your point. During the Charlottetown discussions, former Premier David Peterson of Ontario recognized that the lower population provinces deserved an asymmetrical presence in the Senate to offset the growing reality that, given the current demographics, members from Ontario would soon exceed one half of all members in the House of Commons. Do you have a comment on your predecessor government's decisions and position on Charlottetown in respect of Senate representation and this asymmetrical formula, which has long been a part of our Constitution and which then Premier Peterson acknowledged for Ontario?

Ms. Bountrogianni: His prediction has not come to fruition. Ontario has 39 per cent of the population and only 34 per cent of the seats in the House of Commons. We do not have more than half the seats, far from it. Ontario has addressed this to a certain extent, although more needs to be done. We have mirrored the provincial ridings to the federal ridings and we have kept 11 northern ridings to address the point that former Premier Peterson made a few years ago and that you are making today, senator.

We chose another way to address that in Ontario. We will continue to look at the issue and, as democratic renewal minister, I am responsible for looking at ways for people to be better represented in our province.

Our argument today is to not proceed with Bill S-4 now. There are more pressing issues. British Columbia, Manitoba and Saskatchewan hold the same view. I felt that because Prime Minister Harper took the time to appear before this committee to present his case, which I believe was precedent-setting, Canada's largest province, Ontario, should show the same respect to this process and present its position, although it might be disagreeable to many in the Senate and in Ottawa. It is a position of respect and this is Ontario's view, given our electoral system. We are the government and representatives for the people of Ontario. Through us, that is the view of the people of Ontario.

Senator Angus: Minister, thank you for your clear statement, which allows me to obviate the necessity of asking you where you truly stand. In regard to Bill S-4, obviously Ontario is an important part of the Canadian fabric and holds a large percentage of our people. However, you are still only one of 10 provinces, which might present other views. I know that you would not come here without being well prepared on Bill S-4. Would you agree that, as drafted, Bill S-4 is within the legislative competence of Parliament?

Ms. Bountrogianni: I am aware of the debate over the question. Some experts say that it can be done without opening the Constitution and others doubt that. In my mind, that increases the risk of a debate on the Constitution. I will also mention something that I told Minister Nicholson with whom I had lunch today. We talked about this and there is another risk that theoretically could occur. With term limits and lifetime terms ending after eight years and a prime minister that still has the final say as to who is in the Senate, the result could be a partisan group of senators. I doubt that it is politically possible but it is a theoretical risk.

Senator Tkachuk: Much like it is now.

Ms. Bountrogianni: It could happen to a greater degree. I am not advocating for any one thing in particular. In the current system, senators can stay until the age of 75, thereby continuing to represent all political parties. If there are eight-year terms and a prime minister has the final say in nominating appointees to the Senate, the opportunity exists, in theory, for senatorial representation from only one political party. That poses a risk in our view.

Senator Angus: I understand. We have been meeting on the issue for two or so weeks. I repeat my question: Does Ontario take the position that Bill S-4 is not within the competence of the federal Parliament?

Ms. Bountrogianni: We require more opinions on that.

Senator Angus: You do not take that position?

Ms. Bountrogianni: At present, we do not want to go there.

Senator Angus: I understand.

Ms. Bountrogianni: We do not want to open that discussion.

Senator Angus: You have taken notice of what the Prime Minister had to say when he came before the committee. He demonstrated a considerable amount of flexibility on the length of term; on whether the term would be renewable, vis-à-vis the independence issue; and on the naming of senators if it were not an election process. I think he was clear on his intent to proceed with the proposed legislation. I would like to determine whether we could expect a constitutional challenge from Ontario and you are hoping that you will never have to think about it.

Ms. Bountrogianni: Our position is that any part of the proposal from the Prime Minister should be looked at as part of a package. I understand the incremental approach and there is some merit to that in any big change process. However, we believe that in the case of Senate reform, you cannot look at one piece in isolation. It has to be looked at within the broader package of Senate reform. Therefore, we believe it poses a high risk of opening the Constitution debate. I am not a constitutional expert, obviously, and this is the advice that I have received.

Senator Hubley: I would comment on your presentation and my question will arise from that. You noted that Ontario, Alberta and British Columbia are becoming increasingly under-represented in the House of Commons. As a result, new Canadians, whose first language is neither English nor French, and visible minorities are also under-represented. That is a good point to make. I am not sure if we related those minorities to larger populations, which we should be doing.

At present, the Prime Minister has a great deal of power in his ability to shape the Senate to respond to the needs of Canadians who, for whatever reason, perhaps because of their lower numbers, are not able to gain representation through our electoral process. Mr. Harper has decided on Senate reform to address the problem. Certainly, his prerogative is important in how he shapes his vision of the country, although he probably does not share that with me.

This might flow from one of Senator Angus' favourite questions. A witness appeared before the committee and suggested that perhaps citizens' assemblies would be a way for the provinces to address their provincial groups that are underrepresented. These citizens' assemblies could choose senators, which would vary from province to province, and each province could meet the needs of where they have under-representation in the House of Commons and in the Senate. Do you have a comment on that, other than "we would rather not go there?"

Ms. Bountrogianni: I cannot resist advertising the fact that Ontario has a citizens' assembly looking at electoral reform. Elections Ontario randomly selected these citizens from each riding. Many of them were minorities that found it to be a wonderful way to give back to our country. It was emotional and some people were upset when not chosen.

This is our first experience with such a process; it began only last week. They will report to the government of Ontario in May 2007 on whether Ontario should change its electoral system.

As a former academic, I believe anything that engages the public is educational and well worth it, regardless of an outcome of change or not. I am very excited in engaging, particularly, the youth.

Generally speaking, we are in favour of citizens' assemblies. Whether they should be attached to a way of representing people or finding representation in the Senate is an issue that requires broader national debate and discussion, and that is not something we want to do right now.

Senator Hubley: We will watch with interest how your citizens' assembly progresses.

Senator Tkachuk: Many of us believe that one of the main reasons the Senate was established was to protect the rest of us who lived outside of Ontario from the large population of Ontario. You have come here with a very different policy than Ontario has historically had regarding these issues, arguing that you are under-represented in the House of Commons and in the Senate. Is that the policy of the Government of Ontario, that you want the Senate to be rep by pop?

Ms. Bountrogianni: It is more a statement. It is a fact. We are under-represented in the House of Commons by population and we are under-represented in the Senate by population.

You have a very good point, senator. There is a bias outside of Ontario. When I was immigration minister and children's minister and travelled across Canada and met my colleagues from other provinces and territories, there was a certain perception of Ontario.

However, Ontario has changed over the decades. Parts of Ontario have real needs and challenges as much as any other territory or part of the country. The original tenet of having senators to protect the rest of the country from Ontario is probably not as valid as it once was. Ontario has changed dramatically.

Senator Tkachuk: Do you not think that you would have more success arguing for an increased number of seats to fit the 39 per cent of the population you have, which I am sure you will still want even though you may not have that number in the future? Nonetheless, if the Senate was stronger and more representative of the regions, do you not think you would have a stronger argument to make politically?

Ms. Bountrogianni: There are two ways to respond to that. First, we are here to say that we do not want to engage in Senate reform. We are not here to ask for more seats. That is our fall-back position if the Prime Minister insists on going down this route. Then all we have left to do is to protect Ontarians and ensure that they are properly represented.

The second thing is that we believe that better representation can be achieved by asking the Prime Minister to fulfil his promise during the campaign to increase representation in the House of Commons, not only for Ontario but for the other provinces that are also under-represented.

Senator Tkachuk: It just seems abolition is in there, if we talk about it, but proportional representation or "rep by pop" in the Senate is something that Ontario wants and the rest of Canada should not worry about it. Is there any bicameral legislature in the world where both Houses would be represented by representation by population?

Ms. Bountrogianni: Every jurisdiction has decided its way of governance. We are not here today to talk about how the Senate should be reformed. We are saying the opposite: Please do not do it now. There are other issues in this country, in our province — having 39 per cent of the population — that we believe are more vital to be examined at this time. That is the message today.

Senator Tkachuk: From our point of view, though, we are senators so we have to talk about Canada. You are talking about Ontario; I just want to make that clear.

Senator Munson: Was the Government of Ontario informed beforehand of the Prime Minister's proposal on term limits — before he proposed them to us?

Ms. Bountrogianni: I do not know the answer to that question.

Senator Munson: We have not brought up the concept of Senate reform; it was the Prime Minister who began this move to Senate reform. You tweaked my curiosity. You said you had lunch with Mr. Nicholson today. Did you talk about Senate reform?

Ms. Bountrogianni: Yes, we did.

Senator Munson: Did you give Ontario's position to him and did he give you any insight? I ask because we do not know where the government is going.

Ms. Bountrogianni: Basically, I did not discuss anything that I have not already said and that has not been published in the press — so yes, we did.

Senator Munson: That was leaked earlier this week, you mean.

Ms. Bountrogianni: That was two days ago.

Senator Munson: We heard this morning from a learned professor that abolition would take unanimity. That was one of the debates, and that would mean dealing with the Constitution. You are saying do not get into the Constitution because it leads down all these paths, but if we walk down your line of reasoning, that would mean opening up the Constitution and getting into that kind of debate.

Ms. Bountrogianni: Which brings me back to our original position, which is do not go there. Do not even do it right now.

The premier has said that if we have to do it, he would prefer to abolish it rather than go through a large national debate. If you are saying we would have to go through it anyway, then that is a good point. However, our position as the Province of Ontario is that there are other issues that need to be looked at, and not Senate reform.

Senator Munson: If you are saying abolition, I am curious why you are taking such a dark view about such great characters that act for the common good and are trying to make a difference in people's lives through reports and policies. This seems to you to be an easy thing to do — just get rid of it? Why are you so adamant?

Ms. Bountrogianni: As I said earlier, I have worked with a number of senators in my other portfolios, and have a great deal of respect for them on a personal basis. They have contributed and continue to contribute. We simply do not want to go to Senate reform. That is our number one position, the same as B.C., Saskatchewan and Manitoba.

Like those provinces, if we have to go, the premiers have all said they prefer abolition. However, our number one position is do not reform the Senate; at this point in time, we have other issues that are much more important.

I have to say as a former, and first children's minister of Ontario, I was embarrassed at the OECD report on how children are treated in this country. I am not pointing fingers at anyone; I was just embarrassed. I think we can do better as a country for our children, for our university students.

My son just started university. I am blessed; I can take care of his tuition, but there are children who have a hard time. There is so much we need to look at — not only on humanistic grounds, but also in order to ensure our prosperity.

I believe the premier's and the Government of Ontario's position is that those are the issues that we need to spend time on. We have a lot of historical references to other constitutional debates that pretty well ripped the country apart, that were gut-wrenching and took a lot of time. We do not feel we have that luxury at this point in time.

Senator Segal: I thank you for the clarity and precision of your representations this morning. I want to step back from the concerns you expressed about representation for Ontario, which I think any minister of the Crown from Ontario should be expressing and advancing — it makes good sense. I would like to talk about a tradition, of which successive Ontario premiers have been a part, that says Canada is the greatest country in the world but it is not perfect. There are fiscal and social injustices and some constitutional inequities that, on occasion, have to be addressed.

Because Ontario is, in a sense, a thriving core of the economic heartland, so fundamental and in the past, at least — as other provinces came on stream economically — was so dominant economically that there was a kind of primary purpose that every Ontario government had to tend to the country; to sometimes set aside their own direct interests in the larger process of strengthening the country and building the nation.

I do not in any way disagree that we are not at any point of crisis now where that kind of engagement may be necessary. That being said, I am very impressed with the initiatives your government has taken with respect to democratic reform. You will understand that, in many parts of the country, such as Western Canada, reforming the Senate is part of the same theme of democratic reform. The balancing role that the Senate either has had or should have and might better have following upon some reform is very important to their perception of the ownership they have in the country and the country's fairness towards them.

Our problem as a committee is that we were not consulted before Bill S-4 was presented, either. It is now our job, as a committee of the Senate, to make our very best recommendations under our distinguished bi-partisan chairmanship as to how the government should now proceed.

Taking all that into consideration, we actually do not have the option, I do not think, of recommending abolition, although theologically it is possible. We do have to pronounce upon the motion and the piece of legislation before us. Would you care to give us any advice on that specific narrow task, accepting that it is not on your hierarchy of priorities, which we respect?

In an exchange between Senator Hubley, Senator Watt and the Prime Minister a few days ago, when asked about how you ensure that various minorities are part of the mix, the Prime Minister did not rule out the notion of some proportionality as a basis for a consultative process relative to Senate reform. I know that the citizen assemblies going on across the province under your leadership will be taking many of those kinds of ideas into consideration. I would be interested in your reflections on those two parts of our challenge.

Ms. Bountrogianni: On your first question about advice, you are in a tight spot, and I appreciate that. You do not have the choice. I have the choice to come here and disagree with Senate reform at this point in time. I have that luxury, and I do represent the Province of Ontario, so it is my job to advocate for Ontarians, as it is your job to advocate for Canada.

Mr. Mar is a friend of mine, and I know he has a different position than Ontario, but he also a different position than the Prime Minister on some aspects of Senate reform.

You have a difficult task, and I am here simply to put Ontario's position forward to you. Please use your influence, is my request, to perhaps delay this or not do this at this point in time when other issues are so pending. I know that that is of little assistance to you, but that is my position. I have to be clear and honest.

With respect to the minorities, I am a daughter of minorities. My parents came here from Greece 51 years ago. I have a bias towards having representation in a proper way. It is also a challenge in Ontario when you look at the voting patterns and who votes and who does not vote. There is a responsibility for new Canadians, as well as other Canadians, to go out and vote. We are looking at citizen assemblies to engage them so that they can vote. That is why we now have fixed election dates. I know the Prime Minister has proposed that, and I think that is excellent. That is why we have transparent political donations, anything over $100 within 10 days has to go on Elections Ontario. We are doing what we can.

We understand that the motivation behind Senate reform is positive. We are not at all challenging motivation here. We are saying, as a province, that when we go across the country, we see that not only in Ontario, although I am here for Ontario, but across the country there are other issues that we believe collectively as a country should be addressed right now.

Senator Fraser: Minister, welcome to this body that may or may not be abolished any time soon.

One line in your presentation really interested me. You were talking about the basis on which the Senate was originally established, and you mentioned appointed senators, lifetime tenure, now tenure to age 75, and regional equality. You went on to say that changing any of these pieces is a significant departure and requires a full national discussion and the consent of the Canadian public. Those last words fascinated me.

I took from that that you were saying that it was politically wrong and perhaps legally wrong to proceed with Bill S-4, the bill before us, which does deal with tenure, absent in some way the consent of the Canadian public. Would you care to elaborate on that a bit?

Ms. Bountrogianni: Basically that means exactly what I have been saying. This requires full national debate. If there are significant changes to the Senate, the Canadian people need to be consulted. Again, we do not believe that the time is right now for that to be the issue for consultation. This is very important, and we are not questioning the motivation behind the Prime Minister, but are saying that now is not the time.

Senator Fraser: However, as Senator Segal observed, you may not think it is the time but the Prime Minister does, so we have a bill before us.

Ms. Bountrogianni: I understand.

Senator Fraser: Presumably one of the options open to this committee would be, when it reports back to the Senate, to say that there should be a national referendum on this bill. I am trying to establish whether you think this bill requires a broader degree of consent in political terms than just debate in Parliament, or whether you are saying the whole thing should be a package that requires a broader degree of consent.

Ms. Bountrogianni: I would say both, senator. We in Ontario do not see any one of these pieces separately. It should be seen as a package. That would require, we are told, constitutional change, and that would require obviously national debate and perhaps a referendum, perhaps an election, but some sort of process to consult and get the opinion of the Canadian people. We are saying, at this point in time, do not do it. How many times have I said it? Too many, but that is our position.

Senator Fraser: You have made that point very clearly. Thank you.

The Chairman: Colleagues, I have on my list senators wishing to put questions in Senator Chaput, Senator Comeau and myself. We have not too long. Could the three of us put our questions and then give the minister an opportunity to respond to the three so that we will not run out of time? The minister must leave at three o'clock sharp. I will ask the first question and then go to Senator Comeau and Senator Chaput and then to the minister for her response.

The question I wanted to ensure that was put to you is in relation to your comment that it is important to address Ontario, Alberta and British Columbia being underrepresented in the House of Commons. It has not been commented on, but one argument in favour of a motion to increase Senate seats for, among others, British Columbia and Alberta, would be that the combined seats in the House and the Senate would address their underrepresentation. That would do nothing for Ontario, admittedly. That aside, the reason for the underrepresentation is the guarantee of no fewer House seats than Senate seats, and the 1985 Representation Act, both of which, as far as I can tell, are constitutional. The Representation Act was, in fact, one of two section 44 amendments that have been made since 1982. Yet, you have given us an indication that Ontario may believe, and I know you are not a constitutional lawyer, that this can be done without constitutional change.

Senator Comeau: The Senate was conceived as a countermeasure for larger jurisdictions, but facing a 21st century setting, we are trying to live with 19th century institutions. We are seeing it with the agendas of cities now, which has to be tackled eventually. We are seeing a greater rural-urban divide. I understand that even in Northern Ontario some of constituents are saying they would like to join with Manitoba because they are not happy with the government. There are questions out there.

You are, in fact, getting a citizens' assembly analysis for future consideration, so the time is right for Ontario, but you are saying that the time is not right for the nation as a whole, a nation which historically has had Ontario in the role as the great unifier of problems facing the nation. You are saying, "We are not interested, so don't even go there. We do not want to have anything to do with making the nation work better."

How do we respond? How do I tell Nova Scotians that the Ontario we used to be able to depend on to unify the nation is saying, "Go fly a kite; we are not interested in you any more; we are minding our own backyard; forget us?"

The Chairman: I believe Senate Chaput had a comment to make as well.

Senator Chaput: This is just an observation. I am from Manitoba where our premier is Mr. Doer, of the New Democratic Party. Do you know Premier Doer?

Ms. Bountrogianni: Yes. I was with him in Halifax last week.

Senator Chaput: He does not believe in the Senate as it is now, but he might believe otherwise if we look at an elected system. That is what I understood from his last communication. When I read that, I asked him that if he believed in an elected Senate because it was democratic, how about the rights of the French-speaking population in Manitoba to be equal partners? He said that is something to be considered. I thought I would let you know.

The Chairman: I believe Senator Dawson also wanted to ask a short question.

Senator Dawson: When? That would be shortest formulation I could put. When would be the right time to debate it? When would be right time to start debating the question? How can we get the people of Canada, the provinces and the "intelligentsia" to start thinking about the reform of the Senate if we do not start somewhere? I do not necessarily agree. I think term limits, yes, and possibly elections, but we have to start to debate somewhere, and you are saying that this is not the time. Did we miss the time? Was it somewhere down the road and we missed it, or is it after we have solved every other problem? When is the right time?

Ms. Bountrogianni: I will try to respond to the four questions starting with your question, senator, on insisting on proper representation in the House of Commons.

We are saying that if the Prime Minister wants to improve representation in the country, he did promise that he would improve it through representation in the House of Commons, which is what we would prefer as opposed to Senate reform at this time. We are not insisting on anything right now, except that we cannot do the Senate reform right now.

With respect to the Western provinces and the Murray-Austin motion, that would actually decrease Ontario's representation in the Senate, so we would not be supportive of that motion.

With respect to Senator Comeau's comments, we are very proud to be helping the rest of the country; we have done it, we are doing it and we will continue to do it. We do it in many ways. Of the $11.5 billion of equalization, Ontario pays $5 billion. It has never received equalization; it came close once then the criteria were changed. What we are calling for in respect of the fiscal imbalance is that transfers across the country in health care, post-secondary education and social services be fair to all Canadians, including Canadians in Ontario.

I was in your lovely province of Nova Scotia a couple weeks ago with Premier Doer signing the internal trade agreement. There are some issues we agree on, some we do not agree on, but we signed an internal trade agreement where labour mobility by 2009 should be full across the country. Ontario and Quebec work together on our labour mobility agreement, and British Columbia and Alberta worked together. The four provinces were, I believe, leaders in getting the rest of the country together. Halifax was a wonderful host.

We are proud of investing in the rest of the country, and we are proud of our efforts in anything that we are asked to do for the country. Please do not take this as us worrying about our own backyard. It is not just Ontario. We are not alone in this; there are other provinces.

This leads me to Manitoba. I did not know that position. My files and the articles in the newspapers here say that Premier Doer does not want to do this and he would prefer abolishing the Senate rather than getting into this. If he has moved his position and I do not know about it, I apologize, but that is my understanding of Premier Doer's position.

With regard to your question, Senator Dawson. of when, if not now, or did we miss the time, I cannot answer that question. With respect to Ontario's position, now is not the right time. I am sorry that I cannot answer your question as to when the right time is. At this point all we can say is that we have many issues in this country and my province that definitely need to be resolved before we look at this.

The Chairman: Minister, on behalf of the committee, thank you for your appearance here today and for taking the time to both prepare and deal with our questions. Your testimony will be very helpful to us in our deliberations.

Senators, I am pleased to welcome as our next witness Professor Stephen Scott, a well-known expert in this area. He has appeared before Senate committees on previous occasions.

Professor Scott, please proceed.

Stephen Allan Scott, Professor Emeritus, Faculty of Law, McGill University, as an individual: Honourable senators, it is a privilege and pleasure to appear once again before a Senate committee. Since my first appearance in the early 1970s on the Federal Court Bill, your hearings have always been careful and constructive and all the more useful because typically less politicized than those in another place. Rather than a chamber of sober second thought, this has often seemed a chamber of first sober thought.

Senate reform, your present subject of study, might, depending on how far it is carried, greatly change the working of the Canadian parliamentary system and even that of the Canadian federation itself. I am not convinced that major reform is truly necessary but there seem to be cogent reasons for some reform, such as representation geographically, and there may be others whose time has come, given public opinion.

In respect of tenure of senators, the preamble of Bill S-4 affirms the wish "to maintain the essential characteristics of the Senate....as a chamber of independent, sober second thought." To avoid too-short a term and too-rapid a turnover of membership — impairing both expertise and independence — a term of nine or preferably 11 years would seem more suitable than the proposed eight years, assuming that the present tenure would be curtailed. This could be revisited if senatorial elections were introduced, and thus avoid the shorter term tailored to an electoral system until there is one in place; or a second stage could be enacted now with a shorter term to be proclaimed in force later, but only under specified conditions and if authorized by joint resolution. It is clear textually that a simple federal act — passed by both Houses and duly assented to — can alter the senatorial term of office, although this might leave too much latitude to an act of Parliament.

Of the comprehensive and elaborate set of amending formulae in Part V of the Constitution Act, 1982, section 44 provides:

Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Specifically in respect of the Senate, section 42.1(b) and (c) of the act carve exactly four matters from the scope of section 44: the powers of the Senate; the method of selecting senators; the number of members by which a province is entitled to be represented in the Senate; and the residence qualifications of senators. As to these four matters, amendments must be enacted by proclamation pursuant to the "general" formula of section 38. This requires authorization by resolution of the Senate and House of Commons or of the Commons alone — under section 47(1) — if after 180 days from the authorizing Commons resolution the Senate has not adopted the necessary resolution, and the Commons again adopts the resolution. Section 38 also requires authorization by resolutions of the legislative assemblies of at least two-thirds of the provinces that have in the aggregate, according to the then latest general census, at least 50 per cent of the population of all the provinces.

Despite some cogent policy concerns against this and other possible bills on Senate tenure, I can find no grounds here so compelling as to induce the courts to depart from the normal rule of grammatical interpretation of this carefully constructed set of formulae. It is a more delicate question whether other formulae could be used as alternatives to section 44 if, for example, it were sought either to circumvent the Senate through section 47(1) or to enact larger reform packages, including items both inside and outside the scope of section 44.

This same issue arises also in connection with section 45, the power of the provincial legislatures, subject to section 41, to amend the provincial constitutions by provincial statute. In both sections 44 and 45, the word "exclusively" appears. However, there are cogent reasons for holding that section 41, requiring unanimous consent of provincial assemblies, and section 38, the two-thirds rule, can apply alternatively to enact even amendments within the scope of sections 44 and 45. Why is that so? It is because this reading would enable enactment of packages of amendments addressing various subjects. Section 41 can be employed to amend the amendment process itself, and this implicitly seems to allow its use to enact any amendment. Under section 38, although the outcome is less clear than it is for section 41, every province is fully protected through its power to dissent under section 38 and, thereby excluding application to the province of any amendment under section 38 derogating inter alia from the provinces' legislative powers. On this wider reading of section 38, an amendment introducing senatorial elections, for example, could also address senatorial term of office.

Concerning the geographical distribution of Senate seats, larger and more complex issues are raised directly and indirectly by Senator Murray's motion to amend the Constitution to improve the representation of the Western provinces. Clearly, population trends have made the present geographical distribution difficult to justify. I shall not offer an opinion on what a coherent, fair and rational distribution should be — still less a politically feasible one.

I would make the following observations: First, changing the distribution of seats amongst the provinces, even by adding rather than transferring seats, would involve the dilution of the representation of several provinces. I have seen it argued that Premier Peterson's willingness to surrender some of Ontario's seats in the interests of reconciliation contributed to his electoral defeat. Dilution may be unacceptable, per se, to some provinces.

Second, the provinces can be left to work out amongst themselves what is acceptable without the federal government becoming caught in the middle of an essentially inter-provincial dispute, or incurring the cost in terms of sweeteners or side deals, and without enlarging and complicating matters with larger constitutional reform packages and commitments.

Third, though there are some considerations militating against doing so, I would read Part V of the 1982 act as permitting the passage of conditional authorizing resolutions of certain kinds, these amongst them: resolutions conditional, first, as to time; conditional, second, as to the formula to be employed — this being desirable, one, if it were sought to shelter one or more provinces from isolation under section 38 or, two, if an amendment, for instance an interpretive provision, could be enacted by two or more methods but would have differing effects, depending on the method employed — and conditional, third, with respect to the prior enactment of a competing amendment. In other words, on this reading, several alternative schemes could be proposed by resolution, but proposed as mutually exclusive alternatives so that only the first to muster the necessary resolutions would be capable of enactment.

Fourth, executive federalism and responsible parliamentary government can make a dangerous, even explosive, combination. Communications and discussions amongst governments and legislative bodies are inevitable and desirable, but federal-provincial executive agreements on constitutional packages involving explicit or implicit undertakings to use the parliamentary whip to force passage of amendments through legislative bodies as rubber stamps are inherently abusive and, whatever their outcome, can cause disappointment, bitterness, anger and prejudice to sound government. Resolutions are better proposed and passed in one legislative body, and other legislative bodies left to deliberate freely.

Fifth, I would note, but will not now tarry on, the relevance to various amendment processes of An Act respecting constitutional amendments, Statutes of Canada 1996 chapter 1.

I turn lastly to the method of selection of senators, which may soon be on the national agenda. Clearly, in formal terms, this can be altered only through section 42(1)(b). I think it likely, however, that consultative quasi-elections are constitutionally possible through ordinary federal or perhaps even provincial acts, though the Governor General cannot in any case be compelled to comply with the results. Whether senators are to be elected or quasi-elected, the parliamentary balance seems certain to be disturbed through a more assertive Senate. We shall be forced to review the Senate's full coordinate power, asking whether conflicts between the Houses should be resolved, say, by joint sessions of the two Houses or by repassage of bills by the Commons, with or without special majorities in either case.

Recall, too, ideas prevalent in the Confederate States before the Civil War, particularly that of interposition of the state government between the citizen and the United States government, so denying that the United States was a community of citizens. Is Canada a community of citizens, or is Canada, on the contrary, a community of groups or a community of communities? Surely that is a notion with disturbing corporatist connotations. I suspect that, along these very lines, you will encounter demands within some provinces that their governments or assemblies be allowed to choose senators from the province, an abuse purged from the United States in 1913 by the Seventeenth Amendment to the Constitution. I should think it utterly obnoxious to allow the government of a province to interpose itself between a Canadian citizen and the Canadian Parliament.

It is ingenuous, even Pollyannaish, to argue that even hybrid appointment schemes along the lines of Meech Lake can, by and large, be anything but provincially dominated. Recall, if you will, the appointment of Senator Waters to this chamber after his success in the Alberta senatorial election scheme. Pending enactment of the Meech Lake amendment, senatorial appointments were, by federal-provincial agreement, to be made from federally-provincially agreed names. Prime Minister Mulroney had every reason to resist Senator Waters' appointment. Mr. Mulroney had been dictated to in public, told in effect to take it or leave it, and this on a process advertised as designed to function through federal-provincial cooperation, and one indeed intended to become applicable in future to Supreme Court appointments. In terms of partisan politics, Senator Waters' Reform Party was undermining the Prime Minister's Conservative political base in the West. Lastly, and let me tread delicately, Senator Waters' views on official language matters were highly uncongenial to the Prime Minister, to many and probably most francophones, and to anglophone Quebec. Mr. Mulroney waited six months, but in the end he appointed Mr. Waters. This is the way Canadian federalism works.

In sum, while I do not on balance favour senatorial elections, as they risk too much disruption of an acceptably functioning parliamentary system, I view any form of provincial involvement in senatorial appointments as dangerous and even obnoxious in the highest degree, as it would both intensify centrifugal forces and interpose intermediaries between the citizen and the federal government. If elections are to take place, only a proportional representation scheme — or "faute de mieux" a constituency system — could achieve fair representation of voters of many different backgrounds, interests and views within a province. Just as it would be unthinkable to elect all members of the House of Commons from a single, province-wide constituency, so electing all of a province's senators, either sequentially or — without proportional representation — together from a province-wide constituency would be grossly unfair.

Honourable senators, I thank you and look forward to discussing these and other issues with you.

Senator Austin: Welcome again, Professor Scott, to the Senate. Thank you for a lively presentation on issues that we are very keen to better understand.

I should like to come back to your view on the method of selection of senators and the point that consultative, quasi-elections are constitutionally possible through ordinary federal or perhaps even provincial acts, though the Governor-in-Council cannot in any case be compelled to comply with the results. To explore the constitutional thinking behind your view, I take it that anything in legislation that spoke to the Governor-in-Council along the lines of saying, "and following such consultative election, the Governor General shall appoint such persons as," would be unconstitutional in your view.

Mr. Scott: It would be ineffectual. It would be unenforceable. Obviously it would create expectations. Let us say there was a change in government and the new government did not want, in effect, to comply with this and advised the Governor General not to make the appointments. Obviously it would create an outcry. In my view, it would be ineffective because it would be interfering with constitutional powers of the Governor General under section 41. In any case, it would be interfering with the method of selection of senators under section 42.

Senator Austin: Moving from that point, because I think we are on clear ground and we understand your answer, suppose that instead of a statutory provision the Prime Minister, in introducing this legislation or speaking to Parliament, said that he would invariably follow by recommendation to the Governor General the results of any selection process of a quasi-election kind. Would that in any way change the opinion you have expressed in this paper?

Mr. Scott: The fact is that he is free to recommend anyone who is a qualified person and, in the case of vacancies, it says fit and qualified. I guess to come here initially in 1867 you only needed to be qualified, but now in the case of a vacancy you need to be fit and qualified. At any rate, he can appoint anyone who meets the legal qualifications. He can recommend that to the Governor General, and the Governor General can make the appointment. In a sense, it is completely irrelevant how he gets the idea for the appointment. It does not become invalid simply because it is the result of this consultative process.

I think it was in R. v. Nat Bell Liquors after the initial failures of formal legislation by referendum there was a provision that, under the Alberta statute, the legislature was directed to enact the statute. The Privy Council, when this was considered by them, rather facetiously observed that if this was invalid, the legislature could only enact statutes as to which the public was entirely indifferent or statutes which flew in the face of public opinion.

Just because the public approves of it, and voices that approval through a statutory mechanism or other, does not mean that the name cannot be recommended and does not mean that the appointment cannot be made. Politically, things are changed and changed radically, but legally speaking, it seems to be irrelevant.

As you know, there are some who take the view that the Alberta senatorial election statute is ultra vires. That may or may not be the case. One argument can be made that it is simply a public consultation of the Alberta citizenry. The argument, on the other hand, is that it is a colourable meddling with a federal matter and outside provincial powers, particularly section 45, the provincial Constitution amending power. Whichever is the case, the fact is the Prime Minister can recommend to the Governor General and the Governor General can appoint any qualified person. Even if the Alberta senatorial election statute is invalid, that becomes irrelevant as to the validity of the senatorial appointment.

Senator Austin: Let me make two points. First, I was junior to Senator Farris, who was on one side of the Nat Bell series of cases, so I know something about that case. I did quite a bit of work as a young lawyer on that series of cases.

Having said that, I would like to take you back to the point that I think is the nexus of understanding the constitutional question here. It is clear that a legislative provision that removes the Prime Minister's discretion or freedom to advise would require constitutional amendment under section 42.

Mr. Scott: I think that is right, yes.

Senator Austin: Can he do indirectly what he cannot do directly? He can say, because he must say politically, "Well, of course, I am not creating a consultative election process," not to take it as a commitment. Why go through all of this if the Prime Minister may or may not choose someone as a result of the consultative election process?

Take it as a hypothetical case that he will say, "whatever it is that is the result of this consultative process, I will appoint that person." Therefore, the pith and substance of what is taking place is exactly that which is denied by section 42.

Mr. Scott: Let me put the matter this way. The principle that you cannot do indirectly what you cannot do directly depends upon your being unable to do that very thing. It may be possible to do by one means what is not lawful by another means.

It is rather like these maxims of common wisdom — absence makes the heart grow fonder, out of sight out of mind; which is the applicable maxim? Supposing a statute says that it is forbidden to travel from Montreal to Quebec City by the north road and you decide to take the south road. Are you doing indirectly what you cannot do directly, or are you simply doing by means which have not been prohibited what is otherwise lawful and doing so by lawful means?

In my view, the Prime Minister is, in principle, able to inspire himself by any means — consultative assemblies, the views of the editorial board of the National Post, any means he pleases — or maybe not make appointments at all. I have managed to read some of the discussion and I see that, too, is a matter of interest here and a matter also of some legal questions. I see no reason why he cannot consult as to this, just as he could set up a consultative mechanism for legislation, for example.

Senator Austin: What is your view of the fact that this would not be binding on successors in that office? If such a consultative process were introduced, a prime minister could say, "I will follow the consultative process," but the next one says, "I may or may not do so" or "I have no intention of doing so." Do we not have a constitutional mess in that case?

Mr. Scott: There would be a political price. There would be wailing and gnashing of teeth, a lot of noise and fuss and furor, just as there is about almost anything.

I was struck by the consequences of the Prime Minister recommending to Her Excellency the appointment of Michael Fortier to the Senate. There was wailing and gnashing of teeth. It seemed to me to be a commonsense move, but because he was committed to senatorial elections, there was a huge fuss and furor over what I thought was an act of elementary judgment and common sense.

The fact is that, yes, this would create a big fuss and you would have some segments of the country crying betrayal, et cetera. I suppose if he were sensible about it, he would come with another bill to remove whatever act had established this senatorial consultative process. However, the fact of the matter is there would be a political price to pay but not, I suppose, a legal one.

Senator Angus: Professor, I am delighted to see you here and to note that your mind is no less acute and flexible than it was when you were a very young man and we worked together. I commend you for the work you have done to help us in our deliberations.

Mr. Scott: It is a pleasure; I was articled to Senator Angus as a law student so I am anxious not to disgrace him.

Senator Angus: Do you have any other disclosures you would like to make?

Mr. Scott: I am not paid. There has been a lot of concern about your witnesses being paid or being too close to one interest or another. I am not paid by anybody. I speak my mind as I think fit.

Senator Angus: As you always have and with great clarity.

Senator Segal: Let the record show that he obviously survived that articling position well.

Senator Angus: It was a mutually beneficial experience.

Professor, I take it then that you have not advised the present government with respect to this exercise.

Mr. Scott: No, I have not.

Senator Angus: Therefore, I find it all the more gratifying to note you seem to be in total agreement with the Prime Minister in what he told us.

Mr. Scott: On a few elements; I do not think he would like everything I said this afternoon.

Senator Angus: You went a bit beyond where he was but I think, in terms of finding any involvement in a legislative process for selection by the provinces to be anathema, I think you are ad idem there. I think you are ad idem on the constitutionality of Bill S-4 as drafted being within the competency of the federal Parliament.

I will go to where Senator Austin went, because that, to me, is the most interesting issue to come up in this staged process of reform that the government is embarking on, namely, a means of selecting senators for appointment. It seems to me that it is your view that a means can be developed, if you will, where the federal Parliament can legislate a method on its own — and you describe them, as quoted by Senator Austin:

I think it likely however that consultative quasi-elections are constitutionally possible through ordinary federal or perhaps even provincial acts.

You said "even provincial." Have I got it right that up to now you are pretty much ad idem with what the Prime Minister said?

Mr. Scott: I also said that I did not like the kind of steps and the implications that if it works and is not broken, do not fix it. I try to make my views clear as to what would be constitutionally valid from what would be desirable. It is wrong to take positions on what is and is not constitutionally valid that are influenced by one's likes and dislikes. We should distinguish the two. I am not recommending this bill and I have some various suggestions to the Senate in my other papers.

I said, "consultative quasi-elections" rather ersatz elections because in English, "ersatz" is almost always pejorative. Call them ersatz elections if you want.

Senator Angus: I take the point that you are making. They might well be ersatz in the view of the Prime Minister who, I believe, is restrained and must resort to the art of the possible. He has indicated that he recognizes that in a perfect world you might want to have a full comprehensive process. However, he is also of the view that it is not possible. We have just had a witness who preceded you who made that eminently clear. We have heard other witnesses from the provinces. You have to go second, third or ersatz best.

We are all wondering what form the consultative electoral process will take. I have not had an opportunity to go into detail on these two appendices that you brought today, but could you outline one or two ersatz processes that would be within the competency of the federal Parliament, albeit not ideal solutions?

Mr. Scott: In these documents I did not speak to the form that these other schemes might take except in my initial remarks. There, I say that if you want any kind of fair result, take Quebec's or Ontario's 24 senators for example. What would happen when a vacancy arises in one of those provinces? Would the whole province go to the polls to make a recommendation? If you elected the House of Commons that way, would you have one huge slate of options, representation of interests, political tendencies, language, sex, whatever? I would like to see province-wide proportional representation. Then you would have, perhaps by alternative vote, various mechanisms so that different segments of the community could select a certain number. That would work if you would want a more practical proposition where there are 24 seats than where there are only four seats.

Senator Angus: Is there a model?

Mr. Scott: No, I have not done a model. I cheated on the 10-minute request and I think I spoke 12 or 14. My basic address was on Bill S-4 but I was also trying to address the related matters as they were raised, particularly by Senator Murray's motion. I did not get into forms of representation and other matters. Of course, that would present infinite subjects of discussion, including the question of deadlock-breaking mechanisms, even for senators in a more assertive Senate that comes out of a consultative process. The issue needs to be addressed sooner or later.

I heard only part of the minister's comments earlier, but I read two items in The Toronto Star yesterday. These are delicate and sensitive matters and many people across the country have many varying opinions. In my view, the position taken by the Government of Ontario was rather overheated for two reasons. First, the term of the Senate can be dealt with by Parliament with or without the consent of the province, but the population of Ontario means that number is close to impossible to get the majority of the population needed for a section 38 or section 42 amendment if Ontario were to reject it. In any case, very little will be done in terms of constitutional Senate reform against the wishes of the Province of Ontario. I thought she should have played it a little more coolly.

As a matter of fact, the document I brought today contains recently added website population figures. When one does the arithmetic, one can understand how sections 38 and 42 work and what provinces can or cannot make up the seven provinces with 50 per cent of the population of all the provinces.

Senator Angus: Are you familiar with the Referendum Act of 1992?

Mr. Scott: I had only a quick look at it at the time and I did not study it. We in Quebec were unacceptably excluded from voting in that referendum, in my view.

Senator Angus: Our colleague, Senator Segal, who was quite involved at the time, reminded me of that piece of intra vires federal legislation, which might be a good way to go.

Mr. Scott: It is a consultative mechanism. The problem is that once you are into consulting the whole of a province on senatorial appointments, what kind of consultation is it? Do you ask the population to choose one name for one vacancy? This is essentially what a consultative quasi-election would be, some form of referendum. However, how do you ensure reasonable representation of different political tendencies, even amongst the major parties? Do you simply say that you have one vacancy after another filled on the basis of a province-wide consultation and, therefore, you know why no anglophone from Quebec is ever appointed unless he has certain kinds of political views; why no person from the NDP ever gets approved by a referendum in Alberta; or maybe even a Liberal in Alberta, for a while? What kind of representation is possible with such mechanisms? You have to look very carefully at that. That is why I suggest province-wide PR for many vacancies at one time.

Senator Fraser: Professor Scott, I suspect that committee members are growing tired of hearing me speak to this issue, but I am fascinated by the matter of the 24 districts for Quebec set out in the Constitution Act, 1867. I have a couple of questions. First, given that the act says that each Quebec senator shall be appointed for one of these districts, does that mean an ersatz election — a consultative process — would have to be done on a district-by-district basis?

Mr. Scott: No, not necessarily, because a chosen senator has only to buy real property worth $4,000 in the district to qualify as a senator where he or she may live. I do not think that the consultation process is caught by that provision. It has to do only with where the senator must be resident or must have property qualification.

Senator Fraser: If you are moving to an election that must not speak its name, then normally people who get to vote for representatives are the people who will be ostensibly represented by the representatives in question. Do you think that would be a problem?

Mr. Scott: It is messy. What happens if you got rid of the property qualification? Would that mean they had to be residents there, or could a section 44 amendment get rid of that whole business about the local districts? I am inclined to think that even though section 43 speaks of provisions which apply to one or more, not all provinces, I doubt that that applies to matters within section 44 or 45, the provincial amending power. For example, many of the Constitution Acts deal only with a single province because each has to do with the Constitution of that province. I do not think section 43 applies to that. It is messy. There are loose ends on the matter. It is rather untidy, which is why lawyers can make a living.

Senator Fraser: Would you agree that it is equally messy and philosophically unattractive to be moving to an elected system when a large portion of the territory of Quebec, including every Inuit community in Quebec, is not included in the district?

Mr. Scott: No scheme of consultation and no scheme of appointments in consequence of consultation can possibly be fair or reasonable or consistent with any kind of common sense if it has to be conceived in terms of those districts in Quebec where a senator must, under the present law, be qualified as to property or as to residence. You cannot have any kind of thing which would make any sense at all, because many territories are not included and the districts are so antiquated. I remember Senator Goldenberg telling me that he was a senator from Rigaud. I never looked it up, but he said that Rigaud included NDG from the time of the province of Canada. If senators drive to Montreal, they drive through Rigaud. You cannot achieve anything comporting with common sense if it is conceived in terms of those districts.

Senator Fraser: I will get Senator Angus to describe his 3 million-person district to you one day. Thank you, Professor Scott.

Senator Segal: Professor, I want to ask about the final line on page 4 of your presentation where you say that just as it would be unthinkable to elect all members of the House of Commons from a single province-wide constituency, so electing all of the province's senators, either sequentially or without proportional representation, together from a province-wide constituency would be grossly unfair. Does it follow from that, that if a consultative mechanism were approved by the House and the Senate that allowed in a referendum, let us say, at the time of the next federal election, Canadians living in provinces where there were vacancies to pronounce upon their preference as to who might occupy those vacancies from a list of duly nominated candidates under regulations to be established pursuant to that act, and that would just be advice to Her Majesty, to the government, and would not constitute any violation of anyone's constitutional prerogative, that you would not be troubled constitutionally?

Mr. Scott: You could do almost anything you like intra vires. The question is whether it would be just and sensible. You can open it up and have consultative mechanisms for judges and let all kinds of people make recommendations of names, and then you have committees which look at them. You could allow a consultative process.

For example, I was wondering what the Prime Minister would be likely to hear from Quebec on these issues. You may get a better idea later today. I think that the present Quebec government will probably find itself obliged to think first about protecting its flank from the Parti Québécois, and you may get back to Meech Lake schemes or Charlottetown schemes, and then the Prime Minister may be forced to retreat from province-wide consultations even under federal statute and then have a kind of quasi-consultation of a looser kind. It may be that even an electoral process, even a consultative quasi-election, may prove to be politically difficult or impossible for the Prime Minister.

Senator Segal: Accepting for a moment that any such process would very much be new ground in terms of how we operate and in terms of convention, the Prime Minister responded to a specific question from Senator Watt when he appeared before this committee by indicating that he would anticipate that any legislation which provided for the consultative process would also provide for some mechanism for review of whether the process itself had operated in the way it was constructed. Since it is not a constitutional change, it would leave that option open, assuming that whatever came from the government was passed by both the House and the Senate, which is a pretty large assumption, all things considered. Are you troubled by the notion of proportionality being built into that process? You referenced it here as something which you say should not be excluded, if I understand correctly.

Mr. Scott: I believe that if we were to go to the limit, if you like, on the continuum, to outright elections for 24 senators from Quebec, to take the example I am most familiar with, I would want to see province-wide proportional representation so that any group or nominee who could muster one-twenty-fifth of the votes would have a senator in place, and that would more or less ensure representation for anglophones and allophones.

Senator Segal: If one assumes just for the purpose of this discussion that we are unlikely ever to have a circumstance, whether or not this committee recommends approving Bill S-4, where all vacancies in the province come up at the same time, but rather we would pragmatically face a circumstance where, at the time of any particular general federal election, there was a range of vacancies in any province that may come up for advice from the public at that time, are you saying that if Ontario had five vacancies, Alberta had three, British Columbia had two and Quebec had seven, there would be something intrinsically unjust about all the people in the province of Quebec being able to pronounce upon, by advice in a referendum, who their preferences were relative to those seven seats in their province?

Mr. Scott: It is not a problem to pronounce on or give advice, but then will it be discretionary on the part of the government to make a selection, and how will that selection be made and by whom?

Senator Segal: Constitutionally, what other option would the government have, if it did not want to go the route of a full amendment process, other than to leave the ultimate prerogative as to what to do with that public advice in the hands of the Prime Minister and his recommendation to Her Excellency?

Mr. Scott: He could have a statutory mechanism for a vetting committee to do the kinds of things that are basically done semi-formally with judicial appointments and the like. In other words, some group or committee could be established between the Prime Minister, who has to make the ultimate recommendation, on the one hand, and the voters, on the other hand. There is then the question of what the voters would be told. "Here are a lot of names. Who do you like? Who do you not like? Who do you like best? We will make a selection out of these five, 10, 20 or 30." Who will nominate the names to be put on the list for the voters to approve or disapprove? All these things are open ended.

I do not sit here and say, "never." I do not say that it is impossible to have any sensible and just system of quasi-consultative elections; or to have a mechanism that gives some effect to make recommendations to the Prime Minister based on those results; or for a Prime Minister to make fair results on that.

I believe it is extremely complicated, more complicated than Bill S-4. Indeed, there might be 50 different fair and reasonable proposals. I do not exclude your hypothesis that we will deal with one vacancy, or three or five at a time, having some fair result.

However, I just do not feel you can have a province vote and supply a list of names saying, here is the name that comes out on top and therefore is the one that the Prime Minister is to appoint. I think that would be most unfair.

[Translation]

Senator Chaput: I would like to add my comments to those made by Senator Fraser. I wish to speak for Senator Watt who unfortunately was unable to attend this meeting.

Senator Watt is from Northern Quebec and represents a particular community. Mention was made of 24 districts in Quebec. However, his community is not located in any of these 24 districts. As you can imagine, Senator Watt is quite concerned about this state of affairs and wants his concerns to be noted in the minutes of today's proceedings.

He also asked me to read section 36(1) of the Constitution Act, 1982 so that it is also included in the minutes of this meeting.

Mr. Scott, I would like to hear your views on section 36(1) of the Constitution Act.

[English]

It is concerning equalization and regional disparities. I will read it in English because it is the copy that he has given me. It says:

Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to

(a) promoting equal opportunities for the well-being of Canadians;

(b) furthering economic development to reduce disparity in opportunities; and

(c) providing essential public services of reasonable quality to all Canadians.

[Translation]

Does this provision give voice to Senator Watt's concerns? Is there some way around this? What are your views on the subject?

Mr. Scott: Obviously, this provision was carefully drafted so as not to create any obligations that could give rise to court challenges.

[English]

Without altering the legislative authority of Parliament, it says "are committed to."

[Translation]

This directive targets the institutions of Parliament. It sets out very important objectives for the federation from which laws drafted for all sectors should take their cue.

Senator Chaput: It appears that another bill will soon be introduced to provide for an electoral process. Since Senator Watt does not represent a particular district in Quebec, if Senate elections were held, could he then invoke this provision?

Mr. Scott: No, in my opinion, he could not invoke this provision to argue that election legislation must be drafted particular way. Obviously, it has been carefully drafted to exclude consequences of any kind other than policy directives for parliamentarians. The structure of government and other pieces of legislation will not be affected.

Senator Chaput: What options does he have then? He comes from Quebec and does not have a district assigned to him.

Mr. Scott: Clearly, since he brought it up, this issue is very important to him. Of course, as a senator, he can convince other senators, as well as MPs, to keep this provision in mind when making any decisions. Senator Watt does not need to represent a separate district in order to stress to Canada's Parliament the importance of section 36 and its directives.

If you are asking me if arrangements should be made either to divide Quebec into districts or to eliminate districts entirely in favour of some other form of solid representation, then I would have to agree. However, I fail to see the relevance of section 36 as far as districts are concerned.

[English]

Senator Hubley: I would like to frame my comment or question around the geographical distribution of Senate seats. I come from Prince Edward Island, so maybe I will not have to explain too much more. However, you did suggest that changing the distribution of seats amongst the provinces, even by adding rather than transferring seats, would involve the dilution of the representation of several provinces.

I believe Prince Edward Island would be vulnerable in that position. I am wondering if they would be a province that should singularly defend their representation within the Government of Canada, the Senate and the House of Commons. Is there some support for Prince Edward Island and territories that have one seat? Do you have a comment on that dilution?

Mr. Scott: Your best ally, which might seem bizarre, happens to be the Province of Ontario. It seems to have made it clear that it is not in the game of accepting any dilution at all. Section 38 and section 42, which is a variant of section 38, are curiously worded: it is necessary to have seven provinces with at least 50 per cent of the population of all the provinces. Thus, the territories are not counted in this population calculation. If you look at the penultimate page of the extra document I brought in today, however, since 2001, which I believe was the latest general census, the population counts are as follows: Prince Edward Island, 136,700, and Ontario 11,897,600 — now 12,541,000. If Quebec and Ontario do not approve that, then it is impossible to get the necessary majority of citizens.

Alberta and British Columbia would be likely to support this, but it is not necessarily easy for them to rally. It is not impossible, provided they get pretty much everyone else on side. They have to have either Quebec or Ontario to get the majority of the population. Therefore, in a sense, it seems that Dalton McGuinty has announced himself as your strongest ally.

Senator Hubley: That is very good and I agree with you, but I am wondering, as an equal partner in Canada, if that does not always leave us in a bit of a tenuous situation. We simply do not have the numbers and are dependent on one of the larger provinces to side with us to increase those numbers. Indeed, Ontario has said they are not interested in Senate reform.

Mr. Scott: You would need the numbers. Any form of adding seats, even if it is cosmetic or modest — obviously these numbers have been proposed as modest changes because otherwise they would not stand even the limited chance there is now — will dilute everyone who is not increased in proportion. There are enough provinces likely to resist change unless the package is widened to include side deals and sweeteners. I have some concern about this and that is why I decided to squeeze that subject into my allotted 10 minutes of opening remarks. Who knows where this may lead?

I believe we should proceed cautiously and with steps. It is true issues are related to other issues, but it is possible to come out with sensible results on Bill S-4.

I had suggested some changes because the Senate does not always get good press. I had in mind particularly Senator Munson and his exchange with the Prime Minister, which got on to the CBC, and whether an election would be run on the backs of the Senate. The Senate cannot afford to appear to obstruct. It can produce a reasonable result and can make a clear position in the preamble. It could be done in two stages: an 11- or 12-year Senate term for now with an eight- or nine-year Senate term to come into force later. There are various possibilities and ways of protecting itself and putting its position up front. The Senate does not have the access to the media that the Prime Minister does. If an election is called, not necessarily on this issue — it is not worth calling an election over this — but with other issues and there is a slanging match, the senators might well get the worst of it.

The Senate must state its position loudly and clearly, which is why I made this comment. I believe it is possible to reach a reasonable result on Bill S-4.

The Chairman: Most of our questions have been more than well covered by your presentation. I will ask a concluding question before we adjourn, however. It is in anticipation of the legislation or steps that the government is now considering, or has under study, to create a consultative process to reflect in some way the will of people in a province as to whose name should be submitted to the Governor General to appoint under section 24 of the Constitution Act.

The possible unwillingness of a province to cooperate is another way of putting it, with the federal government carrying out some kind of election or some kind of process that has the same effect as an election. I am choosing my words to emphasize that whatever it is they come up with will not be a section 38 matter.

Do you have any comment on that in terms of governments, such as Ontario or other provinces, that might prefer abolition; or in terms of them not welcoming this process in their province and maybe trying to do something about it?

Mr. Scott: This becomes, essentially, a political matter. The views of some provinces in this context will have more influence than others depending on the complexion of the government. The Prime Minister may well feel compelled to have consultations in some provinces; he may be willing not to have consultations in yet some others. There may be resistance on the part of Quebec to have consultations there, at least of an electoral sort. Therefore, the Prime Minister may be driven to a less formalized type of process, like that which applies to judges. He will probably feel compelled to move forward with consultations in certain provinces where this is desired, but may be flexible about where, when and how that occurs. The provinces cannot actually stop it.

Interestingly, you raised the point of some provinces preferring abolition of the Senate. Obviously, that is not in the cards. The Senate has an important role to play as it has since the beginning of the country, though its role has changed slightly. The proposals to abolish the Senate are essentially foolish; there can be much flexibility in the way it can be changed.

I believe you have been asked how constitutionally the Senate could be abolished and I believe you were told that this could only be done under section 41. In that context, it might be interesting for senators to at least see what the most likely textual answer is. I will use the expression on the one hand and on the other hand — and I know President Truman said he was looking for a one-armed economist so he would not have to hear "on the one hand" and "on the other hand." Maybe you will want a one-armed lawyer also. On the one hand, it is possible to say section 42(1)(b) powers of the Senate include — that is stretching it a bit — its existence, because otherwise you can remove all the powers under section 42(1)(b), and say the Senate has to remain in existence even without any powers. Supposing it is agreed that existence is omitted from section 42(1), then one would fall back under section 38. I think that would be a lacuna, just a casus omissus; it was forgotten.

Any part of the constitutional system can be amended, in my view, under section 41, but I do not think one has to abolish the Senate under section 41; it is not in the list under that section. Textually, at any rate, to get the closest reading of the constitutional text, the abolition of the Senate would fall under section 38.

The courts might be inspired by the background of the Senate reference, which many senators have referred to, and say that is not in the list in section 41, but maybe that it is implied; that is my "on the other hand."

If I am a one-armed lawyer and I am not allowed to say "on the one hand" and "on the other hand," I would say that it is a section 38 amendment.

Senator Angus: Unanimous.

Mr. Scott: No, section 38 meaning two thirds of the provinces.

The Chairman: Senator Angus, your former principal meant we all agree on that. I am not sure we do, but I will leave it at that. We could revisit a number of things that have come forward.

Professor Scott, as I have said to others, I am privileged to sit in the chair. All witnesses who have appeared before the committee have given us invaluable assistance with their scholarship, insights and advice, and we appreciate it very much.

The committee adjourned.