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

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

Thank you very much.

For our next act, we'll.... No, I'm sorry.

[Roger Gibbins]

But it does make the process difficult to move unless you can shake it up in some way, because those people who have levers are not all that enthusiastic about it. Even if—even if—in their heart of hearts they think this is the right way to go, it's still hard to whip up a great deal of enthusiasm for something that's going to chip away at your own power and influence at the end of the day. Fair enough, you know.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

We'll move on to Madame Picard.

You have the floor.

[Pauline Picard, Bloc, Drummond, QC]

Welcome, Mr. Gibbins.

I am in favour of the abolition of the Senate. I do not believe in a second chamber. I believe that the House of Commons is capable of taking charge of its own responsibilities.

You stated earlier that Bill C-20 was a small step in the right direction. You however see in it elements that to your mind are inconceivable. You stated that after the holding of an election for senators, the Prime Minister could decide to snap his fingers at democracy and appoint someone else. This, to your mind, is inconceivable. You say that we are attempting to do something through the back door. Most constitutional lawyers have told us exactly the same thing. You also underscored the fact that the provinces would not be consulted. In the end, with Bill C-20, no one would be consulted; legislation devised for Lord knows what would simply be imposed. Furthermore, it will be very difficult to enforce.

What is that small step on the road to reform that Bill C-20 offers and that you mentioned earlier?

[Roger Gibbins]

The small step is that the Prime Minister will now, under Bill C-20, accept advice from the people of the provinces rather than from his own conscience, advisers, or whatever. To my mind, that's a very fundamental change.

The difficulty, and I think an area where this committee may well have an important role to play, is getting through a transition period. As I mentioned, I can think of electoral systems that would work very well for a lot of the concerns that have been expressed in this room, but in the short term it will be incomplete and messy.

Quebec, incidentally, poses a particular problem, and probably not in a bad way, because Senate constituencies are specifically defined in the Constitution, whereas they are not for the other provinces. Within Alberta you could have an election for all six Alberta senators at once, but it's not clear to me how this would take place within Quebec, with constitutionally defined senatorial districts. So for Quebec there is some hard work to be done.

Bill C-20 also provides an important olive branch to the provinces, in that it proposes, if I read it correctly, that the elections would be held either at the same time as a federal election or at the same time as a provincial election. There are supporters of the triple-E movement in my province who are very adamant that the elections should be held at the same time as provincial elections. Personally, I think that's the wrong way to go, but I can see us moving forward where we retain some of that distinction, where some of the elections are held nationally and some are held provincially.

As we work through how to make this sensible and sellable within Quebec, there are a series of design issues that I think offer some flexibility.

The last point.... I'm so hesitant to use terms like “back door” or “change by stealth” and so on, because it makes it seem illegitimate in some way. Yet I look at what has been a stalemate on Senate reform, with no movement, and I think there is an opportunity for some creativity here, some imagination, some ability to sort of get this discussion going.

I've been talking about Senate reform issues for 35 years as an academic, and I would like to think that before my death there will be some modest movement. I like to think that within my children's lifetime there would be some modest movement, but I'm not sure about this. If the Senate were working well, I wouldn't care, but I don't think it is working well, and therefore I do care.

I'm sorry, that's a long answer to your question.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

Have your finished?

[Pauline Picard, Bloc, Drummond, QC]

Could the recognition of the Quebec nation by the House of Commons change something? Could that provide a veto right to Quebec?

[Roger Gibbins]

At some point in the process the formal mechanisms of constitutional reform kick in. So the question, in my mind, is whether the veto provisions that would be important to Quebec should come in at the start of the process or somewhat further down the line.

Here, my feeling is—and it's not based on any constitutional principles—that to provide for that veto at the very front end of the process shuts down the process in a way that would not be advantageous for the country as a whole. Ultimately, if Quebec is not onside with whatever constitutional deal we come up with, we're not going to have a deal. That's part of the reality of the country. But to choke off that debate too early seems to me to be inappropriate and could provoke some ill will in other parts of the country that attach greater importance to this.

So my own sense is let the conversation unfold a bit, let these provincial positions be articulated, knowing that at some point the cost of a full constitutionality must kick in, and that provides, I think, very substantial protection for the interests of Quebec going forward.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

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

You've been around this debate for a long time. By saying that an incremental change doesn't go far enough, isn't perfect enough, is lacking in some way, and we need to wait until we can create the perfect system where everybody agrees and we're all onside and at some point in the future we have to come up with this perfect method--isn't that just another way of saying we're not going to get anything done in light of the complexities of our country and how Parliament works and how the Senate works, and intergovernmental relations? Isn't the argument that we shouldn't advance this bill because in someone's view it doesn't go far enough or it's not perfect just another way of saying let's not do anything, for the critics of the bill you hear about?

[Roger Gibbins]

Of course I can't comment on the motives of those critics, but the effect is that.

[Rob Moore, Conservative, Fundy Royal, NB]

As you've mentioned, we've had this debate for a long time, and we tend to hear the same arguments. I don't ask you to comment necessarily on their motives, but what is the effect? If we're going to hold out for some perfect system, isn't that the same effect, at the end of the day, of just being blatantly opposed to any kind of change whatsoever?

[Roger Gibbins]

The effect of holding out for the whole design before we go forward is to stop the process dead in the water. Whether that's the desired outcome or not, whether that's by design, I can't comment, but that is the effect.

So I am a believer in incremental reform. It offers us some possibilities.

[Rob Moore, Conservative, Fundy Royal, NB]

You mentioned, and I have to agree with you 100%, that it would be likely inconceivable after going through this exercise of consultation that a prime minister would ignore the results of that consultation. I think it would be politically inconceivable as well. But it's important that this be a consultation. I know we've probably had our fill of constitutional experts, but that aspect of having a consultation rather than a direct election, as you know.... In Professor Hogg's view, the constitutionality of this bill hinged on that. He in fact line by line has found that this bill is constitutional in every way.

I wonder if you might have some comment on how onerous the task is, when we're faced with the task of injecting a bit of democracy into what is now an undemocratic institution, to walk through that constitutional land mine. How significant is it, do you feel, that we have the eminent constitutional scholar in Canada giving his stamp of approval as to the constitutionality of this method?

[Roger Gibbins]

I don't think the constitutional hurdles to moving on this are insurmountable in any way. I could be wrong; the courts are not entirely predictable on this.

I would go back to a point I made earlier, that the courts are constrained to a degree on this by the nature of the question they would be forced to address. The design of representative institutions is not really a comfortable territory for the courts.

If the courts were faced with a challenge in which they would be forced to either stick to the black letter of the law of something written 141 years ago and block the democratization of the Senate, or provide some latitude, I think they would provide that latitude. But I don't know. However, it seems to me it's not a foolhardy path to follow on this. It does force the issue, there's no question about that.

[Rob Moore, Conservative, Fundy Royal, NB]

We've talked a bit about this method of consulting with Canadians, and I agree this isn't always top of mind with people. But when you ask people, everyone seems to have an opinion as to whether the Senate should be more democratic. People have said there's some imperfection with the consultation model.

You've said that the Senate, as you see it right now, is not working well. I think you're in good company there. I think most Canadians, certainly my constituents, would agree with you, and some members have expressed concern with the consultation, with democratically going to the people where there is a vacancy and asking them who they would like to see in the Senate.

Do you have any comment, for people who don't know, on how senators are selected right now?

[Roger Gibbins]

Of course we have no idea. We don't know what the factors are that go into that. We know that different prime ministers have used very different strategies.

Prime Minister Chrétien had an interesting strategy, which he didn't hold to exclusively, of appointing relatively old individuals to the Senate, so he had a fair bit of churn within the Senate. That's an interesting way of going.

You could appoint young senators to ensure that your party has a voice in that Senate, regardless of what happens in the House of Commons down the road. There are different ways of doing this. We don't have any calculus right now. We don't know what constrains the Prime Minister.

To make one other very quick point, I said as strongly as I could that it's inconceivable that a prime minister would not accept the advice he received from the electorate. I actually take that back. I can conceive of a situation. Let's say one province elected somebody who was blatantly racist, blatantly, in the view of the prime minister of the day, expressed views that were not acceptable within the public forum of Canada. I can see a prime minister at some point saying “That's advice I'm not going to take. I'll risk my political career on that. I think that's a value I won't accept and I'll go further down the elected list.” I think that's possible, but very unlikely. To my mind, it's a remote possibility but maybe not a bad thing to keep in mind.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Gibbins.

We'll move to Mr. Angus.

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

Thank you very much.

As I said, I find this discussion fascinating. The one thing I like about this bill is that I think it's a great trial balloon, allowing us to begin a discussion. What really worries me about it is if it's an actual piece of legislation. There are so many unthought-out areas in terms of how we could actually bring this forward without it blowing up in the government's face.

Elections Canada raised serious questions. They talked about an extreme risk of failure. I think those were their exact words. There's a lack of planning in terms of how to deal with financial limits; there are no limits on what they're campaigning on. There's the issue of third-party participation in an election, with parties signing up as third parties, and potentially federal candidates signing up as third parties. There's also whether or not, if this is running in conjunction with a federal election--they didn't seem to think it would be possible to even deal with a provincial election because of so many of the complications--having certain candidates with unlimited fundraising capabilities could interfere with the legitimate election campaigns that are going on. By “legitimate” I refer to House of Commons campaigns, because this is a consultation process, and it's going to be very hard to define.

So I'm concerned that there are just so many vagaries in this bill that when we actually get it out in the field, it would be a bit of a disaster.

I want to ask your opinion, because you talked about it being problematic with Quebec because Quebec has regions defined for senatorial posts.

[Roger Gibbins]

The senatorial districts.

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

I think that's perhaps one of the easiest places you could bring it in. How would you bring it into Ontario, with 13 million people spread out over such a vast area? We haven't defined where those regions are. The bill doesn't set out how you would do that. I'm very concerned that we could end up with a bit of a dog's breakfast in Ontario. Whereas in Quebec, at least we would be able to say there are senatorial regions and we'll be having these elections in these regions. It's manageable.

Do you think there are technical flaws in this bill in terms of its applicability in the field?

[Roger Gibbins]

My understanding of the parliamentary process is that the committee stage provides the opportunity to make that legislation better. I think this legislation has room for improvement, particularly in terms of its application, and in particular in terms of the transition, when we still have a combination of appointed and elected senators. How do you work out what to do with Ontario? Is it better to think of it as being three or four senatorial districts rather than one? To me, having one big one with 24 is problematic.

I would not in any way want to suggest that this bill is perfect. Speaking as an individual Canadian, I would be delighted if the work of this committee resulted in a better piece of legislation. I would be bitterly disappointed if the outcome were that the committee simply throw up its hands and say they're not going to go there because it's too tough. I don't think it is too tough.

But I don't think this bill as it stands answers all the questions that are quite legitimate for you to pose.

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

Certainly a stumbling block for the New Democratic Party on this, setting aside for a moment our position on bringing it to the Canadian people, is the term “may”. The Prime Minister “may” call these consultations and he “may” accept the results. The difference between an oligarchy and democracy is the word “will”. He will be bound. I recognize that you're saying it would be almost inconceivable that he wouldn't feel bound, but he or she is not necessarily bound even to hold the consultation. It's part of a toolbox of choice.

I think if we're going to talk about legitimacy moving forward we have to put those words in there, even if they do face a constitutional challenge. It seems to me it leaves it open to--you didn't like the word--stealth, but I think stealth is the back door. Unless we're willing to say that this is a process that the people will have a say in to bring to the Prime Minister, then the overall legitimacy of a consultation process that may or may not happen or may or may not be accepted is not credible in the 21st century in a western democracy.

[Roger Gibbins]

My response is that the use of words like “may” as opposed to “should” reflects the box we're in right now. When we finally have a full-blown model we can take to the Canadian people, I hope that the “mays” will have become “musts”.

I'm talking about the stage when we are modifying the Constitution. That's the stage when we can get the language right. We can't get the language right now, because we're caught in this messiness. I would suggest to you and the party that we have the opportunity to get the language right. It needn't be done entirely at this point, because it's tough to get through this.

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

I wanted to ask whether or not the Prime Minister would be bound to accept a candidate. It struck me when I was reading the legislation that, if you do not have limits on financing—how it's done and the role of third parties—you could have an activist group decide that they were going to have a vote-in campaign for a person. Greenpeace or Right to Life could decide it. They could get all their members to chip in money. They could ask $100 or $500 from their massive organizations to get this person in, because the person has similar political views.

It would be fairly easy to raise enough money to be heard across a vast region. You could end up getting your right-to-life or anti-sealing candidate elected. Technically, it's democratic. But a system should be set up with financial limits so that people within a particular region, or within a particular group, are able to compete fairly. Do you see that there's a backdoor problem here with third-party intervention and the ability to raise unlimited funds?