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

[Roger Gibbins]

The first of the three Es of the triple-E Senate is that it's elected, which I agree with, but the triple-E model never actually specified how the election would take place, and that's why it's incomplete. It's an effective Senate, which is again somewhat undefined, but it's also an equal Senate. I'm not convinced that equal provincial representation is appropriate given the tremendous variation among provincial populations in Canada. You don't want a Senate that replicates representation by population in the House of Commons, but to me, to go as far from that as the triple-E model would suggest is not acceptable.

I think we're looking for some kind of blended model. That's fine; that's appropriate. And that can be sold in the west.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Madam Chair.

Thank you, Dr. Gibbins, for being here with us today.

I had a couple of things to go through. I wanted to ask you about the single transferable vote electoral system in particular, but before I get there I just wanted to make a comment, and you're free to comment on my comment after I'm done.

I'm really drawing a bit on Mr. Angus's observation about having a referendum on abolishing the Senate. This goes back to the discussions that have been suggested elsewhere, that we ought to engage in having.... I don't think we ought to engage in this kind of constitutional process of going to the provinces, because in Canada we don't have the option of dealing with our constitutional amendments by referendum.

We can add that on top of our formal constitutional amendment system, but we are very different from the Australians, the Swiss, as they amend their constitution. What happens in Australia, for example, is they have a requirement that you get the majority of voters in a majority of states voting in favour of a constitutional amendment, but the amendment is proposed in Parliament, voted on in Parliament, and the state premiers have no role.

In a very similar situation in Switzerland, and in the United States as well, you don't find a situation in which you engage in horse-trading--we'll give you your Senate changes if you'll give us a distinct society. Then once we get into that, we get the ever-expanding collection of different proposals from different groups that demand to be brought in until eventually you create a great cancerous growth like the Charlottetown Accord, which included absolutely everything, and ultimately was unfinished by the time it went off to the voters and mercifully was defeated in that informal referendum we had. That's the great fear: that you start with Senate reform and end up effectively going through some kind of Meech Lake, Charlottetown-type process.

My argument effectively is it's a very good reason to avoid trying to use the seven and fifty formula at all costs. Anyway, that was my observation.

With regard to the electoral system, the proposal here is for a single transferrable vote system. It bears a great deal of resemblance to the one in Australia. It's a little bit different. There's no party-list voting option; you have to vote for individual candidates. But it seems to me that this--and I guess I'm asking if you agree with me--achieves the goal of permitting minority representation that is absent from our first-past-the-post system.

As someone who was elected in Ontario as a Canadian Alliance candidate in 2000, I had the experience of being one of two members of my party to be elected under our first-past-the-post system out of the 103 seats in Ontario. My party won 25% of the vote. The Liberals won 50% of the vote, only twice as much, but were rewarded with 100 seats. This goes to the heart of the problem with first past the post.

There's been much talk of the need for electoral reform in the lower house. It seems to me this system achieves that to some degree in the upper house, particularly in large provinces like Ontario and Quebec, less well in a smaller province like P.E.I., with only four senators. Nevertheless, it seems to me to be a real move toward getting a variety of representatives from different parts of the political spectrum, different parts of society, for those larger provinces.

The question I had in this vein is because we are talking in this committee of looking at potential amendments to the proposed legislation, should any effort be made to try to ensure that the elections have as many senators elected at the same time as possible, or should they be staggered in some way, as they are, for example, in the U.S. and Australia?

[Roger Gibbins]

The single transferrable vote system, and indeed most forms of proportional representation, if we were to go that way, work least well.... Pardon me. The smaller the constituency, the worse they work. If you have a single transferrable vote and you're only electing one member, you get basically the same outcome--not exactly, but similar.

One of the things that's unclear in Bill C-20, at least in my reading, is that it doesn't define what the appropriate collection of constituencies would be for the Senate election. It doesn't define, because we can't define it at this point, what the number of elected senators should be and whether they should be at one time or another. We're going to have a phase-in period where none of this is going to work terribly well.

The basic point is that if you want to ensure diversity of representation in the Senate and that we don't replicate the kinds of regional blocks we get in the House of Commons, then you need a reasonable number of people elected at the same time in the same constituency. Getting there in an incremental fashion is not straightforward. I don't think the electoral system proposed in Bill C-20 will work flawlessly from the get-go. It won't. But I think it will create the opportunity to begin to get this right.

I also want to note--and this really goes back to the question on a referendum--that our Constitution does not require that major constitutional changes be put to the people. It simply requires the consent of the provinces--either all, or seven. However, my guess is that the Charlottetown referendum has set more of a constitutional precedent than we realize. In fact now that we've put one major constitutional package before the people, I suspect that in the future, no matter what the constitutional change might be, if it's major and if it's significant, governments will be compelled to go back to some sort of popular consent. I think we've made a decision in the Charlottetown referendum that we will not go back on; I don't think we can go back on it.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Well, certainly the thought has occurred to me that rather than going to the premiers first and trying to cut a deal and then submitting it to the people, as was done in Charlottetown, you could do it the other way around. Simply design something, take it to the people, and if it's popular and supported by the electorate in a province, it becomes very difficult for a premier to say we nevertheless stand against this.

You can certainly campaign against it during that referendum, but once the people have spoken, it becomes very hard to work against what they've said. I suspect if that was done, we might move to the effective adoption of a convention that is similar to the Australians', that the vote of the majority in a province--or a state in their case--is what really counts.

[Roger Gibbins]

I hesitate to use the example of the Charter of Rights, because, as has been pointed out previously, this is not necessarily.... I mean, how we got to the Constitution in 1982 is not uniformly seen as a good way of proceeding. But it is interesting that a couple of the western premiers--I don't know about the others--did not want to see a constitutionally entrenched charter of rights because they thought it would take away from parliamentary supremacy. It was a reasonable argument, and they were not in favour.

The federal government did extensive public opinion polling, which showed that Canadians, by a margin of about 90 to one, or now 90 to 5, were in favour of an entrenched charter of rights. Then they went to the provincial governments and said “Okay, we can go to the people on this in some way. If you want to take us on in the court of public opinion, we have the evidence that you will lose badly. So let's sit down and talk this through.”

How the public weighs in is important. But I will go back to a point I made earlier. If you want to bring the public into play on this, the sharper the alternatives or the models you're able to provide people, the better the public voice becomes. If you ask an inarticulate question, you get an inarticulate public response. That's why I would not rush getting into this.

[Hedy Fry, Liberal, Vancouver Centre, BC]

It's called the Clarity Act

[Roger Gibbins]

Yes, it is in some respects.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

We'll hear from Madam Fry now.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Thank you very much.

Mr. Gibbins, I think sometimes some of the things we're talking about here may or may not be appropriate. I don't know if you are aware that the only way the Prime Minister could set up these elections without actually contravening the Constitution would be to do what he did, which was to suggest that after the elections he would use the list, from which he would draw appointments. In other words, he might or might not and would not necessarily. In fact he could not be bound by the elections, because he would immediately violate the Constitution.

So at the end of the day, we're talking here about semantics or something that is meaningless, because if you're going to have elections--which you're going to proceed to ignore, and which are going to cost an enormous amount of money in the first place--and then you may or may not listen to them, first and foremost you've subverted democracy. Secondly, you have created a set-up by stealth, as I think my NDP colleague said, in which you are trying to get an answer to something. You're involving Elections Canada. You are doing all of these things, and yet you're not going to listen to what the people say.

So that's the first question I have, because for me that is at the heart of what bothers me about this bill. It is a stealthy move. It is a move that, as one of our witnesses said, cannot be made legally, so you're trying to do it by the back door. That's the first thing.

Second is the fact that by doing this, the Prime Minister has actually ignored and disrespected the provinces to the extent that he has not seen fit to sit down first and discuss with them some things that are of fundamental importance, when provinces have weighed in on them and said personally how they feel about them. That is again something that doesn't sit well with the idea of trying to get good input, of trying to get something done here that will work, of making sure that even if not everyone is onside, we've made sure that we have at least done the respectful thing by talking to the people who are involved.

So the idea that you can ensure diversity through an electoral system when in truth you are not really looking at an election is a moot point.

But having said all that, I'm back to the diversity issue. You said that an election is a better way to achieve diversity than are appointments, and you said that it depends on the Prime Minister. Would it not be a wiser thing to suggest that in fact you amend in some way the way you elect the Senate, not by changing the Constitution but by suggesting that the Prime Minister must make a list of appointments that reflect the diversity of Canada--linguistic, regional, or whatever--and be bound by that so that you look at the kind of formula for that? Then as Canada changes, that formula shifts with it, so you make sure the appointments are done.

I know that Mr. Chrétien, when he appointed, did something we've never been able to do through elections: he managed to get almost 50% of the Senate to be women. And he has aboriginal people who were never in the Senate before. And he has visible minority groups who were not in the Senate before, and linguistic groups who were not in the Senate before.

I think you could do it by appointment if you really wanted to. So I want to put that to you.

First and foremost is the question of when is an election an election when it's not an election? Second is the point about the disrespect for the provinces. And third is the point about seeking diversity through appointment.

[Roger Gibbins]

Those are good questions.

The Prime Minister at the present time takes advice from who knows where when he makes appointments. We have no idea who advises him. We have no idea if he accepts or rejects the advice. It's an entirely internal process in the head of the Prime Minister. We look at the results. We applaud some and condemn others, and we have no idea what the process is.

I think it is inconceivable--and I can't underscore that more--that a Prime Minister would hold or cause elections to be held and then reject that advice. As a convention, this sinks so quickly into the Canadian set of expectations that the Prime Minister would be bound. One of the constitutional arguments made about this is that the Prime Minister would be bound. You can't have it both ways. The Prime Minister is either bound by an electoral process or not. I think for better or worse, the Prime Minister would be bound in this way.

So the prospect of an election--and I'll use that term advisedly--being held and then the Prime Minister ignoring the result of that to me is remote at the outset, and rapidly becomes inconceivable as the convention sets in. That doesn't concern me.

The back-door argument is certainly more troubling--about why the provinces are not being pulled into this at the outset. I guess there are two responses I would make to that.

If the Senate was functioning well and we did not run what I consider to be a very real risk of confrontation between an elected House and an appointed Senate because we have such partisan imbalances in the two, then I would say let's be as slow-moving about this as we want.

I don't think it is working well at the present time. The way to bring the provinces to the table is to start the process in some way. This is again where I think Bill C-20 catches your interest. If you tell the provincial governments we're not going to do anything on our own initiative and we're going to wait until they sort of rally around and come up with something, nothing is going to happen.

[Hedy Fry, Liberal, Vancouver Centre, BC]

But it's a piece of legislation, not a policy idea. Policy ideas I throw away.

[The Chair, Liberal, Albina Guarnieri]

Madam Fry, your time has expired, but I do want to give Mr. Gibbins the opportunity to answer your questions.

[Roger Gibbins]

The third question has to do with minority representation in the Senate. I'm not a very good minority representative in any way, except for this sort of odd Alberta side of things.

Having minority representation in an appointed, discredited, and in many ways dysfunctional chamber is not that big a win. I think the bigger win is to have an effective chamber that's democratically elected and designed in a way that we can build in the kinds of minority representation we think are important to reflect in Canada. Build in minority representation--this is why I like the elected way of doing it--that recognizes that our definition of the appropriate groups and interests that should be represented will fluctuate. They will change and differ somewhat over time, but we want an institution that can accommodate that.

I just don't think being appointed to the Senate is the gold star. We can do better than that.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

Mr. Preston.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

First of all, Dr. Gibbins, I thank you for being here. I've gone through a couple of meetings with constitutional experts, and it's a breath of fresh air to hear someone attacking this from a different side, a more popular side.

I have to agree with some of what you've said, and I'll try to bring it together into a question. You've certainly said there's strong public support for what Bill C-20 is trying to do. If I can quote you, you may have been incorrect that it's not talked about in the bars on the weekend. Maybe we attend different bars.

[Roger Gibbins]

Sure do.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Across this country, if you bring up Senate reform, you're certain to get an opinion. Whether it's in a bar or in a church basement or wherever you might be, you're going to get a strong opinion. In my time in this place, I've never got the opinion, “Gee, I like what we have”. I think that's pretty safe to say.

You've already stated that change is what needs to happen, that it's the start down the road to the change, that the public demand is there and the people are certainly saying that what we have isn't right.

You were just asked some questions about appointments and that being the method to maybe get the best representation in the place. Well, I'll tell you, sir, that the largest complaint I hear is that people are appointed to the place. That may be what Bill C-20 really does--one of the best pieces is trying to fix that.

The public demand is there. You said we must start the change, even a little bit. We've got to start down the way, and then we might have the provinces stand up and take notice and see that the change is happening and they'd like to be part of it. I like the thought process of doing that.

I'm not certain that the public demand is from the premiers. That's not what I'm hearing. I'm hearing the public demand on the street. So I agree with you that starting the change is maybe the best way to go.

Maybe I'll stop there and ask you where we are, but I also loved your thought that our two choices are to wait for the implosion to absolutely happen of what we have or to actually start down the road of change and get going, and that change itself will bring on further change.

I'll leave that and let you speak to what I've said.

[Roger Gibbins]

I have two quick responses.

I've been involved in public opinion polling on Senate issues for a lifetime, it seems, and one thing is emphatically clear: the status quo enjoys virtually no public support. We're down to numbers about the same as for people who believe Elvis is still alive, who have talked to aliens in the last month, and so on. We're down in the single digits, 7% or 8%

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Okay. We can't stay where we are.

[Roger Gibbins]

There is no support.

What's also clear is that if people are forced at this point to choose between reform and abolition, there are important differences across the country and important partisan differences. New Democrats tend to support abolition, Quebeckers tend to support abolition more than reform, and western Canadians support reform more. So there are differences, and it's not a clear-cut call which way Canadians would go. I think part of the reason it's not clear-cut is that the options themselves are not well understood by people.

The second point has to do with the role of the premiers in this. One of the difficult things about Senate reform is that everyone who counts, everyone who has to agree, loses. An elected Senate would in some way affect the status of MPs, right? You would not be the only elected body. There would be senators, and in fact in some ways they would represent larger constituencies; there'd be fewer of them; they might seem to be more powerful. So MPs lose. The existing senators lose. The premiers lose because there are now competitors, in terms of speaking for Alberta, speaking for Saskatchewan. And the Prime Minister loses because—

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

But who wins?

[Roger Gibbins]

The people.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Certainly. Isn't that what this is for?

[Roger Gibbins]

I feel as if I set you up, as the straight man here.