Bill C-20 (39th Parliament, 2nd Session) Committee on May 14th, 2008

[The Chair, Liberal, Albina Guarnieri]

Seeing a quorum, I'd like to welcome everyone back for our last meeting before Parliament breaks to celebrate the beginning of summer on Victoria Day. I know that today's guest will give us plenty to reflect on over the weekend.

Today we are privileged to have Dr. Roger Gibbins. He is CEO of the foundation and a former professor and author, who has the distinction of being awarded the Alberta Lieutenant Governor's award for excellence in public administration. After all, excellence is something this committee is striving for.

Without further ado, Mr. Gibbins, you have the floor.

[Roger Gibbins, President and Chief Executive Officer, Canada West Foundation]

Thank you very much.

I want to apologize for the absence of my colleague, Robert Roach, who was going to be here. He took ill from some weekend travelling in Winnipeg, so I'll be here by myself.

I'm pleased to have this opportunity. Senate reform has been an interest of mine since about 1973. It's been a longstanding interest of the Canada West Foundation, which I am associated with right now. I want to stress that this is not a Canada West Foundation position. As an organization we do not have a formal position on either the bill or Senate reform itself.

I also want to stress by way of preamble that I am a political scientist by training, not a constitutional lawyer. That doesn't mean I don't have constitutional opinions, but they are based more on political instincts than legal training.

My notes will be available to the committee once translation has been completed, perhaps by the end of the week. I will speak to them fairly briefly at this point, and of course will be happy to answer any questions.

Let me set the stage for my remarks by emphasizing the importance of context for Bill C-20. The context that's important to me is the Government of Canada's commitment to pursuing comprehensive Senate reform. It's only within that context that Bill C-20 makes sense, and I'll come back to this in the bulk of my comments.

In the written draft I go through the case for Senate reform in a general sense. I won't repeat the details of that, because these arguments will be well known to the committee. I'll just mention the three points that are highlighted. One is the need for more effective regional representation. The second is to have a counterweight to majority governments in the House of Commons. Parliamentary government tends to concentrate power, and the Senate provides at least the possibility of a counterweight, in a sense.

The third argument is really a democratic argument. The language I would use is that of environmentalism: that the Canadian Senate is not sustainable for the long run. I would stress that although my original interest in this topic came from failures in regional representation, to my mind now the most compelling argument for Senate reform is for democratic renewal. I think the arguments for regional representation are still important, but they're not as compelling to me as the need for democratic renewal.

Although the power of the arguments for Senate reform has grown over time, we've made no progress in reforming a 19th century institution so it can better take on the challenges of the 21st century. We are spinning our wheels while the world changes around us.

In thinking about this, it seems to me we're faced with two options. We can wait until the Senate implodes in some crisis of democratic legitimacy, some major conflict with the House of Commons; or we can try to re-engineer the Senate to bring it more into line with liberal, democratic values. To my mind at least, to do nothing only postpones the inevitable. We've passed down the status quo to our children and our grandchildren in an irresponsible fashion. The image of the Senate that comes to my mind is that of an institution cobbled together 141 years ago and now frozen in time like an insect trapped in amber.

So where does this lead me with respect to Bill C-20? My comments here are pretty straightforward. I think Bill C-20 is a reasonable step forward. It's consistent with federal states, such as Australia and the United States. It's consistent with even the most rudimentary understanding of democratic government. It's consistent with recent public opinion polling and Canadian values.

I recognize that Bill C-20 does not take us very far along the path to comprehensive Senate reform, and you're aware of the things it doesn't touch. It doesn't touch a whole bunch of things about the Senate. So it's not a final destination, it's only a small first step, but it is a first step, and it does show that incremental reform is possible.

For years Canadians have been told that Senate reform may be desirable, but it must be approached comprehensively rather than incrementally. We're then told that comprehensive reform requires constitutional amendment, and that constitutional amendment is impossible, and therefore Senate reform is impossible.

So we have a neat and tidy circular argument from which the perfect becomes the enemy of the good. We're told that any incremental reform, even a small step, is to be shunned in case we are pushed onto the slippery slope of constitutional reform. To my mind this has fostered a somewhat dishonest public debate, because if everyone lines up in favour of Senate reform it just divides those people who say it's really desirable but can't be done from those people who argue for incremental reform, and I'm certainly in that latter group.

Concern has been raised that Bill C-20 might turn out to be the final destination, that it might not only be the first step but the last step, and therefore the election or selection of senators could lock into place the existing regional distribution of Senate seats and the legislative powers of the Senate. I think this concern rests on the assumption that newly elected senators would be even more resistant to change than the existing senators. I don't accept that argument. I think the existing senators have set the bar for resistance extremely high, and I can't imagine any combination of elected or appointed senators who would be more resistant than the status quo.

I do admit, and I think this is a critical point, that the changes proposed by Bill C-20 would leave us with a bit of a dog's breakfast in terms of the Senate. But I see this as a virtue of the bill rather than a fatal flaw. The bill would destabilize the status quo and therefore force Canadians to come to grips with the design of a modernized and democratic upper house. The process has to start somewhere, and Bill C-20 sets out a reasonable starting point. I do believe the modest changes today make it more likely that we'll be able to generate the political will to confront more substantive changes tomorrow. If we begin chipping away at the status quo, we can set in motion the political dynamics that will enable us to carry the process forward.

I recognize that Bill C-20 pushes the envelope of constitutionality, although the constitutional constraints are at best unknown in the context of a living-tree Constitution. We know the Constitution is unfolding over time. We know the courts are not bound by the black letter of the law. We saw this in the way in which courts have progressively expanded the Charter of Rights and Freedoms. In any event, I stress I'm not a constitutional lawyer, but perhaps because of that I'm unwilling to dump the whole issue of Senate reform into the lap of courts, who, in my view, are not well equipped to deal with what is ultimately a political question. The democratization of parliamentary institutions and the design of an effective regional representation are not fundamentally legal questions; they are political questions.

In a similar fashion, some would argue we should not proceed without first securing provincial support. However, I'm reluctant to concede that the design of national parliamentary institutions should rest with provincial governments. I do not believe the federation should be decentralized to the point where provincial governments can, in their own interests, pre-empt the democratic reform of national parliamentary institutions. Nor do I believe the potential opposition in provincial governments to Senate reform necessarily reflects the desire of provincial populations, and it's those provincial populations we want to represent.

I'll just draw your attention to a useful analogy to the Charter of Rights and Freedoms. Many of the provincial governments were initially resistant to the Charter of Rights and Freedoms. The Government of Canada proceeded, and it turned out the provincial populations were overwhelmingly in support of this and the provincial governments caved.

If Bill C-20 gets the ball rolling with respect to Senate reform, what might the next steps be?

I'll end with this set of points. We are confronting a major problem. We don't have an acceptable model of what a comprehensively reformed Senate might look like. We simply don't have something we can pull off the shelves.

My organization has been associated with the triple-E model. I think the triple-E model is increasingly shopworn, and I think it now lacks relevance to the country we are becoming.

It's not a surprise to me that we don't have an acceptable or consensual model of what a reformed Senate might look like. We've devoted so much of our intellectual energy to blocking Senate reform that we've had very little left over to think through what a reformed Senate might look like.

If we're able to move forward, we have to figure out an appropriate form of election. If we don't get the election format right, we can dig ourselves into very serious trouble. We need a formula for regional representation that captures the complexity of this country and figures out how to deal with a very unequal distribution of population across provinces. We have to figure out how to work the sparsely populated northern territories into a reformed Senate.

We have to think through how we can have non-territorial representation in the Senate—how we can have an electoral system that ensures, for example, that the aboriginal population of Saskatchewan, the Acadians in New Brunswick, or the Liberals in Alberta are represented in some way within the Senate.

We haven't worked out what the impact of a reformed Senate might be on the House of Commons. I think Senate reform would set in motion some fairly fundamental reforms within the House of Commons, including a move to finally have full representation by population within the House of Commons.

I'm happy to discuss this at length, because you're the only group I can discuss it at length with. I believe that if we can get it right, we can create a Senate that will be a truly national legislature, reflecting not only regional diversity but also diversity within provincial communities. If we get the design details wrong, however, we could make a bad situation worse.

Some argue that we should stop until we have everything figured out, but past experience shows that Canadians will not even begin to tackle these critical design questions until the Senate reform train leaves the station. If we do not build on the momentum that Bill C-20 will create, nothing will happen. There must be a stimulus to creative thought, and this is what Bill C-20 provides.

To conclude, some would argue that we should be cautious, that we should wait for the premiers to fall into line or wait for the courts to chart a path forward. However, we have been cautious, excessively cautious, for generations, and nothing has happened. Nothing has happened for 141 years.

In quoting from the bill, I would argue that the Parliament of Canada has a primary responsibility to ensure “that Canada’s representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians”. The abdication of this responsibility by Parliament will inflict serious damage on the very fabric of democratic political life in Canada.

Thank you. I'd be happy to respond to any questions you might have.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

I'd like to make members aware that you were good enough to rearrange your schedule to accommodate us today.

Madame Folco.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Madam Chair, and thank you, Mr. Gibbins.

There are several elements of Bill C-20 that not only bother me, but that for which I do not have an answer. There are also elements that do not seem to be dealt with in the Bill.

First of all, I have realized that in the Bill as tabled there does not seem to be a clause or a provision protecting minority groups, for example, francophones in Canada or anglophones in Quebec or other minority groups such as aboriginal peoples. There is nothing that applies to them. It seems to me that in this day and age, here in Canada in the 21^st century, constitutional protection — although this is not tied to the Constitution —, legislative protection, in the structure of these groups, should be taken into account in a major, if not fundamental, manner. I would therefore like to hear your views on this with regard to voter consultation.

Secondly, I have a question that I have already asked, but to which I have yet to receive an answer. I imagine myself in the shoes of a candidate in an election — I will not use Quebec as an example, because the situation there is somewhat different — in Ontario, for example, where there is an important urban base, but also a broad rural base. It seems to me that if I were a candidate in a rural area, my chances of being elected would be rather slim because I would have to cover a very large territory in order to garner the same number of votes I might be able to attract in an urban area of just a few kilometres in length. It therefore seems to me that this voting structure for senators, as proposed in Bill C-20, would give a very distinct advantage to persons from urban communities and, therefore, persons from rural communities would be somewhat like the minorities I have just mentioned.

Would you have an answer to these questions? It is not exactly the same question, but nearly.

[Roger Gibbins]

They are, as you point out, very similar questions or related questions. To my mind, the answer goes back to how we design an effective electoral system for the Senate.

Let me start with the case of Ontario, which is an interesting one.

The proposal recommends a single transferable ballot. If we think of Ontario as being a single constituency with 24 senators running for election at the same, all on the same ballot, it seems to me that we lose the opportunity to build in the chance for different forms of minority representation.

Let me step back just a bit.

The Australian Senate uses a similar kind of ballot. One of the interesting things in Australia is it means that you can win a seat in the Senate with about 6% to 7% of the popular vote if you're running in a particular state. That's actually opened up the opportunity for a variety of minority group representations within the Senate that cannot occur within the lower house in Australia, where it's basically like our House--a slightly different ballot.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Like the aboriginals in the Northwest Territories, for example?

[Roger Gibbins]

Yes.

So you can actually have minority group representation within the Senate through an electoral system that's well designed.

I'm sorry, I'm backing around your question a bit, but my fear is that we could have an electoral system that would replicate the representational problems within the House of Commons. Right?

Take my own province, for example. We have approximately 29 seats, all occupied by Conservatives at the present time. There's been a lot of diversity within the province, but it doesn't get reflected within the House of Commons. The diversity within Toronto doesn't get reflected within the House of Commons.

We know how to design systems poorly. We have a pretty good example of one in terms of the House of Commons, at least in terms of exacerbating some of the regional tensions within the country. It pits us against one another more than we would like. I think we can do better within the Senate. We can come up with electoral systems that work.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

If I have time, I would like to ask what you would propose. Do you have anything to propose in order to avoid this kind of problem?

Because what we've heard so far is the Prime Minister say “I think we need more women”, or “I think we need more senior citizens”, or we need more of this group or that group, and then he goes ahead and names these people. And of course that's not where we're going with Bill C-20.

[Roger Gibbins]

Your question goes to the heart of the matter in terms of minority representation. Do we build that in through an appointed mechanism, or do we build it in through an electoral system that increases the possibility of minority representation without guaranteeing it? In other words, do you have an electoral system and say we hope this works, as opposed to an appointed system, which, incidentally, doesn't necessarily work? Right? It depends on the Prime Minister of the day and what the Prime Minister happens to see as important.

My own thought on this—and I'm only speaking from a minority position as an Albertan, which is not really a very good minority position—is that over the long run, a robust democratic system that offers strong opportunities for minority group representation is better than a system that relies upon appointed representation at the will of the government of the day. But again, I'm not really in a position to make that assessment.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you very much.

[The Chair, Liberal, Albina Guarnieri]

Thank you very much.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Madam Chair.

You mentioned, and rightly so, that there have been several attempts at Senate reform in Canada's history and that, each time, these attempts failed because no agreement as to the model could be achieved.

In my view, the healthiest approach in this regard would be to undertake a round of negotiations between the provinces and the federal government in order to come to some agreement rather than attempting to accomplish this, as the government is suggesting, through an act, through a change that is not substantial but the aim of which — and you mentioned it and I really appreciated your choice of words — is to destabilize the present structure, the status quo.

You, who at the very outset went on record in favour of Senate reform based upon the need to democratize this institution, are you not uncomfortable with the fact that the Conservative government, by tabling Bill C-20, is seeking to destabilize the provinces, to snap its fingers at the provinces and to do indirectly what it cannot do directly? The same is also true in the case of Bill C-19; you are aware that the National Assembly of Quebec unanimously adopted a motion opposing this Bill.

Do you view this as being healthy for democracy?

[Roger Gibbins]

I have a couple of responses, and they may seem a bit intemperate, but I don't mean them to be.

The first point is that I don't equate democracy with intergovernmentalism. I don't think agreements among governments are the only way to go forward in a democratic society.

Second, I do think that from time to time governments have an opportunity and even an obligation to destabilize the status quo. I'm thinking a little bit of Barack Obama's campaign in the U.S., which is all about change. No one in the U.S. primaries is saying “My message is that nothing will change, unless maybe we can bring all the state governments together, and if the states agree, then I'll do something”. You'd be dead in the water if that were your platform within the United States.

So my view is that in the long term, the consent of the provinces will be required, because of the eventual requirement for constitutional change. To me, that's unavoidable. But how do you even start that conversation? How do you even bring people to the table?

Well, you need something to create that action. If this government or any government simply said we've got an appointed house and it's not working very well, it's an increasingly partisan operation, but if people ever get around to coming together and talking about it, then we'll sit down at the table with the rest of you, I think that's.... Again, I don't want to seem intemperate here, but I see that as an abdication of responsibility from the Government of Canada.

So I don't see this as a way of getting around the provinces. It's a way of kick-starting that conversation, because you can only get around the provinces to a very limited degree, and then you run into that requirement down the road for provincial consent. That's an unavoidable constitutional necessity. That's the way the country has been structured. That's fair enough. But you get there by beginning that conversation first.

Maybe it craters in the long run, but I still think you have to begin that conversation.

That's all.

[Pierre Paquette, Bloc, Joliette, QC]

We must remember that, indeed, this will to do indirectly what cannot be done directly has, among other things, led to the repatriation of the Constitution in 1982, which brought about a constitutional crisis we are not yet out of: Quebec has still not signed the 1982 Constitution. In my opinion, it would have been preferable, at the time, for Mr. Trudeau's government to take the time to listen to Quebec's demands rather than forcing things as it did.

My impression is that we are witnessing the same type of operation, although, I must admit, at a lesser scale. This process will not lead to positive outcomes.

I will perhaps put to you a more pointed question. A good many constitutionalists have told us that the discussion surrounding the constitutionality of Bill C-20 is a concern. Some are of the view that this would require reopening the Constitution.

Do you not believe that the federal government should have the wisdom to place this bill before the Supreme Court before parliamentarians are called upon to vote on it?

[Roger Gibbins]

My own view is that I would prefer to have the courts respond to the actions of Parliament rather than to turn the situation over to the courts as the starting point.

To my mind, there may be a case that a reference would make sense, but it is an opportunity to delay, it's an opportunity to pass the responsibility, if you want, over to the courts. I'm not a constitutional lawyer, but perhaps because of that I'm not particularly enamoured with acting only through the courts when I think we're looking at a more fundamentally political question, in my limited mind.

[Pierre Paquette, Bloc, Joliette, QC]

I have another very precise question. When I joined the Committee, I had no pretensions whatsoever with regard to the Constitution and I have no specific information in this regard. What is the present position of the governments of the Western provinces with regard to Bill C-20? What are the positions of British Columbia, Manitoba, Saskatchewan and Alberta?

[Roger Gibbins]

My understanding—and I don't speak with a great deal of insight—is the western provincial governments have not yet waded into this.

If you want to get a general sense of the political landscape in western Canada, I would describe it in the following terms: a commitment by provincial governments to move ahead of Senate reform, but not with a whole lot of enthusiasm. At the public level, there is very strong public support, but this is not a top-of-the-mind issue, so it's not something people are marching in the streets about. It's not an acute issue. If you put it to the test, if you poll people, if you ask people, you find very strong support, but it's not something people are talking about in the bars on the weekend. It doesn't have that high saliency at the present time.

My sense of the landscape is that this specific bill, Bill C-20, has not yet sunk into regional discussion within the west. That would be my sense, anyway.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Madam Chair.

I found your presentation fascinating. I agree that democratic renewal is a fundamental issue that needs to be tackled by the Parliament of Canada. We have certain entrenched interests here who will say, “Why now? We have other more important things to debate. Why are we wasting our time on democratic reform?” Yet since I've been in the House of Commons we've debated sled dogs in the Arctic, contact lenses, and all manner of things—except democratic reform.

The question is how to get there. To paraphrase Chesterton, the only thing worse than being squire-ridden is being crony-ridden. We have an institution that is an anachronism. It is an embarrassment that in the 21st century we can't find a way to deal with something that was broken 141 years ago. Some have asked whether these attempts to transform this change-resistant institution—incrementally or, as some might say, by stealth—will simply result in another failure added to the many we've already had.

The New Democratic Party believes that this institution has outlived its usefulness. We believe we should put the question to the Canadian people. Allow the Canadian people a voice on whether or not they think there is even a role for the Senate.

We are concerned about leaving it to the premiers. Do the premiers speak for each of us individually, or do they also speak for their own vested interests? If we put the question to the Canadian people, and if we came forward with a majority who said this was an anachronistic institution, it would be difficult for the premiers to say they would not engage in a discussion of democratic renewal. Whether or not the Senate will be fundamentally changed or abolished, allowing the Canadian people a voice would provide the momentum to cut this Gordian knot of vested interests.

I'd like your comments on whether you think this would be an appropriate way to go.

[Roger Gibbins]

I'm fundamentally a democrat, and I like the idea of involving the population on major questions of constitutional reform. We did it with Charlottetown. To my mind, it was a good thing. We didn't do it with the Charter of Rights and Freedoms, but polling data convinced some of the western premiers who were opposed to the charter to cave in.

But how do you bring people into this? Where do you bring in the popular vote? I would argue that it's premature. My reading of the public opinion polls is that people would say two things: one, democratic reform makes sense; and two, you're asking us to buy a pig in a poke, because we don't know where we're going. A probable response by the Canadian public would be that they like the idea generally but would want to see the details. We're not at that point yet. We haven't done the design work.

To my mind, the advantage of incrementalism is that it gets us going. The disadvantage to incrementalism is that we're not sure where we are going. In my view, to put the vote to Canadians without having some clear alternatives would be a mistake at this point.

[Charlie Angus, NDP, Timmins—James Bay, ON]

From the New Democratic viewpoint, it's a clear and fair question: do you believe you need the Senate or not? The provinces play a role that was not even imagined before. Most of the day-to-day interactions with the Canadian public is provided through the provincial legislatures. With the Charter of Rights and Freedoms, the courts are interpreting many of our laws. The Senate, sitting there with conflict-of-interest guidelines you can drive a Mack truck through, sometimes makes you wonder if there's anybody in there.

It is a fair question to put to the Canadian people, given the fact that we already have what amounts to four levels of government. Don't you think this is a conversation the Canadian people are ready to engage in?

[Roger Gibbins]

Let me back into a response by speaking from a very narrow Alberta perspective, but I think it goes to what you're saying.

There are two facts of life about politics in Alberta. One is that we have a tremendous concentration of power because there is no check to the majority government of the day. And we've had a majority government of the day since 1971, the same party, so there's no check on that. I worry then, in an analogous situation, about the House of Commons. It's hard to remember back to majority governments, but this may happen again. Our political system doesn't create very effective checks on majority governments. We have the courts, we have provincial governments, and I don't rule that out. But within Parliament those checks are not very great.

But to me, the more compelling reason that comes out of the Alberta experience is that we have electoral systems at the federal level and at the provincial level that fail in any way to capture the diversity of the population. We have a single party, federally and provincially, with different parties winning an overwhelming majority of the seats, even though the population is much more diverse--in a partisan sense, in an urban-rural sense, or whatever it is. The electoral system we have for the House of Commons tends to exaggerate the homogeneity. It projects a single Alberta personality onto the political stage, whereas the province is much more complex.

One of the reasons I support Senate reform is that if we can get it right, we can have an electoral system that reflects, through its elected representatives in the Senate, the diversity of the province. If we have an electoral system for the Senate that produces, say, ten Senators, and ten of them are always Conservatives, then we've simply replicated the representational flaws that exist within the House of Commons.

That's why I keep going back in my own mind to saying we have to get the electoral system right, or we'll dig ourselves into a hole on this.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I have a final question, if I may be indulged for a second.

[The Chair, Liberal, Albina Guarnieri]

Sure.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I was fascinated by your comment that you felt the triple-E Senate idea has become a little too worn. Can you elaborate on why you believe that?