Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 2 (6 June 1970)


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Date: 1970-06-06
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 28th Parl, 2nd Sess, No 2 (6 June 1970).
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Second Session
Twenty-eighth Parliament, 1969-70


THE SPECIAL JOINT COMMITTEE
of
THE SENATE
and of
THE HOUSE OF COMMONS
on the

CONSTITUTION OF CANADA

Senator

MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN

M.P.


MINUTES OF PROCEEDINGS
AND EVIDENCE

No. 2


TUESDAY, JUNE 9, 1970


WITNESSES
(See Minutes of Proceedings)

SPECIAL JOINT COMMITTEE
ON THE
CONSTITUTION OF CANADA

Senator
MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN
M.P.

Representing the Senate

Senators

Connolly (Ottawa West),
Cook,
Flynn,
Giguère
Grosart,
Lang,
Macdonald (Cape Breton),
MacDonald,
Phillips (Rigaud)—10.

Representing the House of Commons

Alexander,
Allmand,
Asselin,
Baldwin,
Breau,
Brewin,
Dinsdale,
Fortin,
Gibson,
Hogarth,
Hopkins,
Lachance,
Lewis,
Marceau,
McQuaid,
Osler,
Ouellet,
Roberts,
Woolliams—20.

(Quorum—17)

Michael B. Kirby,
Patrick J. Savoie,

Joint Clerks of the Committee.


[Page 3]

MINUTES OF PROCEEDINGS

[Text]

Tuesday, June 9, 1970.
(5)

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada met this day at 3:40 p.m. The Joint Chairman, Senator Lamontagne, presided.

Members present:

Representing the Senate: Senators Cook, Flynn, Grossart, Lamontagne and Macdonald (Cape Breton).—(5).

Representing the House of Commons: Messrs. Alexander, Allmand, Asselin, Brewin, Dinsdale, Gibson, Hopkins, Lachance, MacGuigan, Marceau and McQuaid.—(11).

Also present: From the Senate: Senator Yuzyk; From the House of Commons: Mr. Ritchie, M.P.

Witnesses: Messrs. R.G. Robertson, Clerk of the Privy Council and Secretary to the Cabinet, and E. Gallant, Deputy Secretary to the Cabinet (Federal-Provincial Relations).

The Joint Chairman introduced the witnesses. Mr. Robertson made a statement on “Federalism for the Future” and on constitutional review generally, after which he was questioned.

Later, the questioning being completed, the Joint Chairman thanked the witnesses, and they were excused.

At 5:44 p.m. the Committee adjourned to Thursday, June 11, 1970.

Michael B. Kirby,
Clerk of the Committee.

[Page 4]

This page is blank.


[Page 5]

EVIDENCE

(Recorded by Electronic Apparatus)

Tuesday, June 9, 1970

The Joint Chairman (Senator Lamontagne): Senators and members, we are meeting this afternoon to discuss a special background paper entitled Federalism for the Future.

And we have with us this afternoon Mr. Gordon Robertson and Mr. Edgar Gallant and others who are at that table, including Mr. Bryce, who are attending this meeting not only to explain to you the various stages of our work as presented to you in this paper, but also I hope to answer the very easy questions that will be put to them.

As you know Mr. Gordon Robertson, despite of his young age, has had a very long career in the public service. He was in the Privy Council, he was Deputy Minister of Northern Development and Natural Resources and then, he is Clerk of the Privy Council since 1963 I believe.

Mr. Ed Gallant also has had a very varied career. He is from Prince Edward Island. He was my student and then he began to succeed thereafter. So he went from the Department of Finance to the Privy Council, to the Economic Council, etc. At the present time I think he is Assistant Clerk at the Privy Council under Mr. Robertson, with respect to federal-provincial relations.

So without further ado, I present to you Mr. Gordon Robertson.

Mr. R. G. Robertson (Clerk of the Privy Council and Secretary to the Cabinet): Thank you Mr. Chairman. Perhaps I may simply preface my remarks, Mr. Chairman, by saying how happy I am to appear in front of the Committee and to provide any information that I can on the process of review or on the particular document that we are going to discuss this afternoon. I will certainly try, if I can, to deal with any questions that the members of the Committee may wish to put to me concerning either the document or the procedure that has been going on.

[Page 6]

I recognize, as all do who have been working on the constitutional question, that the work of this Committee is a very important new part of the total process of constitutional review. Up to this time, as the Committee members know, it has been a matter handled almost entirely by the governments, federal and provincial. It was contemplated from the beginning by the federal government and I think by the provincial governments that it would be very important, indeed essential, to have the legislative aspect of government brought into the whole process, and through the legislative aspect, to bring the people of Canada into a participation that would be more active than was possible even with the open constitutional conferences. From the point of view of those of us who have been involved, this is a very important new stage and we do appreciate the importance of it and want to contribute anything we can to help advance the work of the Committee.

Perhaps before beginning to discuss the document Federalism for the Future, Mr. Chairman, I should say a bit about what my own role has been in this so that members may understand what it has been and what it has not been.

In December 1967, Mr. Pearson, who was then Prime Minister, asked me to chair the committee of officials that was charged with preparing the position of the federal government for the first meeting of the Constitutional Conference that took place in February 1968. At the same time, a special Cabinet committee was established to consider and to work out the federal government’s position. As the Committee knows the first Constitutional Conference took place in February 1968.

It established among other things a continuing committee of federal and provincial officials which was charged to assist the continuing constitutional conference with its work. I have chaired that committee since its inception. It has been really in those two roles, one within the federal government and the other at the federal-provincial level that I have been particularly involved in this work. I may say that the continuing committee has held ten meetings since it was established and the eleventh will beheld next week in Alberta, looking toward the preparations for the next working session of the Constitutional Conference which will, I imagine, take place in September. It was earlier hoped it would be in June or July but that proved impossible for a variety of reasons.

As I understand it, Mr. Chairman, the Committee this afternoon particularly wants to consider the initial position paper of the federal government Federalism for the Future and also the review process generally as it has been going on.

[Page 7]

So far as Federalism for the Future is concerned, that document was really designed to do two things. The first was to set forth the position of the federal government with regard to the question of the constitutional review. There had not up until that time been any decision by government that there should be a constitutional review. The initial policy question, from the point of view of the federal government, was whether or not it favoured such a review.

The second thing that the document set out to do was to set forth in very broad terms the essentials of what the federal government considered to be the basic relationships that were vital to the Canadian federation that should be preserved or altered and that should be better structured for the future.

With regard to the first point, the question of the policy with regard to the review of the constitution itself, I think it is necessary to recall that at that time there had not been any decision by governments at any level that there really was to be a thoroughgoing process of consitutional review.

There had been a suggestion made by Mr. Pearson in July of 1967 to the provincial premiers that there should be a meeting to discuss primarily fundamental rights which it was thought would lead on into constitutional questions of another order. There had been the Confederation for Tomorrow Conference in Toronto in November 1967. At the time, when the prospects were shaping up for a conference, there was certainly no general agreement on a basic and total constitutional review.

It would be correct to say that at that time there were broadly three positions that were taken among the governments and perhaps more broadly with regard to the question. The first position was that a basic and fundamental constitutional review was required. The object of those who held this position was that there should be a new constitution which would be made in Canada and which would establish new relationships for the future. That position I think was really held only by the Province of Quebec among the governments of that time up to the end of 1967.

The second position was that the British North America Act was satisfactory as it was and that there was no real need to amend the constitution and no real need to do other than make the kind of adaptations that had been made in the past to changing circumstances as they went along.

One could say generally that that was the position certainly of all the western provinces in Canada and perhaps of others as well.

[Page 8]

The third was an in-between position that the British North America Act was generally satisfactory but that it required certain modifications in detail and that the function that was required was an examination in detail to make limited changes to the British North America Act. The objective there was really to preserve the parent constitution and really to bring it up to date in limited respects.

I think it is important to appreciate these differences of view that existed at that time because as I say the first question for the federal government was to decide what its position was. It came to the conclusion, after a good deal of consideration of the matter, that what was required was a general and fundamental constitutional review. That conclusion is set forth at page 4 of Federalism for the Future, where it says:

It is the intention of the Government of Canada, with which it hopes the governments of the provinces will concur, that this Conference of February 1968 should mark the beginning of a process of constitutional review that will be both broad and deep. If we are to be sure that we have the best arrangements we can devise to order and to govern the relationships between Canadians in the Canada of the future we must be willing and concerned to examine all of the facets of our legal framework. The Government of Canada is ready to undertake such a total review.

That view was reflected as well in the statement made by Mr. Pearson in opening the Conference in 1968.

The reasons for taking that position by the federal government are set out in part in Federalism for the Future. Basically, they were that the change in the nature and role of the state in Canada since 1867 had been so fundamental that a realistic expression of the changes in role and the changes in relationship could not be done on a piecemeal basis.

The conclusion also reflected the view mat a constitution, particularly a federal one, is a very tightly interrelated document and that it would be difficult, if not impossible, to change one part or one aspect of it without examining interrelated parts; and therefore that once one set to the task it would not be satisfactory or adequate to have a limited and specific attempt at modification rather than a thoroughgoing review.

[Page 9]

A final facet in the considerations was the feeling that with the discontent that had been expressed, particularly in French Canada but also elsewhere in Confederation, it was desirable to have a new and total statement of the objectives of Canadians in Confederation that would be an expression now and for the future of a renewed resolve to live together in a federal state with certain objectives and certain purposes to be served.

So these were basically the factors that underlaid that decision at that time. That policy decision had a number of implications, which were understood. The first was that the process of review that was being embarked upon would be long and it would be difficult. The British North America Act, for its establishment, took about three years of work but it was fully realized that modifying an existing federation would be infinitely more difficult. Indeed I think it is correct to say that what the governments set out to do in 1967 and 1968 is something that has not been done by any country in the world, namely to change an existing ongoing federal system except in the circumstances of some such cataclysmic event as a revolution, conquest, division, civil war, or something of that kind. I think this is the first time that any federation has tried what we are trying to do in constitutional review. it was fully understood, as I say, that the process would be difficult not only because government is very, very complex in the circumstances of today but also because in a federation that exists you have patterns of thought, you have established vested interests, you have patterns of relationship and changing these is much more difficult than establishing new relationships.

I think it would be correct to say that while it was understood the process would belong and difficult all concerned underestimated how long and how difficult it would be. I think it is a good deal more difficult than really had been realized at the outset.

The second implication of the decision was that since it would involve the basic relationships between governments the process would have to be handled, or at least directed, by the elected heads of the governments and that this would take a great deal of time on their part and would for that reason he as it were, doubly difficult to carry through.

The final implication of a thorough and fundamental review was that it really would required a thoroughgoing assessment of virtually all the aspects of the operation of government and the interrelations between people and between governments in our federal system. It would have to look into the realities of economic,

[Page 10]

social and political relationships and the problems that exist among them as Canada is today. It would have to involve some forecast of trends for the future, and the kinds of powers, relationships and structures that would be adequate in the future, not simply for today. What that meant in effect was that at the outset and for a considerable period of time it would not be primarily a legal operation. It would be rather a study of relationships and functions, a study of how best to handle those relationships and functions, and only at the end should one come significantly to the question of law and the question of constitutional provision.

The views of the federal government in this regard were reflected in Federalism for the Future at page 10 in the document where they said:

The Canadian people will expect us, as their political leaders, to approach this review of the Constitution with a full awareness of what Canada is, and what individual Canadians expect of their country. They will expect us to look to Canada’s future and to its potential for Canadians, not just to the theoretical or legalistic considerations which so often characterize constitutional discussions. For a constitution is more than a legal document; it is an expression of how the people within a state may achieve their social, economic and cultural aspirations through the exercise and control of political authority, We must look therefore to the essential nature of the Canadian federation in examining our Constitution.

Mr. Chairman, those were the essentials of the position taken by the federal government with regard to its judgment as to the nature of the exercise that should be embarked upon of constitutional review.

As I mentioned at the outset, the second function of Federalism for the Future was to try to sketch out some of the essentials, as they appeared to the federal government, of the nature of Canada and of the kinds of relationships that should be established for a Canadian federation to be successful in serving the aspirations and hopes of the Canadian people.

Mr. Turner dealt with some of the basic principles in his statement on May 28 and I do not intend to repeat these. Essentially what it amounted to was an endorsement of the federal structure for Canada as a structure, a statement of the primary importance of constitutional protection for fundamental rights, including linguistic rights, and the importance of the central institutions of government as a balanced reflection and expression of a balanced federalism.

[Page 11]

The document went on to deal with a few of the basic points in connection with such distribution of powers as the government considered were essential for a successful federalism, and these are set forth and examined at pages 36 to 44 of the paper. There are really four points that were made. The first was that the federal system in Canada had to have both a strong federal government and strong provincial governments. This may appear like a cliché or a contradiction.

Senator Grosart: Mr. Robertson, what document are you referring to?

Mr. Robertson: I am referring to Federalism for the Future.

Senator Grosart: No, no; you referred to another document.

Mr. Robertson: I referred to Mr. Turner’s statement here, Senator.

Senator Grosart: As a document.

Mr. Robertson: If I referred to it as a document I did not mean to. I meant to refer simply to his statement.

With regard to the strong federal and provincial governments, the point really was that at that time there was a good deal of suggestion that the necessary line of modification had to be a reduction in federal powers.

The point really reflected in the federal view was that this was not the line that could be acceptable if it involved the reduction of the federal government to a point where there was not a strong federal government; that there had to be strength on both levels if federalism was to succeed. In part, this was simply because for functional reasons it would require strength at both levels to carry out the functions of government, but also a more positive or more broadly based feeling that one of the virtues of the federal system is in having an increase in choice and an increase in freedom for citizens through having control of governments at two levels, both of which are effective and both of which are to some degree counterbalances to the other.

The second point made was that there were certain areas of responsibility which had to remain federal if the country is to prosper, as it was put in the document. This section is important and perhaps I ought to read it. It appears at pages 36 to 38 of the document where it says:

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. . . the Government of Canada believes that there are certain areas of responsibility which must remain with the federal government if our country is to prosper in the modern world. The Parliament of Canada must have responsibility for the major and inextricably inter-related instruments of economic policy if it is to stimulate employment and control inflation. It must have control over monetary and credit policy, the balance-wheel role in fiscal policy, tariff policy, and balance of payments policy. It must be responsible for inter-provincial and international trade. It must be able to undertake measures for stimulating the growth of the economy, some of which inevitably and some of which intentionally will affect regional economic growth. Without such powers Canada’s federal government would be unable to contribute to many of the central objectives of federalism, including the reduction of regional disparity.

We believe that the Government of Canada must have the power to redistribute income, between persons and between provinces, if it is to equalize opportunity across the country. This would involve, as it does now, the rights to make payments to individuals, for the purpose of supporting their income levels—old age security pensions, unemployment insurance, family allowances—and the right to make payments to provinces, for the purpose of equalizing the level of provincial government services. it must involve, too, the powers of taxation which would enable the federal government to tax those best able to contribute to these equalization measures. Only in this way can the national government contribute to the equalization of opportunity in Canada, and thus supplement and support provincial measures to this end.

The third point made—this previous point having dealt with the fundamentals of the federal powers —was that in the view of the federal government most of the services to individual citizens should be provided by the provinces and there should be, as well, adequate taxing powers to finance the proper discharge of those services by the provinces.

Then the fourth fundamental point was that the federal government believed no matter how the Constitution was devised for complex modern government, it would be impossible to have a situation in which the action of one level of government in relation to its proper functions would not affect the other level or levels of government and therefore there would have

[Page 13]

to be much closer inter-relationship between governments in the future. This view is set forth on page 44 of the document where it says:

There are, we think, no easy solutions. What is required is a comprehensive review of the federal-provincial conferences and committees which now exist, how they function, and how their work is co-ordinated. We must be prepared, it seems to the Government of Canada, to give more systematic recognition to these new forms of federalism.

We must be prepared to consider new methods for bringing provincial influence to bear on developing federal policies, and federal influence on developing provincial policies, before decisions have finally been taken. We must be prepared for innovations in the machinery of government which will enable us to preserve the essence of Canada’s two great governmental traditions—federalism and parliamentary government.

Those, Mr. Chairman, broadly and briefly were the views set forth in Federalism for the Future and on the basis of the policy decision about a thorough-going and fundamental review and these positions. The federal government went on to suggest that the review process should get under way, directed by the continuing conference of the Prime Minister and premiers and served by whatever committees would be needed for the purpose. Since that time the work has been to carry forward the review. A good deal has been filled in, a large amount has been filled in, based on the positions initially outlined by the federal government. These are reflected in books that will be under examination by this Committee at a later point and there have been, as I think Mr. Turner said, submissions by a number of the provinces of varying degrees of thoroughness, setting forth in the form of propositions their views as to what the relationships and structures ought to be as they see them in a new Constitution.

I think perhaps generally this is about all I can say about the booklet and about the process and I would be very happy, Mr. Chairman, to deal with any questions that I can.

The Joint Chairman (Senator Lamontagne): Thank you very much, Mr. Robertson. I suppose it might be a good way to proceed if members and Senators who intend to ask questions would raise their hands so that I might be in a better position to allocate time. Mr. Gibson?

[Page 14]

Mr. Gibson: Mr. Chairman, dealing with the Charter of Human Rights and the so-called Bill of Rights we would be bringing in, I am interested in knowing, sir, whether you feel that these rights would be protected by the ordinary courts which now exist in Canada, or whether you believe that the new federal court would have a role in acting as adjudicator and protector of seine of those rights and if anything has been done in that direction? What planning or what sort of position do we take in that line?

Mr. Robertson: I do not know to what degree you want, Mr. Chairman, to anticipate . . .

The Joint Chairman (Senator Lamontagne): This is a subject which is due to come out this Thursday, so you might perhaps postpone this discussion until we have Mr. Strayer before us. Do you have another question?

Mr. Gibson: No, that is it, thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Senator Grosart or Mr. McQuaid?

Senator Grosart: Mr. Chairman, I would like to come back to the question of our terms of reference and ask Mr. Robertson his opinion on whether this Committee is authorized to make a thorough review of the structure of Canadian federalism, or are our terms of reference quite limited?

The Joint Chairman (Senator Lamontagne): Senator Grossart, if Mr. Robertson wants to comment on this that is his own business, but I think you are asking him for an opinion on an order of reference made by Parliament which might be quite interesting to get, but I do not think he is before us today to do that.

Senator Grosart: Mr. Chairman, with due respect, I am risking a question of Mr. Robertson, who has had vast experience in the whole procedure, one end result of which was this Committee. Today he has given us an explanation, and a very excellent one, of the terms of reference of various other groups, the Prime Ministers and premiers’ committee—

The Joint Chairman (Senator Lamontagne): With whom he is directly associated in this capacity.

Senator Grosart: With whom he is directly associated. I am merely asking him to extend the wisdom and knowledge he has acquired there to a problem which must concern this Committee, because as I understand our terms of reference, they limit us to proposals made by the federal government and to responses to the same matters.

[Page 15]

The Joint Chairman (Senator Lamontagne): I am very sorry, Senator Grosart, but we have a law clerk in Parliament and I think he would perhaps be the best qualified man to give us an interpretation of this kind. I do not think it would be fair to ask Mr. Robertson to answer that question.

Senator Grosart: I suggest it is fair. Mr. Robertson our always say that he would prefer not to answer.

The Joint Chairman (Senator Lamontagne): Yes, but I think you have already received such an indication.

Senator Grosart: I have not, and perhaps I should indicate why I think it is important it should be answered it not now, then at a very early date in our proceedings. Perhaps I will then direct the question to you and to the Joint Chairman with respect to when we can expect some information on this very important subject because there are matters which may not come within our terms of reference but which may put us in the position of ruling people out of order when we hold public meetings. Let me suggest a few.

One, regional-provincial groupings is a matter that was raised at the last meeting by Mr. Hogarth and others. Mr. Robertson said that there has been an endorsement by the government—and I think I am using his words—of the federal structure. Does this mean that this Committee cannot hear anybody who wishes to suggest a change in the structure vis-à-vis provinces and regional groupings?

Two, the suggestion was made by at least one premier that one matter of concern in the revision of the Constitution should be the revision of provincial boundaries, not necessarily into groupings but particularly in the case of British Columbia and Alberta because they may wish to move their boundaries north.

Three, of course, would be the relationship of the provincial and municipal structures. I merely suggest that the Committee should get some guidance on this as early as possible and, with due respect, Mr. Chairman, I do not think we should individually have to go to a law clerk for this information.

The Joint Chairman (Senator Lamontagne): Senator Grosart, I think this was only a suggestion and you are

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certainly not forced to accept it. However, it seems to me that at the previous meeting you raised your doubts about the real meaning and interpretation we should give to our terms of reference. I understand that you have very serious doubts about the interpretation of our terms of reference, so it seems to me that the most proper way of doing this, if you are interested, would be to perhaps have a special meeting of the steering Committee in order to try to calm your conscience. If they do not succeed, the Law Clerk of Parliament can then come before us if you so desire. Finally, if you are still not satisfied, we will have to go back to our master.

Senator Grosart: Mr. Chairman, I have doubts. I am not dissatisfied, I am merely suggesting . . .

The Joint Chairman (Senator Lamontagne): I am not trying to answer you now.

Senator Grosart: . . . that the appropriate way might have been to ask our host what we came here for.

The Joint Chairman (Senator Lamontagne): I do not believe this is his business.

Mr. Brewin: Mr. Chairman, I think this is relevant to Senator Grosart’s remark, and perhaps Mr. Robertson can answer this. Are we not required to examine these documents, and is this peculiar document not so broad that it encompasses a total or absolute review of our federal system? If that is so, then perhaps you can help us on the scope of our reference. is it not clear that what is contemplated in these documents that have been referred to us—and I think you said so already—is a complete review of our whole constitutional structure? That helps me in answering the question that Senator Grosart raised. I do not know whether you would like to comment on that, Mr. Robertson.

Mr. Robertson: It is correct, Mr. Chairman, that the federal government decided on a thorough and fundamental review of the Constitution, which in its judgment means going into all aspects of the Constitution. That is certainly correct, Mr. Brewin.

The Joint Chairman (Senator Lamontagne): To go back to the point raised by Senator Grosart a moment ago, if the federal government has decided that it will

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proceed on the fundamental assumption that federalism is something that is good for Canada, then it certainly seems to me that as a Committee we have the power to investigate other alternatives to that political system because our terms of reference end here and there are alternative proposals on the same subjects.

Senator Grosart: On the same subjects, which are proposals . . .

The Joint Chairman (Senator Lamontagne): Separatism is an alternative proposal to federalism.

Senator Grosart: With all due respect, Mr. Chairman, if you will read the terms of reference I think you will find that we are limited to proposals made on specific occasions by the federal government and alternative proposals on the same matters.

The Joint Chairman (Senator Lamontagne): Yes.

Senator Grosart: I raise the question whether the intention is to limit the Committee. I do not care if it is; I would just like to know.

The Joint Chairman (Senator Lamontagne): This is not my intention.

Mr. Gibson: On a point of order, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): I do not think we should be limited unless an objection is raised.

Mr. Gibson: On a point of order, Mr. Chairman, do these proposals not cover the entire Canadian Constitution in some aspect of it?

The Joint Chairman (Senator Lamontagne): This is my interpretation of it.

Senator Grosart: They do not cover the three matters I raised unless I have still not done enough reading, and I think I have done enough to last me for a while.

The Joint Chairman (Senator Lamontagne): Mr. Allmand.

[Page 18]

Mr. Allmand: On a point of order. Shoud we not proceed to discuss the substantive proposals that anyone may wish to discuss, and if the Chairman or the Committee feels this is out of order we can then deal with that problem. I suggest that Senator Grosart or any other member of the Committee may put any questions they like or discuss any matter relating to constitutional changes and then we can go on from point to point and decide whether it is within our terms of reference or not, but to try to decide beforehand what might or might not be would be a time-consuming effort and it would lead us nowhere. I intend to proceed with all matters of constitutional questions and if you or the other joint Chairman feel that it is out of order, then the whole Committee might want to decide whether I am right or wrong or whether you are right or wrong.

The Joint Chairman (Senator Lamontagne): As far as I am concerned, at the outset of our inquiry I am quite prepared to give the most liberal interpretation of our terms of reference. Mr. Hopkins.

Mr. Hopkins: Mr. Chairman, may I also speak to that point of order. This Committee is called a Special Joint-Committee of the Senate and of the House of Commons on the Constitution of Canada, so surely by the very title of the Committee there are no holds barred. I do not see how we can progress as a committee unless we are in fact going to delve into the entire Constitution as such. I feel that this should be made clear at the beginning and I would like to have a complete interpretation of this matter at our next meeting.

Mr. Allmand: With all due respect to my colleague, Mr. Chairman, it is very difficult to anticipate the type of questions that might come before the Committee and it may not be wise to try to make a general ruling beforehand. I think we should proceed on specific matters that any of us wish to bring up or that come on our agenda, and then they may or may not be considered to be within our terms of reference. We have terms of reference, but to try to decide beforehand what they may cover is like a court trying to make a decision before a specific case comes before it.

Mr. Hopkins: In reply to that, Mr. Chairman, I would like to say that if it does not cover the Constitution of Canada then we should change the title of the Committee.

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The Joint Chairman (Mr. MacGuigan): Mr. Chairman, it might help if I as the other Joint Chairman were to assure Senator Grosart, that I am also prepared to interpret our terms of reference liberally and if the Committee at some point, as Mr. Allmand suggests, feels that that is not the proper interpretation, we can decide that at the time.

Mr. Hopkins: That would be most satisfactory to me, Mr. Chairman.

Senator Grosart: I am delighted to have this assurance from the Joint Chairmen, and I certainly intend to hold them to it.

The Joint Chairman (Senator Lamontagne): I know you will, and we will be here to honour our word. Mr. Brewin?

Mr. Brewin: No.

The Joint Chairman (Senator Lamontagne): Mr. McQuaid.

Mr. McQuaid: Thank you, Mr. Chairman. Mr. Robertson, you suggested at the beginning when this matter was first discussed, that three positions were taken, I presume you said, by the governments of the provinces. One was that there should be a review of the Constitution, that a review was necessary and I believe I understood you to say that the position was taken very strongly by the Province of Quebec. Another view was that the British North America Act was generally satisfactory, but certain modifications were required. The third view you said was expressed particularly by the Western Provinces, was that the British North America Act is presently satisfactory. I wonder, do the Western Provinces still adhere to that view or have they gone along with the idea that there should be a constitutional review?

Mr. Robertson: I think it would be correct to say, Mr. McQuaid, that there has been a fair amount of adaptation, of change in the position, one with varying degrees of reluctance or of enthusiasm. I think we would still be correct to say fundamentally there is still—l would hesitate to speak in detail for the positions of the provincial governments, I could not do it—a feeling there is nothing wrong with the BNA Act that cannot be the subject of modification and adjustment to arrive at a satisfactory working relationship. I think there has been, perhaps, an increasing

[Page 20]

appreciation of some of the problems as discussion has gone on and there is probably a greater readiness now than there was three years ago, certainly a greater readiness now than there was three years ago to see some of the difficulties and to be ready to consider change.

Mr. McQuaid: The reason I raised the question, Mr. Chairman, is that I can foresee certain difficulties as far as this Committee is concerned unless we have the active co-operation of the provinces. I believe it was Premier Thatcher who placed this very low on his list of priorities at the time it was mentioned first. I think he said it will be about 101 on his list of priorities. I wondered if these provinces had changed their minds and, particularly, in view of the statement made by the Prime Minister when he spoke on this matter in the House, last January, I believe it was, and said that this matter of constitutional review had been instigated by the provinces rather than by the federal government. Is this correct?

Mr. Robertson: I think, Mr. McQuaid, what the Prime Minister was particularly referring to was the Confederation for Tomorrow Conference in Toronto in November, 1967, that in a sense of sequence, the first discussion had been one among the provinces. The federal government was not represented at that Conference. It was an interprovincial conference and was the first one at which there was a general discussion among a variety of governments on the question of adjusting the operation of Confederation. I think, having said that, there still were latent or expressed, some pretty substantial differences of view as to what that involved and what that meant.

Mr. McQuaid: Would you be prepared to say whether these differences had been resolved between the provinces?

Mr. Robertson: Certainly, there has been a definite increase, I think, in comprehension and understanding of the views of the different governments as this has gone on and to that degree, there is a softening, perhaps a modification of those three initial positions that I postulated at the beginning.

Mr. McQuaid: I just have one more question Mr. Chairman. You did not mention it, Mr. Robertson, but it is obviously one of the chief factors which appear in this Federalism for the Future. The government points out:

The prime consideration must be the entrenchment of our Charter of Human Rights in the Constitution.

[Page 21]

I wonder what your thoughts are on that. I am not convinced that the entrenchment of the Charter of Human Rights is the best thing. As I see it, once we do that, we have taken away legislative power because a lot of these fundamental human rights are now the subject matter of provincial legislatures, particularly, and of course, federal government too. If we entrench them in the Constitution, we are taking them away from our Legislative Branch and transferring them, as I see it—l may be wrong in this, I would like to be corrected if I am—to the Courts. I was particularly fortified in this view when I read an exerpt from an address given by Professor Schmeiser—I will spell that for the record; S-C-H-M-E-I-S-E-R—of the College of Law of the University of Saskatchewan. He addressed the Canadian Bar Association in 1968 on this very matter and I would like to place on record what he stated at that time. He said:

The most difficult aspect of entrenchment is that the Courts, through the power of judicial review, rather than Parliament, have the final word on basic policy issues. The possible solutions in any social dispute are political decisions, not typically judicial decisions, and the question must be faced whether such decisions should be made by legislators, who are accountable to the people, or by Judges, who are not so accountable. Should five men on the Supreme Court of Canada be able to overrule the wishes of the elected representatives of the people, or is this not a negation of democracy? For example, let us borrow the American problem of criminal procedure. Which body in society determines how a criminal matter should be dealt with? Again, I would suggest that the present Canadian formula of having Parliament decide is better than the American position.

And then he goes on:

The assumption underlying judicial review of legislation is that Courts will do better than government, that they will act more in the interests of the people. The difficulty with the assumption is that legal practice and old age can produce conservative persons who are suspicious of social change. In the Great Depression, the American Supreme Court used its judicial review power to block urgently needed social reform. The Canadian judicial attitude to administrative tribunals and to statutory interpretation also reveals a lack of awareness on occasion of social needs. An entrenched Bill of Rights can enable the Courts to

[Page 22]

block political reform. When the Courts do make wrong policy decisions, judicial independence and authority are seriously undermined.

This is the problem, Mr. Robertson, that bothers me and if you care to give it, I would like to have your advice on it. The government has put this very high on its list of priorities, the entrenchment of the Charter of Human Rights in any new constitution which may be devised. I think the Committee would appreciate, if you care to give it, your opinion as to the merits or demerits of entrenching the Charter of Human Rights in the Constitution.

Mr. Robertson: Mr. Chairman, you will, I think, be getting into this matter in more detail at a future meeting, but the point Mr. McQuaid has asked about is certainly one that has been reflected a good deal in discussion. The view of it as expressed by Professor Schmeiser is a view that rests on the traditional and basic idea of supremacy of Parliament rather than constitutional declaration of rights in a constitution. Of course, what one has to recognize, I think, is that in a sense, the very existence of a federation is a qualification on the supremacy of Parliament in the original British sense in which Parliament had the power to do virtually what Parliament wished to do. We have, in the Constitution, in the BNA Act, diminished the supremacy of the federal Parliament to the extent that certain things are removed from its power or not in its power and are in the power of the provincial legislatures. So we have, by the very fact of a federation, departed from the initial concept of supremacy of Parliament.

What is proposed now is that there should be, if you want to regard it, a further departure in the sense that there would be some things that would not be in the power of Parliament and would not be in the power of the legislatures, but would be reserved from the power of either to do certain things. This does have the result that the determination as to whether those things that are removed from the power of either Parliament or the legislature are involved in a piece of legislation or not, is determined by the Court and this was Professor Schmeiser’s point. But it does not mean that the court operates completely at its judgment and discretion. It would have a statement in a well-defined bill of rights

[Page 23]

as to what fundamental rights are and then would attempt to define them. But basically this is in a sense the debate between those who hold the view that a constitutional determination of fundamental liberties is good and desirable and those who hold the view that the supremacy of Parliament approach is the sounder one.

Mr. Brewin: May I ask a supplementary?

The Chairman: Mr. Brewin.

Mr. Brewin: Is it not a fact that our courts, including the Supreme Court of Canada, have consistently for some years now interpreted our present constitution and the preamble in it to declare in effect that there are certain things like the abrogation of rights consistent with the existence of a free Parliament where they have already declared that there are limitations in our constitution so that neither the legislatures nor the Parliament of Canada can remove some of these basic rights? I know this is perhaps arguable but I think it is a respectable opinion, is it not?

Mr. Robertson: This is getting on to a ground, Mr. Chairman, where I feel a little uncomfortable. Maybe Mr. Strayer would be interested in expressing a view.

The Chairman: We will come back to this on Thursday, if you do not mind.

Senator Flynn.

Senator Flynn: When you speak of taking away powers from the supremacy of Parliament you certainly do not mean that Parliament would not have the power to change the constitution.

Mr. Robertson: Senator, there would have to be in that constitution some provision for amendment.

Senator Flynn: Yes.

Mr. Robertson: What that provision for amendment would be, one cannot anticipate at this time.

Senator Flynn: But Parliament would remain supreme.

Mr. Robertson: The system of the power of amendment would probably not repose in Parliament alone,

[Page 24]

though one does not know. in the United States federation they have an elaborate provision. In the Australian federation, in virtually all federations you have a provision for amendment.

Senator Flynn: What I had in mind is that it may be for the federal Parliament and the provincial legislatures but you would not take away the power to amend the constitution from our parliamentary structure.

Mr. Robertson: Certainly, Senator, there would be a provision for amendment according to some kind of procedure. But almost certainly it would not be Parliament alone that would do it.

Senator Flynn: I had a question which is supplementary to the subject raised by Mr. McQuaid in connection with the evolution of some provincial governments to the effect that practically only the Province of Quebec was favouring a complete review of the constitution. There has been some evolution in this matter and i think the report of the constitutional conferences suggests that too.

Could you tell us, Mr. Robertson, where the emphasis was put by let us say the majority or the general consensus as to the areas where the review is most needed? Would it be in the distribution of powers, including the taxation powers, or reform of federal institutions?

Mr. Robertson: Senator, perhaps I might on that refer to the conclusions of the first conference in 1968 where, after agreeing to set up the committees and the structure to go at the process of amendment and so on, there is the following paragraph:

That, without limiting the above terms of reference, and taking into account the agreements as to principle and action reached at this conference, the following questions be examined by the Constitutional Conference and the continuing committee of officials:

(a) Official languages;
(b) Fundamental rights;
(c) Distribution of powers;
(d) Reform of institutions linked with federalism, including the Senate and the Supreme Court of Canada;
(e) Regional disparities;

[Page 25]

(f) Amending procedure and provisional arrangements.

That is transitional arrangements to a new constitution,

(g) Mechanisms of federal-provincial relations.

That was the first list that was given and then in the conference of February 1969, the conference decided that a priority should be given to distribution of powers at that time with particular emphasis on those aspects of the distribution of powers that related to taxing, financing, spending and that kind of thing.

Senator Flynn: So there was a general consensus that this was the area which should be dealt with on a priority basis.

Mr. Robertson: That is right but with the general agreement that it should be a general review.

Senator Flynn: In other words, it seems that there could be general agreement on many of the other topics which were raised at the first conference but that the root of the problem lies in the distribution of powers, including taxation powers. Would that be a fair conclusion?

Mr. Robertson: I think there is a good deal more than that, Senator. As Mr. McQuaid reflected, there is a substantial difference of view with regard to fundamental rights and whether they should be entrenched in the constitution.

Senator Flynn: I agree that there are differences of views but I wanted to know what were the more important problems in the view of the provincial and federal governments. I know that there are differences of view as to the inclusion of the fundamental rights in the constitution because there are differences of view as to how these rights should be defined. I know that. Although, on the whole, I think as a matter of principle, there is unanimous approval of having fundamental rights defined. But would you say that the main problem of constitutional review is the question of distribution of powers?

Mr. Robertson: I think certainly it will turn out to be the case. But by far the most difficult problem will be not the totality of the distribution of powers but particular aspects of the distribution of powers.

[Page 26]

Senator Flynn: Up until now the problems or the difficulties between the two levels of government have centred on this matter of distribution of powers or grey areas where we did not know who should have the initiative or who should have the right to proceed.

Mr. Robertson: Yes.

Mr. McQuaid: Mr. Chairman, may I ask a supplementary question. Is it not a fact that in the view of the federal government the distribution of powers takes a secondary place to the incorporation of a charter of human rights? Is that not what it says in “Federalism for the Future”? As I read it, I understood the government to say that the very prime concern was the incorporation of a charter of human rights into the constitution. After that could come the question of the distribution of powers.

Mr. Robertson: I should make the point, Mr. Chairman, in reply to Mr. McQuaid’s question that this expression of view was not an attempt by the federal government to assess relative importances. It was an attempt rather to set forth a view as to what would be the best approach to a planned, orderly and total review.

Mr. McQuaid: I see.

Mr. Robertson: And the best way to start was with individual rights.

Senator Flynn: A problem of timing, if you want.

Mr. Robertson: That is right, in a sense. And the problem of sequence in an intellectual sense rather than a sequence in terms of importance.

The Chairman: Mr. Allmand.

Mr. Allmand: Mr. Robertson, although this booklet deals with the process of constitutional review and proposed procedure for constitutional review, and you discuss several ways of proceeding with the review and the process, no mention is made of the amending formula. In the booklet it is suggested that there is agreement to start with the charter of human rights, the charter of rights, and then you go on to different aspects of the division of powers and so on. I notice that at page 8 of your booklet you say that the provinces agree with the federal government that this

[Page 27]

should be the method of proceeding, that you should start with the charter of rights and that you should go on to these other things. In the interim period, has there been some second thought on this, and are there now suggestions that maybe we should try to get agreement on an amending formula again? I say this in particular because you yourself in your remarks stated that the review is taking much longer and is much more complex than you had originally thought or that the government had originally thought. So have second thoughts been given to this proposal of procedure of review to try to find some agreement on an amending formula?

Mr. Robertson: Basically, the answer to that, Mr. Allmand, would be no. There has been a good deal of discussion in several committees on the sequence and approach. As you can well imagine, at the outset part of the problem was to know how to tackle this animal because nobody had ever done it before and the constitution is the kind of interrelated thing where one can make an argument for beginning at almost any point.

With regard to the amending process I think one has to distinguish two things. One is the question of the process of amending the BNA Act and the process perhaps of establishing a new constitution which might be related to something there. The second question, which is a quite different question, is how you would amend a new constitution when a new constitution is established.

With regard to the second point, the question of amendment, I think all are agreed it really is fruitless to try to think of a procedure for amending a new constitution until one has a fairly clear idea of what that new constitution is. it really is not profitable and this really would be the wrong and illogical way in which to begin.

With regard to the question of amending the BNA Act, assuming the process is successful and one does arrive with a new constitution, at some point there is going to have to be some kind of transitional measure, some way in which the new thing is established. A certain amount of thinking has been done on that certainly at the federal level and also I am sure at other governmental levels. In general I do not think there is any serious disagreement: the best way still is to try to tackle the substance of the constitution and arrive finally at the question of amending procedures.

[Page 28]

Mr. Allmand: There is an interesting sentence related to this in this book at page 46; it is the last sentence in the second-last paragraph which reads:

As for the Government of Canada, we propose to submit to Parliament for consideration and approval all changes in the constitution to which we agree.

Does this mean the individual items would he put to Parliament as soon as agreement were reached or were you to wait until you had a complete package and then put it to Parliament. I only saw that sentence when I reread the booklet in preparation for this meeting but one gets the impression that at that time Mr. Pearson might have thought of submitting individual pieces of the Constitution for approval by Parliament.

Mr. Robertson: To be perfectly honest, Mr. Allmand, it was not really known how it would be done. It was simply a matter of the government’s feeling that definitely whatever it was that was arrived at would have to go to Parliament for consideration. What the method would be, whether it would, as you say, be in parts for debate or whether it would be a total document at some point in time, I think I would be correct in saying the government did not have any certain view in that direction at the time this statement of policy was made. I think it would still be a bit difficult to know.

There have been discussions at various times as to whether it is possible in a sense to lock up sections or good chuncks of the constitution. it is too early still to know whether this would be the best way of doing it. It would be correct to say the whole process is still at the stage of analysing issues, clarifying the points of view. In some areas there has been a fair amount of determination of position, for instance, on the spending power. This will be arrived at later, but on that and on the taxing power there has been quite a substantial degree of agreement. Even so, I think it would be premature to try to be specific as to how it could best be put to Parliament and at what stage.

Mr. Allmand: Thank you.

Senator Flynn: If the changes were urgent you could proceed by the same formula that has been used until now to change the Constitution, but it would only be on a temporary basis.

The Joint Chairman (Senator Lamontagne): Mr. Lachance.

[Page 29]

Mr. Lachance: Mr. Chairman, as I was unable to attend the last meeting because I attended a conference last week, please let me know whether any questions I ask have been dealt with.

Mr. Robertson, are you a member of this permanent secretariat of the Constitution Committee?

Mr. Robertson: The Continuing Committee?

Mr. Lachance: Yes.

Mr. Robertson: Yes.

Mr. Lachance: In your capacity as Clerk of the Privy Council?

Mr. Robertson: Yes.

Mr. Lachance: Did you say there have already been about 10 meetings of this Committee?

Mr. Robertson: So far there have been 10 meetings. The first meeting was held in May 1968.

Mr. Lachance: Are these meetings held regularly or whenever necessary?

Mr. Robertson: There is no regularity in the sense that it is every two months or anything like that. There were live meetings in 1968; four in 1969; there has been one so far this year. It really depends on the material that has to be considered or worked through for a meeting of the Conference, the Prime Minister and Premiers. It depends on the number of meetings required to really work things up to the point where we think we have done all we can do to prepare things for the Conference.

Mr. Lachance: Is there any problem about having any meetings of this Committee?

Mr. Robertson: No; I am not quite sure what you mean, Mr. Lachance. Do you mean about getting the provinces to come?

Mr. Lachance: Yes, that is right.

Mr. Robertson: No; no difficulty whatever.

Mr. Lachance: Are these meetings attended by officials of the federal government and provincial governments?

Mr. Robertson: That is correct, yes.

[Page 30]

Mr. Lachance: When is the next meeting?

Mr. Robertson: The next meeting is next Monday, June 15.

Mr. Lachance: And this is in preparation of the general meeting of the Conference?

Mr. Robertson: That is correct. Perhaps I might explain, Mr. Lachance, at the last meeting of the Conference in December consideration was given to spending power, taxing power, social security, reduction of regional disparities; there may be one or two other questions. ln any event, in each case the Conference referred certain things to the Contituing Committee: for instance, in connection with the spending power there were two questions they wanted looked into further and report on; in connection with the taxing power, the questions relating to death duties, succession duties and sales taxes; in connection with regional disparity there was one particular point they wanted examined; in connection with social security there was one question on insurance schemes on which they wanted a report. We had perhaps eight questions specifically referred to us.

We met in January and worked through a fair amount of that. We will meet three days next week, If we need a further meeting we will have it in July and be ready for September.

Mr. Lachance: Will these matters be considered at the next Conference?

Mr. Robertson: Yes.

Mr. Lachance: I do not know whether you will want to answer this question; are there any difficulties and problems arising from study of these different matters from any particular provincial officials?

Mr. Robertson: There are differences of view certainly, Mr. Lachance. On almost every question we find differences of view and this is why so many meetings are required and the Continuing Committee can only go up to a certain point. It is not a negotiating committee; it is a Committee simply for elucidating views, being sure each level of government fully understands what we are disagreeing about, what the possible options are in arriving at agreement. Then

[Page 31]

it goes to the Constitutional Conference to see what they can do with it.

Mr. Lachance: And those meetings are held in camera?

Mr. Robertson: Yes, sir.

The Joint Chairman (Senator Lamontagne): Mr. Asselin?

Mr. Asselin: I would like to follow the question put a little while ago by mister Allmand. in this book “Federalism for the future“, there is no mention of a new study being made by the committee of officials on the repatriation of the Constitution. An attempt to do so was already made through the Fulton-Favreau formula, but this attempt was unsuccessful.

In this working document you introduce several possible means of amending the Constitution. I am under the impression that we are putting the carriage before the horse. Has your committee made a new study on the possibility of repatriation of the Canadian Constitution, a study which would permit us to work on a truly Canadian document?

Everywhere in Canada and particularly in Quebec, there are complaints to the effect that the working document is a foreign document which may not be modified without the permission of the British authority. Since the study of the Fulton-Favreau formula, has your committee undertaken special studies with the view of finding another formula of repatriation which may serve the ends of the members of this committee?

Mr. Robertson: In a sense, Mr. Asselin. In part I tried to deal with this in reply to a question from Mr. Allmand.

Mr. Asselin: I want precision.

Mr. Robertson: I think on the question of whether consideration has been given in a sense of sort of moving the document over here and then working on it, although this has been recognized as being a possibility, I think it would be correct to say that it has not been thought to be a particularly fruitful possibility. It would seem to the government to be better to assume that the BNA Act should remain as is in order that the Canadian federation can function, because it can, until one can work out something else.

[Page 32]

At a point of time one might take a different decision but up to now certainly there has been no feeling that it fruitful course would be, in a sense, to move the document over first and find out how to replace it or how to amend it afterwards.

On your specific question about the Fulton-Favreau Formula there has not been any consideration of that Formula nor any consideration of a different formula for amendment because as I said in reply to the earlier questions it seemed in terms of logic and useful application of time that it would be better to try to arrive at an agreement on some substance and then try to figure out how to change it.

Mr. Asselin: Thank you.

The Joint Chairman (Senator Lamontagne): Senator Grosart?

Senator Grosart: On the question of distribution of powers which you mentioned, Mr. Robertson, tell us if in any of these conferences with which we are dealing the federal government has made any proposals in respect to the distribution of powers in the Yukon and the Northwest Territories?

Mr. Robertson: Not specifically in relation to the Yukon and the Northwest Territories, no, Senator.

Senator Grosart: Would you say that the matter of self-government and the march towards self-government in those Territories is a matter for consideration in respect to the Constitution?

Mr. Robertson: Certainly not as the Constitution now stands. As the BNA Act now stands adjustment can be made as it has been made from time to time in the provisions for government in the Yukon and the Northwest Territories simply by legislation, by an act of Parliament. This would apply to almost anything in the British North America Act. Yes, this would apply to almost anything.

Senator Grosart: I am asking has this whole area of self-government which affects a considerable number of Canadians been completely left out?

Mr. Robertson: It has not been discussed at all up to this point.

[Page 33]

Senator Grosart: There is no federal government proposal and it has not been discussed?

Mr. Robertson: Not up to this point.

Senator Grosart: Is it discussible?

Mr. Robertson: Oh, certainly.

Senator Grosart: By this Committee?

Mr. Robertson: Probably.

The Joint Chairman (Senator Lamontagne): Mr. Dinsdale.

Mr. Dinsdale: Mr. Chairman, I was interested in Mr. Robertson’s statement which, if I may paraphrase it indicates that Canada is attempting to do in this fundamental change in the constitution what no other country has done short of cataclysmic events, events such as revolutions. Is that entirely an accurate statement and on what is it based?

Mr. Robertson: I do not know, Mr. Dinsdale, if there are exceptions to it. I am not aware of any exceptions. I do not profess to have made total research to see if I am right but certainly in most cases it has been a matter of initiating confederation or of re-examining an answer something like the division of Germany following the War, the independence of India, the separation of Pakistan, various things of that kind which are the cataclysmic events I was referring to. I could be wrong but I do not know of any case where a federation has tried to do what we are trying to do.

Mr. Dinsdale: All right. I was wondering about the Fifth Republic of de Gaulle?

Mr. Robertson: Now, if you are referring to federations, whatever the Government of France is, it is not a federation.

Mr. Dinsdale: Oh, I see. You were restricting this to confederation?

Senator Grosart: In principle it might be an exception although in most cases there was at least civil insurrection if not civil war before there were

[Page 34]

changes (in the constitution. I will not bring up the subject of federalism in Ireland.

Mr. Dinsdale: Having embarked on this very difficult task, does this mean that Canada is setting aside its traditional approach to what we hope would be amendments to the constitution; that is, by precedent and by practice, and by slow accretions rather than a fundamental change that has only been possible through cataclysmic events. Could it not be although we have no cataclysmic events in Canada the fact that we are adopting these actics, these rather harsh and severe tactics, might have cataclysmic results? I am speaking as a Westerner now.

Mr. Robertson: I think, Mr. Chairman, the answer to Mr. Dinsdale’s question in a sense is yes, that we have, the government has decided or advanced the view with which the others have in general agreed that at this particular point in time and in the history of the Canadian confederation something more is required or seems to be required than the normal process of adaptation and development by precedent and judicial review and judicial decisions. In that sense one can say there is a departure from what is a hundred years of practice, although we have of course in that time had specific amendments but we have never had a general amendment. In that sense, yes, it would indeed be a departure.

Mr. Dinsdale: Mr. Robertson also used the phrase that the deliberations of this Committee might be able to judge the hopes and aspirations of the people in this regard, Politicians are usually close to the hopes and aspirations of the people and I must say that I do not find that their hopes and aspirations emphasize as a priority fundamental changes to constitutions that usually are related to cataclysmic events.

The Joint Chairman (Senator Lamontagne): I suppose this is more a comment than a question.

Mr. Dinsdale: I do not know whether Mr. Robertson would like to comment on it or not, but maybe I could phrase the question this way. There has been some resistance in the Western provinces which Mr. Robertson has indicated is now dissipating and his reading is quite different from my reading and I would like to know what he bases his conclusions on.

[Page 35]

Mr. Brewin: I can assure him that his own province has quite a different approach.

The Joint Chairman (Senator Lamontagne): I think Mr. Robertson was referring to the attitude of governments in that area, not to people necessarily.

Mr. Dinsdale: Governments usually reflect the attitudes of the people in the long run I hope.

The Joint Chairman (Senator Lamontagne): We have seen governments come and go.

Mr. Dinsdale: I do not know whether Mr. Robertson would like to comment on that?

Mr. Robertson: All I can say, Mr. Chairman, is that the View that Mr. Dinsdale refers to has certainly seen reflection in the kind of difference I was trying to mention at the outset, and when I referred to an amelioration in some of the attitudes I was, as the Chairman says, judging it from the attitude that has been reflected in the Continuing Committee’s discussions. Certainly in relation to Manitoba there has been a change as far as the government’s position is concerned. There is no doubt about that.

Mr. Dinsdale: This is discussion among officials.

Mr. Robertson: More than among officials.

Mr. Dinsdale: Are politicians on this Committee?

Mr. Robertson: Yes. At the conference as well, last December.

Mr. Dinsdale: The politicians are on the Continuing Committee?

Mr. Robertson: No, no. I said at the conference last December there was also a difference of view by Manitoba from what had been previously reflected. The Prime Ministerial conference.

Mr. Dinsdale: Maybe as this Continuing Committee proceeds in its deliberations, we will be in touch with the hopes and aspirations of the people.

The Joint Chairman (Senator Lamontagne): Mr. Alexander.

[Page 36]

Mr. Alexander: Thank you, Mr. Chairman.

Many of the questions I had have been asked and answers have been given, but I just want to state first how much I appreciate the attendance of Mr. Robertson. You have certainly laid the ground work, I would respectfully submit, very adequately, for my benefit anyway. There are a couple of things, though, that I would like to pursue. I am reading from the Spectator, which is my home paper, of Tuesday, January 27, 1970. I would think this was during the time that we were discussing the setting up of this Continuing Committee. I would like to just throw this question at you. I am reading from the paper and it says:

The Prime Minister, in his defence, raised the question of the “paradox” of the provincial governments pushing the country into this constitutional review two years ago, and now backing away from it.

This paradox had to be resolved, he argued, before the consensus could be obtained on constitutional reform.

That was on January 27, 1970. Have you any comments to make on that statement which may have been paraphrased but, in this event, the gist of the problem which the Prime Minister had found is there. Has there been any consensus now on constitutional reform, more so than what there was at that time?

Mr. Robertson: More so than what there was in January?

Mr. Alexander: Right.

Mr. Robertson: There has not been any meeting of the constitutional conference since January.

Mr. Alexander: I understand.

Mr. Robertson: The last meeting was in December 1969.

Mr. Alexander: Yes.

Mr. Robertson: So that I do not think that one could say that there has been a change since that January statement. No.

Mr. Alexander: We are still in the same position then?

Mr. Robertson: Yes.

[Page 37]

Mr. Alexander: This is only on the assumption that his statement was correct at that time which, of course, I do not know. That is why I am seeking this information.

Mr. Robertson: Perhaps I might refer to what I guess was the last definitive statement by the Conference itself on the broad question of constitutional review, which was in February 1969. At that time, the conclusion said:

The Constitutional Conference reaffirms its intent to complete a comprehensive review of the Constitution of Canada, to assess its adequacy for present and future requirements, and to determine the extent to which constitutional change is desirable either through amendment of the existing Constitution or through promulgation of an entirely new Constitution.

That was, I think, the last formal statement of the view of the Conference as a whole. What the Prime Minister may particularly have had in mind was that there has been a very great disparity in the attitude, as l reflected at the outset, by different provinces toward the extent of need that really exists and the urgency of it. The extent to which one has to go in constitutional change. I think that this is really the point he had in mind.

Mr. Alexander: Right.

I will just ask another question, if you do not mind.

I notice that you have indicated that the federalism of the future does two things, Firstly, it sets up the federal government’s position on constitutional review and, secondly, it sets out broad terms of what it thinks is vital to federalism and what should be preserved. Have those two positions and the implications that follow from them been accepted by the provinces?

Mr. Robertson: As to the first, the proposition that there ought to be a thorough-going and total review has been accepted and is reflected in that conclusion of February 1969 to which I referred. That was a comprehensive review of the constitution which they reaffirmed at that time.

So far as the views of the federal government with regard to the essentials for the structure and relationships are concerned, there are certainly differences of view. The Government of Quebec, for example, submitted a series of propositions in the autumn of 1968, or in 1969, and the powers that are postulated there for the federal government are substantially different from the powers that are

[Page 38]

postulated by the federal government, and this is the range in which there will have to be important discussions in trying to arrive at agreement. So it would not be correct for me to say, I do not think, Mr. Alexander, that there has been any subscription to the federal statement of postulates, but I would not want you to think that there has been total difference from it either. In some areas, yes; in some areas, no.

Mr. Alexander: Thank you very much, Mr. Robertson. I guess we will move to pursue those differences, later on.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Mr. MacGuigan, my co-Chairman, and then Senator Yuzyk.

The Joint Chairman (Mr. MacGuigan): Mr. Chairman, the first question I had, Mr. Robertson has already answered, but I would like to come back at it again from a different viewpoint and that is with regard to the priorities of the government in approaching constitutional review.

I think, in answer to Mr. Allmand, Mr. Robertson made the point that the steps which are proposed in this document are purely a sequence for study, for approach, but in looking at what the document itself says about the first of these, I wonder if we can just leave the matter at that. On page 18, for example, of the document, it is said that:

The first goal of the Canadian federation, in the opinion of the Government of Canada, is the protection of the rights of the individual.

It seems to me when you say that this is the first goal of the Canadian federation that this is more than saying it is just the first step in the process of review, and perhaps at least with regard to this one of the steps, the government is here asserting something more than just a priority as to the order in which it should be approached.

I wonder if, looking at the document that way, Mr. Robertson would care to say whether or not there is, in a sense, a more intrinsic order that is being thought of in these steps rather than just the sequence of approach. This may be important, for example, because it might reflect on the kind of bargaining position which the federal government might take. It

[Page 39]

might be prepared to bargain more things which are further down the scale, for instance.

Mr. Robertson: That is a somewhat difficult question to answer, Mr. Chairman. Certainly, the federal government does consider that there are things which are the fundamental objectives of Confederation. In the propositions that the federal government has submitted to the Conference and to the Committee thus far, about four objectives have been set forth as being the fundamental things that the Coir federation is designed to achieve in the view of the federal government.

One of these is this question of the rights or the protection of the rights of the individual. Now, having said that, this does not necessarily mean that one has to get agreement on the objectives before one can move on to other parts of it. This is really what I meant in the sense that while this was thought to be an intellectual approach, that was sound and right in considering it, it was neither an assessment of importance in all cases. Nor is it an ineluctable path that one can go ahead and look at distribution of powers if there seems to be a priority reason for doing that. The Conference decided in 1969 that there was a priority reason for doing it.

But in the structure of things we have put forward, or the governments have put forward, things have been classified rather as objectives of Confederation then moving on to protection of the rights of the individual, then structures of government, distribution of powers. They have been classified in a sense that way. There has been difference of view as to what priority ought to be followed.

While the federal government started out with this intellectual structure, if you want to call it that, certainly some of the provinces in February 1969, took the view very strongly that it was more important to get to what they call some of the bread and butter questions, and leave seine of these intellectual things that seemed right intellectually to them first for later consideration. But on the question of relative importance and so forth, I do not think one can deal with it in general terms, one would have to look at the specifics.

Senator Grosart: I think therefore it is just priority for discussion.

Mr. Robertson: Yes they are priorities for discussion.

Senator Grosart: For the order of discussion.

[Page 40]

Mr. Robertson: Yes, but they have already been varied Senator. They have already been varied by the decision in February 1969, as I think I mentioned. Priority should be given to questions that dealt with taxation, spending, social security.

Senator Grosart: Now obviously because you can hardly discuss or reach any conclusions on individual rights until you have reached some conclusions on the distribution of powers.

Mr. McQuaid: But this document, Mr. Chairman says . . .

The Joint Chairman (Senator Lamontagne): I am sorry, if we have to respect the order of. . .

The Joint-Chairman (Mr. MacGuigan): As long as this does not come off my time I am quite agreeable.

Mr. McQuaid: A supplementary to what Mr. MacGuigan said. It concerns me a bit, Mr. Robertson, because this document says on page 8 that:

In agreeing to place this item first on our agenda the federal and provincial governments have in no way overlooked the critical importance of determining which of the functions of government . . .

and so on. Is it true that the federal and provincial governments have agreed to place this item of the charter of human rights first?

Mr. Robertson: What was done in February 1968, as I mentioned Mr. McQuaid, was to list seven subject areas. Official languages and fundamental rights were the two first that were listed. Subsequently, four committees of ministers were set up, one of which was on fundamental rights. So that it is correct to say that the provinces have accepted a priority study of fundamental rights as being a priority item and this is underway. However, it is also correct to say that there are very important differences of view concerning the question of fundamental rights?

Mr. McQuaid: Then it is not correct to say that the provinces have agreed to place this item first on the agenda?

Mr. Robertson: They have agreed to study it as one of the priority items and that study is underway by a special ministerial committee.

[Page 41]

The Joint Chairman (Mr. MacGuigan): Leaving the documents for a moment and con1ing to what has been happening at the Conference and at the continuing committee, would it be fair to say that it now appears that it will be necessary to await the presentation of all of the federal papers, the proceedings, step by step through the whole of the constitutional urea, before we are likely to have agreement on any part of the total solution? In other words, is it realistic even to think of a part by part solution? This was an open option when this document was drafted. Does it now seem that this is no longer an option?

Mr. Robertson: Again, this is a difficult question to answer Mr. MacGuigan. Certainly, there have been expressions of concern because of the time that it is taking to work through a total consideration of the distribution of powers, let alone the total constitution. I can say that in both the Conference and the various committees there have been repeated considerations given to ways and means by which the process might be speeded up, whether by trying to arrive at agreement on sections, or by doing something else that would accelerate the process.

One always comes to the difficulty that the constitution is intimately inter-related. When one gets into a lot of the areas of the distribution of powers, one also comes to the problem that it is very difficult to paint with a broad brush and not get into details of operation.

For instance, on the spending power, I think we did achieve some agreement. One of the reasons that agreement was achieved was because an important area of distinction was made between spending power in terms of payments to individuals; to institutions; conditional grants to provinces; and, unconditional grants to provinces. I find it very hard to say whether it would be possible to find a thesis one can agree on or whether this experience is useful or not. We have tried and I know that this is partially an answer.

We have looked back to what happened at the time the American Constitution was worked out and at the time the BNA Act was worked out. In each case, they worked through the totality of the constitution three or four times changing and adjusting as they went. They finally ended up with a whole on which they were able to agree, but in neither case did they come out with little pieces.

The Joint Chairman (Mr. MacGuigan): Would it be fair to say that the whole of this constitutional review

[Page 42]

rests on the presentation of the federal papers? In other words, is the initiative entirely in the federal hands?

Mr. Robertson: No, that would not be correct, Mr. MacGuigan. Certainly the federal government has, I think, produced more elaborate, some might say overly elaborate presentations of position and agruments for position. The Government of Quebec has produced a very comprehensive set of propositions and the Province of Nova Scotia took a very important initiative in raising the question of the reduction of regional disparities as being an objective of Confederation. This has engaged a lot of attention in the Conference and committees. Certainly Ontario as well has brought forward propositions that have been the source of discussion so that the initiative has not been purely federal.

The Joint Chairman (Mr. MacGuigan): I presume though that from the federal viewpoint, there would be no disposition to make any kind of tentative agreement on a matter on which the federal position paper had not yet been prepared?

Mr. Robertson: I think that is correct.

The Joint Chairman (Mr. MacGuigan): Could you give us any indication of the pace of future papers? I would assume from the papers that you have been presented that you are not intending to present one on each of the 30-odd subsections of Section 91 of the British North America Act. Presumably there are a number of further papers to be presented. Could you give us an indication of the schedule or timetable if you have any for these papers?

Mr. Robertson: We have a schedule that we hope we can work to. You are quite correct, Mr. MacGuigan. It is not intended to produce a paper on each and every item. There would be no need for a paper on national defence, for instance.

The Joint Chairman (Mr. MacGuigan): At least not from a constitutional viewpoint.

Mr. Robertson: Maybe from another viewpoint. We have a series of studies underway into some of the areas that we think require particular examination because of the way the action of government has changed and the responsibilities of government have changed.

[Page 43]

For instance, just to mention one, the whole question of environmental management, which is the term we have used, raises the question of pollution and so forth, and was something totally unknown to the Constitution in 1867, but obviously it is something terribly important for the future. So, we have studies into this question, the first thing being to try to find out what are the elements of the problem and then to try and assess how a constitution ought to try to deal with this new problem, but no constitution — certainly no old constitution — has attempted to deal with it and there is difficulty in dealing with it under the BNA Act as it now stands. So we will have some papers on that. Just what will emerge from that, I do not know. We will first have to see the results of some of these studies, then try to get a distillation of a position that we think can be put forward as a federal position.

We also have work underway in connection with economic growth, for example, the question of capital markets or a variety of other things on the economic side, transportation. . .

The Joint Chairman (Senator Lamontagne): Wage and price control.

Mr. Robertson: Mr. Galbraith and others have answered that. However, we certainly will have several further papers, Mr. Chairman, and we hope to have one or two by September for the next Constitutional Conference and, I would hope, a few more by the end of the year. We have to have a certain amount of humility about our schedule, because we do not always know exactly what the problems are until we get into them.

Senator Yuzyk: Canada has embarked on a very bold experiment which, i hope, we will be able to solve in our own way. Certainly I think as far as the world is concerned, there are other countries that could be very interested in constitutional review.

My question is regarding the Continuing Committee of Officials. I understand it is keeping in mind the total review of our Constitution and, as such, it must be studying other constitutions, particularly of federal states. Is the Continuing Committee making studies of other constitutions that are similar, say, to the situation in Canada, keeping in mind, the strengths, the weaknesses and the shortcomings of those constitutions?

The Joint Chairman (Senator Lamontagne): You obviously do not mean the Soviet Union one?

[Page 44]

Senator Yuzyk: That is a federal one, a highly centralized federal one.

Mr. Robertson: Perhaps as a preparatory comment, Senator, there is a point I ought to make about the work of the Continuing Committee of Officials. The Continuing Committee does not itself, through its staff, undertake studies of its own. The studies have been done by the different governments and then are fed in as each government wishes to the Continuing Committee for discussion. So there has not been by the Committee staff or by the Committee itself a comprehensive examination of different constitutions.

Certainly the federal government has looked at most federal constitutions to see how other federations have dealt with particular questions. I know the Quebec government has, I think Ontario has and probably nearly all of them have, and at various times we have seen the result of this in proposals that have been brought out in the Continuing Committee and in the Constitutional Conference.

I referred a moment ago to the initiative by Nova Scotia in connection with regional disparities. They proposed there should be not only a statement of objective in the Constitution to reduce regional disparities and there should be adequate powers by the federal government to reduce regional disparities, but there should be what they called a non-enforceable obligation, and they borrowed this from the Indian Constitution. This was something that is written into that federal constitution. So, we constantly find things coming up that have been borrowed from the experience of other constitutions.

The Joint Chairman (Senator Lamontagne): I remember Premier Johnson suggesting that we should in certain respects follow the example set for us by the Soviet Union Constitution. So, I gather they have studied that, too, in Quebec.

Senator Yuzyk: What I am interested in is this, will the information and the studies—if you have made some of these studies or those that are already on hand—be available to us because we may want to refer to other constitutions regarding, say, certain distribution of powers, et cetera, to see just how it has been solved in other countries. Are we at that stage yet?

Mr. Robertson: In most cases, Senator, we have not—certainly in the federal team—worked up reports on each and every constitution. What we have done is have people examine them in relation to particular problems. I would think the way in which it con-

[Page 45]

ceivably might be best or simplest to have it come forth and most useful to the Committee, would be in relation to specific questions, where there may be a borrowing from or a reference to, the way in which a constitution has dealt with things, for instance, in connection with handling of external relations. We have looked at half a dozen constitutions in connection with the matter of concurrent powers. There is a difference in treatment between the German federation and others, and I think it is in this sort of specific way which it might be most useful to the Committee.

Senator Yuzyk: I understand that, but there is still the matter of the Constitution as such, the whole document. Certainly they have been discussing and analysing, say, the Constitution of the United States and many experts are aware of certain weaknesses, these twilight zones and so forth that they have been studying for years about which they do not seem to be able to do anything in the United States.

Now, this is what I have in mind. Will we be in a position, at least, to have certain expert ideas about constitutions as total documents?

The Joint Chairman (Senator Lamontagne): That will be up to us I am afraid, Senator Yuzyk, to see if we want to call witnesses on these popular subjects.

Senator Yuzyk: I wondered if the Continuing Committee of Officials was working on this problem.

Mr. Robertson: Not as a committee, Senator.

Mr. Brewin: Mr. Chairman, I want to ask Mr. Robertson something about the general process, not of his own committee of experts, but more of the Prime Minister’s conferences.

Are they—it seemed to me from observation to be something like this-examining all these different items put before them and then registering the degree of agreement and disagreement, and then just passing on, so that somewhere down the line you will got a situation where the whole Constitution will have been reviewed? You will get some idea where there is agreement and disagreement. Beyond that, will the stage arise where there will have to come a process of what might be called political bargaining—l use it in the best sense of the word—where people who have certain convictions will have to be ready to perhaps change them in order to get the highest measure of consensus possible, and be able—if it is at all possible—to present the Canadian people with a new

[Page 46]

Constitution or an amended Constitution which represents perhaps not everybody’s agreement, but a very large measure of agreement. Is that the process that you envisage?

Mr. Robertson: As a personal opinion, Mr. Brewin, I would concur with your expression of view as to what kind of process one can realistically contemplate.

I mentioned a while back that there had been a substantial degree of agreement reached on the spending power and the taxing power papers that have been put forward, but in each case there are two or three areas of disagreement that have not been resolved.

It is quite possible that those two questions—l would not want to be held to this—may have been considered as far as it is profitable to consider them at this point. It might be as well to leave them on the shelf for a time and move on to some other questions, with the likelihood that after a certain further period of time one will have got to the point where dealing subject by subject, one has achieved in a sense the maximum of agreement. Then there will have to be a total examination of the inter- relationship and the extent to which a certain amount of give can be possible here in order to have a certain amount of concession by someone else there. I do not think anyone really believes that any single government is going to get absolutely everything it wants.

Mr. Brewin: Do you think one of the functions of this Committee, then, might be to present, through Parliament and the different parties represented in Parliament, the degree of consensus from a federal point of view so that in this bargaining process—I call it a bargaining process without intending to say it is a bad or a wrong process—the Government of Canada would be able to speak with some degree of informed consensus, if we can achieve that, for Canada, for the federal aspects of this process.

Mr. Robertson: I certainly would not want to presume to express a view, Mr. Brewin, on what the Committee should or would decide to do in that connection. I am sure there would be views expressed here as to what is wise or desirable on these various points but how the Committee would wish to present its conclusions, I do not know. I do not know whether the Committee itself has views on this but I certainly would not venture to guess how it might be best to do it.

The Joint Chairman (Senator Lamontagne): I wonder if I could ask one question.

[Page 47]

l was interested in hearing you, in your opening statement, Mr. Robertson, say that you visualized this whole process as consisting first of a study of Canadian society in the future, insisting at that stage on social and economic analysis, reserving legal discussions, discussions of powers, and all that, for the last stage. A very interesting suggestion.

But I do not think that this has been the process which has been going on since our governments have been at this exercise. I have not seen any kind of projection of Canadian society for the future, yet. I have not seen what would be the main problems of that society and what could be the role of the various levels of governments in attacking these problems. On the contrary, it seems to me that this has been forgotten fairly quickly and that we have gone directly and very rapidly to legal concepts and to their distributional powers. This, I think, may not be a very good process for interesting the Canadian people very much.

Mr. Robertson: Mr. Chairman, I may not have been as clear as I had intended to be. The point I was really trying to make was that the initial stage had to be the substance of relations rather than the legal expression of provisions.

I find there is a tendency when I talk to many people about the constitutional review for them to think that what is involved is an examination of the legal clauses of the BNA Act, to consider how one should change this clause or that clause. The point I was trying to make was that, for a fundamental review of the Constitution, what one has to consider is structures, relationships, objectives and purposes, not legal clauses. Certainly in the consideration thus far there has been no examination—I think I would be correct in saying this—at all of legal clauses or legal expression of any constitutional . . .

The Joint Chairman (Senator Lamontagne): There are many ways to be legalistic, though.

Mr. Gibson: Yes. In trying to settle the taxing powers and the spending powers, have not the socio-logical goals of these premiers and the federal government been very thoroughly explored, in that sense?

Mr. Robertson: They have indeed and certainly the basic consideration that underlay the federal position in the spending power paper was that it would be fundamental, for the future, to have a federal spending power even in areas of exclusive provincial jurisdiction. Not that one could necessarily foresee every

[Page 48]

particular aspect in which it would he used but that, knowing that society moves and develops, there would be a requirement for this. So in that sense there has been an attempt to project requirements. Certainly in some of the studies undertaken, there has been an attempt to cast the mind ahead to see what kind of country we are thinking about X years hence.

The Joint Chairman (Mr. Lamontagne): Mr. Allmand?

Mr. Allmand: Just a brief comment.

Mr. Robertson, as you discussed the proposals you repeated that we had obtained a fairly wide margin of agreement with respect to the spending powers and the taxing powers and I note that those two subject matters were discussed at an in-camera conference. Could it be that, if we discussed more of the matters at in-camera conferences, we would get the same kind of agreements that we got on those subjects? Do you think that there is a real strong relationship between the type of conference and the agreement that we got?

Mr. Robertson: This is a kind of a slippery slope to embark on.

Mr. Allmand: It was the only conference, I believe, that was in-camera.

Mr. Robertson: That is correct.

Mr. Allmand: The third one so far.

Mr. Robertson: There is no question but that the discussion tends to be a different kind of discussion in a closed meeting with more flexibility of position, because public positions, publicly taken, have a tendency to become rigid, and difficult to depart from.

Just the same, having said that, I think that it was in part the nature of the subjects and the fact that the federal analysis had been fairly well done in both these two areas so that it was possible to pinpoint, with a fair degree of clarity, the alternatives, the positions and the possibilities.

Mr. Allmand: Considering the experience in the past, do you think there will be a tendency for future federal-provincial conferences to be a mix of the in-camera and the public, or that we will probably have more in-camera conferences?

[Page 49]

Mr. Robertson: I would not venture to express a view, Mr. Allmand, really; this will be for the Prime Minister and the premiers to decide. My purely personal view is that one would require both kinds.

Mr. Allmand: Am I right in remembering that the last one we had in December was . . .

Mr. Robertson: Public.

Mr. Allmand: Were there not some in-camera parts, too?

Mr. E. Gallant (Deputy Secretary to the Cabinet (Federal-Provincial Relations)): Very brief.

Mr. Allmand: Very brief?

Mr. Gallant: The one in February, which was a non-constitutional one, was in-camera.

Mr. Robertson: That may be the one you are thinking of, Mr. Allmand.

Mr. Allmand: Thank you.

The Joint Chairman (Senator Lamontagne): Mr. Lachance?

Mr. Lachance: My question is somewhat supplementary to what Mr. Allmand asked.

It appears to me and to a lot of people in the street that, at the present pace, it may take up to ten years to review and draft a new constitution. I am afraid that that is not what people in the street are expecting. I just wonder if someone is dragging his feet—whether it is the central government or the provincial government, I do not know.

I would like to have your comment and your suggestion, Mr. Robertson, as to whether there is any way in which the review and drafting of the new Constitution may be speeded up. I am not saying, however, that we should take the drastic action of locking all the premiers behind closed doors just like they elect popes.

The Joint Chairman (Senator Lamontagne): It was done in Rome first.

Mr. Lachance: It was done to elect popes, yes.

Mr. Robertson: They did very good work.

[Page 50]

Mr. Lachance: Yes, they did very good work.

But do you think that the conference should last for more than two or three days and that there should be more meetings?

The Joint Chairman (Senator Lamontagne): I believe, Mr. Lachance, that Mr. Robertson is really not in a position to express views on this. We should have asked those questions of Mr. Turner.

Mr. Lachance: If I may rephrase my question, Mr. Chairman. Can there be more frequent meetings?

Mr. Robertson: It becomes a question I think, Mr. Lachance, for the premiers as to whether they can find time, or are prepared to find time, for more frequent meetings.

There have been four meetings now in the space of two years plus one non-constitutional conference, and this is a fair number of meetings. I do agree that the process has been time consuming and I can say that a great deal of effort has been spent on trying to devise ways of keeping the process up. More meetings is the obvious way but there, there are obvious difficulties. Whether there is some other way of taxing it is a question that has been gone into without the finding of a good solution.

Basically, the feeling at the federal level is that the constitution of a country is a pretty important document and that, within limits, one ought to be prepared to spend time on it. Certainly the federal ministers have spent a great deal of time on the question. There has been no foot dragging there, I can definitely say that.

Mr. Lachance: It seems that the permanent committee of the conference is dealing only with matters referred to it by the premiers’ conference.

Mr. Robertson: Not entirely. The initial work of the Continuing Committee was to go through proposals that were made by virtually all governments. This was done preparatory to the Conference of the Prime Minister and the premiers, and that is why there were five meetings in 1968.

Since then, it has been, in part, matters referred from the Prime Minister and Premiers’ Conference and, in part, new submissions from governments. For

[Page 51]

instance, when the federal government had its submissions on taxing power, spending power and social security, those went first to the Continuing Committee to explain them, discuss them with provincial officials, and elucidate differences of view, and then it went to the Conference. It then bounced from the Conference back to the Continuing Committee. So it operates in a number of different sequences, on different substances.

Mr. Lachance: Does it appear that the federal government is moving fast enough?

The Joint Chairman (Senator Lamontagne): That has already been stated.

Before we adjourn I want to say that our next meeting will be on Thursday afternoon. By that time I hope you will have received some documents that Mr. Davis promised to send on provincial government proposals. I am told they are already in the mail.

On your behalf I wish to thank Mr. Robertson and his colleagues for coming here.

Queen’s Printer for Canada, Ottawa, 1970


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