MDRN-2

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 1

2nd Meeting, March 9, 2016
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witness: Prof. David Smith,
Ryerson College 0

The Special Senate Committee on Senate Modernization met this day at 11 a.m. to consider methods to make the Senate more effective, more transparent and more responsible, within the current constitutional framework. 1

Senator Tom McInnis (Chair) in the chair. 2

The Chair: Honourable senators, I would like to begin by welcoming the general public to this first televised meeting of this committee. 3

The special committee was created on December 11, 2015, with the purpose of considering methods to make the Senate more effective within the current constitutional framework. At the end of its study, a report will be tabled in the Senate, with recommendations. 3-1

This morning we are pleased to have our witness, Professor David Smith from Ryerson University, here with us. Welcome, Mr. Smith. 3-2

Professor Smith taught at the University of Saskatchewan for over 40 years. He has written books on each of the three parts of Parliament, including one on the Senate, entitled The Canadian Senate in Bicameral Perspective, which was published in 2003. His most recent book is called Across the Aisle: Opposition in Canadian Politics. 3-3

Professor Smith, please begin your presentation, and then I'm certain senators will have questions. 3-4

David E. Smith, Distinguished Visiting Scholar, Ryerson University: Thank you very much. Thank you for inviting me to appear before you to discuss the important matter of the Senate in 21st century Canada. 4

I have a few introductory remarks, but the paper I submitted pretty well exhausts several months' reflections on the upper chamber against the backdrop of the Supreme Court reference of 2014. 4-1

One additional comment I would make, however, is about what might be called audience democracy. Briefly stated, people are watching—figuratively, and I understand literally as well—what happens here. They are watching the Senate and they are watching the House of Commons, and I think they are watching the Crown. 4-2

For much of our history, that might not have been the case, but no longer. Several theses could be written to explain what has happened. However many that might be, much of the examination would focus on the question of trust and definitions of that term. 4-3

I would recommend on this "The Reith Lectures" on the BBC that have been published for 2002 by Onora O'Neill, A Question of Trust. It's quite brief, but it's very good, I think. 4-4

Found here. n4-4

With regard to the Senate, public attention is a consequence not only of the trial of Senator Duffy or of the expense controversy more generally. The development of an audit society, not just in Canada, is on every side: officers of Parliament, and the Auditor General most specifically; the Gomery inquiry; the Canadian Charter of Rights and Freedoms; Omar Khadr; First Nations; the Governor General and prerogative powers and the prorogation question; and the environment. People have been sensitized to politics, to government and to institutions in a way and to an extent that I believe we have never seen before. This is a development aided and accentuated by social media, which has become, for good or bad, a default explanation—quite unsatisfying to me because I really don't quite understand social media, but people are always saying how important it is; and I think it is, but I don't think we quite know what the connection is. The world is full of opinions. It always has been, but now they are expressed and reported hourly, or more frequently. 4-5

In this altered atmosphere, the Senate has a new role to play, and not just as some weak imitation of the House of Commons. I'm not sure if I used this metaphor—and I tend to have a weakness for metaphors—in the paper: the swimming pool metaphor. I think it has often been said that Parliament is like a swimming pool. The deep end is the Commons and the shallow end the Senate. I would disagree with that. I think the water is the same depth at both ends. What is different is the temperature of the water at one end as opposed to the other. I think it's important that the partisanship and the heat it generates are more concentrated at one end than at the other. 4-6

The Supreme Court ruling makes explicit the factors that must inform a modern Senate. It talks about federalism, bicameralism, independence and the manner of selection of senators. In this new world, I would argue, it is disingenuous, as well as demeaning, to dismiss the Senate in terms such as the following, uttered by Preston Manning: 4-7

In Ottawa there is an institution which is a humorous dream. An examination of its occupants and operations offers an infinite number of opportunities for ridicule, sarcasm, laughter, tears—indeed, the whole gamut of human emotions. The name of that institution is the Senate of Canada. 4-8

There is a bit more of this, if you want. It's found in Will Ferguson's book Canadian Pie, 2011, or The Penguin Anthology of Canadian Humour—rather unexpected to find it there. 4-9

I say it is disingenuous and dismissive, but I also think that this quotation is rather instructive because he ends by saying, "The name of that institution is the Senate of Canada." I'm not sure, but it's my sense in talking about the Senate—and it's not just restricted to Mr. Manning—that he indulges in what I think is called anthropomorphism. He attributes human qualities to the Senate, when in fact there are 105 senators. I think critics historically in Canada have tended to talk about "the Senate" in a way that they don't talk about "the Commons." I know we talk about the House of Commons, but I think the individuality of members of the house is a much stronger feature than of the Senate. The Senate really seems to be treated almost as an abstract aggregate, which I think leads to misunderstanding. 4-10

Robert Baldwin, the great reformer of 19th century Canada, said in a debate in the Parliament of United Canada, the idol of his idolatry was Canada. I think I join him in the sentiment, and as you will know from reading Coming to Terms, history and I are close companions. Unfortunately, in this enthusiasm, I am not representative of my fellow citizens. 4-11

If you were to drop imperialism and outside of Quebec, I think there is scant interest in history in Canada. This is a great misfortune, especially for the Senate and especially when we are talking about the Senate. It, more than any other national institution, is history's handmaiden, for it made Canada possible. 4-12

The great writer William Faulkner once said, "The past is never dead. It's not even past." I agree with that, particularly when we're talking about institutions, particularly in Canada. The present moment is, in a sense, part of the past. It's the future of the past in the present. 4-13

You may abolish the Senate, although I think that's very difficult, as we know. You may abolish the Senate, but you cannot abolish the reasons for having a Senate. You cannot do that. You can get rid of the institution, but the reasons why that institution is there remain. 4-14

The Senate is original and quite unlike the House of Lords. It's often been said by friends of mine who are political scientists that it is the House of Lords. They are wrong. They were always wrong, and they are more wrong today than they were when they said it. 4-15

After 1832 and the Reform Act, when the middle class began to get the franchise in Britain, the House of Lords began to fade away, and in 1910, pretty much did for all intents and legislative purposes. 4-16

The Senate is original and unlike the House of Lords. For this reason, it is misleading to say that the Constitution is similar in principle to that of the United Kingdom, which is what the first line of the preamble of the Constitution does say. I'm writing a book that tries to refute that. I think it's quite misleading. Canada is very distinctive. 4-17

By contrast, if the Senate is original, the House of Commons would be vestigial in the sense that it is recognizably Westminster in its origins, although it's not identical. It's quite different from the Parliament at Westminster, beginning with the fact this is a federation and seats are allocated among the provinces in the house in a way never true in Britain. The Senate, on the other hand, is a repository of Canada's representational differences: regional, linguistic, religious, ethnic, cultural and economic. 4-18

Patrick Boyer, a former member of the House of Commons and a man who has written extensively on direct democracy in Canada, wrote a book a couple of years ago, Our Scandalous Senate. I don't mean to pick on him—he can defend himself—but his arguments, I think, again are quite representative of the kinds of arguments that are always made. I would call the arguments exterior. It's all exterior kind of argument. The Senate, he says, is part of an honourable creation story, a kind of Canadian political genesis. 4-19

I think he's quite wrong about this. He doesn't look at what happened. The Senate grew into the clothes the Fathers of Confederation designed for it. The Senate is not something out there; it's really here. I think the critics tend to see it just as some token, but it's not. It's fundamental to understanding the creation of Canada. 4-20

Anthony King, a British political scientist, wrote a book last year called Who Governs Britain. In it, he said that the House of Lords is essentially a peripheral body. It's not at the core of British politics. 4-21

You cannot say that of Canada. In fact, I would turn it around. I would say the Senate is at the core of Canadian politics. Without the Senate, there wouldn't be a Canada. That's why it took them six days and so forth, we all know, to reach agreement. 4-22

More than that, British government is strictly representative government. William Riker, an American political scientist, some decades ago said that for all intents and purposes, the United Kingdom is a unicameral system, certainly since 1910. 4-23

That's not true of Canada. Bicameralism is a central tenet of our Constitution, and it's a central tenet in the Supreme Court's ruling in 2014. For that reason, the complementarity of the chambers is an essential condition to the operation of Parliament. The government cannot turn its back on the Senate. The Senate is limited to some degree, but nonetheless, I think this is very important. 4-24

The decisions of a bicameral political assembly, again sort of visually, require a convergence or a merging of perspective. A bicameral parliament is a merging of perspectives from the lower and the upper chambers for final policy to be achieved. 4-25

The Senate is not an advisory body, and it would be a great mistake to ever use such a word. It is a continuous legislative body in a way the House of Commons isn't. The House of Commons is discontinuous from election to election. The Senate goes on forever. That, of course, can be part of the basis of a criticism, but nonetheless, that's the way it is. It is a continuous body. It's the site of continual dialogue, which may provide some check or second thought on the part of the executive itself. It's not just second thought in the Senate but second thought in the lower house. 4-26

I think everyone would agree it cannot defeat a government, but very rarely and with great controversy, but what it can do and maybe should do is challenge the government. That, it seems to me, is the role of the second chamber: challenging. 4-27

As an aside, I have been wondering to what extent is this new constitutional emphasis on bicameralism. Will it be a consideration when a bill promoting electoral reform in the Commons comes to the Senate? This will be a very controversial matter when it comes here. 4-28

The Senate and Commons are geographically contiguous but, I would say, philosophically separate. In part, this results from the Senate's isolation. Historically, it's isolated. Following the achievement of responsible government, the governors and Governor General looked almost exclusively to the legislative assembly to sustain the government, which is quite different from the earlier colonial period. 4-29

It's isolated intellectually. If you look at the three authors of books on the Senate in the 20th century, MacKay, Kunz and Campbell, the three scholars who studied the Senate, studied it in isolation and, in fact, compartmentalized their own research. 4-30

There was never a scholar like Norman Ward, who spent his whole life studying the House of Commons, representation, election expenses, redistribution and rules of the house. There was never anyone who followed it that way. In fact, what is interesting about MacKay, Kunz and Campbell, is their three books were really three PhD dissertations. They never wrote about the subject before, and except for one article by Kunz, they never wrote about it again. That is different from someone like Norman Ward, who devoted his whole life to looking at the House of Commons. 4-31

Thirdly, in terms of isolation, I think the Senate is politically isolated. It is a terra incognita to most citizens. With rare exceptions, the members are unknown to the public, and their work, which is basically deliberation, unrecognized. 4-32

It might be argued that the problem of the Senate is, in fact, the Commons—that the public and media see the upper house as an echo chamber of the lower. This, then, gets into the question of partisanship and the shadow it has cast—at least in the critics' minds—over the Senate. 4-33

The 2014 ruling of the Supreme Court throws this interpretation into doubt because of the emphasis the court gives to the independence of the Senate. They discuss this at great length—the independence in a bicameral Parliament. 4-34

That's pretty much the end of what I was going to say here. I can talk about the paper, but I think that the ruling, at least from my perspective, is quite a remarkable analysis of the second chamber and of its place in Canada. It makes quite clearly the point that the Senate is a uniquely Canadian institution to serve uniquely Canadian needs. The justices don't enter into the question of how one brings the public to a recognition of that, but I think it's extremely important, and this is probably a very important stage in bringing the public recognition to the importance of the Senate. 4-35

Those are my introductory comments. I would be happy to answer questions or elaborate on the paper itself. It's broken down into the sections the court talks about—federalism, bicameralism. My own view, and I'm always worried this dissent becomes that of a grumpy old man, but the whole idea of federalism that we have historically heard of in universities in Canada is quite raw. It tends to be American federalism. 4-36

An Australian named Wheare wrote a famous book called Federal Government in 1945 or 1946. He said that a federation is what the American system is, and that Canada is quasi-federal. Well, it's quasi-American, if that, but that doesn't make it any less federal. It's a different kind of federation. 4-37

One of the points the Supreme Court makes clearly is that the triple-E people wanted equal representation of the provinces, but the provinces are not the building blocks of Canada. It's the regions, the senatorial divisions: Ontario; Quebec—single regions—the Maritimes, initially two, then three with the add-on of Atlantic Canada; and then the West—four provinces. If federalism is about balance at all, this is where the balance comes from. 4-38

This is also the balance very much in Canadian economic life and in Canadian professional life. Why would politics be different? Why would we have a system like the American one? The reason you would not is because there was never any agreement that you could have a Canada that treated provinces equally that way, and provinces have never been treated equally, beginning with the House of Commons. They bargained. It was all to do with bargaining. That's what redistribution has left us with; namely, this byzantine formula for allocating seats. 4-39

Indeed, I mentioned in the paper that the constitutional amendment of 1915, which is now subject under the amending formula to unanimity, whereby no province may have fewer members of the House of Commons than it has senators. If you followed that to its logical conclusion, that would mean that Nova Scotia and New Brunswick, both of which are smaller in population than Saskatchewan and Manitoba, would have 10 members of the House of Commons, where Saskatchewan and Manitoba would have six because that's all the senators they have. It's just the way it unfolded, but that nexus itself is very important. I make quite a bit in the paper of the link between the House of Commons and the Senate. The Senate is a guarantee to small provinces. 4-40

Again, I think it's coming up more and more because the more the redistribution commissions in each of the provinces over the last two decades or so try to get arithmetical equality on the size of the seats, then for provinces like New Brunswick or Saskatchewan, their senators' voices are louder. That gives them more voice, comparatively. Proportionally, places like Saskatchewan—as the house grows—and that's another point: In the last 100 years, the house has grown the size of the Senate. In 1916-17, the house was 220 or something, and now it's 330-something. The Senate has only grown by the admission of the territories and Newfoundland and Labrador. A voice in the Senate is disproportionally stronger. 4-41

I was a professor. I did this for 40 years. You have to stop me. The students couldn't do that, but you can. 4-42

The Chair: It is very difficult to stop you, because it is interesting. I'm sure you'll have more to say because I will now go to questions from the senators, and I'm sure there will be a number of them. 5

Senator Joyal: Again, welcome, Professor Smith. 6

I want to concentrate my reflection with you on the issue of independence of the Senate vis-à-vis the House of Commons, because it stems from your presentation. There are two entities in Parliament. You have talked about bicameralism. Neither of the two chambers are inferior or superior to the other; both are equal in their roles and legislative duties. 6-1

One of the key elements, in my perception of the Supreme Court decision, is the recognition of the independence of the institution. It seems to me that there are different levels of independence. First, there is the Senate, per se, vis-à-vis the House of Commons, because as you said, it has a complementary role. It needs two to tango. It's like the yin and the yang; they need the two to make it the unity of Parliament—plus Her Majesty, but that's another issue that I hope we will be able to tackle one day. 6-2

The issue of independence is at the core of the role of the Senate and of the status of senators. If senators are appointed under a royal commission, read in the chamber when any senator enters the chamber, then the status of a senator under that commission, even though he or she has been recommended by a Prime Minister who happens to be the leader of a political party that has a majority, or the governing party in the House of Commons, if it is a minority government, that brings into conclusion a certain number of consequences in terms of the type of work that is expected from a senator in the review of legislation, because we are essentially a chamber of review. We are a legislative chamber, having to come in second once the House of Commons has pronounced on a bill. 6-3

What is your characterization of that independence in the institution, per se, of the chamber and in the role of individual senators? There are two levels, in my opinion, of independence in relation to the status of senators. I will come back, after that, to the role of political parties in the Senate, following that framework of independence that characterized the institution. 6-4

Mr. Smith: It is a difficult question, in part because of language itself. The very word "independence" carries with it meanings, and sometimes rather contradictory meanings. I said in the paper that the American Revolutionary War was a war of independence and lead to a severing of ties with Great Britain, but there are other ways of independence that don't lead to a severing. I mentioned the evolution of the empire to commonwealth and Peter Oliver's book. You can unite the two. 7

Peter C. Oliver, "The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand." Further reference. n7

One of the difficulties—and it really kind of originates in the fact that we are talking about the two chambers—is that government, the executive, sits in one chamber, and now you totally don't have ministers drawn from the Senate, correct? So the lower house is the confidence chamber. Then where does the independence exist? Coming back to the earlier point, how independent can the upper chamber be? 7-1

It seems to me that the independence is not subject to direction in terms of its conclusions. Its conclusions may run counter to the conclusions of the majority in the lower house, but that doesn't necessarily invalidate those conclusions. These aren't in the abstract; we're talking about legislation. It's about these different opinions and how they would affect or highlight weaknesses and strengths of legislation. It seems to me that that's what independence means for the second chamber. As I said earlier, really no one expects, under a parliamentary system such as ours, that the unelected chamber would invalidate the work of a chamber responsible to the people, and who must go back to the people in an election. 7-2

The independence, from my point of view, means that the Senate must not be perceived to be directed. It's not an agent. One of the great things about this isolation is that it's not an agent of anybody. It brings its autonomy to the questions that come before it. 7-3

How do you marry these issues when it comes to partisanship? That has long been an area of tension. As I say in the paper, I don't see any particular problem with partisanship. If partisan direction hinders or cripples autonomous judgment, that seems to me to be the difficulty, but this is a fine line that is hard to define in advance. Politics in legislation, as you people know much better than I, is the result of discussion, emerging consensus and an emerging view. I think the contribution of the second chamber is an autonomous judgment on these questions. 7-4

Is that too wishy-washy? 7-5

Senator Joyal: No, but I want to link that to the status of senators. In other words, how do individual senators in the chamber, which is totally autonomous and separate from the House of Commons and is not waiting for directives from it, assume their role within that chamber in a system whereby the essential element of the vitality of the House of Commons is the status of political parties? How do we reconcile that with the debates that have to take place in the Senate—a chamber of review—which, as you said, is not necessarily bound by the decisions taken by the House of Commons on a particular bill? 8

Mr. Smith: The authenticity of the House of Commons lies in it being elected and in its connection with electors, who are the body politic. The Senate doesn't have that. That seems to be the question that comes up all the time: What is the authenticity of the Senate? It seems to me the authenticity of the Senate rests in its expert, dispassionate judgment. The authenticity doesn't rest in accountability to the public. That could be considered a weakness, as critics have been saying for 50, 60 or 100 years, or it can be turned around and called a strength in that the Senate can bring a dispassionate judgment of the issues. 9

What does that mean? I don't know. Currently, with regard to physician-assisted suicide, senators presumably don't have to go back and justify what they have said, or their position, to constituents, but they nonetheless have to explain the position. But that's a different way and is part of the dual-perspective or bifocal thing, I talked about. I think that's what bicameralism can do, and does. It isn't that the Senate has never done this; I just think that the court's ruling is, "You've got to do this more." This is what the court says Canadians expect you to do. 9-1

There's no going back. We're not going to do it now, because I think that Supreme Court judgment is a watershed. You can't. You're responsible. Senators are responsible to do what the court says: to be a second chamber, bicameral, equal in all things except being unelected and not a confidence chamber. It's not for the Senate to defeat a government because you're not accountable, but equally, because you're not accountable, you can raise all kinds of issues and make the government justify what it's doing. There are issues that Members of Parliament, because of partisan loyalties, feel uncomfortable dealing with or don't understand, but senators are here for a long period of time. They acquire expertise and knowledge in a way that members of Parliament are less apt to do. They are also concerned about re-election, as many of you would know. 9-2

Senators, historically, have had many privileges with regard to the use of their time. People who pay attention can name all kinds of senators who are experts on agriculture, fisheries, health or whatever, and they're often cited. That's another issue that has to get more attention. That's another issue. I think the public has to be made more aware of what goes on, but I don't know how you do that. 9-3

As I said earlier, the isolation of the Senate—it's partly designed to be isolated—makes it difficult. Without a constituency, there's no connection and no way of going back to the people to say, "Look what we've done." Who are you going to talk to? Who is your constituency? You don't have one, other than all of Canada itself. This is a real challenge, and in a way that challenge is greater because the court has said, "You've got this bicameral role, and this complementarity, and you have to do it. It's not enough to be quiet, and say, 'It's really up to them over there.'" No. They said that, in legislation, your role is equal, even though you're not a confidence chamber when it comes to legislation. 9-4

They've talked a lot about the federalism and the regionalism of Canada and about how, again, the Senate is, in some ways, much better structured to make it audible than is the house, which is made up of 330-some constituencies as opposed to, what, five regions. It's true that senators come from provinces and obviously speak for provinces, but they are expected to speak for more. They talk about issues. 9-5

There was quite a wonderful poll that Environics did a couple of years ago called AmericasBarometer—it's kind of all one word—that suggested, in many ways, that the characteristics of the Senate almost meld better with the public these days than those of the house. The public isn't that interested in constituency matters. I mean, they are, but the world is bigger than a constituency. The world involves all kinds of questions about aging people, sick people, languages, religion and assisted suicide. These are not constituency questions; these are Canadian questions. They're not even regional. 9-6

The Senate actually brings a broader perspective and a focus, I think, back to this kind of visual business. That isn't to say that speaking to your constituents in Saskatoon-Humboldt is not important. It is important, but then you're moving into party discipline. What is a Member of Parliament to do? Luckily, we don't have to deal with that here, right now, but that's a real challenge. 9-7

Where does the independence lie with a member? Then you get into all of these theories. The delegate theory of democracy and parliamentary democracy is a heresy. Members of Parliament are supposed to listen and reach judgments on what they hear, and party always enters into it, but that's why recall is unconstitutional. It's illegal. You can't have recall in Canada. Parliament is the citadel in which there's a Crown and a Senate that thinks in broad terms, and a House of Commons elected by and speaking for the people. 9-8

Senator Stewart Olsen: I have a few things that perhaps we would disagree on. In fairness to Preston Manning, I have to say that what he was saying is a reflection of what Canadians think, and it should have been a red flag to an unelected body that was sitting and collecting taxpayer funds. 10

Your premise is we're not responsible to anyone but ourselves, and I may be mistaken in that, but I would disagree strongly with that. 10-1

On your idea of regions versus provinces, I think Canada has moved beyond the region idea. I think where we're struggling here is in trying to fit into today's modern world and thought, not back when we were created but what we must do to be relevant to the people who pay our salaries. 10-2

The other observation that I would have is the dispassionate judgment one. There is no one in the world that I've ever met who is capable of dispassionate judgment. Maybe a judge but, even so, what comes into your thoughts is, "This is what I believe and therefore that's how I'm going to vote." 10-3

I put it to you that I don't think that's what our founding fathers meant, and I don't think Canadians actually want a bunch of people who sit up here and are responsible to no one and judge legislation based on, "Well, I think that's wrong." We should judge legislation on, "Is this good for my province or not?" Talk to the people in our provinces. 10-4

These are all things we have to discuss in this committee as to why exactly we're here. If you had to create a job description of a senator based on today's world, what would you say that job description should be? 10-5

Mr. Smith: Not having had long to think about the answer, it seems to me I would look to the Senate to provide an extra-constituency focus, a broad focus. You mentioned nationally. I think nationally very much so. That isn't to say the house doesn't do that as an aggregate, but I think with the Senate that's what I would look for so that on these issues of change to criminal law or whatever, that that's the perspective the senators would bring to this. What is advantageous or desirable in terms of improving the criminal law or improving prison conditions or whatever it may be? They're not speaking for or feel accountable to any particular group. Senators are not agents of another body. They are, in themselves, principals. 11

Senator Stewart Olsen: But you wouldn't think that because we are paid by the taxpayer—this is our job—I'm from New Brunswick, so anything that I would support would have to come from, "Is this good for my province," not from my own personal thoughts. This is the great push and pull here, especially with people saying, "I should be independent" or whatever. 12

I don't think you can come to a job like this without understanding that you're not here for yourself. You're not here to develop your own personal interests or your own personal ideas. You're here to be representative of the place that sends you here, be it province or region. I prefer province because I think that's where Canadians are. 12-1

Anyway, I think you can see our conundrum here. 12-2

Mr. Smith: It won't be resolved right now. You said "representative." I would never use the word "representative" to describe a senator. 13

Senator Stewart Olsen: But Canadians think we should— 14

Mr. Smith: They may think it, and that's an issue. "Representation" is probably the trickiest term or concept in political science. If there was one body that I would have difficulty saying is "representative"—of what? Other than in a kind of vague way, Canadian values or whatever? I think the trouble with "representation" is that then leads next to accountability. 15

Senator Stewart Olsen: You're right, it does. 16

Mr. Smith: That's where members of the House of Commons are. There are two stages to that. They are elected and then they're accountable for what they've done, and then they go back and maybe get de-elected. That doesn't happen here. 17

Senator Stewart Olsen: But election is not the only way to prove accountability, in my opinion. Anyway, your arguments tend more towards belief in abolition rather than— 18

Mr. Smith: Surely not. Then I've misspoken. 19

Senator Wells: Thank you, Professor Smith, for all your work, not just your words today. I want to ask you about the concept of Senate reform. That's the rallying cry we've heard over the years. Even before Stephen Harper was Prime Minister, it was "Senate reform, Senate reform." The popular discussion, in my mind, about Senate reform is how we get here, elected or appointed, and how long we stay, the term limit question. 20

You've said that the Senate was created on the basis of a principle of dispassionate consideration and independent judgment, and Senator Joyal said, as you have, a chamber of review. I don't think those principles have changed in 150 years, and they are the reason for our being here. 20-1

Talking about Senate reform, first of all I'll ask the question: Is there a need for Senate reform? It may seem heretical to ask that question in today's society, because that's the rallying cry. Do we need reform, considering we're still true to our principles and the reason for the Senate? Do we need to reform, or do we need to better educate our detractors? 20-2

Mr. Smith: When I wrote that book 20 years ago, the Triple-E movement was quite strong. With Senate reform, there are always two questions. The first is, what is it that you want the Senate to do? The second question is, how do you create a Senate to do that? 21

The first question is the more important one: What is it you want it to do? I've often thought with regard to the Senate over the years that there have been far too many answers and not enough questions. "This is what we need to do." "This is what we need." Why do we need to do that? My own view with regard to the Triple-E was, as the Supreme Court said in the government legislation that came before it, that it would create an elected body. You can read back in the early 19th century in Nova Scotia and legislatures and so forth that we musn't have an elected upper house because it would challenge the lower house and all of this. It's all very repetitious. 21-1

In a way, the very term "reform" is almost too simple. It kind of begs the question: To do what? It would be better to say that what needs to be done—I don't know what it is—but what needs to be done is to change, I don't know, the terms or something, if that were one thought. Then you focus on that, and then the argument would be about why that would make a better chamber than the one today. 21-2

The difficulty, then, is that you get so many critics and so few defenders. The critics are all knee-jerk responses so that you never really get anywhere. I talk to a lot of taxi drivers and a lot of strangers on airplanes, and I can tell you, you don't have a lot of friends out there. 21-3

Senator Wells: I've been in those taxis. 22

Mr. Smith: I'm not trying to convert them; I'm just trying to find out what they say. It's often rather amorphous as to what they're complaining about. To go back to Senator Stewart Olsen's point: "Well, they're drawing salaries and they're not doing something," or, "They're away from Ottawa and they shouldn't be." I don't think they had any idea. They don't have any stats. But the general view is, "They're not working hard enough." On what basis would you say this? 23

Going back, the Senate is isolated. Nobody knows what's going on. But how much do they know what's going on in the house, except the politicians are talking all the time and media covers that. 23-1

Senator Wells: My question: Is Senate reform necessary, if we're still satisfying the principles that the Senate has and has had for 150 years? 24

Mr. Smith: I would not talk about Senate reform; I would talk about the Supreme Court ruling, which says these are the characteristics that are necessary to Canadian Parliament. Then, "we as senators" need, or the Senate needs, to strengthen how you play the federal role; how you play the bicameral role; your independence and what we're doing; or the selection role. 25

Focus on the legitimacy that the Supreme Court has given. The Supreme Court has said this is highly legitimate. Anyone who says it isn't should be told to go read that ruling and then come back and say, "What's the problem?" The Supreme Court says, really, there needs to be more Senate. They're saying more Senate rather than less. 25-1

Senator Joyal asked about independence. These seem to me to be, if not conundrums, then really difficult matters, and it would take some seminars about these as to how that is to be achieved. I would say you promote this: Here's the Senate being independent. Here's the Senate speaking as an institution in a federal Parliament. Here's the Senate as an equal of the House of Commons in a bicameral Parliament. Bring a focus, a dimension and a perspective that is lost, because members in the house have to deal with 300 and some constituencies. 25-2

I don't hold myself out as an adviser to legislative bodies as to how to do that. I think "Senate reform" is a loaded term that should be dropped as quickly as possible. It brings up all kinds of preconceptions—and wrong ones. 25-3

Senator Wells: Of course. Thank you. 26

Senator Greene: Thank you very much for being here. I really appreciate your attendance. 27

Throughout our history in the Senate, we've had what can be characterized as, essentially, a bipartisan Senate. We've had two parties, and that's basically it. We're about to enter new territory with a high number of independents, and not all independents are the same. We have independents who are about to be appointed. We have independents who have volunteered to be independents because they've left a party for a particular reason. There are independents who have been forced to become independent because they've been thrown out of a caucus or suspended for a particular reason. There are the independent Liberals who have been tossed aside by the Prime Minister for one reason or another. Within the Conservative caucus, there are independently minded people who on some days might follow the caucus wishes but on other days not, for whatever reason. If you look at the mixture of the Senate as it is now and is about to become, it's rather different than ever before. 27-1

In the past, we've only amended a few bills each year. In fact, there may even have been a year or two when we've amended none. Do you think that's about to change? This is certainly hypothetical, but I'm just wondering if you could speculate on the work product of a Senate when there are so many independents, which we've never had before, and all those independents are not the same type of "independent." 27-2

Mr. Smith: That's a very fundamental question. If we go back to what I said at the beginning—that the Senate is isolated and people don't know what's going on, et cetera—and we talked about accountability and so forth, if the Senate is now being held up as independent, then that almost confirms this view. 28

So you have to make independence legitimate. The independence has to become the legitimate thing. This is a necessary, beneficial, political contribution. I said earlier that I'm not opposed to partisanship. This is the way Parliament has developed. Every basic, free parliament has usually had parties. It's the way citizens align themselves politically. Otherwise, it becomes rather chaotic, it seems to me. You can't do it on issues, because the country is too complex, too big and too populous. It's not a Greek city-state or something. So parties are very important. 28-1

Along with the criticism of the Senate, we've had a lot of criticism of political parties, which is separate from the Senate. People don't seem to understand that, either. We know the number of people who belong to parties has declined markedly in the last 40 years. Then you get into age and that sort of thing. 28-2

This is a big question, and I know this is not an answer. How do you justify the independence? It seems to me the justification comes from the action. It has to stand for itself, because the Senate doesn't have a human connection with Canadians in the way MPs do because they go back and they have to stand up. 28-3

You have a big agenda to deal with these, but they are very hard. 28-4

Senator Greene: I do have one more quick question. To get back to Senator Joyal's questions about the nature of independence, et cetera, the word "autonomy" is also used a lot. Is that a word, in your view, that's interchangeable with independence, or are there some areas where we are autonomous but not independent, or vice versa? 29

Mr. Smith: As a Canadian, we would never confuse the two. Canada had autonomy within the British Empire Commonwealth. Saskatchewan's autonomy movement was provincial. Independence, in Canadian English, has a very specific meaning. Autonomy is softer, I think. We don't tend to use the word "independence" much in Canadian history. We have not been independent. We have just aligned ourselves, or we've moved away from, but we don't assert independence much in Canada. 30

Senator Greene: Does autonomy fit more with complementarity? 31

Mr. Smith: Yes, I think it can. In Saskatchewan, the Conservatives—before they were Conservative, way back at the beginning—were called the provincial autonomy movement, and they were fighting the Liberals under Wilfrid Laurier. Provincial autonomy had a specific kind of meaning in their minds. They wanted to be Canadians but didn't want to be a territory. 32

Senator Greene: In place of the phrase "Senate reform," would you think that the word "modernization" is a better word as to what we are about? 33

Mr. Smith: Again, words ending in "-ization" are always problematic. They are not good English because they tend to wash away the distinctive. Reform, of course, is much more explicit, but as I said, it is laden with so much history that's not favourable to the Senate, so I would avoid it. Maybe you need a preferential ballot for modernization; a third one. 34

Senator Bellemare: I am hesitating between French and English. I will start in French. 35

I would like to continue the discussion about independence. I carefully read an article in your book, edited by Senator Joyal, in which you make fairly specific recommendations on the modernization of the Senate. I was struck by the concept of Senate independence, which, to you, is fundamentally important. This prompted me to make comparisons at the international level, because I like to look at what is happening elsewhere. 35-1

After reading your article, I came up with a hypothesis and I would like your comments on it. We know that partisanship in Canada is a feature for which the Senate has been criticized for a long time. You are saying—like others who are familiar with the history—that the Senate has always been seen as a partisan institution. On page 30 of the French version, you say that partisanship has never been a major problem in the UK. By looking at senates around the world, we realize that only in Canada and the United States is the Senate made up of two groups. When there are only two groups, one will always hold the absolute majority of seats. 35-2

Through history, it has been very common for the political party in power in the House of Commons to be the one with an absolute majority in the Senate as well. It appears that the temptation is very strong for the party in power to control both the House and the Senate. However, in countries with several groups—such as the United Kingdom that has a group of independent senators—there are several caucuses. In that case, the upper chamber—this is my hypothesis—becomes more independent because of its structure, since there is no political party that controls it. 35-3

I would like your opinion on that, because, in your article, you explain why the Canadian Senate has become partisan. According to your hypothesis, Macdonald would have never thought that a party could last a long time and keep appointing senators from the same party. I wonder what you think of the following hypothesis: a Senate made up of senators who have political affiliations but are independent, by virtue of its structure and make-up. 35-4

Mr. Smith: As alluded to earlier, to what degree is the composition of second chambers dependent upon, and reflective of, the electoral system in the lower house? As you know, there is discussion that the electoral system of Canada may change from plurality to some non-plural system. Would that have an effect on the upper house? I don't know, but it seems to me there is a relationship here. 36

In Canadian politics, as I say in the paper, based on my reading of people like Sir John A. Macdonald, and I don't mean this derisorily, nobody understood what was happening. I think what happened with Macdonald was, who would have ever thought that after all those years of unstable government, where they couldn't keep a government going, all of a sudden you got one of rigor mortis that goes on decade after decade. 36-1

Canadian politics changed overnight, and the second chamber, which was appointed by the Crown on the advice of a first minister, became a very structured body. One of the important points I made in the paper is it is not just that senators are appointed by the adviser to the Crown. Those advisers come and go, but the senators stay, so that you end up with an odd kind of lag. In geological terms, it's almost like you have sedimentary layers where that you can go back and look around the room and say, "Ah, yes, I remember him." 36-2

I think that's an interesting feature of what has happened in Canada. I am no authority on Ireland or Israel, where there are multiple parties, but as you mention, in the United Kingdom, there are now multiple parties. It is interesting because, again, there is a lag in the House of Lords. There are far more Labour peers proportionally than there are Labour Members of Parliament, or Liberal democrats. That is sort of Canadian. I have thought it would be interesting to write a paper on the "Canadianizing" of British politics. I think British politics is increasingly taking on characteristics of Canadian politics, and the House of Lords is one example. The big thing about diversity, which seems to drive it all, is that the Canadian Senate is quite diverse, and it was designed to be diverse way. 36-3

On that point, as I say I'm writing this new book, and I had not realized the dates but we hear so much about the Person's case and women being appointed to the Senate. When was the first woman appointed to the House of Lords? It was in 1958, and that was a life appointee. The first hereditary female peer wasn't named until 1963 or 1966. 36-4

Senator Cools: Agnes Bernard was a member of the House of Lords in the 1890s. She was Baroness of Earnscliffe or something like that. She was Jamaican. 37

Mr. Smith: I understood the change with regard to the House of Lords was when they introduced that peers could renounce their peerage for life. I think it was around the same time. 38

Senator Cools: And when they instituted more life appointments in 1856. 39

I would love to welcome this great professor today and thank him for his years of scholarship and study. I have read his work quite a bit. 39-1

We've dealt as a Senate, as a body, as a constitutional body, which is what we are, with many heresies in our midst in the last many years, and I'm seeking your commentary more so than your opinion. We had Crown ministers who cultivated a notion in the public mind that the Senate was an illegitimate institution. A lot of work went into that, very concentrated work, but that's a false notion that they were cultivating. They were also cultivating another notion that somewhere in our Constitution there is a power to elect the Senate, but there is no power whatsoever in our Constitution to elect the Senate. 39-2

I observe very carefully that all of these people who make these proposals, the unelected Senate that they called illegitimate, would never go to the concept of a franchise. Remember the term "representation by population." That was born in the electoral franchise which developed over several hundreds of years until it reached universal suffrage finally in Canada really only in 1960, but most of the way there by 1920. 39-3

No one has ever dealt with the issue in a serious way, which is that you cannot have two houses of Parliament that seek support and election from the same foundation. Representation by population was the agreement of the Confederation, and they knew what representation by population meant, and representation by region. 39-4

Do you have any thoughts whatsoever of how such fallacious notions could take root in the population, unsupported by any law or the Constitution of Canada, and created out of the blue and thrown out without any research or authority for it? This has bothered me a lot because, in a funny kind of way, this led to the last Supreme Court reference on Senate reform. I must tell you that some of the Attorney General's lawyers were extremely good and quite creative as they danced on their heads sometimes trying to make some impossible suggestions. 39-5

I'm just wondering if you have any views or commentary whatsoever on this. I see the Senate as a loved institution, and maybe that's my experience as a senator, but I have not had difficulty getting great and much public support as a senator. The only times that I have seen parliamentary committees travel where the committee meetings are in session and there is only standing room in the hotel room is when they are Senate committees. In particular, I think of the joint Senate and House of Commons committee on divorce and child custody. Right across the country, every single hearing was standing room only. 39-6

That Crown ministers can make these assumptions shocked me, and I must come back to the genius of Canada's Constitution in that it has lasted 150 years. This is a constitution that was put together against the backdrop of a failed constitution south of the border and the then-risks. I don't know how many colleagues around the table know this, but Abraham Lincoln had a Secretary of State named Seward, and they were bent, bound and determined to annex Canada as part of their civil war. I'm sure you've read of this. There was a lot of back and forth, and there was a risk of war. We talk about the longest undefended border in the world. Well, that border was in danger of going up in flames many times. 39-7

That was part of the genius. These men were able to set aside what they considered to be lesser differences. A man like George Brown, who moved the motion at the Quebec Conference that the elections be representation by population, could turn around and say that he was glad that Upper Canadians gave Lower Canadians equality in the upper chamber. This is the genius and brilliance, and it has lasted 150 years. 39-8

Lots of these people, these would-be reformers, have a huge challenge before them because first they have to produce proposals that can get wide support in the country, and then they would have to do a lot of convincing of a lot of people like me that what they're proposing could last another 150 years. In Constitution time, 150 years is a long time. It's a rare thing. 39-9

Maybe I've thrown too much at you. Could you make some comments on that? I believe, quite frankly, that when it came to putting together a constitution for Canada, these men were enormously successful, extremely successful, and we should praise them. 39-10

Mr. Smith: When I was speaking about isolation and that the Senate experiences isolation, one fact I didn't mention, which maybe everybody knows, is that it does set Canada apart—maybe it's distinctive in this regard—as the only federation I know of where the central Parliament is bicameral and the unit legislatures are not, unlike Australia where all but Queensland are bicameral and go back a century or more into colonial times. 40

Part of Canadians' mystification about what the Senate does or why there is one is the fact that they have never seen second chambers. They've never experienced them. It's interesting to kind of hypothesize what might have happened had there been second chambers in Alberta or Saskatchewan in the last 20 or 30 years. In any case, I think part of a misunderstanding of the role of a second chamber is that people don't ever see them. 40-1

You talked about committees travelling, and they did. How much do committees now travel? There was a period in the 1960s and 1970s when they seemed to be coming through Western Canada a lot. I don't remember that, but nobody comes to Niagara-on-the-Lake so I don't know what's going on out there. 40-2

I think the asymmetry of legislative bodies federally and provincially is an important feature of Canada, which tends not to be talked about much. 40-3

Senator Cools: I would like to raise the question of confidence. You said a couple of times that the Senate is not a confidence chamber, and that view is widely held. 41

I want to tell you that I was a member of the Senate during the GST debate, and when we set out on that battle, we had no doubt about what we were trying to do. When the race was on, if you remember, for us to get our report in to the Senate and adopted as the Prime Minister was trying to get his eight new senators appointed, we had no doubt that we were out to take down that government, for many reasons, and very good reasons and serious reasons. Those senators at the time were the most committed people with exquisitely skilled leaders. The will was there and the public support was there at the time. 41-1

Remember, these are political situations. I can tell you we had no doubt, and the commitment to sit in there 24 hours a day, day after day after day, was indicative of that. We thought something very wrong had happened and something very wrong was going on. It's history now, but I just point that out to you. We had no doubt that we were trying to force the government to resign. 41-2

Senator McCoy: Was that under the leadership of Liberal Senator MacEachen? 42

Senator Cools: That is he. 43

We had no doubt, and the government had no doubt, about what our intentions were. It was a fierce competition. 43-1

Mr. Smith: One thing I haven't studied but that I have thought about is Phillip Norton, a British political scientist. I was reading an article he wrote about government defeats and the lords, and they are becoming more frequent. He then talked about the structure of the opposition in the House of Commons in Britain. 44

Thinking of the two legislative bodies, sometimes I think of them as hermetic. They are not really hermetic, and certainly in Britain, Norton's argument is that the willingness of peers to defeat the government is somewhat related to a degree to the weakness or strength of the government in the Commons itself and what the opposition structure is. 44-1

I have never really thought that through, but if one were talking about changing the Senate and independence, et cetera, that's a significant factor or characteristic—independence in a system that has not had independence—and the unintended consequences. I don't think one can predict accurately, but it is quite clear there will be consequences. 44-2

One of the features of the Canadian House of Commons has been that there have been more than two parties in it for a long time, which is different from a number of other countries. 44-3

Senator McCoy: For the record, it's my understanding that the Liberal leader in the House of Commons on the GST issue asked the Senate Liberals to take the fight, because Mr. Turner did not have very many MPs at the time— 45

Senator Joyal: Didn't have the numbers. 46

Senator McCoy:—in the House of Commons. 47

I'm not sure Mr. Norton's thesis is quite appropriate, but I take your point about them not being hermetic. After all, the Supreme Court recently said we are complementary. 47-1

Senator McIntyre: Thank you, Professor Smith, for your presentation and for all your good work. 48

We have a bicameral Parliament—on one hand, the House of Commons; on the other, the Senate. Members of Parliament are elected; senators are appointed. We have political parties and the organizing force of the political parties. With political parties comes party discipline. Most people will say that party discipline ensures accountability to the public, and I'm sure you'll agree with that. 48-1

In the paper that you've written—46 pages long—you deal with the issue of party discipline, but according to you, party discipline should only apply to the House of Commons and not to the Senate. The reason for that is because party discipline betrays the raison d'être of the Senate by affecting its ability to properly represent the minorities and the senatorial divisions. I was somewhat taken by that, and I would like you to explore that a bit, please. 48-2

Mr. Smith: When I was writing that, I was thinking party discipline extending from the lower house into the second chamber. That invalidates the independence of the second chamber. But even if one were taking another view, that being of within the second chamber itself, there are fewer defensible reasons to offer for party discipline in the second chamber because it's not an accountability body. You could almost write up parallel sets of argument for discipline in one as opposed to the other. That was what was in my mind when I wrote it. 49

Senator McIntyre: Senator Cools raised the word "confidence," so I will ask a question regarding public confidence. Judges are appointed. So are senators. Could you explain the public confidence of the appointed judiciary as opposed to the public confidence of the Senate? 50

Mr. Smith: Yes. It's a very good question. 51

In part, I suppose the quick response to that is that partisanship, from the public perspective, doesn't enter into judges and judging. One can say, "Well, yes, it does to some degree in appointments," but generally it does not, so the judiciary is seen to be independent. It is seen and indeed is independent. 51-1

Senator McIntyre: And the public appears to have more confidence in the judiciary. 52

Mr. Smith: Yes. They have more confidence in it because it is independent. That's very important. You're quite right. There is more confidence because it is perceived to be independent. That is a conundrum, isn't it? Why that? 53

We have a constitutional monarchy. I wrote a book The Republican Option in Canada, Past and Present on why there isn't one. There hasn't ever been one, not since the rebellion in Lower Canada where all they really wanted was control of the legislative assembly, and elections seemed to be the way to get it. But once you have responsible government, it disappears. 53-1

Why is there no republican sentiment in this country? If there is, it is so pitifully weak and inarticulate that it doesn't go anywhere. It is a peculiar feature of Canada, and an important, cardinal feature this country. 53-2

The independence of the judiciary is a very important factor in this discussion of independence in the second chamber. 53-3

Senator Stewart Olsen: A supplementary on the judiciary versus the Senate: The judiciary is seen to be very independent, because they have, literally, a job description. They have the laws written out for them—A, B, C and D—so there is not a lot of leeway for their own personal ideas and thoughts. You seem to support that that was good and that Canadians look more favorably upon and trust the judiciary. So would it not follow, then, that the senators should have some kind of idea of what their role should be, and we shouldn't be defining it? I'm probably not articulating this well, but the difference is clear, and I'm not sure you can compare the two as easily as that. 54

Mr. Smith: I wouldn't compare the two. My wife was an appellate court judge. But the confidence in the judiciary in Canada is very striking. Is that because it's independent? Obviously, that is a characteristic and maybe one that explains. I don't know. It's very important. 55

You asked about a job description. I was told by a colleague at Ryerson University the other day that he knew someone who had applied to become a senator. I hadn't realized that the contest was open, but I would like to see the application form, because that seems to me to be rather a pressing question: What are the criteria? What is it you're looking for? 55-1

Judging is totally different. Often the analogy is drawn, but that's a profession that people have been at for decades before they become judges—usually, but not always. That is not true here. 55-2

This is a big question. The decisions that are made will be very important, certainly at the beginning. 55-3

Senator Joyal: I would like to stay on this topic, because it's one of the core issues that this committee will have to address. 56

Can you envision a functioning Senate where the 105 members would all be independent of any political allegiance or even, preferably, with no party affiliation in the past? That, more or less, seems to be what the government ideally wants to project as the future of the institution. 56-1

Mr. Smith: No, I can't. I'm not quarreling with the question, but it sort of makes the assumption that the Senate is in a kind of vacuum. It is issues that are at stake. Independence comes up when it's "issue A versus issue B" or something. It's because of the issues that there is partisanship. Liberals have views on assisted suicide, the Conservatives have views, and so does the NDP. That's not going to go away, and that isn't going to prevent a senator, independent or not, from aligning him or herself with these positions. There are only so many positions on assisted suicide that you can take, so, perforce, you're going to be aligned with a party, in a way, even if you're not overtly wearing it on your sleeve. 57

I don't think there is a kind of pure independence that exists in a vacuum. Coming back to independence, it's so difficult to deal with. It's independence on an issue. The day my wife became a judge, another judge said to her, "You know, from this day forward, you do not have an opinion." I guess he didn't say, "At home." 57-1

Senator Joyal: Be careful. She is listening. 58

Mr. Smith: Independence is extremely important, but it's nuanced, variable and, it seems to me, issue-related. People aren't just independent on the street; they're independent about something. They're independent about their views on same-sex marriage, the Trans-Pacific Partnership or some other matter. That's where the independence comes from. You can label yourself as independent in the sense of, "I will make a decision, but it may be that the decision I make is the same decision that party X made in the other chamber." 59

Senator Joyal: In your paper, you make a clear distinction between party allegiance, which is in my opinion, as you said, a share of views in the world, in the broadest terms, and party discipline, which is another way to more or less frame your freedom of analysis or thinking on an issue. 60

Mr. Smith: It doesn't fit my interpretation of what the Supreme Court said, that senators are whipped. I can't quite square that, that somehow there's another hand saying, "This is what you will do." It just seems to me that there is a disconnect in those two images. 61

Senator Joyal: In other words, you do not feel that there is a "whip" in the Senate in the sense of somebody who makes sure all persons who share an allegiance will necessarily vote the same way. 62

Mr. Smith: I wouldn't think so. I've never been in an elected office, so I've never experienced whips. I only read about them. I feel a bit uneasy making any kind of general statement. My intellectual response to what the Supreme Court said, in my understanding of the way discipline works in legislative chambers of the British style, is that there's a conflict there between independence, on one hand, and deciding how to be complementary in relation with the first house, and then whipping. 63

Certainly, with respect to the question earlier, if the hand of discipline is coming from the lower house in some way, then that is even more problematic, as regards what the Supreme Court said. 63-1

Senator Cools: Thank you again, professor. In the literature, independence is quite often described as the presence of two variables, those being security of tenure and security of salary. For those people like Peter Russell and others who wrote a lot on the judges, they always feature these two elements—these dynamics. In other words, no one can just lock off their salary or just fire them. That is why the life appointment is the highest appointment of all. That's what "during good behavior" does. On the judges who are appointed, the Constitution Act says that they should hold their places for life. Section 99 of the BNA Act speaks about tenure of the judges, describing it as "during good behaviour." The judges are in a slightly inferior position to senators because they still rely on the ancient 1692 judgment that declares the term "during good behaviour" meant life. 64

Everybody has forgotten now, but when the Brits were creating the Senate and there was a lot of attention paid to it—it's a fantastic story—72 resolutions eventually become the British North America Act. The sanction on the Senate, if you notice, now gives us powers not greater than those of the House of Commons, but originally it said of the House of Lords. There was concern that we in Canada at some point in time may want to create an appellate court of the upper chamber. They wanted that it could never be confused with the U.K. Judicial Committee of the Privy Council, a part of the House of Lords. 64-1

You would be interested in this, Senator Joyal: When the fathers were finished pruning and doing everything they could to get the best words and clearest language in what would soon become the British North America Act, one of the greatest draftsmen of all time was a man named Lord Thring. He was persuaded to take a look at their final product and make corrections, and that is an example of the care that these men took in drafting every single word. I am of the sincere belief that one of the reasons that that statute—that act—has survived as it has was the attention paid to the precise wording and forming of every concept as clearly as possible. It really is quite a clear document to read. 64-2

My question to the professor has to do with the Senate as it was constituted. At the time the Senate was constituted in 1867, there was then a lot of talk in the U.K. of limiting the powers of the House of Lords, particularly in financial matters. That was asserted, but it really came to full fruition in the Parliament Act of 1911. Those thoughts were ignored totally in the creation of the Canadian Senate, and we have much higher powers than the House of Lords currently has in "financial legislation." That had a lot to do with the fears and the concerns among the fathers that taxes would be raised on one side of the Ottawa River, which was the big dividing line, to be spent on the other side. They wanted a Senate that could do anything financially except originate, so it's a very interesting situation. 64-3

Mr. Smith: That's a very germane point. At the very time Confederation was being achieved and the Constitution Act of 1867 was being enacted, that very year, there was the second enfranchisement in Britain. 65

Senator Cools: That's true. 66

Mr. Smith: With every enfranchisement of the middle class, and ultimately the working class, the House of Lords' purpose disappears. This is when the House of Lords' problem, as they called it in the late 19th century, was: What is it for? There is no need. As I said in my remarks, Britain is a peer of representative government. Canada is not. We have a second chamber which is not related to representation, other than if you want to use that word and I would avoid it because of the unique nature of our federation. 67

The point you make is an interesting one. The British were quite aware, as you say, of what was going on, and yet there was no opposition to creating a very different and much more powerful upper chamber in Canada so that the theoretical parliamentary government didn't enter into it. 67-1

Senator Cools: It is a credit to those men. 68

Mr. Smith: They had a big problem they had to deal with. This was a solution to the quite predictable dismemberment of a united Canada. It wouldn't have continued much longer without expanding it and bringing in. One of the motifs of Canadian history is this expansion and bringing in, incorporating. 69

Senator Cools: Interestingly, too, professor, and both Senator Joyal and I were interveners in the last Senate reference case, but you would find that many of the presenters representing the attorneys general of the different provinces made reference to some of the things we are talking about. In particular, the two young men from New Brunswick made specific reference to the fact that attention was given to the provinces—I think he called it the lesser populated provinces. That is one of the wonderful things. Maybe I just worship at this temple a little too hard, but I find it very interesting that these records are still so recent in our history and so available that in their arguments, these young men—and they were two very nice young men from New Brunswick—referred and took the court back in time to those particular points and considerations. 70

When you really think of it, even the sections of the Constitution Act which prescribed unanimous agreement are pretty profound, so that massive and well-populated Ontario gets one vote, just like New Brunswick or P.E.I. Somebody did a lot of thinking on that, and I think we should uphold our Constitution more. 70-1

Mr. Smith: Another element is preserving the unity of English and French in Canada, but the other was making it a transcontinental country. Australia never had this. Australia was a continent for a country, a country for a continent. It was created in 1901. In Canada, you have a moving frontier, and it's a huge area and done amazingly fast, I think, the settlement of this country, again as a motivating force of incorporation of territory as well as people. 71

Senator McCoy: Thank you. I very much appreciate your attendance. I'm a lawyer, and you're a political scientist, so maybe our readings are different. It seems to me that the Supreme Court of Canada in this latest reference—of which you were an intervener, Senator Cools, and you, Senator Joyal—said "no" to the change of tenure because they said that would rob senators of the security to speak our minds freely. That was the essential point—speaking our minds freely. 72

Mr. Smith: I missed the prefatory comment. That's why they rejected election? 73

Senator McCoy: Fixed terms. Do you agree? 74

Mr. Smith: Yes. 75

Senator McCoy: And then on the consultative elections, they didn't agree with that, either. They thought that we are a complementary chamber to the House of Commons. I don't have the exact quote in front of me, but it is running in my mind that they were saying that that means they must be a non-partisan body. I thought that was a central feature of their view of complementarity. 76

Mr. Smith: I wouldn't have said that myself. I would need to re-read it. I don't remember them actually entering into the subject of partisanship. It may have been an illusion that partisanship is— 77

Senator McCoy: I'll raise the question, and we'll go and settle that amongst ourselves. I have no difficulty of people forming groups in the Senate, according to their shared opinions. I do think that there is no restriction on any grouping, whether it be by regional caucuses, issue caucuses or even by partisan caucuses. I don't think there is any one single template that we need abide by. 78

The last thing I'd like to say is that I notice in your acknowledgments in your paper that you have said with gratitude that you acknowledge the active engagement of Senator Joyal in the development of your paper. I didn't want this occasion to go by without thanking Senator Joyal for his active participation in this paper and therefore in this session. Thank you very much, Senator Joyal. 78-1

Mr. Smith: Particularly, I would like to thank the staff of Senator Joyal. I'm of an age where if I'm not computer illiterate, I'm not terribly competent. They were of great assistance to me. Certainly living in Niagara-on-the-Lake where there is no one I can go to, they were of great help. 79

The Chair: Professor Smith, thank you very much for participating. We didn't anticipate it would go this long, but I understand you have a well-deserved trip you're going on tomorrow morning. 80

Mr. Smith: My pleasure. Thank you. 81

Hon. Senators: Hear, hear! 82

The Chair: You certainly laid a great foundation. 83

Honourable senators, before we proceed in camera, we have a bit of housekeeping. At the last meeting, Senator McCoy tabled an article from The Hill Times, and it was her intention to have the tabling listed in the committee's minutes. To do so, we require a motion. I now recognize Senator McCoy. 83-1

Senator McCoy: Thank you. I do move that the document entitled "Senate Modernization Committee formed, chairman Sen. McInnis chosen without election" from The Hill Times, dated February 22, 2016, be filed as an exhibit. 84

The Chair: You heard the motion. All those in favour of the motion signify by saying "yea." 85

Hon. Senators: Yea. 86

The Chair: Contrary-minded, please say "nay." We will now proceed in camera. 87

(The committee continued in camera.) 88

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