Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Privileges, Standing Rules and Orders)

Issue 11 - Evidence

The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-34, respecting Royal Assent bills passed by the Houses of Parliament, met this day at 12:07 p.m. to give consideration to the bill.

Senator Jack Austin (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. We are ready to meet on Bill S-34. Mr. Aimers and Mr. Benoit have both given evidence to Senate committees on this topic on more than one occasion. The predecessors to this bill have had a long and familiar history in the Senate. This is, however, the first time that it is a government bill that is before us, although, in the past, the government in the Senate has accepted the principle of the bill and supported previous versions at second reading.

Today we have before us witnesses from the Monarchist League of Canada, Mr. John Aimers and Mr. Paul Benoit. Following their presentation, we will hear from Professor David Smith of the University of Saskatchewan. If time permits, Senator Grafstein would like to make a presentation. It is probably being optimistic with respect to our time to think that we will reach paragraph 1(b) of our agenda, which is clause-by-clause consider ation of the bill. With that, I will invite Mr. Aimers or Mr. Benoit to please proceed.

Mr. John Aimers, Dominion Chairman, Monarchist League of Canada: Honourable senators, I appreciate the opportunity to appear before your committee. It is a particular honour to be testifying just before Professor David Smith, whose work in respect of the Crown in Canada are so seminal and appreciated. As I mentioned to him a few moments ago, they leave me wondering what side he is really on. They are fascinating works, and I have used them. I respect Professor Smith enormously.

I wish to make two small corrections to the brief that has been circulated to senators. I credit Michael Valpy with coining the phrase, "The monarchy is our great national fire extinguisher." Michael repeated that often enough, but I understand that it actually originated with Professor Frank McKinnon in his work "The Crown in Canada."

My French has not improved over the years, and unfortunately I put into the Queen's mouth words she will probably never use. I used the phrase, "La reine ne veut pas" when it should have been "La reine s'avisera." I apologize for that. I wanted to make those corrections at the outset.

We see some fundamental problems with Bill S-34. Above all, we see it as an unimaginative proposal that prejudices a very distinctly Canadian procedure that has evolved in respect of Royal Assent. Its only improvement is to efficiency. By the same logic, I suppose, diplomats' letters of credence, which Her Excellency spends countless hours receiving from each ambassador and each high commissioner personally at Rideau Hall, could be sent to her by post and responded to similarly. Extensions of that logic would lead us to say that we could present honours in Canada through the post or we could have members of Parliament and other officials take oaths in private or subscribe to them in documents that would be sent to the clerk's office.

It relegates the role of the Queen in Parliament to the secretary at Rideau Hall. It hides a procedure that has evolved in Canada. It dismisses the potent importance of symbols and manual acts in our Constitution and our understanding of who we are as Canadians. Above all, it misses an enormous opportunity for creative minds in Parliament, at Government House and elsewhere to rekindle pride, education, shared celebration, achievement, reconciliation and dignity.

Perhaps even more important than all or any of those it is a reminder to us all that there are other sources of authority in Canada, in both a legal and moral sense, than one might believe from the steady accretion of power we have seen in the political executive, particularly centred in the office of the Prime Minister, which has been evolving over decades.

At a time when, thanks to the work of organizations as varied as the CBC, Historica and the Dominion Institute, the pendulum is swinging and we are all developing a greater consciousness of Canadian history and Canadian traditions, a knowledge of Canada based not on emotion and flag waving - as satisfying as those practices are from time to time - but on history, facts, information and a greater understanding of our Constitution and our institutions.

This bill flies in the face of the considerable progress that is being made in that dimension. It is more important that we retain some elements of the current Royal Assent ceremony and build on them in imaginative and creative ways, as we have evolved so many distinctly Canadian institutions out of those inherited from our British parliamentary forebears, because so seldom is the Queen seen performing constitutional acts in Canada. This bill seeks to fix by statute what imagination and a lively respect for a knowledge of our institutions could better amend and improve.

We have recommended in our brief several improvements to existing practice. Giving Royal Assent on a regular basis should be a priority for the Governor General. The ceremony should be visible to the public, both represented in person and through the media. Indeed, one could meet the convenience of Parliament - and I was struck by Senator Grafstein's remarks at a recent session of this committee in that respect - by having Royal Assent ceremonies regularly scheduled immediately after the national caucus meetings of the parties. There would be wonderful symbolism in that. You would see occurring the division, partisanship and ferocity of feeling that is a natural and right part of parliamentary life, followed by all parties coming together in a ceremony that represents unity - the things that do not change, the things that are not subject to partisanship and rancour but, rather, represent the things upon which all Canadians agree - happening in the heart of Parliament. That would be the more important rather than the less important, convenience aside, as the physical premises of the House and the Senate are dispersed, come the reconstruction projects ahead.

Bill S-34 promotes the welfare of only the political elite, not of the realm, not of its institutions, not of our ability to adjust and refresh those institutions, not of the people of Canada, and not of our undoubted ability to reflect on the institutions that make us Canadian and that go to the heart of the legislative process, the culmination of that process guaranteeing that no majority could ever abuse its power in a constitutional sense.

It is ironic that we have this discussion yet again as we head into Jubilee Year, 2002 when we will all join in celebrating 50 years of a remarkable woman's reign. Whether you are a monarchist, a republican or indifferent, we can all agree that, in 50 years and more of public life, the Queen has never put her convenience first, second or anywhere on the agenda. She is a creature of and a slave to duty. The Queen has never sought convenience. I would argue that this bill seeks convenience but, in so doing, it threatens the many positive initiatives that this body and others who hold the levers of power in Ottawa which could cause Royal Assent to be improved, without accomplishing anything positive but, rather, prejudicing, threatening the public's visible appreciation and our own daily recollection that all political power in Canada is lent, that it does not exist by right in anyone's hands.

That is a very brief summary of what we have written about at much greater length. I would happy, as would Mr. Benoit, to answer your questions.

The Chairman: The thrust of your argument is for the perpetuation of the symbolism of the Crown in Parliament, and that indeed is where the Constitution sits. Sister parliaments in the U.K., Australia and New Zealand, to pick three, have moved away from the original 1867 practice that we have followed in Canada for Royal Assent.

Would you comment on whether you believe that they have impaired the Crown in light of their particular processes of a more executive form of Royal Assent?

Mr. Aimers: In the United Kingdom, where the Speaker of the Commons and the Chancellor report assent, it is an entirely different situation because day in and day out there the Queen is seen to be doing constitutional acts and performing the role of a monarch. We are fortunate in Canada to have the Governor General and the lieutenant governors who do that, but you cannot compare them, as representatives, to the potency and the primary symbolism of the Queen carrying out those acts. I would argue that we have maintained the practice in Canada precisely because we wished for lawmaking ultimately to be seen not as a process that culminated in division but in unity. In my brief, I detail at some length the reconciling and celebratory nature of ceremonies that could be arranged.

We, in Canada, are certainly not slaves to the Westminster model in many other of our practices and divisions. We have evolved Canadian practices. I believe it is important to maintain tradition.

The Chairman: Do you think we could strike greater public interest in the ceremony than seems over time to have developed? As you know, it is seen as so formalistic that neither the political elites, to use your phrase, nor the chattering classes, to use a British phrase, seem to be terribly interested in it or in the formality of power in many guises. How would you react to that statement?

Mr. Aimers: Your analysis is correct, but I think some of the proposals that Senator Grafstein, others and we have made, in terms of making the ceremony visible and in creating audiences for it, should be reviewed. At first, if necessary, the audience for the ceremony could be expanded through increased convenience to parliamentarians, perhaps occurring after the national caucus meetings. Rideau Hall has done something similar by making the very routine and repeated ceremonies of accepting letters of credence of foreign ambassadors and high commissions more visible to a somewhat greater segment of the population by inviting school children in. There are built-in audiences in Ottawa that one, with time and planning, could create, with suitable narration both in person and in the media, especially since we currently have a Governor General who is an excellent communicator herself and so visible around the country and so willing to adapt her office to the realities of this new millennium and century. There is a capacity within all of those individuals and institutions to come up with an attractive package.

I mean no disrespect in calling it that. It would take 15 or 20 minutes to foster a lively appreciation of this one of our institutions, the Crown in Parliament - it is rather fundamental, as you have observed, to all that we are - without it being a sterile ceremony relegated to four o'clock on Thursdayafternoons. That could be done without statute, through the normal channels.

Mr. Paul Benoit, Dominion Vice-President, Monarchist League of Canada: I would like to add, senator, if I may, that on the basis of my time at the Senate, what struck me was that there was in fact a small constituency that did take an interest in the Royal Assent ceremony. This was composed of two very different groups. One was the Aboriginals. It struck me that whenever Aboriginal legislation was winding its way through the various chambers, there was an interest in that final ceremonial event. They called me, as the clerk at that time, to find out when that event would take place. They wanted to see it for themselves. There was a theatrical aspect to it that was still very striking and alive for them.

The other group that has an interest is our often maligned government officials, who might be working for years on a particular piece of legislation. It is the culmination of a lot of work and meetings, for which they do not get much credit. That ceremony closes the file for them in a meaningful way. The legislation may not even be controversial, it may be housekeep ing, but they have put a lot of work into it.

To the Senate Speaker's credit, there were ceremonies that would occur around the Royal Assent ceremony to which at times some of these officials would be invited. It was appreciated, and was a lovely way of winding up what could be otherwise more of a partisan, political or controversial process.

The Chairman: With respect to the Nisga'a legislation, I concur with you that the Nisga'a community were appreciative of the ceremonial aspects of Royal Assent and the Governor General's attendance. That is a recent example of people recognizing that in certain circumstances the ceremony is most appropriate and deserved.

I would like to continue with my last question, just to have your acknowledgement on the record with respect to what I would call, for ease of reference, the executive form of Royal Assent. My understanding is that you see it as something to be adopted but in limited and special circumstances. Am I correct in that?

Mr. Aimers:You are correct, senator. I think it so relegates the ceremony to even greater invisibility than it has now that it would be very particular circumstances indeed under which one would want to adopt it, if I understand what you are calling the executive form.

The Chairman: Yes. This is the form of Royal Assent given by notice announced by the two Speakers of the respective Houses.

[Translation]

Senator Gauthier: Bill S-34 does not propose to do away with royal assent, but rather proposes a slightly different formula which may restrict the ceremonial aspect of the procedure. I do not really care one way or another. I believe in symbolism and like you, in the tradition of royal assent. Unfortunately, we are not good communicators. The Senate sits in private and its proceedings are not broadcast or televised. On very rare occasions, Senate committee proceedings are televised.

Today, the CRTC ruled on the pressing need for a national television network to broadcast sittings of the House of Commons. No mention at all was made of the Senate. Need I remind you that the royal assent ceremony begins in private at the Senate and continues in the House of Commons where it is televised. The Gentlemen Usher of the Black Rod invites Members to attend in the Senate, which a small number of members do on occasion. Again, though, this part of the ceremony is not televised. The Governor General rarely puts in an appearance. Recently she did, because the Supreme Court justices were unavailable. It was all rather symbolic, but she did come for the ceremony which unfolded behind closed doors and out of the camera's range.

If this ceremony took place in public, we might get back to the basics and show Canadians the role of the Senate and of Parliament in passing legislation. A bill's number does not reveal anything about the actual nature of the draft legislation and therefore people are not interested. Many members stay away from the royal assent ceremony because they do not understand the proceedings. Maybe the ceremony should be given a higher profile before we move to dispense with it so that Canadians can let us know whether they enjoy it or not.

Currently, Question Period is televised and is quite popular. Over the past seven or eight years, CPAC has invested $40 million to bring Question Period in the House of Commons to Canadians. After Question Period, the viewing audience drops off dramatically. As things now stand, parliamentary debates consti tute neither good theater nor good television.

The Senate would do well to use the royal assent ceremony to its advantage rather than try to do away with it or to water it down in some way. The ceremony should be open to the public, with commentary provided by qualified, non-partisan individuals. Their job would be to explain to Canadians the ins and outs of royal assent, a process by which the Queen assents to a bill which is then enacted into law.

I have not read your brief in its entirety, but I have listened to your comments. You stated that the ceremony should be given a higher profile. Are you saying then that you would like the ceremony to be televised, to enhance the public's understanding and appreciation of the procedure?

Mr. Aimers: You have understood the gist of our presentation. We have always maintained that on matters relating to the monarchy, it is critical that the public have a sound grasp of the issue. Too often, people's understanding of how our institutions and nation are run is based on rumours and misconceptions. We are convinced that if people were informed about this ceremony, and indeed about other aspects of the monarchy, and if it were open to the public, then they could base their decisions on rational thought, not on emotions.

Senator Gauthier: Recently, Senator Grafstein reminded us that the Governor General performs three important functions, royal assent being one of them. However, the Governor General rarely attends the ceremony and I cannot understand why this is so. Rideau Hall is located a mere two or three kilometres from the Hill. As Senator Grafstein suggested, perhaps the ceremony should be scheduled at a particular time on a particular day, on a trial basis, to see if this might be a better solution. To my mind, symbolism is important.

Mr. Benoit: It is unfortunate that the Senate does not have its own CPAC network. Approximately 150 channels are available and at the very least two or three of them could be devoted entirely to public affairs and to business on Parliament Hill. You would then have an opportunity to inform people of the excellent work you are doing here. As far as popularity is concerned, a word of caution is in order. Often, it is a matter of making our proceedings accessible and transparent. The important thing is not how many people tune in to any one sitting, but the fact that young people across the country are able to see how Parliament works.

[English]

Senator Joyal: I would not say that I feel "mal à l'aise" or uncomfortable, but it seems to me that there is a sentiment shared by Canadians generally that we are trying today to address a situation which is the manifestation of a much deeper problem. Authors who have written about the Canadian political system seem to express the prevailing opinion that the constitutional monarchy is something from which they prefer to disassociate. They prefer to put the Constitution on one side and the monarchy on the other side.

I certainly do not mean to lecture you on this, but the monarchy is associated in the minds of many as a remnant of the colonial past. We have been in the process of regaining our full sovereignty to finally be the master of our own Constitution. The natural process would be for us to reach the stage of evolution where we would be leading only with the Constitution and no more with the monarchy.

I have wrestled with that situation and I recognize that today we are trying made accommodations. I feel uneasy with this bill because it entrenches the weakness of the system, the weakness of the misunderstanding. We are now led to legislate on this because we know that the Governor General does not attend Royal Assent ceremonies on a regular basis. I do not mean to single out the current Governor General. That would be unfair and that is not my approach. The Governors General do not seem to put much importance or priority, as you said, to the principle of the Queen in Parliament. To me it is the most important function because it embodies the sovereignty of the nation in the most important function of the sovereignty which is the legislation.

I have been in the Senate for four years now; I spent four years in the House of Commons. I have seen the Supreme Court justices attend Royal Assent ceremonies. If we adopt the proposals of Senator Grafstein as they are, we would give visibility without having, at the same time, a real expectation that the Governor General will attend, and then we will be entrenching the very system that we realize is not good. Why? The Queen in Parliament is not justice in Parliament.

As you said clearly, we dissented before from the House of Lords because the justices here are not members of the Senate as the British justices are members of the House of Lords. We have our Canadian institutions now.

I use this term with great respect for Senator Grafstein, but we would be entrenching something that is not kosher in terms of principles. It is not respectful. There is a role for the legislative body, and there is a role for the judiciary. We would be giving visibility to an impression that the justice is coming here to explain that he represents the repository of the continuity of the nation and the organic principle of the nation. I am sorry but the judiciary is not the organic principle of the institutions of our nation.

When I look at the bill, I say to myself that, if we are to retain a visibility, it must be with the constitutional authority that is embodied in the Governor General. We cannot have it both ways, in other words. If we are to review this procedure, we must address the fundamental situation that, through the years, we did not see the Governor General visibly assuming this constitutional role or explaining to Canadians the legislative role of his or her office. It is as if the constitutional authority remains always -

[Translation]

- outside her area of responsibility. Sometimes I have the impression that the Governor General is embarrassed to admit that she performs a legislative function on behalf of all Canadians. There is both a laissez-faire approach to tradition -

[English]

... the traditional way of doing things ...

[Translation]

... which has resulted in the Supreme Court justices taking on most of this responsibility. The Governor General only rarely comes to the Senate to take part in the royal assent ceremony. At the same time, representatives of the Crown in Canada have themselves failed to explain the principle behind the practice...

[English]

... that they embody in their role. We are left with all the balls in the air but no one seeming to want to re-play the game, if I can use that vulgar phrase in dealing with the institution.

This bill is important. As Senator Gauthier and others have said, the things we have talked about are symbols, and you do not deal with them in the same way you deal with deciding where to put the office of a particular department. It is more fundamental than that.

As a country, we are not engaged, in the short term, in changing the constitutional monarchy in Canada. It does not seem to be in the cards in the near future. Let us settle it right. There may be exceptional circumstances in which Royal Assent must be given in the chamber. It might happen in an emergency or because of strikes or something unforeseen happening. The system needs flexibility. However, the principles must be well understood.

In this situation, I am not sure we have corrected the weaknesses that we see on a day-to-day basis when we have Royal Assent. It is as if we are embarrassed about it, and most of the people who participate in it do not even understand what they are doing and what it is all about. It is not their responsibility.

Collectively, we have avoided understanding the principle of constitutional monarchy. We have assigned the constitutional monarchy to be the equivalent of the person of Her Majesty. It is the monarchy, so it is the Queen. As you have said, the Queen is irreproachable. However, we fail to understand that there is a distinction between the person of the Queen and our system, which has afforded the freedom and capacity to develop the system we have. How do we reconcile that in a bill?

Mr. Aimers: This bill, in our opinion, will widen that gap in understanding or that fundamental lack of appreciation of how we evolved to be a constitutional monarchy, how it distinctly evolved in Canada - quite differently from other Commonwealth realms - and why it is important that the Queen and Parliament, the Crown and Parliament, as both legal and moral expression of who we are, be proclaimed and celebrated as opposed to, as you say, being hidden. Her current Excellency has given Royal Assent twice in person in her two-and-one-half years, and I gather Mr. LeBlanc did it at approximately at the same rate.

I remember sitting in a hearing of the Legal and Constitutional Affairs Committee on Senator Lynch-Staunton's bill, hearing senator after senator say, "Why do we not see the Governor General more often up on the hill giving assent?" The astonishing thing is that the bill now before us is now a government bill. It is not a private initiative.

The Governor General must, constitutionally, act on advice. It seems there is strong, implicit advice being given here by her Excellency's constitutional advisors, the democratically elected government of the day, that they do not want to see more of her Excellency or hear more explanation of her function and role, our Constitution, the Crown and Parliament, and the Crown and the country. This would be a very chilling message if I were an official at Rideau Hall or in the Operations of Government section of the PCO somewhere. I would see this clearly as a desire to minimalize and and hide yet another most fundamental operation of the Crown in Canada. I would draw my conclusions from that. How that is overcome, I do not know.

Senator Stratton: Thank you for attending. I would like to look at how we could do this. I think we can only realistically achieve what you want to achieve if we sell this to Canadians. I do not think you can do it by passing an act of Parliament. If you do not make it more attractive for Canadians, to pique their interest, and if you do not make it more attractive for the Governor General to attend, it will go nowhere.

How would you do it? I have heard little snippets here and there about how this could be done, but how do you envision this ceremony being carried out so that you can make it more attractive to Canadians and more attractive for the Governor General to actually attend in person?

Mr. Aimers: Our brief speaks to that, senator. We suggest that media coverage be provided. That, in and of itself usually attracts the attendance of people whose job it is to effectively communicate effectively their positions. Certainly Governors General have not been reluctant to take advantage of that medium over the years.

Senator Stratton: Why would the media attend?

Mr. Aimers: We know that CPAC would cover those events. From what I have seen over the years with channel surfing, as ubiquitous as it is, I am always surprised, when I am on a reasonably obscure program on CPAC, at the number of people who say to me, "I saw you on TV the other night."It is sometimes more viewed than the national news.

Senator Stratton: It is on at 5:30 in the morning.

Mr. Aimers: Obviously there would need to be a concerted strategy. Senator Joyal touched on the question of who would give the formal advice, if not the Prime Minister or the government of the day, to Her Excellency, "Sir/ma'am, this is important. This must be a priority. This must be a part of your schedule. We will accommodate other interests by scheduling these regularly and letting you know about them in advance, but we want you there, Your Excellency." How that comes about, other than perhaps those people reading or watching these proceedings and deducing your opinion, I am not sure.

Mr. Benoit: There is a link between the Royal Assent ceremony and the Speech from the Throne. To imagine a solution, one has to look at the Speech from the Throne and the changes that have occurred in that event or ceremony, depending partly on the style of the incumbent of the office at that particular time, whether one feels more comfortable surrounded by a military presence or a more civil presence, or the music. All these things determine how the ceremonies occur. It is useful, in an imaginative and theatrical sense, to think of these as two bookends, with Royal Assent being at the other end of the Speech from the Throne. If you affect one bookend through this particular legislative initiative, you affect the other end. It is a matter of time. Think of both of them together as a pair, as bookends holding our constitutional framework together.

Senator Stratton: Who will take the responsibility for making this a show? We are talking about making this a show, making it attractive to the Canadian public and attractive for the Governor General to attend. If she comes, she wants to make sure there is an audience that will see this, not four people sitting in their chairs, bored nearly to death.

Mr. Aimers: It is you as parliamentarians who must put that together, because it is a ceremony that takes place in the precincts of the Parliament of Canada.

The Chairman: Thank you for your advice today.

Professor Smith, I invite you to make your presentation.

Mr. David Smith, Professor, University of Saskatchewan: Mr. Chairman and honourable senators, thank you for inviting me to speak about Bill S-34. I apologize that I was unable to give you a copy of my written remarks before today.

We had a conference at the University of Saskatchewan over the weekend on officers of Parliament. Four of the five officers were in attendance. The Privacy Commissioner refused to come. However, the Information Commissioner, the Commissioner of Official Languages, the Chief Electoral Officer and the Auditor General did attend. It was an extremely good conference. A book will be appearing about it. To my knowledge, it was the first such study of the officers of Parliament.

I presume I have been invited because of my publications on the Crown. I assume it is presumed that I have an interest in and knowledge of the subject of this bill. That is true up to a point. Even someone like myself, who had a reason to investigate the procedure of Royal Assent, experienced difficulty in collecting information at the time I was doing my research. Students of Canadian government would be hard pressed to find a textbook that discusses the subject in anything but a passing way.

Is this lacuna an argument for change in the procedure currently used in the Canadian Parliament? It probably is, but in what direction? Is it to make it more or less visible as an essential part of the making of law?

Proponents of change advocate an alternative method for declaring Royal Assent. The essential element of traditional procedure is that it is personal. Assent is granted by a Justice of the Supreme Court of Canada acting as Deputy Governor General. The essential element of the alternative procedure proposed in Bill S-34 is that it is impersonal; assent may be signified by a written declaration.

The arguments for change have been rehearsed many times and need no repetition here. For simplicity's sake, they fall into one of two categories. First, there are those arguments associated with the promotion of efficiency, broadly defined, that is, the timing of the traditional ceremony of Royal Assent is said to be inconvenient, the attendance sparse, and that it imposes an extra burden on the judges. Generally, it is said that the declaration of Royal Assent needs to be both more expeditious and more practical.

The second set of arguments are those that might be described as flowing from some theoretical conclusions about the status quo, that is, the present ceremony of Royal Assent is described as perfunctory, routine, a formality empty of meaning and the attitude it engenders is one of indifference.

There is a third category of argument that might be called the influence of comparative example. No one else with a political system like Canada's provides for Royal Assent in this way. Britain ceased in 1967, although the sovereign had not given Royal Assent in person for over a century. Assent had been communicated to Parliament by Royal Commission. While the practice of Royal Commission is still possible, the common procedure is for the Queen to sign Letters Patent giving Royal Assent, and this Royal Assent being notified to each House of Parliament.

In Australia, Royal Assent has always been granted by a written declaration. As an observation, the influence of compara tive example is debatable. Long ago, in another context, Sir Joseph Pope, the biographer of John A. Macdonald, said that the Australian example is no example at all. Certainly, if precedent is to be entertained, then another Australian constitutional provision, section 62, might be cited. It provides that there shall be a federal executive council, equivalent to our Privy Council, to advise the Governor General. Australian custom is that the council usually comprises the Governor General and two or three ministers or parliamentary secretaries. That has not been the case in this country for well over a century. If you are to argue by example, you cannot be too selective.

Perhaps because of our colonial background, Canadians have long been disposed to measure themselves politically against others, such as France, Britain and the United States. Whatever the reason and whatever the subject, Senate reform or an entrenched Bill of Rights, there is a disinclination to see the Canadian Constitution and institutions as distinctively Canadian. Yet, the Canadian Crown and the Canadian practice in regard to the Crown should be determinative in the matter of Royal Assent.

If comparative example can mislead, so too can pressureof uniform or near uniform opinion for change -40 million Frenchmen cannot be right. I hope you will forgive me if I diverge slightly from the topic and mention an event that happened at the University of Saskatchewan six or seven years ago. Until the mid-1990s, the university government in Saskatoon, as far as the faculty was concerned, took the form of a faculty council composed of all 800 or 900 faculty members. The council was chaired by the university's president. Although membership was large, the quorum required for a meeting of council was5 per cent of eligible members, that is, about 40 members. For a variety of reasons not relevant to this discussion, attendance declined at the council meetings with the same persons continually attending. However, on occasion, there were not enough of them to make up a quorum. Scheduled meetings were cancelled. Administrators' schedules were disrupted.

A representative council, elected by college, was seen to be the answer. The quorum problem was resolved. The president's time was used more efficiently. Whether faculty involvement in university government was improved was another matter. The people who had been regular attendees of the old plenary council now fill the elected positions, some having arrived through acclamation. Faculty awareness and involvement in university affairs has not increased. In fact, the old system, which allowed all faculty members to attend, even to pack a meeting if a group so wanted, allowed for an expression of intensity of interest on selected matters that the representative system ignores. It is very much open to question that the representative council was a body that represented, or that the old council, condemned as inefficient and impractical because of its size, was a body that did not represent. The lesson of this parable is to be cautious about the models applied to institutional reform.

What purpose is being served by change? One person's technicality can be another's principle. Inefficiency lies in the eye of the beholder.

In the matter of Royal Assent, the committee has before it three alternatives. The first is to retain the status quo, that is, the Deputy Governor General in the presence of senators and members of Parliament periodically, but not regularly, signifying assent.

The second is to opt for the change set out in Bill S-34. That change provides for an alternative signification of assent by written declaration, along with a guaranteed minimum number of occasions when Royal Assent would be declared in the manner in which it now occurs.

The third is to support Senator Grafstein's amendments. These provide, inter alia, for the presence of the Prime Minister or Deputy Prime Minister at the ceremony of Royal Assent in the Senate, for the presence of the Governor General in person, except in exceptional circumstances, for a scheduled Royal Assent ceremony when both Houses are sitting, and for provision of a written declaration of Royal Assent, but only in exceptional circumstances and not more than twice in a calendar year.

Let me comment on these alternatives. First, the status quo is viewed as unsuitable by proponents of the other alternatives either because it is deemed a formality and, therefore, dispensable; or because, in its current guise, it depreciates the significance of the occasion, which is the coming together literally of the three branches of government. As W.P.M. Kennedy, the great constitu tional scholar, once described it, it is the conclusion of "the building up of law through various readings and detailed discussion in committee."

Second, Bill S-34 is viewed by critics as unsuitable because, despite retaining the personal ceremony of Royal Assent, the alternative procedure of written declaration will, they believe, become the norm. When people say, as some have in this debate, that the requirement for a minimal number of personal Royal Assent ceremonies in Bill S-34 will "make that ceremony into something even more special than it currently is," they put the reference in the wrong place. The point about personal Royal Assent, say the critics of Bill S-34, is not that it is special, but that it is not special. It is the routine rather than the rarity of personal Royal Assent that needs to be emphasized.

The Crown is not an ornament but the core of Canada's parliamentary democracy. In and through Parliament, it embodies the values that unite Canadians.

The time of Royal Assent is when the Queen-in-Parliament makes law. Then the representative of the Crown personifies the nation; the Senate embodies the federal principle; and the Commons represents the people through their representatives. One may dispute the description of the parts, but not the parts themselves, nor their inclusion in a manner visible to all.

Senator Grafstein's proposed amendment speaks to these multiple dimensions of the Royal Assent ceremony. I said earlier that comparative examples should be treated with caution. Nevertheless, they cannot be ignored. If Britain and Australia, with whom Canada shares so much politically, do not feel the need for personal Royal Assent, why is Canada different?

The answer, I believe, has to do with the place of Parliament in each political system. In Australia, Parliament is subordinate to the constituent power of the people revealed in the elected Senate and in an amending formula in which the people are the determinative power. In Britain, popular sovereignty, or as the Royal Commission on the Reform of the House of Lords described it, "the ultimate repository of democratic authority" is the House of Commons.

Monarchy is immensely important in the British Constitution, but its importance is different from that in Canada. Canada is a federation composed of provinces but possessing two official languages, official multicultural and an emerging Aboriginal dimension. Parliament functioning, in all its parts, reminds Canadians of the fundamental structure of their Constitution.

One of the recurrent criticisms heard about the operation of the Canadian government is that the general public interest fails to be expressed. The Royal Assent ceremony affirms that it is expressed more completely than Bill S-34 would allow, for that proposal would submerge both the Governor General and the Senate.

While ceremony will not change perception if it conflicts with political reality, at least it does not confirm, as Bill S-34 would, the marginalization of both the national and the federal component of the Constitution in favour of the party political.

The Chairman: Thank you very much Professor Smith for a most interesting presentation.

Senator Di Nino: You mentioned the different alternatives. I would suggest that the answer might lie in a combination of those alternatives. My thought, as you were making your presentation, was that adopting the bill with a provision that a number of senators representing both sides of the chamber would request that the customary form of Royal Assent be required for any particular bill. Thereby, you would actually have an interest by the chamber in conducting the ceremony from time to time as the members felt the need or in light of the importance of a particular piece of legislation. Would that approach make sense to you?

Mr. Smith: How would that be different from Senator Grafstein's amendments which provide for regular personal ceremony? You are describing an "on demand" approach.

Senator Di Nino: In effect, the Senate would initiate the required ceremony, rather than it being convened on a schedule.

Mr. Smith: The other string on my bow, or whatever the metaphor, is bicameralism. I am quite concerned about equality in these matters. It seems to me that it is very important in dealing with Parliament to recognize that Parliament is composed of a bicameral legislature and the Crown. One House is singled out in the clarity bill, which was what I deal with at my last appearance. There are real problems with that. Here I would see an opening for the same criticism. However, I may have misunderstood what is being asked.

Senator Andreychuk: Thank you for putting this perspective on this bill because I had not quite thought of it in the way that you have structured your comments.

Are you saying that, by passing Bill S-34, we would be diminishing the role of the Senate?

Mr. Smith: Currently, Royal Assent is given in the person of the deputy Governor General, in the Senate chamber. With a written declaration, Parliament would be informed of the assent, but there would be no ceremony. Am I correct that the Senate, which is now the forum or the setting for the Royal Assent ceremony, would no longer have that role?

I recognize that the bill does provide for a minimal number of ceremonies. I do not mean to dismiss that. However, my view is that usually when you have that kind of formalism, it does not elevate but it depreciates the significance of an event. Formality has a contrary effect than that which is claimed for it.

Senator Andreychuk: Are you saying that would be the practical effect, not the legal effect?

Mr. Smith: As I said in Australia and in Great Britain, a form of that does occur. I try to cover myself on those grounds by saying that these are very different countries. This is an important point. It sounds abstruse, but it is not, because it is important. We do not have popular sovereignty in this country. We do not have it in a form of constitutional amendment. There is no provision for constituent power of the people. Perhaps there should be, but there is not.

We do not have an elected Senate. Therefore, you must determine where the sovereign power does lie in our Constitution. It lies in the Crown in Parliament. This proposal undermines or marginalizes that central principle which, I fully agree as a professor of many years standing, not many people understand at the end of the course.

The Chairman: If I may, I would add to the discussion the practice in some of our provinces, for logical completion. Could you describe the practice in Ontario and Saskatchewan?

Mr. Smith: I understand that in most provinces, that is, except Quebec, it is done in person. On this question - and I am not a constitutional lawyer - I have wondered about sections 55 and section 90 of the Constitution Act and to what degree altering the procedure in Parliament would affect, if at all, the procedures in the provinces. The linkage with the provinces and Royal Assent is through section 90 of the Constitution. I am curious about that, but I do not have an answer.

The Chairman: My understanding is that Ontario has a form of executive assent.

Mr. Smith: They used that on one occasion when a Lieutenant Governor was in hospital.

The Chairman: It is a matter of practice that the Lieutenant Governor does not come to Queen's Park to give assent. It is done in her office at Queen's Park, not in the chamber. I understand Saskatchewan follows the same procedure.

Mr. Smith: I did not know that was the case in Saskatchewan.

The Chairman: Thank you for an interesting presentation.

Senator Andreychuk: I have one additional question. Were you tending to favour the status quo?

Mr. Smith: No, I was favouring the amendments proposed by Senator Grafstein. My second preference would be the status quo, but my preferred position would be Senator Grafstein's proposal, because it is important to impress upon the public mind the centrality of Parliament in the national life of the country, and because Parliament is comprised of three parts: The Crown, and the two chambers.

Senator Grafstein: I declare my conflict: I am interested in my proposals, as opposed to the bill, but I did present them in draft form because I am open to suggestions, corrections or amend ments.

At the outset, I want to separate the apples from the oranges. The practice in the provinces is almost irrelevant to this discussion. Professor Smith said it well when he mentioned bicameralism at the federal level. We are talking about a bicameral practice. There are some sensitivities in sections 55 and 90 that we need not address, but there is a ripple effect, which I will not pursue at this time.

We have to consider our system. As Professor Smith said, it is different, distinctly and constitutionally, from the practice in the U.K. and in Australia. We have a deeper problem. That is because the House of Lords has established its legitimacy and credibility in England and in Australia because it is elected. It has its place of legitimacy. We, in our Senate, suffer because people equate elections with legitimacy, so our posture and our position are limited.

I say that as a preliminary comment. I want to return to the heart of what we are talking about - Royal Assent. I believe people are confused in their belief that Royal Assent is symbolic. It is not. The Royal Assent is a practice that has symbolism, but it is not symbolic. It is the very essence of the Crown in Parliament and of constitutional parliamentary democracy. Again, as all the witnesses have said, it brings the three essences together in one fell swoop, the Crown, the House of Commons and the Senate, to, in effect, join together in law. You cannot have law without the three essences, the architectonics. That is the essence, the very heart, of the Crown in Parliament and parliamentary democracy.

We do not live in a presidential system. However, it is interesting to note that, in the presidential system, they have adopted a modern form of practice, which is a public educational form of Royal Assent. What do they do? All the lawmakers of both Houses sit around the President while he signs the bill. The two Houses come together and the executive officer, the President, signs it and then the pens are passed around. At that moment, two things happen: It is visible and people understand that a bill is being passed. If you read the New York Times of the day, there will be mention that the three component parts - the Executive, the House of Representatives and the Senate - came together to pass the bill. It is done in a way that parallels the way that we come together for Royal Assent. The next day, the Washington Post and the New York Times and other media forms report on the bill that was passed. There is public education about the bill.

What does the public know about the Senate and about Parliament? They know about Question Period and partisan wrangling. No one really knows how Parliament works, and that includes our academics.

I was at St. Francis Xavier about one month ago to give the Allan MacEachen lecture. Before that, I spoke to a class of fourth-year political science students. The professor and I ended up in a political debate about the role of the Senate. He was teaching political science and he did not understand the role of the Senate. He is not alone in that. Professor Hogg, who is the pre-eminence on the Constitution, states that the Senate has never been effective. That is a statement in his text. Yet, we hold him up to be a constitutional expert. There is monumental ignorance about what the Senate does and what Parliament does.

We now have a great opportunity. We can bring together the three constitutional elements, the Crown and the two Houses, and we can tell people what it all means. At this juncture, the public does not understand our process. Quite frankly, it is my guess that not 5 per cent of Parliament understands the historic nature of Royal Assent.

Royal Assent is not symbolic. The work of Senator Joyal and others inspired me to do more research. The Royal Assent was and is a public declaration, a public proclamation. Why? If you look at the Criminal Code, the answer is clear. The code states that ignorance of the law is no defence. Every citizen is presumed to know the law. You cannot argue in a court of criminal law that you did not know the law. That harkens back to the ancient role of proclamation, when the Crown - His or Her Majesty - came with both houses of Parliament to proclaim the law. That proclamation was posted on a wall for all to read, and people said: "That is the law." That is the origin of the Royal Assent. For the citizen, ignorance of the law was no defence.

Thus, we will have monumentally failed when we do not publicly proclaim that we have passed a law. The Royal Assent gives us a unique opportunity to do that.

I would like the Royal Assent to have the three Vs: viable, vitalized and visible. We have all the elements, honourable senators, to do that easily. We must bring those elements together at a particular moment. I envisage an act which provides that we have Royal Assent on a fixed day with the Governor General, except under exceptional circumstances. The prime minister and the deputy prime minister must be present with a valid quorum.

This could take place immediately after the caucuses because everybody is here on Wednesday morning. The Prime Minister has said that Wednesday is the most important day of the week. He is here, with rare exception, as are the ministers and the parties. That is a vital opportunity. At 12:00 p.m., we would finish caucuses. At 1:00 a.m., we could have a 15-minute Royal Assent. It is mechanically easy to do this. We only have to walk down the hall;, and it is done. In addition, the national press are present. They are all in a scrum outside the caucuses.

The Senate would re-emerge in its constitutional place as one of the two essences of parliamentary democracy in the bicameral system as Professor Smith has pointed out.

My view beyond that, as it is not in the bill, is those who have been responsible for the bill in the Senate, the chair of the committee, would explain the bill. That would impose a new burden on the committee chair. If a committee has a budget for a bill, there is, within that, the responsibility for publicizing the reports because we want the public to know about them. We have diminished our role in publicizing the proposed provisions of a bill

If we did that on a regular basis then students in schools across the country could watch and understand it. It could be part of the curriculum of the nation. We would be interactive. It would be easy to do, and it would be cost effective.

It would take Parliament out the mud of the ignorance in which it now resides and bring it up into the sunshine. There is no money involved here. All we are saying to her Excellency is that once a month she spend 15 minutes down the street and do what she does so well: communicate to the nation what Parliament is all about.

The same works for the Prime Minister. He should communi cate to the nation that which he does so well. "Parliamentarians, communicate your law-making skills and educate your public." It is easy to do.

For me, this is not symbolism. For me, this is the essence of parliamentary democracy.

I have been a senator for a long time. The greatest frustration that I face as a senator, and I know it is shared by senators on all sides, is that, for the most part, we work diligently and the work is not understood. Every week, I go home and my wife asks what I did during the week. Then she tells me that she does not understand. I believe all of you share that frustration.

I would turn to the proposal, Mr. Chairman. Thank you for your indulgence. A ceremony would be set up once a month. It could be fixed for Wednesdays, and it would require that the Prime Minister and the Governor General be in attendance. If once a month is too frequent, it could be held every two months.

I put in once a month because, at the most, we would ask her Excellency to come up the street for 15 minutes six times a year. Of all her constitutional responsibilities, this is the most important. There is nothing more important than this.

Honourable senators, the proposal is before you. It is detailed. It is wordy. It can be amended. I think that you will get the essence of what I am saying.

I wish to thank all the witnesses for supporting this initiative.

The Chairman: I want to thank Senator Grafstein for the work and insight that he has given the committee.

I would like to make some comments on the topic of Royal Assent, not on the theory of the Crown in Parliament, which has been so ably addressed. I would like to comment on the reality of Parliament as we experience it from day to day.

The reality, in my view, is that there is little, if any interest, in the other chamber in the proposals to change the Royal Assent procedure. The government is offering a trade: We will keep the customary form for at least one such Royal Assent, otherwise, we will move to an executive form of Royal Assent.

If we amend the bill and send it back, the chances are that the bill would die on the Order Paper in the other House. There will be no changes to the Royal Assent procedure. That may be acceptable to colleagues.

I would conclude by saying that on Tuesday, November 20, 2001 we will begin an in camera discussion on the subject of Royal Assent. Then we will move to another in camera item with which we have been dealing, led by Mr. Audcent's presentation.

Senator Murray: What would be the purpose of an in camera discussion on Royal Assent?

The Chairman: I am in your hands as a committee.

Senator Di Nino: I would like to engage Senator Grafstein on a couple of points he mentioned. It would be appropriate to have a public meeting.

The Chairman: I have no problem with that.

Senator Di Nino: Perhaps we can deal with again at another time, because I do have some questions and comments.

Senator Grafstein: I wish to respond to the comment about the other House. My experience in the other house brings to mind the saying: "Build it and they will come." Show them a microphone and an audience, and they will come. If this becomes a big public event, and it is televised, they will be there in spades. They will nudge us aside to get to the microphone first. I want to see the lawmakers from both houses at a round table together.

The Chairman: My point, Senator Di Nino, is that if we want to have further public discussion, that is all very well. However, at a certain point we must proceed in camera to discuss our relations with the other house.

Senator Di Nino: I agree with that.

The Chairman: Part of this Royal Assent discussion will involve our relationship with the other house and with the executive.

Senator Joyal: I understood very well what you said. There is no interest in the other place in revising Royal Assent.

The Chairman: That is my belief. I may be wrong.

Senator Joyal: To me, this is an important question of principle, and I have raised it in the past. Our first objective should not be to redefine Royal Assent on the basis of what seems to be of interest in the other place. I say that with the greatest respect for the other place.

We have a constitutional role, as Professor Smith has said very well. We embody the federal principle. I speak for myself as a senator. However, I am not insensitive to what they might think because, of course, I was there longer than I have been here.

If we are to devise a new system, I want to devise one that is rational and which has a constitutional basis. I do not want to cut something to try to fit the bias over there. We have a role, and we will play that as we see fit. The other place will dispose of it.

The Chairman: I think everyone understands that. We are one of two chambers of parliament. It may well be that we will propose amendments, send them over there, and then use the not-often-used device of a conference between the two chambers to try to resolve the issue of amendments to Royal Assent.

There are interesting things ahead of us. We will start in a public format on Tuesday November 20, 2001. When the committee is ready, we will move to an in camera session because there are issues in our relationship with the other House that should be discussed in camera.

Since we do not have standing approval, I require a motion to approve payment for our witnesses.

Senator Joyal: I so move.

The Chairman: Is it agreed?

Hon. Senators: Agreed.

The Chairman: Thank you very much. We next meet Tuesday, November 20, 2001.

The committee adjourned.