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Motion to Amend the Constitution of Canada with Respect to the Regional Representation of Western Canada in the Senate

Honourable senators, today I would like to discuss the motion to amend the Constitution of Canada with respect to the regional representation of Western Canada in the Senate, now known as the Murray-Austin motion.

Our colleagues presented a motion for a constitutional amendment that would approve additional representation of Western Canada in the Senate. As you know, this amendment would increase the number of senators by 12, distributed as follows: six more senators for British Columbia, four more for Alberta, one more for Saskatchewan and one more for Manitoba.

If the Senate passes the motion, it will be using its right to propose a constitutional amendment, thereby triggering the official constitutional amendment process, which begins with sending messages to the House of Commons and all provincial legislatures.

As set out in the Constitution Act, all of those parties have three years to respond to the proposed amendment. If they do not, the motion is ruled invalid and inoperative.

Honourable senators, for this resolution to come into effect, it needs the support of at least seven provinces representing more than 50 per cent of the population of Canada, as well as a majority in the House of Commons.

Nevertheless, I am convinced that this is a piecemeal measure that raises more serious questions about the Senate's role and powers. As recently as 1980, the Supreme Court of Canada upheld the immutability of the pact signed by the founding provinces at the time of Confederation. As stated in the Upper House Reference [1980] S.C.R. 54,

. . . alterations to the Senate that would affect "the fundamental features, or essential characteristics given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process" could not be made by Parliament alone.

The character of the Senate was determined by the British Parliament in response to the proposals submitted by the three provinces in order to meet the requirement of the proposed federal system.

It was that Senate created by the Act, to which a legislative role was given by s. 91. In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.

Honourable senators, the motion before us does not seek to alter the basic principle that the four divisions are equally represented in the Senate, because that can only be done by amending the Constitution under section 38. However, adopting this motion would essentially mean that the Senate prefers and supports the idea of changing the number of representatives of each of the four divisions in the Senate so that the numbers are unequal.

Honourable senators, section 22 of Canada's Constitution provides that:

In relation to the Constitution of the Senate Canada shall be deemed to consist of Four Divisions:

1. Ontario;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island;

4. The Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta;

which Four Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by twenty-four senators; Quebec by twenty-four senators; the Maritime Provinces and Prince Edward Island by twenty-four senators, ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island; the Western Provinces by twenty-four senators, six thereof representing Manitoba, six thereof representing British Columbia, six thereof representing Saskatchewan, and six thereof representing Alberta; Newfoundland shall be entitled to be represented in the Senate by six members; the Yukon Territory and the Northwest Territories shall be entitled to be represented in the Senate by one member each.

Honourable senators, why should we wish at this point to alter the regional representation characterizing the Senate? Why is it now desirable to amend the Constitution so that the four divisions of Canada are represented unequally in the Senate? Are we doing this simply to appease reformers, who have been making incoherent requests from all sides to modify this chamber?

I fully agree with Senator Hubley's statement in this chamber that parliamentary reform should never be approached in a piecemeal matter without knowing beforehand the overall shape and substance of the newly reformed institutions. I strongly believe that it is naive to think we can simply modify important aspects of this chamber without affecting its whole function and purpose.

The underlying purpose of this motion is the desire to recognize the existence of two regions in the West in response to the population growth, especially in Alberta and British Columbia. Concretely, this amendment would increase the number of senators by 12. Compared with Quebec and Ontario, B.C. and Alberta continue to gain more representation in the other place. The argument has been made that the current populations and economic weight of Alberta and B.C. call for representation beyond that of provinces in Atlantic Canada.

According to the founders of our great country, the upper house of Parliament "is to be confided the protection of sectional interests:" therefore it is that the four great divisions are equally represented for the purpose of defending such interests against the combination of majorities in the House of Commons.

Lower Canada has agreed to give us representation by population in the lower house on the express condition that they shall have equality in the upper house. On no other condition could we have advanced the Confederation negotiations. The protection for those interests, such as equality in the upper chamber, has been enshrined in the fundamental law of and for the land of Canada. It is our contract. If one wants a successful contract negotiation, any amendments must be a win-win proposal for all parties. This proposal changes the fundamental equality representation: One region gains while the three other regions will lose relative representation.

In the Senate, we have enjoyed the concepts of representation by region that evolved from historical political compromises. In comparison, the U.S. Constitution has built into it a series of compromises between rep-by-pop and rep-by-area, whereas there are two senators per state, at least one representative per state and representation in the Electoral College. Nevertheless, as Senator Mercer has previously said in this chamber on the same issue:

. . . any time we talk about Senate Reform and changing how this place is configured, we get into the discussion of representation by population. That is not what this place is about.

When addressing this issue, Senator Murray and Senator Austin based most of their arguments on the principles of fairness and equity. These same principles underly the representation-by-population debates that occur every 10 years in the other place as per the Election Act. These arguments are in direct contradiction with the reason we have an upper house in this great federation, which is to represent and protect the regions and the minorities against the will of the majority. The Senate was established to balance representation and to ensure a degree of equality and inclusiveness for the less populated provinces against the tyranny of the majority.

We have not addressed how this rebalancing will affect the functioning of the Senate. How will it affect the traditional role of representation of the regions? How will rebalancing affect the Senate's relationship with the House of Commons? Should our roles and our authority be redefined constitutionally?

Honourable senators, I strongly believe that it is not possible to change the composition, the character and the functions of the Senate without also addressing all other consequential questions. Prior to the alteration of the historical and constitutional concept of regional representation, should we not anticipate all other consequences? For one to think that modifying the regional representation of the Senate will have no consequences, one must ask: Why is it being sought in the first place?

Let us be clear: Regional voting power is important.

These basic questions need to be addressed, honourable senators, before the regional balance of representation is altered.

Honourable senators, I will not support this motion, for its adoption would break the deal; the equality among those four divisions. We cannot simply propose and approve breaking the deal.

While the Meech Lake accord attempted to reconcile the cultural and linguistic aspirations of Quebec with the rest of Canada and to provide recognition for our Aboriginal people, the Charlottetown accord was a pack of constitutional amendments for Quebec's recognition and for a Triple-E Senate that was requested by the Western provinces; that is, there were supposed to be six elected senators per province. It was proposed by the Canadian federal and provincial governments in 1992, and submitted to a public referendum on October of that year.

Although most of us worked very hard toward its approval it was defeated, and it was defeated strongly by the four Western provinces. They defeated the Triple-E Senate as proposed in the Charlottetown accord. Manitoba defeated the Charlottetown accord with 61.6 per cent against; Saskatchewan, 55.3 per cent; Alberta, 60.2 per cent; and B.C., 63.8 per cent.

The four Western provinces voted "no" to a Triple-E Senate.

The politicos, to this day, argue that it is the only way the West will feel that they are "in". If the Triple-E Senate was refuted by such numbers in the West 15 years ago, why are some western politicians still arguing for it today?

Personally, I believe that, in a file of such constitutional importance, we, as senators, have an obligation to express our point of view and to contribute to the national constitutional debate that must be held if the Senate is to be modernized. History will acknowledge that we rose to our constitutional obligation, and not that we simply rose up against any initiatives towards reform. It is the responsibility of this Chamber to respect its constitutional raison d'être, to the best of its ability, in the interest of the regions and minorities. The proposed amendments to regional representation will change the fundamental nature and the very purpose of the Senate.

Lastly, the intention of the proposed Murray-Austin motion seems to be to respect a number of precedents set in the amendments brought forward over the years to the number and distribution of the seats of the Senate. It is important to note, however, that most of these changes were to increase the number of Senators when a new province or territory joined the federation.

It is important to acknowledge that every time an additional seat was created in this place it was because of the addition of a territory to this land.

It began by adding two senators for Manitoba in 1870, three senators for British Columbia in 1871 and four senators for Prince Edward Island in 1873. A province or territory that joins the federation constitutes a new political entity, but an increase in the population of a given region is a different matter.

The primary role of the Senate is to protect the Constitution, the rights of minorities and Canada's regions. It would be shirking the duties of this institution to try to respond to these reform efforts on a case-by-case basis.

What is needed is a comprehensive examination of the role, the powers and the composition of the Senate. Only then will we be on the road towards a modern Canadian Senate.