Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 34 (8 January 1981)

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Date: 1981-01-08
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, 32nd Parl, 1st Sess, No 34 (8 January 1981).
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Issue No. 34

Thursday, January 8, 1981

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the

of Canada


The document entitlted “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980


(See back cover)

First Session of the
Thirty-second Parliament, 1980-1


Joint Chairmen:

Senator Harry Hays, P.C.

Serge Joyal, M.P.

Representing the Senate:



Representing the House of Commons:


Campbell (Miss) (South West Nova)

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons

On Thursday, January 8, 1981:

Mr. Tobin replaced Mr. Berger;
Mr. Allmand replaced Mr. Henderson;
Mr. Rose replaced Mr. Manly;
Mr. Friesen replaced Mr. Hawkes.

Pursuant to an order of the Senate adopted Novemebr 5, 1980:

Senator Leblanc replaced Senator Petten;
Senator Connolly replaced Senator Leblanc.


THURSDAY, JANUARY 8, 1981 (61)

The Special Joint Committee on the Constitution of Canada met this day at 9:46 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Hays, Lafond, Lapointe, Leblanc, Lucier, Roblin, Tremblay, Williams and Wood.

Representing the House of Commons: Messrs. Allmand, Beatty, Berger, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Hawkes, Henderson, Irwin, Joyal, Mackasey, McGrath, Nystrom, Rose and Tobin.

Other Member present: Mr. Friesen.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Paul Martin, Researcher.

Witness: Professor Gérard V. La Forest, University of Ottawa.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. I.)

Professor La Forest made a statement and answered questions.

At 1:08 o’clock p.m., the Committee adjourned to the call of the Chair.


The Special Joint Committee on the Constitution of Canada met this day at 2:18 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Connolly, Hays, Lafond, Lapointe, Lucier, Roblin, Tremblay, Williams and Wood.

Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Friesen, Hawkes, Irwin, Joyal, Mackasey, McGrath, Nystrom, Rose and Tobin.

Other Member present: Mr. Berger.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin, John McDonough and Louis Massicotte, Researchers.

Witnesses: Professor Maxwell Cohen, McGill University. From Canadians for Canada: Mr. Robert A. Willson, Chairman; Mr. Donald Skagen and Mr. John Crispo, Co-ordinator

[Page 4]

From Capmpaign Life—Canada: Mrs. Kathleen Toth, President; Mrs. Gwen Landolt, Legal Counsel and Dr. Michael Barry, Psychiatrist.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1)


Professor Cohen made a statement and answered questions.

The witnesses from Canadians for Canada made statements and answered questions.

Senator Hays assumed the Chair.

The witnesses from Campaign Life—Canada made statements and answered questions.

At 6:50 o’clock p.m., the Committee adjourned to the call of the Chair.



The Special Joint Committee on the Constitution of Canada met this day at 8:07 o’clock p.m., the Joint Chairman, Mr. Serge Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senator Hays, Lapointe, Lucier, Tremblay and Wood.

Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Campbell (Miss) (South West Nova), Messr. Corbin, Crombie, Epp, Friesen, Irwin, Mackasey, McGrath, Nystrom and Rose.

Other Members present: Messrs. Berger and Manly.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough Researchers.

Witness: Professor Peter Russell, University of Toronto.

The Committee resumed consideration of its Order of Reference from the Senate sated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)


Professor Peter Russell made a statement and answered questions

At 10:38 o’clock p.m., the Committee adjourned to the call of the Chair.

Joint Clerks of the Committee

Richard Prégant

Paul Bélisle

[page 5]


(Recorded by Electronic Apparatus)

Thursday, January 8, 1981


The Joint Chairman (Mr. Joyal): Order, please.

May I ask the honourable members of the committee to please take their places so that we might continue our work with our guest this morning?

On behalf of the honourable Senator Hays, the joint chairman of this committee, and of the honourable members of this committee, I am honoured, Dr. Gérard LaForest, to welcome you here and have you join in our work.

You doubtless know the procedure we follow in this committee and which is to invite our witness to present his views and express his opinion on the proposed resolution we have to consider and then invite the honourable members of this committee to put questions to him.

I would therefore like to ask you to make your preliminary statement, which witnesses usually make when we see them there, but before, I think that the honourable Jake Epp has a point of order for us.

Mr. Epp.


Mr. Epp: Thank you, Mr. Chairman. I also want to welcome Mr. LaForest before the Committee. Before Mr. LaForest starts I would ask for clarification on behalf of all members of the Committee as the manner in which he appears before the Committee.

As you know, every party had the right to nominate and while I have my views on that I will not raise those views again, but I would like to ask or have the questions clarified before we begin, when I take a look at the briefing notes in front of us, that Mr. LaForest has been a special counsel on the constitution to the Minister of Justice and the Prime Minister, and obviously the question then arises as to whether that relationship still exists in view of the fact that the Minister of Justice, that it is his proposed resolution before us, is Dr. LaForest coming as a representative of the Department of Justice or on a retainer from the Department of Justice or under contract from the Department of Justice. That is one question which I think needs to be clarified, and after we have had an answer on that I think the next question that should be clarified is whether that being the case, whether he had any part either in advising or writing or formulating the proposed resolution before us.

I think those questions should be answered before we actually begin so that we know the context in which we are working this morning. Could we have those questions clarified, Mr. Chairman, please.

The Joint Chairman (Mr. Joyal): Certainly. Thank you very much, Mr. Epp for your question.

[page 6]

Mr. Mackasey: Could I add to the list whether Dr. LaForest was a witness to one of the provinces at any time in the preparation of this. I would just like to know that. It all points to his competence in his field.

Mr. McGrath: No, no, no. We are talking about conflict of interest, Bryce, not being a witness. There is a big difference.

The Joint Chairman (Mr. Joyal): I have also the name of Mr. Hawkes on my list for a point of order and I will come back to you, Mr. Hawkes, later after those two preliminary questions will be asked for and I think the best answer that we might receive to those two questions should come from Mr. LaForest himself. I think that he is in a position to give all the information in relation to the questions as they were asked for by the honourable Jake Epp. Dr. LaForest.

Professor Gerard V. La Forest (Q.C. University of Ottawa): Yes. I was of course counsel, special advisor to the Minister of Justice. That was the Goldenberg Committee. I was a member of that Committee until I believe 1968 at which time I joined the Department of Justice and one of my duties was the constitution of course and I was very much involved in the Victoria Charter.

To my knowledge, after the Victoria Charter I do not think even though I stayed with the Department a year or so that I ever bothered very much with the constitution after that, and then my sole involvement with the constitution since that time on any official basis, apart from the bar and bodies like that was that I gave some assistance to the Nova Scotia Delegation this summer. So I really have had no contact with the government. I am not an employee with the Department of Justice. I am a professor of law at the University of Ottawa. I have a contract with the Department of Justice in relation to the legislation course given at the Department of Justice, which I am now carrying. In other words, that has nothing to do with this kind of thing and I am simply a professor doing a job at the University of Ottawa, but there is that liaison on the legislation section. I have had nothing to do with the drafting of this. I was as surprised as everybody when it came out.

The Joint Chairman (Mr. Joyal): Does that bring the information that you were seeking to get, Mr. Epp, to the questions that you put.

Mr. Epp: Thank you, Mr. Chairman. I take it that the contract that Dr. LaForest has with the Department of Justice, which 1 was aware of, is one on the legislative side, and while it is on the legislative side it is not on the drafting of legislation relating to the constitution.

Professor La Forest: No, it is the teaching of students.

Mr. Epp: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Professor LaForest. I see that the honourable Bryce Mackasey has some questions to put through on the same elements that were raised in the point of order as stated by Mr. Epp. Is that so, Mr. Mackasey?

[page 7]

Mr. Mackasey: I want to apologize for interrupting Mr. Epp. I want to make it very clear that it is important that our witnesses be impartial, Professor LaForest, and it is cleared immediately so that we understand your evidence in the proper sequence. One question I would like to know, have you at any time, and I should put it that way, been am advisor, shall we say, to any of the provinces whose position, for instance, publicly is known to be against the resolution.

Professor La Forest: The only province I represented this summer was Nova Scotia, in relation to their resources views.

Mr. Mackasey: Thank you very much. That is all I wanted to know.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey. Before I invite Mr. LaForest I would like to recognize Mr. Hawkes on a point of order.

Mr. Hawkes: Thank you, Mr. Chairman. The lateness of the hour was the reason—last night I was asked through the witness by Mr. Mackasey for some information. I think I provided the Committee inadvertently with some wrong information. My head was not working, sometimes it does not work at all…

Mr. Mackasey: I knew that it would be a special reason.

Mr. Hawkes: I would just like to correct some numbers. Mr. Mackasey was interested in the royality and taxation situation within the oil industry, and 1 mixed up two concepts and I would just like to correct the record.

1 think the situation today as it sits right now, the royality situation in the province of Alberta for oil would represent about 16 per cent of commodity value. The 8 per cent figure that I used last night is a guess as to what…

Mr. Mackasey: You were only half there at the time.

Mr. Hawkes: A guess as to what this situation might possibly be four years down the line, given the fact that the unilateral action of the federal government has frozen the price. I think I used the 8 per cent figure instead of the 16, and it was out of context. I might take this opportunity to ask for just a little bit of clarity from Mr. Mackasey in terms of some of his comments because it affects my thinking about the witnesses, but last night he indicated more tham once yesterday that it was his perception of the government position that this resolution would proceed unilaterally and would deal with the Charter and the amending formula only.

Is that a firm government position even in light of what we have heard to this point and should we restrict our questions to those three things, in his opinion.

The Joint Chairman (Mr. Joyal): I am not ready to recognize the honourable Bryce Mackasey on those questions, Mr. Hawkes. I have recognized you on a point of order to bring clarification to a statement that you made and you are fully welcome to make such a statement at the opening of our

[page 8]

debate or discussions; but I think to let you go on with those questions would open a new deoate and I am ready to receive that debate but further on in our schedule of work, later on this week or later on next week. You will understand very easily that if I allow those questions any other members would be invited at the opening of our sessions to come back to other points that have been discussed previously, and then it would open a completely new debate. You will understand, and I am quite sure that I have your co-operation to that.

Mr. Hawkes: I hope I can accept that ruling with the grace with which it was delivered. Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.


I would now like to invite Dr. Gérard LaForest to proceed with the usual statement.

Dr. LaForest.

Professor La Forest: Thank you, Mr. Chairman.

I thank you for having invited me here before you today. I am quite aware of the honour being thrust upon me and I trust that my remarks will be useful in helping you accomplish the very hard task you have before you.

For some time now you have heard many presentations concerning various aspects of the constitutional resolution you have before you.

I was involved in one of those myself, as the adviser to the Canadian Bar Association. Unless I am mistaken, what you want here is not a discussion of the details of the resolution, but rather you would like to know about the legality of the process for patriating the Constitution and, if we have time, you would like to hear about the advantages and disadvantages of entrenching a human rights charter in the Constitution.

In discussing these questions, I am quite aware that they touch very closely upon major political questions. It is, of course, up to you to decide upon those questions. My task is to try and clarify the legal aspects which, I grant you, are often long-term political questions. It is often very difficult to draw a clear line between the two, and the distinction is perhaps too tenuous at times, but I do hope that we will be able to draw such a line in certain particular contexts.

I might add that in the short time I had to prepare, I did not really have the time to get into all the little details, but I do hope that my remarks will be useful nonetheless.


I will speak first of patriation.

The procedures for patriation involve not only manners of law in the strict sense but as you know of constitutional conventions and usages. Indeed the legal aspects of the matter are rather sparse and that is really not surprising because as Sir Iver Jennings has put it, of constitutional conventions:

[page 9]

they provide the flesh which clothe the dry bones of the law.

I want to start today with the dry or bare bones of the law. The flesh and blood of the constitution and the spirit that animates it must be supplied by public men and by the people through the political process.

The law itself here is really quite simple. The British North America Act is a British statute. With the exceptions provided by the Act itself or by subsequent amendments, it can only be modified by another British statute if we are to stay within the four corners of the established legal order. This simple fact constitutes the last vestige of colonialism.

I am not putting it this way to evoke any emotionalism. Rather, my purpose is to give a completely clinical description of the situation. For this power of the Parliament of the United Kingdom to amend our constitution does not reside in any great constitutional document like the statute of Westminster, 1931 or the Colonial Laws Validity Act. It resides rather in the relationship existing at common law between the United Kingdom and the colonies. The statutes I have mentioned were merely intended to remove fetters on colonial legislatures or to restrict the power of the United Kingdom Parliament.

The legal power of the United Kingdom over its colonies including Canada can be simply put. It was supreme. I could enact any law it wished for any part of the Empire, from purely domestic matters like marriage and divorce to the most important constitutional document. And it did. That power remains today except as subsequently varied. It forms the basis for the request the draft joint resolution proposes to make to the United Kingdom Parliament.

We all know, of course, that the United Kingdom did not attempt to exercise centralized legislative power over all parts of the Empire. It granted self-governing powers to many of the colonies including Canada, and interfered only when matters were thought to affect Imperial interests. When powers of self-government were given, then the courts would interpret them in a broad and generous fashion—as being:

as plenary and as ample as the Imperial Parliament possessed and could bestow

There were necessary exceptions to this, namely, where a colonial act was inconsistent or repugnant to a British statute or where it conflicted with the doctrine of extraterritoriality. This was totally consistent with the British government. For when some Australian courts tended to give a restrictive interpretation of the powers of the colonies the Colonial Law Validity Act was passed to make it clear that only statues contrary to English law to British statutes applying to the colony, was what was restrained.

[page 10]

Now the bare bones of the law remained in this state for a very long time. That was the condition in 1867. It was to remain so for roughtly 60 years, until the Statute of Westminster, 1931. Meantime, as we all know, new flesh in the form of usages and conventions had developed and a new spirit animated the whole structure. The old Empire gave way to a new Commonwealth in which the great dominions had become virtually sovereign states. The time had come then to remove some of the desiccated bones of the law that could no longer serve a new political reality.

Now that was done by the Statute of Westminster, 1931. That statute removed most of the legal constraints to the legal supremacy of this Parliament and of the provincial legislatures within their respective spheres. The common law doctrine invalidating statutes for repugnancy to British statutes was abrogated. So was the Colonial Laws Validity Act which had sought to constrain that doctrine. For what had been designed to give validity to colonial laws would in the new climate have become a Colonial Laws Invalidity Act. So it was further declared that henceforth the laws of Parliament, this Parliament, would have extraterritorial effect.

Now if Canada had not been in the situation it was I have little doubt that the United Kingdom Parliament would have abandoned its power to amend the British North America Act. But, wonder of wonders, Canada did not have an amending formula so something had to be done about it. So it was provided that nothing in the act should be deemed to apply to the repeal, amendment or alteration of the British North America Act, and it was further underlined that the Act did not alter the division of powers between Canada and the provinces. The end result was that the power of the United Kindgon to amend the British North America Act continued.

In a more general provision however, the power of the United Kingdom Parliament had been constrained. Henceforth no British Act would apply to a dominion without its request and consent. That section is so important I think as to merit quotation. Let me read it to you.

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless

And it is an important unless.

It is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof.

Now while the Privy Council was to say that in an abstract legal theory even that section could be repealed by Parliament, it conceded that that statement had little to do with reality. In fact I think a strong argument can be made that the section altered the manner in which the United Kingdom Parliament must exercise its powers. In any event it is the law now, a law reinforced by a convention expressed in the preamble to the statute.

[page 11]

Now a number of points about this section require underlining. The request is that of the dominion, a word traditionally associated with the Parliament of Canada, and as a matter of convention it has been made by a joint resolution of this Parliament. More important perhaps, or as important certainly, the section does not expressely require a request and consent. It simply requires that the British statute must declare that that dominion has requested and consented to the enactment.

This has important implications for anyone contesting the validity of a British statute so passed. What it does, I think, is leave it to the discretion of the United Kingdom Parliament to decide whether a request and consent has been properly made. A court cannot look behind the Parliamentary declaration. I feel absolutely confident that no British court would hold a statute containing such a declaration invalid however the consent was given.

I see no reason why these considerations should not apply to a Canadian court as well. In any event, what would be the situation if Canadian courts decided that the act was not valid because it has not been properly presented to the British Parliament? The act would be valid in the United Kingdom; the United Kingdom Parliament would have effectively abdicated its power. We would be left in a judicially created limbo from which it would be hard if not impossible to extricate ourselves by legal means.

Now that brings me to the question now before the courts to the effect that a constitutional convention has developed and matured into a rule of law under which the provinces of a substantial number of them must consent to any constitutional amendment requiring action by the United Kingdom Parliament. This argument I think demands that we consider what conventions are and what their relation is to law.

Now I am not going to attempt to define law. It would take volumes to do so. But I think we can come up with a reasonably precise definition for our purposes. Generally we think of law I think as operated on the basis of rules that one is compelled to obey and that are usually enforceable or at least definable by a court of law. But rules of law give only minimum direction at times in a constitution. Within those rules institutions must be made to work. Often, of course, usages build up, and some of them become regarded as more or less binding. I have referred to the development, for example, of Dominion status through conventions and usages. The powers exercised by the Cabinet as you know are of a similar kind. Most of the powers Cabinet exercises are legally vested in the Queen or the Governor in Council.

Sometimes the law does give recognition to these conventions, for example in the provisions regarding salaries of the Prime Minister and Cabinet Ministers, so at times a clear

[page 12]

demarcation between the law and convention is not always easy. But by and large, the line can be drawn. Conventions are generally more flexible, more malleable in the face of particular situations. Even the basic convention that a government must resign if defeated on a vote of confidence is subject to great uncertainties in its specific applications. Its interpretation is left, as it should be, to politicians and not to courts.

It is often more difficult to distinguish between a mere usage or a practice and a convention. Is the “pairing” for example that is done in the House of Commons a usage or a convention? It may well be the latter, but it is certain that it is not a rule of law. If a member through accident or bad faith votes on third reading of a bill, it will become law though he is paired and his or her favourable vote creates a majority.

However vague the distinction may be in particular cases between a usage and a convention, and this is a far more difficult line to draw at times, there are I think a number of guidelines that are helpful to determine whether a practice has become a convention, rather than a mere usage. First, is there an invariable practice of following a particular course? Second, is there a belief in those following the practice that it is obligatory? And thirdly, are there valid underlying reasons why the act should be obligatory? A convention must conform to each of these requirements.

I am particularly relying here on Jennings, but if you read the other authorities they come up with rather the same sort of thing.

Now let us test the supposed convention that an address to the Queen to amend the British North America Act must be supported by the provinces. First, the precedents offer only limited support. A good number of amendments have been made without such consent, sometimes without consultation. It is true that there has been a strong tendency not to seek amendments altering the division of power between the two levels of government without such consent, but several amendments that affected the position of the provinces did not receive provincial consent. Even the very delicate question of the boundary between Quebec and Newfoundland was constitutionally defined without Quebec’s consent. Moreover, the manner in which the consent of the provinces was expressed denotes a vagueness that even in conventions are not common, and a fortiori certainly not common to rules of law. Sometimes the legislatures consent—and sometimes it is the Premier— and I get the feeling in a few cases that a Premier may have accepted something, but he was rather far from agreeing with it. Far more research would be needed in this area to see if indeed the practice is thought binding by all parties.

Secondly, was the provincial consent though to be necessary? There are some statements by federal spokesmen, very important federal spokesmen, that it would not be proper to obtain an amendment changing the allocation of legislative power between the two levels of government. Often these statements though are qualified by a remark that the practice is not strictly binding, and in any event there are statements the other way by federal spokesmen. Provincial Premiers have at times admitted that the federal government could act

[page 13]

unilaterally. And British government spokesmen have on numerous occasions made it clear that the federal government was the only spokesmen it would listen to in this matter.

Finally, is there an adequate reason for the supposed convention? It may be argued that the federal-provincial balance is critical to our political organization, and such a convention should exist to prevent the federal government from altering the federal-provincial balance of power. This possibility is admittedly unpalatable, but the alternative seems to me to be worse. Are we to leave the question of future constitutional development to the whim of a single premier in one of the smaller provinces? That would be the result I think of this supposed convention. I know though that Professor Lederman has argued that substantial compliance would be sufficient. That, however, does not conform to the cases cited to support the convention. In those cases there was unanimity. Apart from this, what is substantial compliance? And what provinces can one safely ignore? As one ponders these questions, one is struck by the extreme vagueness of this supposed convention unless one means unanimity, and that quite frankly seems to me to be unacceptable as I would think it was to Professor Lederman.

These questions are far more disturbing frankly, if on postulates that the convention has somehow evolved into a rule of law. One is left to wonder about the appropriateness of courts deciding this kind of question if the supposed convention were held to be a rule of law. It would in effect be asking the courts to devise an amendment formula or to exercise a supervisory role over Parliament. When Parliament determined there was substantial compliance, that would not be good enough, the court would sit in judgment of that determination. Politicians must take these decisions knowing that they must answer to the electorate that is deeply committed in this country to the principle of a federal system. Any change in the federal system we know is politically extremely difficult here. Courts have no such master.

In any event the precedents to support the emergence of a convention into a rule of law are meagre indeed. The courts frequently recognize the existence of convention, but that is a far cry from saying that a convention has become law. Chief Justice Duff in the Labour Conventions case appears to say something like this but apart from the fact that the judgment was reversed by the Privy Council, what he was talking about was the international sphere, where it is well known that the practice of nations may mature into rules of international law.

So that, if I might summarize pretty briefly at this point, I think that the United Kingdom clearly has the power to make this amendment. I am sceptical about the existence of a convention. I am rather confident court may decide differently of course, I am confident that it has not matured into a rule of law.

Let me take now another argument that has been made. An argument concerning the validity of the proposed United Kingdom Act has been raised by Professor Elmer Driedger. He says that Section 2(2) of the Statute of Westminster, 1931, may amount to an abdication by the United Kingdom of

[page 14]

legislative power over Canada. That Section provides that no law made by the Parliament of a dominion, or by virtue of Section 7(2) by provincial legislature, shall be void for repugnancy to the law of England or a British statute, and that the Parliament of Canada, or any province, may repeal or amend any British statute. That, of course, conflicts with Section 4, which I quoted earlier, to the effect that no act of the Parliament of the United Kingdom shall extend to a dominion without its request and consent. Professor Driedger goes on to say that Section 4 may apply notwithstanding Section 2. He adds, however, that it is conceivable note, only conceivable, that Section 4 was meant to apply only to cases where the United Kingdom has power to act outside the Statute of Westminster, such as for example, the union of Newfoundland with Canada.

I am willing to concede, though many contest it, the possibility of some measure of abdication by the United Kingdom Parliament that it cannot legislate for the dominions without their request and consent. That is the section that deals with the United Kingdom and the Statute of Westminster. That is the only limitation on that Parliament appearing in that statute. Section 2 was intended solely to remove fetters on the dominion Parliaments. Section 2(2) to which Professor Driedger refers was intended, as I mentioned earlier, to remove the common law restriction on colonial legislatures to restrict it to laws not repugnant to British statutes. If this section were to have the importance that Professor Driedger attributes to it, why would it be sandwiched as a subsection between two technical sections—one removing the application of the Colonial Laws Validity Act, one removing the fetter of extraterritoriality. If it has this importance, why was it not reinforced by a statement in the preamble to the statue, as Section 4 is? And if it were that important, would this not have been reflected in the statements of public men at the time, or by the courts when they dealt with the statute.

And what are we to make of Section 7(1) of the statute that says nothing in the act shall apply to the amendment of the British North America Act? I am aware that the precise expression used is “British North America Acts, 1867 to 1930”, but the draftsman was obviously concerned with omitting from the application of the act the constitutional statutes then existing. Subsequent amendments could be made or modified under Section 4. Canada and the provinces were given no additional powers to legislate beyond the removal of the fetters on legislative power by Section 2.

I think gentlemen, I could speak on the Bill of Rights but I would imagine by now you would prefer to ask questions


The Joint Chairman (Mr. Joyal): Thank you, Dr. LaForest.

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As agreed with parties sitting at this table, I would like to invite Mr. Eymard Corbin to open the discussion with our guest witness this morning.

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I am delighted to have the first opportunity to welcome Professor LaForest who comes from Grand Falls, New Brunswick, like me. Not only do I respect him because he is my elder, but I respect him because of his knowledge in legal and constitutional matters.

I want to start off by asking Professor LaForest what his definition of the name “Canada” in the preamble of the resolution and I quote:


Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth …

Whereas it has been argued, Mr. Chairman, that “Canada” means more than just the Parliament of Canada, we are on page 12 are you suggesting or do you go so far as to tell the Committee that in the case of a request to the British Parliament to amend the BNA Act the word “Canada” is equivalent to the Government and the Parliament of Canada, and this leads me to ask you consequently whether historically if amendments to the BNA Act have ever been made other than on the request of the Parliament of Canada and, in fact, would the British Parliament look behind such a request to determine whether there has been consent of the provinces to such a request?

Would you expound on that?

Professor La Forest: Historically, I think there were amendments made without the request and consent of Canada.

Before 1871, there were, by Canada I mean, resolutions of this House, there were requests, I think, by the Government of Canada before that time.

However, since I think around the 1871 amendments, amendments have always been made on the request and consent of resolutions of these two Houses with the exception of housekeeping statutory revision things which really was not altering the law.

The British Parliament has made it clear time and again in debates before the English Parliament, or the British Parliament, excuse me, that they would not look behind the resolution. It is a resolution of the Senate and the House of Commons, they have said repeatedly, and they would act upon it.

Questions were asked sometimes about whether the Provinces were consulted and, by and large, the answer was that we do not know. In short, when a resolution has gone before the British House of Parliament, they have said, we have the resolution of these Houses and, frankly, the British are rather

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surprised that things like the Colonial Law Invalidity Act applies to Canada and they have mentioned that surprise. They are surprised sometimes that we have to go to them for this.

Does that answer your question?

Mr. Corbin: It does.

I would urge you to perhaps tell me a little more emphatically, if you are so disposed, to state that—and I do not want to put words in your mouth, of course—but, in your opinion, “Canada” in the Canada Act means the Parliament of Canada and the Government, and that is that. Is that is?

Professor La Forest: Yes.

What is being done here is purporting to follow Section 4 of the Statute of Westminster. The Statute of Westminster speaks of dominion, a word I have never heard expressed in respect of a province with the exception of the time when Newfoundland was a dominion so that we are talking here about an entity that fits the description of dominion.

However that may be, if you assume for a moment that I am wrong about this, the fact of the matter is that the statute is written in a declaratory form. All it has to do is do what it does here, is declare that there has been that kind of consent. In short, that is a matter for the discretion of the British Parliament to decide whether a consent has been properly made. The invariable practice of Great Britain since 1871 has been to accept the resolution of these two Houses as being the proper mode of consent.

Mr. Corbin: In your experience, is the current debate and fuss over the fact that the Government and the Parliament of Canada are, so to speak, acting unilaterally? Did that kind of an event raise eyebrows or create the fuss it now creates in the past? I would ask you very simply: do you think that it is justified to be so preoccupied with the way we are going?

Professor La Forest: Well, in strict, you know, in a legalistic approach to the … I would like to be nonlegalistic first.

Obviously, there is reason in a federation to consult the provinces and the provinces surely have been consulted on this one.

The nature of the agreement is the thing we are talking about. Now, the fact of the matter is that if there were a convention that a single province could veto a scheme like this, I think surely there are not too many Canadians who would want us to be caught in that stranglehold, so that even those who say there ought to be agreement move back and say, well, there should be substantial agreement, whatever that may mean.

That substantial agreement, I find very hard to interpret in legal terms. I could understand it as a practice that one might say, well, we will not go to Westminster without some measure of agreement, but that, essentially, is a political question and that political question seems to me for the politicians to answer.

Now, if I were on the government side today, I would find all kinds of good reasons why we have to go to Westminster. If

[page 17]

I were on the opposition side, I would find all kinds of good reasons the other way.

If you are asking me as a lawyer: is there a rule of law, I do not see one there.

Mr. Corbin: Okay.

Since we have both raised the matter of proper or improper consultation, depending on where you sit in this room, would you agree that there has been, that there certainly has been consultation in this instance.

You were involved at that time, of course, as a federal official in the constitutional review process between 1967 and 1971 which led to the Victoria Charter proposals and, as was said at the beginning of this meeting, you were also recently involved in your capacity as an advisor to some governments.

We have had Premier Richard Hatfield of New Brunswick who has expressed the view to this Committee that further federal-provincial negotiations would not likely lead to an agreement. Subsequently, Premier Blakeney of Saskatchewan appeared before this Committee and indicated that the so-called agreement amongst the provincial premiers last September was an agreement for strategy purposes only rather than a true agreement in the strict sense.

What are your views based on your experience on whether further federal-provincial negotiations would likely lead to an agreement?

Professor La Forest: I think we have to take in context here the experience.

There has been 50 years in which there has been negotiation about an amending formula, we have not seen any kind of deal being made. On a longer-term basis—right now you would have the same participants presumably—my experience was that everytime a participant among the first minister changed that you had to have a new person learning all over again that this is a very difficult country to govern and that it is a very difficult country to get agreement among a number of other parties.

Coming to your specific question about whether there would be agreement now, I am sure of course that Premier Hatfield and Premier Blakeney are in a far better position than I am and the question I would ask is this: what has changed in the provincial positions since that time? My sole information comes from the paper. I have not seen any movement one way or the other.

On the basis of that, I am doubtful but, of course, I am not really very informed on that question.

Mr. Corbin: Again, if I could ask you for perhaps a more personal view than an informed opinion, is it to the advantage of this country to have so-called consultation go on indefinitely in some kind of a vacuum when, as you say, the partners change all the time? We talk about the health of the country, the strength of the country. Is it good to leave it in a state of indecisiveness as to its chief convention governing all the acts, the relationship between the central and the provincial governments

[page 18]

or are we asking for trouble in the long term if we do not move now?

Professor La Forest: I would like to avoid, if I can, the particular problem of whether the premiers now would change their mind. I am sure that people around this table are better informed about the possibility of that.

On the long term, for my part, you asked for my personal opinion, I want patriation so bad I could eat it! It has been 50 years since this country has kept a colonial status of its own doing. The British do not want it, it is an embarrassment to the British, it gives them headaches all the time. I would like to have a country and a constitution that is a constitution of this country, that is entirely of this country. I have never made a secret of the fact that this is a healthy thing for us to have a constitution that is a symbol of this country and, on the long term basis, yes, I think we want it very bad. I do not think we should keep this country without adequate symbols indefinitely.

I would put a question to you. Where do you think we would be if during the referendum there had not been a distinctive Canadian flag? Would you have seen those who favoured staying in this country, in Quebec holding up the Red Ensign everywhere? My own opinion is “no”, but the flag in Quebec, the flag of Canada was flown proudly by everybody whatever their opinion about colonial ties or anything else.

I think we very deeply need symbols of this country.


Mr. Corbin: Thank you very much, Professor LaForest. Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.

Senator Tremblay now has the floor.

Senator Tremblay: Thank you very much, Mr. Chairman.

I join with Mr. Corbin in saying how pleased I am to have Mr. LaForest here this morning as an expert witness. I thank him for outlining his points so clearly in his presentation.

I have two main questions, one of which relates to a point already raised by Mr. Corbin and dealth with in your paper as well, namely the problem of unanimity, unanimous or substantial agreement by the provinces. You mentioned that substantial agreement on the part of the provinces could be a better formula, if I understood what you said correctly. I will come back to the point because I have a few introductory remarks to make to my question. If the amendment proposal we submit to Westminster changes something substantial, then we must have provincial agreement.

My first question, then, is whether you feel that the proposed resolution before us provides for significant changes affecting the powers, privileges and rights of the provinces and the balance between the two levels of government in our federal system?

Professor La Forest: Well, the proposal does affect the points you mentioned, but as you know, this in no way changes

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what happened in the past. On a number of occasions, the Senate was changed, new provinces were established, and the boundaries of Quebec and Newfoundland were defined; so we see that some changes have had an effect on the provinces.

In the first place, the Charter of Rights certainly affects powers. I do not like to use the word “right”, because I hesitate to say that any individual is entitled to meddle with fundamental rights, but these provisions certainly affect the powers of both the federal and provincial governments, because it can no longer be claimed that laws abrogating fundamental rights can be passed. So to this extent, the Charter does affect powers.

There is also the question of language rights. Language rights can, of course, be removed and this would mean that certain provincial rights or powers would be removed as well. I therefore think that we must simply conclude that this provision certainly affects provincial rights and also federal rights, but you were referring rather to the balance of powers. This point is a little less clear cut.

Senator Tremblay: I will ask a more specific question. Does section 42 change the balance of power between the two level of government, because Parliament can unilaterally make substantial amendments to the Constitution including the amending formula mentioned in section 47, if I recall correctly, without consulting the provinces, through a referendum? Does this not change the fundamental balance between the two levels of government, when one of them can take unilateral action on such significant issues?

Professor La Forest: I can certainly take action, but it takes action in accordance with the powers it has today, namely the presentation of a resolution on these matters.

Senator Tremblay: I am not talking about the resolution to be sent to London. I am talking about the situation that would exist if the resolution we are studying and the Constitution Act, 1980, were approved by London. Section 42 would provide for a permanent amending formula and that is why I am asking you whether this section does not substantially alter the balance of power in our federal system.

Professor La Forest: I do not know about the balance of power, and if you mean … You are referring to the question of referendums, are you not?

Senator Tremblay: That is correct. I will define the word “balance”, if I may. “Balance” refers to the distribution of internal sovereignty. When the distribution of this sovereignty can be altered by one of the two levels of government, unilaterally through a referendum, have we not given a sort of supremacy to one of these two levels of government over the other, rather than respecting the principle of a supposedly equal distribution of sovereignty. That is what I mean when I say “balance”.

Professor La Forest: In a referendum the fact is that people would make the decision about the change, and not Parliament

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itself. The advantage the federal government has is that it put questions to the people.

Senator Tremblay: Does this type of advantage, to use your word, not constitute a substantial change?

Professor La Forest: It does not exist at the present time. Is this any worse than the present situation in which the federal government can go to Westminster and be recognized immediately?

Senator Tremblay: You are getting away from my question, and I would like to come right back to it again. You say that such a situation would not be worse. I am asking whether or not it constitutes a substantial change. Are you speaking from a legal point of view when you say that it would not be worse or that it would be not as bad?

Professor La Forest: It can be argued that the federal government would have less power with this amendment formula than it has at the present time.

Senator Tremblay: In other words, you are telling me that it is a substantial change, but that it reduces federal power?

Professor La Forest: It can be seen this way.

Senator Tremblay: No, but there would in fact be a substantial change then.

Professor La Forest: I think it is a substantial change in this respect, if that is the answer you are looking for, it certainly is. But I am not saying whether the change favours the federal government more than the provincial government or vice versa. What we would have is a new amending formula. That necessarily involves change.

Senator Tremblay: That is all I wanted to hear. I have another question. Does Section 51, if I remember the number correctly, introduce another substantial change, this time by reducing provincial powers, rights and privileges. I believe that it is section 51 that repeals section 91.1. Section 91.1 provides that—I only have the English version at hand, but I am sure that you know it by heart anyway.

Professor La Forest: You must realize that I am less familiar with all the details than you.

Senator Tremblay: You are quite familiar with them.

Professor La Forest: I have some idea about the details, but I can guarantee that you are more familiar with them, because I was really not prepared to… This relates to issues I mentioned, but I assure you that I am less familiar with all the details of this than you.

Senator Tremblay: I doubt that. Let us get back to section 91.1, which is repealed by section 51 of the proposed resolution. As you know, section 91.1 gave Parliament the power to amend the Constitution of Canada,


except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces or as regards rights or privileges by this and so forth.

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By repealing section 91.1 through section 51, by not including the protection of provincial powers elsewhere in the proposed resolution, are we not making a substantial change to the Constitution?

Professor La Forest: Is there not a section protecting language rights, the status of the Crown, and so on?

Senator Tremblay: Yes, but the passage I just quoted referred to “classes of subjects”, namely legislative powers. That is what section 91.1 covers.

Professor La Forest: Section 92.

Senator Tremblay: It refers explicitly to 92, 93 or …

Professor La Forest: Obviously, these sections relate to the amending formula, in other words a new amending formula for these matters. This brings us back to the first question.

Senator Tremblay: Thus by removing this protection, legislative powers are covered under the amending formula. And under the amending formula provided for in section 42, action can be taken unilaterally without provincial agreement. These two points together constitute a change, which, in this case, is most substantial. Would you not agree?

Professor La Forest: Well, of course the political power of the provinces has been changed and some power has been given to the people.

Senator Tremblay: But this is not the case at present. It is therefore a new and substantial change.

Professor La Forest: Except that today the federal government can take a resolution to London. So you have to balance the one against the other.

Senator Tremblay: It is really like going from the frying pan into the fire, but the fact remains that there is a change. That was my first question. Given that this change exists, you also mentioned the question of consensus among the provinces. You showed how the rule of unanimity raises some problems and you mentioned the concept of substantial agreement or compliance. In answering some of Mr. Corbin’s questions, you actually said it was not easy at the present time to say whether we could hope for either unanimity or even substantial agreement from the provinces.

While it may be difficult to assess whether there is unanimity or substantial agreement at the present time, we get a clearer perspective if we ask whether there is any substantial disagreement? I think the answer is obvious, because six provinces have decided to challenge the proposed resolution in the courts. There is definitely not substantial agreement, but there is substantial disagreement.

Given the substantial disagreement, I would like to know what you think about the operation? Should it be halted at

[page 22]

least until there is no further substantial disagreement, even if there is not unanimity?

Professor La Forest: I think you will be waiting until the end of your days if you wait until there is no further substantial disagreement. We have been disagreeing about an amending formula for fifty years. But we have to ask whether there is a rule of law. In my opinion, there is not. Is there a convention? I very much doubt it. If there is no convention, there is a practice. And if there is only a practice, it is up to the government to decide—when I say government, I mean that it is a political issue—to decide whether or not the issue is important enough to go ahead without the agreement of the province. The government has made this decision, and the Opposition is objecting to it. I understand that but what you are asking is a political question, and it is up to you to decide.

Senator Tremblay: To some extent, you gave Mr. Corbin a political answer when you said that you wanted patriation so much that you would do it under any circumstances. I ask you again, would you go so far as to …

Professor La Forest: Excuse me. I did not say I would do it under any circumstances. We were talking about the long term and I had ruled out the immediate future, because that is a political issue. However, in the longer term, I can tell you that I think it is very bad for the country not to have an amending formula and patriation. That was my answer to the question.

Senator Tremblay: I will adopt more or less the same approach that you sued a few moments ago in asking my question. Is it worse or not as bad to patriate the Constitution against the wishes of a majority of the provinces or to divide the country by such a procedure? Can we manage without the symbol—that is the word you used—at least until the country is less divided about a procedure which most of the provinces oppose? Is the symbol more important than the fact that the country will be divided?

Professor La Forest: Perhaps the country is divided precisely because we have no symbol.

Senator Tremblay: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

Mr. Nystrom now has the floor, followed by Miss Campbell.

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman. I would like to welcome Mr. LaForest who is our witness this morning.


Mr. Tremblay was putting questions to you about compliance for a constitutional amendment. I want to begin with perhaps a rather minor question.

But on page nine of your brief you say in the bottom paragraph—and I quote:

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When parliament determined there was substantial compliance, the court would sit in jugment over that determination. Politicians must take these decisions knowing they must answer to an electorate that is deeply committed to the principle of a federal system. Courts have no such master.

I just wanted to know what you meant by that. Of course we are committed to a federal system in parliament as, I think, all the provincial members are in the various legislatures across the land. But I think by virtue of the way the courts are appointed they are also committed to the same master.

Professor La Forest: Let me put the matter in a different way.

The courts are there to interpret the constitution. Now let me give you an area of the constitution. You will agree with me the federal parliament has a massive power, that the courts would not refuse to say to Parliament, “You cannot do it,” but that politicians would wait a long time before they exercised it. I am thinking in terms of the declaratory power.

But if you go with a declaration by this parliament to the courts, they will say, ’’there is a declaration there. The work is a federal work.”

But in this Parliament, do you recall how long it has been since that declaratory power has been used? Why is it not used?

Because this parliament, the legislatures, and above all, the people of this country want to retain a federal system.

That is what I mean by a political master. It is not confined to such unusual powers. The trade and commerce power, for example, if used to extreme, or the taxing power, could make little of provincial power; but what federal Parliament would use it consistently to denude powers?

Mr. Nystrom: But do not the courts indirectly serve the same master in our system? What we are doing now is enshrining a bill of rights, but we will still have a supreme court which would not be enshrined, a supreme court appointed by the minister of justice or the government of the day, and the government of the day, is of course, responsible to the electorate.

Professor La Forest: Yes. But if you mean if we give to the courts that kind of judgment, they will exercise it. They have to read the newspapers, and they do read them; because at that stage you are looking at values, values that change in the light of social needs.

Everybody knows that rights change somewhat over a time and are coloured. The Supreme Court of Canada would know that. But that is not the same question as I am posing here.

I am dealing here with a power clearly given to Parliament to do something.

Mr. Nystrom: Perhaps I am reflecting some of my western biases when I talk about the way that the judges are selected in our country. I come from Saskatchewan and we have had some experience in the Supreme Court with potash and oil.

[page 24]

But what we are doing, if this resolution goes through, is enshrining a charter of rights and patriating a constitution, and we have an amending formula; but we still have a supreme court appointed by the government of the day, by someone elected on a political banner, be that banner be Liberal, Conservative, New Democrat or goodness knows what— responsible to an electorate.

I am just wondering whether or not you are in favour of changing the whole process? Do you think the Supreme Court should be enshrined and that there should be some provincial input into the selection of justices?

In the United States there is an opportunity for Senators who are elected on a state-by-state basis, to ratify or not ratify the selection by the Government of the United States of those appointed to the Supreme Court.

Professor La Forest: Well, on that question, as you know, I was very heavily involved with the Canadian Bar, and there are occasions when I depart somewhat, though I would not like to admit where they are here.

But in a general sense, though, I think there has to be some input in some form or other by the provinces, consultation at a minimum. But there has to be in order to reassure the provinces—and I do not for one moment think, with a maritime or western bias, that the courts do have that kind of bias.

But I think they should be put above reproach of the possibility of that kind of bias, so that there is some need for some consultation of some kind here.

Mr. Nystrom: I am very pleased to hear you that—and I do not accuse any of the judges of bias; but there is the suspicion in the land on the part of some people when a court is appointed solely by the federal government must make a decision in a jurisdictional dispute between the province and the federal government, or as in the case of my province, certain potash and oil which involved the province and the companies which were supported by the federal government and the referee in this case was appointed by one of the partners. I think it goes a fair distance to causing more grievance with the federal system and structure in this country, particularly once we have enshrined a charter of rights binding upon both the provinces and the federal government—and one again the referee is appointed by the federal government and the referee himself is not enshrined in the constitution.

Professor La Forest: Yes, I fully agree with that.

Mr. Nystrom: On point 8 of your brief you are saying that several amendments—page 8 of your brief—you are saying several amendments that affected the position of the provinces did not receive provincial consent and I am wondering whether or not you can enumerate for the Committee this morning the amendments to the BNA Act that have been implemented through unilateral action, how many of those amendments affected the powers of the provinces, or how many of those amendments affected only the powers of the federal Parliament or federal jurisdiction.

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Professor La Forest: I cannot enumerate them in this way. I am sure you find most of them in the Fulton-Favreau formula. I believe Mr. Blakeney had a list. I believe that the federal factum which I am sure is available to you. The Manitoba case has a list and I think they more or less basically agree.

The changes in the powers of the provinces, I think, have all been by unanimous consent. By the powers I mean the legislative powers. As to others, there where some others which very seriously affect the province. The very creation of—the very statute of Westminster later permitted the federal government to cut of appeals to the Privy Council which I think many poeple would feel, at least at the time, was a very important shift in the balance of provincial and federal power because, as you noted a minute ago, the federal Parliament was then in a position—or government rather—to name the judges of the supreme arbiter.

Mr. Nystrom: Yes, 1 have checked back this morning on the list that was provided to the Committee, for example, by the Premier of the province of Saskatchewan.

What he says of the nine amendments implemented through unilateral action, the BN A Act of 1871 is the only one that appears to deal with a matter clearly affecting all of the provinces and the federal government. In other words he is saying that there has only been one that clearly affects the powers of all of the provinces and the federal government.

Can you think of any others this morning that would affect the powers of all of the provinces as well as the federal government?

Professor La Forest: I think the Statute of Westminster would do just that. Apart from that I think that there are some that affected some provinces that were not consulted in a very serious way.

I think the BNA Act, 1949, the Newfoundland Act, for example, defined the boundary between Quebec and Newfoundland as I mentioned, and of course the Senate distributions you see took place—some of the principles were effected by these amendments.

But insofar as the powers, I think that there have not been that many any way. There have only been two or three, have there not where the powers were changed, so there is not an awful lot of precedence available for one to say there is a real constitutional convention there.

Mr. Nystrom: I want to refer, in the few minutes I have left, 1 gather I have two or three more minutes left, to the question of the referendum in Section 42 of the resolution before us. I wonder if you could comment a bit more on the referendum as outlined.

Professor La Forest: Yes.

Mr. Nystrom: The effects it has on a federal system. I am concerned in particular with Section 46 which is a section that deals with the rules of the referendum. It says very simply that Parliament may make the rules respecting—it is on page 14—

[page 26]

it says that Parliament may make the laws respecting the rules applicable to the holding of a referendum under Section 42.

I would like to ask you whether or not you think that this is something that concurs with a federal system or that compliments a federal system, is good for a federal system to have a constitutional referendum where the rules are determined solley by one of the orders of power.

Professor La Forest: Yes. I might say here that I am somewhat embarrassed by my relation with the bar committee because we have got something of a pact. We in that report, you will recall, were against referendum because it would not give the majority French speaking citizens of Quebec a decent chance. So I really have not gone to deeply into that.

I would think that, in a general way though, I would say that at some stage you have to trust the Parliament of Canada to make some of the detailed rules about this sort of thing. For example, even if you enshrined the Supreme Court, you would have to give some power to Parliament to make some of the rules as they have done, for example, in the United States. Nobody can doubt that in the United States the Supreme Court is a very independent court.

So quite a number of these detailed rules should be left to Parliament. Now whether there should be some provision about certain principles and certain bottom line things is another thing again. But as I say I have not given too much thought to that for the simple reason I am rather embarrassed by my position as a quasi-counsel and we have a sort of pact of unanimity on that among us. Well I…

Mr. Nystrom: If you do not want to respond to the next question that is fine. The amending formula involves, of course, the federal Parliament and the provinces, and you are aware of what the proposition is here.

Professor La Forest: Yes.

Mr. Nystrom: If a referendum is held we have, of course, again recognition of the two orders in the country. If there is a referendum, we have to have a national majority as well as a regional majority, but when you come to Section 46 the rules for conducting a referendum, the rules for writing a question, the rules of financing it, the timing and all the very important questions—and you know very it is how one asks the question. It is whether or not the atmosphere is right, it may depend on the money for financing and so on. It may determine a large part of the answer. But when you come to Section 46 you do not have that recognition of the fact that there are two orders.

Professor La Forest: Yes, that is true …

Mr. Nystrom: Should that be reflected in some way and if so which way?

Professor La Forest: … -and while I have not reflected, let me give you some of the considerations.

Obviously there is going to be an opposition here at all times and if you get rules that are patently unfair somebody is going to talk about it here.

There are some built-in protections against excess. Now, I am not trying to defend the section because, quite frankly, I

[page 27]

have not thought with the depth I would like to about this. But I think we sometimes forget, and 1 think it is a professional difficulty, sometimes, because I am a lawyer I forget that, I do not think that is the whole world, I think the politicians do it all, whereas the politicians forget about the court.

But the fact is that here there is a very hard political fact that gives you some protection and as a lawyer, I can see that and see how difficult it might be to write down all those rules you need. But there may be some that you could devise that would be useful to you but I really have not given it that kind of thought.

Mr. Nystrom: You referred to the Bar Association and a concern that they had or you had about the majority population in Quebec in a referendum in terms of the whole country and a clout that they would or would not have. I agree with you, that is I think that the people of Quebec or the French Canadians are a very distinct people in this country, that historically deserve some recognition. We need to have recognition and duality in our constitution and protection for them.

One of the concerns I have about the way the resolution is written is part 4. Part 4 may indeed not every be used—it is to select the interim amending formula. Section 39 says that if we have to have a referendum to choose an amending formula between the Victoria Charter on one hand which is proposed by the government and an alternative that is put by the provinces, then there will be a national referendum, and in the national referendum the selection of the amending formula would be decided by a simple majority of persons voting at the referendum. I think you can see some of the dangers here.

Professor La Forest: Well, the Bar, in its brief, commented on that. They said that that was defective in the sense that it would not give the French speaking majority its full vote. It added it that it was defective because you might not get the majority in every part of the country that you need, some measure of representation in every part of the country. So the Bar brief, the recent brief, I do not mean the original report, did discuss that point.

Mr. Nystrom: What would you suggest here as an amendment? Would you suggest some system of regional majorities?

What is happening is that you are choosing between two options, option A and option B. Option A may have the support of an overwhelming number of people, say in the province of Ontario and the Atlantic provinces but be defeated overwhelmingly in the West and in Quebec.

Professor La Forest: The principle that we adopted at that time, and I speak here in the we because there is a Bar position in which I participated, is that there should be representation from every part of the country. An adequate representation and, of course, that would not necessarily give you that representation in the Section proposed.

The Joint Chairman (Mr. Joyal): Madame Campbell.

Miss Campbell: Thank you Mr. Chairman.

[page 28]

Mr. La Forest, I too would like to welcome you and thank you for your good brief. I hope your students have a look at it because there is a wealth of information in it.

I would like to touch on three matters. One is Professor Driedger’s submission to the Committee and perhaps you can correct me, but I would say that Professor Driedger, who I had as a professor and I hold highly, is saying that we in Canada could do a unilateral declaration of independence. We do not have to go back to Britain to have a constitution. He is saying that it remains in Canada to do this.

Professor La Forest: I think, if I understand him right, he is saying that as to matters that either the federal Parliament or the provincial legislatures can do, that we can do it here and that Britain can no longer do that, but there are exceptions, for example, in 91(a) that you cannot easily touch. Now that was my reading of it.

Miss Campbell: I tended to feel that he went even further, that we have that power within us in Canada since the Statute of Westminster, in 1931, to declare ourselves independent with a constitution here.

I suppose one would then say, you go back to the consensus of the provinces and the federal government, and that then brings me into this proposal that we have right before us. In fact, I like the unilateral declaration of independence but I can see that there is all the conventions within us in Canada of the colonialism that we go back and we patriate.

As an aside to that, it seems to me in my lifetime, in the study of constitutional law most countries get a constitution first, a flag next and then they build railroads and pipelines. We have done it sort of backwards and we are still at the stage of trying to find a constitution having done the other two.

But going to the proposal before us, it is fair to say that we are patriating the BNA Act. We are providing an amendment formula which can have consultation over the next two years and which eventually, if there is no agreement, would leave to the people of Canada to decide which amendment formula. Sitting here for the last number of weeks, I would like to say that if families or parents thought as long as we did for the children they are going to produce, which they cannot change once they are produced, at least in the constitution we can change it in the future if there is something that we have produced through this proposal that cannot be changed. I would think that we would have no children if parents had to think about all the things that they could produce.

However, it just stands to reason that we can change it. No constitution is left without change in it, am I right?

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Professor La Forest: Well, let me try to deal with your question uninhibited by Mr. Driedger’s view where we have a rather different view …

Miss Campbell: I accept the fact that you have presented your view and that you feel that Section 7 4 of the Statute of Westminster left it with us to return. I accept that but I tend to like Professor Driedger’s statement that we can do it here in Canada.

Professor La Forest: Let us talk about unilateral patriation without going to Britain. Of course we can do that. You know we are an independent country. We can. But we have tended, and I do not think it is a bad thing, to be very legalistic, to try to maintain the existing legal order as much as we could. In short, we have always proceeding through Westminster and in the Bar Committee, for example, we considered the question of unilateral declaration. We had no difficulty with the thought that you could do it. But I think it would demand a degree of consensus—it would not demand it legally, but it should demand as a matter of judgment and thought, a degree of consensus and the Bar itself was not willing to go for that route unless all the provinces agreed.

Now whether that would be absolutely desirable or not, I leave it to you. But I think it would be wise, once one breaks the legal nexis to establish a new country, to make sure that you have really done that because it is a revolution. It is a legal revolution, it may be quiet, and if all the provinces agree that is fine. But you are starting from scratch and accordingly to get the right measure of legitimacy you have to have a great deal of support and know that you have got that support.

Miss Campbell: If I have time I will come back to that because the Canadian Connection talked in terms with this in mind as well as this constitute assembly that Canada West and the Canadian Connection both bring up, constituency assemblies, and in my view that would be the ideal where you have full participation. But let us be realistic. Who has full participation? Do the poor? Do the minorities? When there done at a local area it is usually the powerful that can dominate the thought. So again you come down to the inequality.

I would like to now go into what seems to have been the concern of the provinces and some of the officials, that we are also naming the rights and freedoms of Canadians I think in this and entrenching—one would be hopeful with the amendments that would be coming forth in Section 1, entrenching those rights and freedoms.

I have read Professor Driedger and he does  make the argument: are we doing it individually or globally but I do not want to get into that. The only thing we are entrenching is really the human rights, equal right for all Canadians the official languages of Canada, and I would like to see perhaps this go further and touch the courts, equalization, mobility—and I will get into the aboriginal rights because we have heard I think 17 groups who have asked us to entrench it before bringing the constitution home.

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So we are really talking about basic rights and freedoms of Canadians. We have not, in my view, gone to trade-offs on the economic redistribution of powers under Section 91 and 92. It has to be discussed. It is an emminently big or major problem with Canada in the redistribution of the wealth, in the redistribution of the economic powers and in your view and the time that you have spent on it has it not been—they have tried this—the provinces and the federal government trade-off between an amending formula, rights and freedoms. You probably saw Professor Simon, he gave the presentation to the Business Council on National Issues—he prepared one—on the economic issues that are involved in the Canadian way of life right now.

What I think we are doing is that we are eliminating those problems and we will be able to discuss realistically without trading but basically trading on economic powers, trading of any other rights and freedoms but only the economic powers in Canada, after we have brought this home.

Professor La Forest: Yes. Well, insofar as the trade-offs are concerned I think we have all seen the constitutional conferences and draw our own conclusions from them. But I think insofar as the patriation formula—everybody who has been in this field for any length of time knows that for many years, Quebec particularly, use this as a tool to get something else.

I think it is so obvious and in recent years it has been used I would think by the provinces themselves because if one is not trading off 1 think everybody said that we want patriation but nothing is happening. Why is not anything happening? Because no doubt, and I can understand this, one wants to tie some other things to it and I can understand that if I was bargaining for something I would do it, if I knew the other side wanted something I wanted even worse that I did.

Of course it will affect the power as opposed to the right of the provinces to interfere and of the federal Parliament for that matter. Neither side is blameless, to interfere with the rights of individuals. But that is what we all say that we do not want, we do not want the legislatures to interfere with fundamental rights.

Now, if that is so, why can we not have it in the constitution? I can see reasons why people might have objections against the Bill of Rights as a means of enforcing bills of rights. I can understand that, and yet I do not think it effects the balance of power in that way because the people who do not like the Bill of Rights do not say they do not want it because it interferes so much with the powers of the provinces and the fact that they think that the legislatures are better instruments to determine that.

So that I think that the issue is rather a separate one. Now, in so far as rights and freedoms are concerned there are quite legitimate reasons for and against a Bill of Rights. I happen to believe in a Bill of Rights. I think it is certain that we are not dealing with divisions of power in the normal way.


The Joint Chairman (Mr. Joyal): Do you have another question. Miss Campbell?

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Miss Campbell: Yes I do. Just a quick one because I know probably my time is up.

When you are discussing over the period of 1 think, ’57 to ’71 in Victoria—is preparing—you know looking at amendment formulas and you arrived at the Victoria Charter.

Was the Toronto or Vancouver—the Vancouver consensus was what the Conservative Party in their motion, I think back in October, asked for patriation with the Vancouver consensus. Were they looked at, were they studied?

Professor La Forest: Not that I can recall. I think we considered the possibility of a formula that had a majority vote, a certain high majority. But basically the problem with a majority vote is that if it is too low you do not represent all the regions of the country adequate. If it is too high you have got yourself a real straightjacket particularly if you further insist that you have provinces at other end as I think you should. So you get yourself in a dreadful straightjacket with it. There are other problems with it, too. It has to do with changes in population over time. That can be tricky even under the Victoria Charter. At some stage we discovered, for example, that on the basis of population projections British Columbia would have a veto by the end of the century even though it would have nothing near the 25 per cent which was looked upon as the norm.

So you have some very real problems with it. So ultimately the Victoria Charter was negotiated, very difficult rigorous negotiation with all the provinces at the time. And that is what makes me despair of ever getting the provinces to agree. You have got another series of players now and they are thinking about it in another way. They are trying to protect the interest of their provinces and if one ever had different government here—this government in a different way. Everybody has their own ideas. You can never get the players together.


The Joint Chairman (Mr. Joyal): Thank you, Mrs. Campbell.

Senator Roblin.


As I have listened to Professor LaForest’s exposition of his legal opinions in such a calm and reasoned way I must say that I am rather regretful of the fact that I never took the legal training that he did to develop this logical approach to important public questions.

I think, however, that he would agree with me that while his main purpose here this morning is to explicate the law as he sees it with respect to conventions, that he recognizes as well as most of us around this table do that that is not the sole issue that is before us because we have to deal with no ordinary piece of legislation.

If this was an ordinary statute of the Parliament then of course the legal principles that he enunciates perhaps would be conclusive insofar as our considerations might be concerned but as we are dealing with the constitutional measure there are other considerations that apply and indeed I think Professor you have mentioned them.

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You have touched on the question of consensus and you have touched on the question of legitimacy in the constitutional sense as opposed to the strict legal sense and I think you have warned us in one of your remarks that I took down here that legislation of this kind must be supported and must be known to be supported by a sufficient consensus in the community to give it that constitution legitimacy which will enable us to if I may use a phrase, to write it in our hearts and make it part of our very stuff and fabric of our country rather than just another law.

Now I think we are on all fours if I would so define the problems of judgment which we have to face. But I want to spend a minute or two in dealing with the legal question you raised because I think it is of great importance that we should understand it. I make note of the fact that you had reference to Professor Lederman and Professor Driegher and I am ashamed to confess to you that we will not have the opportunity to cross-examine those two gentlemen directly, because the majority of this Commission has forbidden that act. But it seems to me their views would have been relevant to the points that you are raising.

So not been either a lawyer or gifted in the constitution arena I am afraid I cannot take up the cudgels for either those two men though I would have been glad to hear what they had to say.

But coming down to your definition of what is required in order to give legal weight as I take it to this concept of a constitution convention you prescribe three conditions and one is that it is an invariable practice. Well, I do not really think that one could maintain that in all the amendments to the British North America Act that had been passed since Confederation that this convention of support from the provinces has been invariable or universal. It has not.

But I suggest to you that it has been resorted to in most of the important measures affecting provincial federal relations that had been included in the amendments to the British North America Act.

I think that my colleague from Saskatchewan made reference to the analysis provided us by the Premier of Saskatchewan and he leaves me with the impression that in the majority of important cases it is a fact that consensus was sought and it was not a unilateral activity of the federal government. So while I would not quarrel with your word invariable practice I would say it is irrelevant, because in cases where it counts it has been used.

You may wish to comment on that. Perhaps in view of the time constraints I am under I might just as well develop my argument in full.

The second is the belief in those following the practice that it was obligatory. Now what a persons belief is exceedingly difficult ascertain with any degree of accuracy.

When Prime Minister Bennett said to the House of Commons in 1931 that I will not proceed with the amendment to

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the statute of Westminster that was requested at that time without the consent of the provinces, was that his belief? Or was it the constraints that he knew he was facing in that connection.

When Mr. St. Laurent made the same asseveration in the House of Commons, was that his belief or was it something that he recognized as being the accepted method of procedure?

Somebody may correct me on this but if my memory does not play me false Mr. Trudeau has also expressed himself in similar terms in times gone by.

The third test that you must apply is the situation with a convention of securing provincial support in order to validate the process and of course that comprises all the rest, does it not? It is the important one.

You are telling us if I read your presentation correctly that the suggestion that a convention of securing provincial support in order to validate the process is not well founded as being required legally.

Well, I do not know about that and I dare say the court will have a word or two to say about it but whether it is or not you proceed on the assumption that it is not required and that I can logically deduce from that that you approve of the unilateral action that is being taken at the present time.

Now I am not sure whether that is a correct assumption and you can clarify it for me. But that is where your logic leads me.

I then say to myself, well, okay, it is all right for the present time to proceed unilaterally because let us say it does not disturb the balance very much, although I do agree with Senator Crombie that it does, and I also agree with the Attorney General of Canada who stated in his factum in the Manitoba case that powers were being transferred from both levels of government, so that certainly disturbs the balance in a sense, I would suggest. But supposing that this statute before us now had said we are going to take away the natural resources from the provinces. Would you concede then that we require some elements of agreement from the provinces of Canada.

If the federal government has the power to proceed unilaterally in these constitutional matters as you suggest and that the convention of provincial support is not necessary, what is to prevent them from abolishing the provinces if you want to take the argument to its logical and absurd extreme? What is to prevent that? I say to you that while you may be right legally—and I do not for one moment challenge that, because your expertise in this matter is great; I am not really saying that you are quarrelling with me constitutionally, because you might agree with me and say that is the law, but it might not be what the law should be.

I put forward the case, though, that if it is true that, legally, the government of Canada can proceed unilaterally on the matters before us, and if it is also true that there is no reason why this power could not be extended in the direction I have indicated to you, then I have to have recourse to the celebrated expression of Sam Weller; the law is an ass.

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But you recognize that, because you say in your brief, Professor LaForest this sentence—and I am impressed with its wisdom:

But the rules of law give only minimum direction at times.

Within those rules institutions must be made to work.

Now that is my case in a nutshell. I agree with you on that point, and I think you are to be thanked for bringing it to our attention; because it seems to me that, while it is interesting and necessary to understand the law, whether or not we accept your opinion—and I do respect your opinion—we must in this Committee proceed pass it, and proceed to the fundamental basis of constitutional process, which is legitimacy, consistency and institutions which will be made to work.

If we are to apply the strict letter of the law, if you are correct with respect to its application to this measure, then we will certainly not be achieving those goals of constitution-making which I have outlined to you.

Now I have made a speech, which I regret but perhaps if I have misrepresented you or you would like to expand on any of these argumentative points which I have put to you, please feel free to do so.

Professor La Forest: Well, I will try to deal with each of the various points.

The first concerns legitimacy. There are two ways in which you can gain legitimacy. I can recall debating this at length with officials years ago. One is to stay within the letter of the law. The law is a deeply respected instrument.

The other one is to proceed unilaterally.

You should, when you act within the law, have the greatest measure of acceptance possible; but the law itself gives you the legal legitimacy of the system.

If you proceed unilaterally, you are, in effect, creating a new system and your degree of legitimacy has to be very much greater indeed.

Now turning to the convention, I mentioned that it was extremely difficult to tell whether a practice is a mere usage or if it is a constitutional convention, that people, whether or not there is a law, will follow: the Prime Minister resigns when he is defeated on a vote of confidence in the House of Commons. And though there are ways of means of dealing with that, that is the end of the line. It will be done.

Now by a convention, I mean that kind of usage which is done automatically.

When I look at this particular one, yes it boils down in the cases involving the division of powers; and one could begin to argue for a kind of a build up of a convention. But, for my part, I could get no further than the words expressed in the document published under the Fulton Favreau Formula, that in fact, there is a kind of build up of that kind; but it is very clearly stated at some state that it is not constitutionally binding. In other words, I am not talking law now, but I am

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talking about those conventions, usages which must be followed under our system.

I find it rather skeptical that the practice has reached that level.

It does not mean, of course, that even if it is a convention that one simply ignores the practice without good and legitimate reason.

The question though—and you said that it looked as if I had approved this; I did not really pronounce myself upon this; because ultimately, whether you are going to go against a practice of this kind is a very serious political problem, even though it is not a convention. But that is your job.

Of course I could give you my opinion, but that is no good to you. I am merely saying, here is a practice—a serious practice; it has a legitimate basis. The question you have to decide is: does the government have serious enough reasons to ignore that practice?

Now the government obviously thinks it does, and you think it does not. I could give you an opinion on it, but it would not help you. But I can help you, I hope, in trying to underline the difference between these concepts.

With a rule of law you can go to court and they say you cannot do it. I am skeptical about its being a convention. Of course there is a practice.

Senator Roblin: I have just received a note from the Chairman telling me to stop talking, so I will have to do that. Mr. Chairman, I had a number of other points which I would like to raise, and perhaps I would have another opportunity.

I thank you, sir.

The Joint Chairman (Mr. Joyal): I hope, Senator Roblin, you will not take it in the wrong way, because I have listened to you very carefully when you were putting your questions and making your statements, and those questions, like the answers, were very clear. I am certain that there are clearly other matters which you would like to raise particularly in relation to the Supreme Court, which no doubt are as interesting as those matters which you have already raised.

If another colleague does not put the matter, then I will recognize you later.

Senator Roblin: Mr. Chairman, I was going to get out the Supreme Court Judgements and all that next, but I guess I will have to let somebody else do it.

The Joint Chairman (Mr. Joyal): I would like now to invite the Honourable Senator Williams to put his questions.

Senator Williams: Thank you, Mr. Joint Chairman.

I would like to put one or two questions to the witness. However, before doing so, I would like to say that there have been 17 Indian organizations which have appeared before this Committee from coast to coast.

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Now, under the old Indian Act which was amended for the first time by an amendment which came into effect in 1952, after over 70 years, the definition contained in the old Act, the first definition regarding that legislation was that an Indian “is other than a person”. Legally, I am told the Indian did not exist. Therefore he was a ward of the Crown.

However, if that same Indian in Canada, our country, had committed a major crime, he became a person and was tried; and in most cases he was sentenced and in some cases for life.

The matter of reservations—land set aside and vested in the Crown, providing that the monarch may be a male or female as the case may be.

Yet, in the Northwest Territories—and I am not an authority on the Northwest Territories—and in the Yukon there are no reservations; but there are several thousands of Indians.

The point I am trying to make is this. There is no land vested in Her Majesty’s Crown for the use and benefit of those Indians in accordance with the Indian Act.

Now, I have not been able to find out—and I have been connected for most of my life with Indian organizations—if today, from 1952 on, whether the Indians are still wards.

Now if they are, and if this definition of a ward is assessed and set down and exists today, then Indians in Canada have been voting illegally in both provincial and federal elections, and, possibly, if this reading is correct, verified or some opinion is set, then possibly I would be the first one to go.

Now you said that the British North America Act is British. There is a very close unanimity among the 17 Indian organizations or their leaders. Perhaps they are right in saying that aboriginal rights and Indian rights should be locked in or entrenched in the repatriated constitution or the British North America Act.

Being British, that is to say the BNA, then they must be right when they say: let it be entrenched in the BNA Act before it is brought over.

Now, let me go a little further and deal with another matter which bothers me.

There has been a great deal of talk—and it has been stated in non-Indian organizations which have come before this Committee that separatism or alienation of the west is serious. I, myself, being a westerner, have not seen any evidence of it in British Columbia.

If separation some day should come about, what will be left of Canada, and where will the separatists go? What would be the alternatives? Where will the separatists go? Will they remove their areas of government to be engulfed by our neighbours to the south? I do not know.

But all these things bother me. But, first and foremost is the position of the Indian people of Canada.

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Professor La Forest: Well I will try to comment on your remarks in this way. Terms like “wardship” were used sometimes in dealing with the Indians. I have always been happier with the phrase that the government of Canada has an honourable obligation to the Indians.

The term “wardship” has a connotation of legalism which I do not like about it; but I think Canada does have an honourable obligation.

I fully agree with the statement that the Bar made some time ago, that I wished the government had been more forthcoming in its expressions of the rights of the Indians.

In saying that I am mindful, nonetheless, of the very great difficulty of defining this with precision.

There is, first of all, this honourable obligation of which I have spoken. There is, as well, a series of rights which go beyond the purely honourable obligation, but are legal rights of the Indians in regard to their lands.

Now, those rights are, of course, not easily defined. Nonetheless, there are some things which could have been done to express the continuing obligation, to express a continuing commitment to maintain those obligations.

But how much farther one could go at this stage is a very serious problem, because at some stage Parliament is supreme in certain rights, and one would not want to guarantee my rights to property for all time, any more than they would to Indians. But they should respect those rights; the measure of protection is now afforded in Section 109 which retains a trust, but it is done almost by implication.

I think clear words would do something to wholly assure the native people.

At the same time, I am convinced that there are problems here which need to be solved before one can completely determine the issue.

Senator Williams: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Williams.

I would now like to invite the Honourable James McGrath.

Mr. McGrath: Thank you, Mr. Chairman.

Since I am at a disadvantage by virtue of the time constraint, I will try to incorporate my questions in one submission, and perhaps I might seek the indulgence of the Chair to ask one supplementary question.

First of all, perhaps I have an obligation to my colleague, and I believe it might be useful to this Committee if I were to pick up one of the points Senator Roblin wanted to make, namely the effect on the government of Canada and its power to act unilaterally, which you, Professor LaForest supported by your arguments, on the Supreme Court decision of December, 1979 with regard to the changes in the Senate proposed by the government unilaterally without consultation in Bill C-60.

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As you know, the court ruled that this was ultra vires that the federal government could not move in that direction, because what Bill C-60 proposed to do was to change an institution which, constitutionally, incorporated or protected the rights of the provinces.

That leads me on to something else which you said and which I would like to pick up.

In the opening part of your statement you quoted Sir Ivor Jennings that in terms of constitutional conventions they provide the flesh which clothe the dry bones of the law.

As I understand the Constitution of Canada, it consists of more than the BNA Act. It is more than the BNA Act. Indeed, the opening sections of the BNA Act define Canada’s Constitution as based on the Constitution of the United Kingdom which, as you know, is to a very large extent an unwritten Constitution.

Our Constitution has very much evolved in the same way. It comprises not only the BNA Act, which is the dry bones of the law in terms of statute, but it comprises usages and conventions as well.

To the extent that these conventions are binding, as you suggest, is a question for Parliament to decide and not for the courts. I will accept that.

But, it seems to me that, given the evolution of the Canadian Constitution, certainly in its unwritten parts, we have constitutional conventions, for example, which define the role of the Prime Minister; I believe that was an order-in-council passed sometime in the ‘30s; up to that time nothing in the Constitution defined the powers of the Prime Minister, indeed the powers of the Governor General and the Lieutenant Governor. We have, for example, regarding the powers of the Governor General with regard to disallowance, that it is now accepted that is a convention of the Canadian Constitution that the power of disallowance is no longer a valid power which would be exercised, although that is arguable.

But it is interesting that of the 15 amendments to the Constitution, the three that affected the balance of power between the provinces and the federal government—the amendment of 1940 dealing with Unemployment Insurance, that of 1951 giving the federal Parliament concurrent powers to legislate in areas of social security and old age pensions, and the amendment of 1964 which widened the scope of the power of 1951—in all three cases, the joint address was made only after consent had been given by the provinces, only after the consent of the provinces; it was a joint address affecting the balance of power and it had been done with the advice and consent of the provinces.

So, to that extent these conventions are binding, if you take these precedents; they are now conventions of the Canadian Constitution.

Indeed, if my memory serves me correctly, that was spelled out in the Favreau White Paper of 1965.

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So, it would seem to me if these conventions are binding, that would restrict the power of the federal government to act unilaterally. Indeed, there has been evidence presented to the British Select Committee by their own constitutional experts that these conventions are as well in certain instances binding on the Parliament of Westminster. That evidence was given before the Select Committee.

I put this to you in the light of your statement that the federal government does, in fact, after consultation—and we admit there has been consultation, but not agreement—the federal government does have the power to act unilaterally; and if you carry that argument, to quote Senator Roblin, to its logical extreme, then that unilateral power, if we are to defy these conventions, which established the balance between the federal government and the provinces, if we are to fly in the face of these conventions, the federal government can , by a joint address, do anything. It can change the boundaries of the provinces—and incidentally you refer to the fact that Quebec was not consulted when the changes were made in the boundary between Newfoundland and Quebec. But I would remind you, of course, that whether or not Quebec was consulted, at that time we were not dealing with provincial boundaries, but with the boundaries between two sovereign dominions, and the case was made to the privy council on behalf of Quebec’s interests, if you like, by the government of Canada; because they were the only ones who were in a position to argue before the privy council in that case, because it was the boundary of Canada, just as Newfoundland made its argument because it affected its dominion boundary.

But what concerns me is that what you are saying is that the federal government can unilaterally change boundaries, that is the thrust of what I would take from your argument, using the Labrador boundary as an example. Indeed you can go on to say that the government of Canada can do anything it wants. It can change provinces; it can do away with the provinces. I suppose it can be argued that the Parliament of the United Kingdom can do anything it wants legally. It is not bound by these conventions, and it can easily accede to any request or reject any request in the form of a joint address from the Parliament of Canada.

I would submit to you, Professor LaForest, that the Constitution of Canada in the form of the BNA Act—its conventions, usages—is just as binding on this Parliament today as it was in 1941 or 1940, and the amendments regarding the power of the government to take unto itself the right to pass legislation on unemployment insurance or the amendment of 1951, when the government took unto itself the power to legislate in the areas of old age security, or that of 1964.

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So, what has changed so suddenly to given the federal government power to act unilaterally, when in fact it did not feel it had that power in 1940, 1951, or 1964, when in fact the Supreme Court of Canada said it did not have that power in 1979 with respect to Bill C-60 to change the Senate.

What has suddenly changed to confer upon the government of Canada powers which it did not have at that time?

Professor La Forest: Well, first of all, of course, you make the assumption in your question that the Parliament of Canada did not have the power at that time. I do not agree with that assumption. I am not denying for a moment the existence of a practice of consulting the provinces. I am merely saying that there are not sufficient precedents for me to be able to say that there is a binding constitutional convention here. I am willing to accede to the fact that there is a practice and an important practice, one not likely to be ignored. I do not think anybody denies that.

Mr. McGrath: What is the difference in a practice and a convention, Professor?

Professor La Forest: Well, you know, you have a rule of law, you have to do something tomorrow and you tend to do it always the same way, usually for a very good reason. At some stage because of the reason that underlies it, you say it has got to be done that way. The Prime Minister must resign.

And if you read through those who are very knowledgeable about conventions and usages and law, they will tell you, “We can define with some measure of accuracy what a law is, but not between usage and a convention. It is very difficult.”

Now, you do have a very few clear precedent here. Of course, the practice is important. Even the paper you cite from, the Fulton-Favrcau thing, it had this in the very same paragraph you know:

The nature and degree of provincial participation in the amending process however have not lent themselves to easy definition.

In other words, they do not quite know what it is. And then it was not constitutionally binding in any strict sense—and he was using the constitution, not in the sense of law there, but in the sense of the constitution in which you used it originally. You do not do things automatically; the Prime Minister must resign if he is beaten.

There may not be a law about that, but certainly that is a clear convention of the constitution.

Now a practice builds up, but practices can be broken. Indeed, conventions can be broken if the reason is serious enough, but usages and practices are far more easy to break.

Okay, that is the first point then that I want to make, that in fact I am not convinced there is a convention. We move then,

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if there is not a convention, it clearly is not a law—and on that I feel firmer, even though there is a court that might come along and say differently—but the Senate case does not trouble me, I know that part of the underlying reasons of courts are affected by this kind of brutal fact that the Senate is very important.

But the ultimate legal reasons of the court were simply that Section 91, the first part of it read:

The Senate and the Queen by, and with the advice and consent of the Senate and House of Commons … and you were removing that out and this did not fall within 91(1), because that presupposed the beginning. So I really do not attach as much significance to the Senate case as obviously you do, though I am quite aware, of course, that in looking at that question a court is affected by the underlying political base.

Mr. McGrath: But surely the government is also affected, because that decision restrains the power of the federal government to act unilateraly in terms of the institutions of the federation.

Professor La Forest: But not the Imperial Parliament, if I may use that phrase. What we are trying to get now, is a statute from Great Britain, or the United Kingdom.

Now, let me try to come to your next question about, if it can do this it can do anything. That is why I want an amending formula. They will not be able to do everything then. It will have an amending formula.

Mr. McGrath: … an amending formula now, Professor. The amending formula …

Professor La Forest: The amending formula is that one gets to the Imperial Parliament…

Mr. McGrath: Which is a part of the amending formula. The Parliament of Westminster is now a part of our amending formula.

Professor La Forest: Yes, it is in the section of the Statute of Westminster which 1 quoted.

Mr. McGrath: And that amending formula is governed by conventions, which means that the constituent parts of the amending formula are governed by those conventions.

Professor La Forest: That may be your opinion. It is not mine. I think the law is quite clear. It is in Section 4 of the Statute of Westminster that the Imperial Parliament can pass a law so long as there is a declaration in in that consent was obtained, and the British have never debated the nature of that consent when there was a Senate and House of Commons resolution.

Now, I am affected by the fact that you bring before me, that if Parliament of Canada can do anything like this, why does it not do it. Well, of course it is not really trying to do that, but nonetheless, suppose this one does not go and we do not get a complete change in the constitution, as is sought here, could it be used again to remove the resources, change the boundaries and so on?

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I suppose in an abstract sense, yes. But I suggest to you that has very little to do with reality.

I mentioned the declaratory power. If the Parliament of Canada made use of that every day, once a week, there would not be provinces there worth two cents. It would not even have to go that far. The trade and commerce power has far more muscle than this Parliament has ever exercised. The taxing power has far more muscle than this Parliament has ever exercised.

It can use these quite ordinary powers to eviscerate much of the power of the provinces. Now, why was that not done? You know and I know why that was not done. This Parliament would not put up with it and the people of Canada would not put up with it, because there is a deep and strong underlying feeling of federalism in this country. And almost any federation you can name is as strong, is as weak in that aspect as the people of the country want because words of law are infinitely malleable.

I do not like that kind of power to remain indefinitely. That is why I would like to see a formula that encompass a situation where you get a significant part of the population spread out in various parts of the country, because that is fundamental. But so far, we do not have that.

Mr. McGrath: Could I have one supplementary …

The Joint Chairman (Mr. Joyal): Mr.McGrath, you should consult with Mr.Crombie, as I still have Mr.Crombie on the list and if there is no opportunity for Mr.Crombie to put your question, I then come back to you with the same proviso that I have expressed to Honourable Senator Roblin. I know the question is important. You will understand that it is not to put it aside. I think it needs answer, but I would like to recognize now Honourable Bryce Mackasey.

Mr. Mackasey: I have no further interventions to make.

It certainly infringes on my time. I will infrigne on the next guy’s time. The last guy will infringe on our dinner hour.

Mr. McGrath: I assure you I will be very brief, Mr. Chairman. One of the constitutional experts appearing before the Select Committee at the Parliament of Westminster, Professor Geoffrey Marshall, when asked a question “Should the Parliament of Westminster proceed while these questions are pending before the Canadian courts.”

Professor Marshall answered that the only constitutionally proper solution would be for Britain to attempt to secure a delay until the courts have ruled on the question which we ourselves are being asked to answer.

I asked that same question in relation to the Canadian Parliament. “Should we proceed before the Canadian courts have had a chance to rule on these questions which have now been referred to it by six of the provinces?’

Professor La Forest: Well, let me answer—not the question, because that question is yours, but the principle. You can

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make a case, of course, for waiting. You can make a determination that the question has been long enough debated, and if you so believe that the law is sufficiently strong on your side that you are going to take the chance, because if you did not do that on any piece of legislation you could stymie this Parliament by going to court. And you know that.

Now, I realize that a constitutional question is more important and that adds to the weight of the argument against it, but the ultimate question on that is surely one on which you must make a political decision. There is no pat answer, but these are the considerations.

Is it important enough to move without it? Now, insofar as Professor Marshall’s opinion, the precedent, of course, comes out of his head because insofar as the British House of Commons is concerned, it has always acted on the basis of a resolution of both these houses and he has refused to go behind it.

Mr. McGrath: Thank you very much. I want to thank Mr. Mackasey, Mr. Chairman, for his courtesy.

The Joint Chairman (Mr. Joyal): And I want to thank you for your cooperation, being brief.

Honourable Bryce Mackasey.

Mr. Mackasey: 1 always felt we had a very wise Co-Chairman. I must say very shortly, that I envy your students. If your brief is any reflection on the clarity with which you lecture to the students, I sometimes wish I could be one of your students. 1 may want to do that one of these days.

I have a reputation in this country of not understanding legislation. That myth has been perpetuated by Professor Crispo, who has just come in. He used to deal with me when I was Minister of Labour and say in exasperation, “Mr. Minister, you have not read your own legislation”, which was very true, and he would refer me to the right section.

Now, I am not suggesting that Senator Tremblay, in referring 51 to you, had forgotten to read his legislation, but his inference was that somehow we were negating 91, 92 of the constitution.

What in fact, and I want to get my sections right, Sections 48, 49, which precedes 51, state very succinctly the retention of 91, 92, so far as delegation of powers is concerned. I think in 48, subsection 50, Parliament may exclusively make laws amending the constitution of Canada in relation to the Executive, Government of Canada, etc.; 49 talks about the provincial powers.

So that was really in essence, the purpose. 51 is really not a substantive clause at all. It supports 48, 49 and 50. I do not want to get into the legalities. I am not a lawyer.

But I do want to get into something very important because I think that you, more than any witness, have emphasized the distinction between the law and the law, coloured if you like, by political reality.

You mention on the top of page 7, for instance, coming back just for the moment (I don’t want to forget these things)—

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convention and example. I think you mention even the basic conventions the government must resign if defeated on a vote of confidence, is subject to great uncertainty in its specific application. And that recalled to me events in 1968, and I can tell you the month, February, and I had been in Cabinet about two weeks, when in fact, the government was defeated on what had hitherto been considered on a convention as a vote of confidence. I am sure you are aware of that, and what happened is that Parliament, in its wisdom, decided in fact that convention was not a law and indeed, the government was not overthrown. So I think that makes a distinction between convention and law, but in making that distinction between convention and law as parliamentarians, we are then subject to the wrath, displeasure or support of the public.

Another great example to me, Professor LaForest was the flag debate. People, “That is only a symbol”, but you pointed out the importance of that symbol in the last referendum campaign in Quebec. I was quite aware, as one who participated actively in that debate that the moment of truth so far as what we had done, being right or wrong, would be the next federal election, when an aroused public had an opportunity to evaluate the efforts of the Prime Minister.

And I would say that what we are doing here, the public of Canada will pass judgment, if not next year, the year after or the third year, on this government and on our present Prime Minister, as to whether he acted not simply legally, but wisely and in the best interests of the country. That is a decision I think he realizes and has made his decision in that light. That is the beauty of our system where you can combine legality and parliamentary wisdom.

I want to speak to you about the amending formula, because my views are very much influenced by Senator Eugene Forsey, perhaps because, like yourself, he has a clarity of langauge. He can put things in a passion and he always taught me that the British North America Act is a magnificent document, that its one fundamental weakness is that it has no amending formula. Do you agree with Senator Forsey on that?

Professor La Forest: Yes, I agree with that. I would add that it should also have a few more symbolisms.

Mr. Mackasey: Well, maybe in the light of the times symbolism may not have been appropriate, just as we are talking sometimes about extending Section 133 to the provinces.

Professor La Forest: It is an excellent instrument.

Mr. Mackasey: That is right, and chances are that had it had an amending formula we would not be in this impasse today. We would not have to do something that can be defined as draconian.

You were around in the Victoria Charter days. Did it or did it not have the consent of all the provinces?

[page 45]

Professor La Forest: What happened was that every province was consulted very often and it was ironed out and ultimately there was in effect, an agreement. It was not on paper. But the reason that Quebec did not accept the formula had nothing to do with the amending formula. It had to do with the social policy issue, and I suspect if the social policy issue had not been there, there would have been another one, but it had nothing to do with the amending formula.

The Joint Chairman (Mr. Joyal): Professor LaForest…

Mr. Mackasey: Eventually the courts will decide the argument as to what we are doing is legal or illegal and you have expressed an opinion and a valid one and others are expressing contrary opinions, equally valid in their own opinion. Maybe they will be right and you will be wrong. That is for the courts to decide.

What we have to decide is if what we are doing is not only politically right, but morally right.

I come back to the amending formular—the role of Quebec. And before I get into that, because there has also been talk of a referendum here, and I was in the Quebec Assembly when we had to put a piece of legislation together, to dictate the norms of the referendum, and I was very conscious of public opinion, editorial comment, labour groups, concerned citizens, separatists through conviction, who nevertheless were determined that that formular would be as fair as possible, and to the other side, although I must concede that I was not too happy with the question, and that is a legitimate concern of members opposite.

But I want to come back to 51 for a moment and point out that in that whole area of Sections 48, 49, 50, 51 those sections are very conscious, particularly in areas spelled out in Section 50, that the consent of the provinces be obtained. So it is wrong to think that Section 51, I don’t want to leave that impression, somehow negates all built-in safeguards of the BNA Act for provincial authority.

If you had, this is only a personal view, your own personal choice of an amending formula, what would it be? Because I am wrestling with the Toronto formula which has appeal to me.

Professor La Forest: Yes, well the art of the possible of course plays a very large part in this. About the best we have been able to attain with the art of the possible, was the Victoria formula. It had problems that I mentioned that one province by having a greater increase in population would get the veto and in the bar thing we made a slight amendment to that in order that one of the two larger provinces in the west would be represented. You wouldn’t get into that kind of fix, but we were deeply conscious of the fact that this was the only formula that 1 know of on which both the federal parliament and the provincial legislatures have gone.

We considered, in the length of time we had and that is about the length of time I have had, the question of majority ones and we found them too stiff one way, or too loose, so in the end, we thought this was about the best that could be

[page 46]

achieved in the light of political reality. And of course, we weighed that kind of political reality then.

Mr. Mackasey: Are you familiar Professor LaForest with what is vaguely called the Toronto formula, which is a variation, if you recall, that would have some flexibility on most issues, but inflexibility on certain fundamental issues, inflexibility in the sense that it would require unanimous consent to amend anything dealing with language?

Professor La Forest: I am not familiar with that one, but it strikes me the same way as any other inflexible formula. As much as possible, we should give it the maximum flexibility possible. At the same time, this has to be consistent with regional representation.

Now, that one seems to me to be totally inflexible and I do not think that a small part of Canada, say Prince Edward Island or New Brunswick, perhaps Manitoba, maybe Alberta on certain issues, should have a veto on what the rest of the country wants, and that is what this is about. Ultimately though, you have got to have that kind of regional balance and the Victoria formula, while not perfect, no formula is, did give that kind of weight. It was not too inflexible, but nobody would claim that that is a flexible formula. Nobody in his right mind would. It takes an awful lot of political will to achieve a change under that formula.

Mr. Mackasey: I just want to say in conclusion, because I have over-extended my time, that my bias of course is that I am a strong centralist, because without a strong central government you cannot afford the luxury of strong regions. And if you are going to develop strong regions economically, you need a strong central government if you are going to retain that balance of power.

The shift, as I have seen it in recent years, has been the reluctance of the central government, for the very reasons you have outlined, to use the tremendous power that already is at its disposal if only it was sure of public opinion and support. Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much Mr. Mackasey.

The Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman. Professor La Forest, I appreciate you taking your time this morning and giving us some benefit of your wisdom and experience over the years in dealing with the Canadian constitution.

I hope you will take my remarks kindly when I say to you that I found your testimony probably the most devastating and pessimistic that I have heard since I have sat on this Committee.

I would like to ask you a question and I would like to preface it by a 90-second thought, prior to the question.

I was raised in a tradition, and over the course of my life have practiced tradition. It is said that in the conduct of both the human governmental and legal affairs, the most important ways in which we restrain power, whether that was personal power or governmental power or any kind of power, the most significant way in which we restrain power in any civilized

[page 47]

society was by the use of its customs, its traditions, its usages, its conventions, and indeed law was the monopoly of the estate to use force in order to enforce, if need be, those traditions and customs and conventions.

All of our social institutions, it seemed to me, in that principle, families, etc. If we had to resort to law, on every occasion in order to restrain personal, group and governmental power, we would indeed always be existing in what you referred to yourself as the dry bones of the law.

So I was somewhat encouraged when I read your first four or five paragraphs indicating the flesh and blood of the constitution, much like our society, blessed with the conventions and the traditions, and only the bones were the law.

I got increasingly worried, and am now very worried, when I heard you respond to Senator Roblin and to my friend Mr. McGrath, when the question was put to you, “Where does the limit of the power of the federal government end?”. If they can do this, what happens if they want to take away natural resources? What happens if they want to change provincial boundaries? What happens if they wish to change language and cultural rights?

And your answer was, not that they will be restrained by convention and custom and tradition. Your answer was, you have faith in the amending formula.

I would like to ask you this question. What, in your view limits the power of the federal government in relation to the provinces of this country?

Professor La Forest: Can I comment very slightly on your preamble?

Mr. Crombie: Please.

Professor La Forest: Basically, I agree with almost everything you said. The one thing that I don’t agree, is that you attribute to me the statement that conventions and usages should not exercise a restraining force. They are an important restraining force.

Procedures generally are always an important restraining force, and…

Mr.Crombie: I do not wish to interrupt, but I think that is the crux of the matter.

Could I say to you, I found throughout each of your responses to the kind of questions I put that whatever accolades and warm thoughts you may have about conventions and customs and traditions, they were as nothing compared to the law. That is what worries me. I have found in my own life in the conduct of public affairs, that conventions and customs are more important than the law, not less important.

Professor La Forest: I do not deny that. What I am merely saying, and the question that has been argued was whether there was a law. I do not see one.

Secondly, is there are convention? I am sceptical of it. I am sure there is a usage and a practice, and I think it is a very important usage and practice that should give pause to a government, that should give pause to the Opposition and the Opposition is criticizing the action whenever that practice or usage, which is terribly important, is broken. I don’t deny that.

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What I am saying is that if it is mere practice, and I am using mere here as opposed to law, there sometimes comes a day …

Mr. Crombie: That is precisely the point. Mere as opposed to law. Sorry.

Professor La Forest: When someone thinks it is important enough to go beyond the usual practice. Now, that question is not for me to reply to. That is a political question. It is for the government to determine if this is important enough and urgent enough to move directly, and it is equally for the opposition to criticize that decision on that basis. So, 1 am not denying their importance, what I am trying to say is that you are free to do anything you want on this one. And speaking of the blood of the law and the spirit…

Mr. Crombie: But clearly that is the concern, Professor. If we are free to do anything we want, that also applies to the government and that is the burden of my question. What is the limit of the government’s power.

An bon. Member: That is right.

Mr. Crombie: So far as I can understand the logical consequences of your argument, your legal argument, the logical consequences of that argument is that there is no limit to the power, no legal limit to the power of the federal government to arrange the powers and rights and the responsibilities of the provincial government in any way, shape or form. That is it has control over the rights and powers of the provinces, whether it is natural resources, languages rights, cultural rights or you name it. There is no legal restraint.

Professor La Forest: It has the power to go to Westminster to get that kind of change.

Mr. Crombie: Does that power then rest—the only limit to power is Westminster.

Professor La Forest: And Westminster is not going to look at it, they have told us.

Mr. Crombie: So that that means there is no limit.

Professor La Forest: But surely, surely you do not ignore…

Mr. Crombie: Is that where we are in this country now, that there is no limit to the federal government’s power to control the rights and responsibilities of the provinces?

Professor La Forest: But there is.

Mr. Crombie: My Lord.

Professor La Forest: There is, there is after all, you know, an electorate. There is a Parliament and it will have a view on any serious breach of convention or practice and it is up to the opposition presumably if it does not agree with that, to bring it loud and clear to the public.

Mr. Crombie: I put it to you then, Professor, if I could Mr. Chairman, if the federal government controls the House of Commons in its majority, and if the provinces do not have any legal basis upon which to resist invasion of the federal government in provincial government powers then therefore there is no limit either by the court, as you suggested earlier, no limit

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limit by the province, no limit by the Parliament in Westminster, and there is only the electorate which does not suggest that we might want to have a wider participation of Canadians in the process of constitutional change since these people cannot be restrained by any known body.

I know you say it was a value judgement, and I accept it in that sense.

But I want to get back to the question Mr. Crombie asked you, for a person who is not learned in the law at all, but one who comes from a minority situation and now believes he is part of the larger Canadian family—minorities have always placed great stress on convention and practice, and in a federaly system, on relationships.

You do not need relationships to the same degree in a unitary state, but you do need relationships in a federal state. That is critical to our discussions.

That being the case, do you not feel it is important—and you might say it is a political decision; but the law is also political; it does not sit in the abstract, apart from the political process; in fact, the law has always been a product of the political process; so, that being the case, you say the system must work, and I suggest to you that if you remove convention, practice and relationships, then you eventually end up with the bones, With the skeleton.

A skeleton does not in fact have life. A skeleton has no humanity. A country is not a skeleton, but a living organism.

While you might be right in terms of the baldness of the law, the law is also political in its genesis.

1 ask you, does the country work if we rely on the law only?

Professor La Forest: I never suggested that for one moment. I said the law must be given life by rules and practices and by men. There can be no doubt about that. There can be no doubt about the importance of practices; there is no doubt about the importance about the conventions. They are very important.

What are you fighting about this morning, if I may put it that way, if they were not important? But you will concede that there are cases where you can change the law.

Mr. Epp: There is a process.

Professor La Forest: Of course. And you must also change conventions if it is a decision that has to be made. But essentially it is a political decision.

Now, 1 am not denigrating it by calling it a political decision. 1 am saying that is really important.

But what you are asking is: but of course the practices are important; but that is what the debate is about. Is what is being sought to be done sufficiently important to depart from the practice?

Now, I could give you my view, but that would not help you.

Mr. Epp: Thank you, Mr. Chairman.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp, for your cooperation.

Mr. Tobin, followed by the Honourable Perrin Beatty.

Mr. Tobin: Mr. Joint Chairman, I have just a short question. I would like to clarify a matter raised by Mr. Crombie. I believe Mr. Crombie had stated in the most passionate and articulate way I have heard so far whilst sitting in this Committee, precisely the reason why the government needs to move now to patriate the constitution.

Mr. LaForest says that you have suddenly woken up to the horror, at least in theory, technically of the power the Government of Canada has, it’s absolute power, at least technically: the Government of Canada can go to the Government of Great Britain to ask for anything—technically.

Now, that is a frightening power! It is a degree of power 1 do not think any government should have, and that is precisely the reason why I believe we must patriate the constitution and have an amending formula.

I put it to Professor LaForest that, is it not true that under this present proposal with the amending procedure described therein, the Goverment of Canada will no longer have anything as near the kind of power which, at least technically, now exists.

Professor La Forest: That is correct. Ultimately you can now go to Parliament. Whether your political power would be more or less, though, is a question for you to decide. Or it may be actually more under a formula for amendment. But a terrible power is difficult to exercise.

Mr. Tobin: But, as a matter of law—the point I am making, and as you have so often tried to point out, you are here to express a legal rather than a personal opinion; as a matter of law, is it not true that, given the proposals contained in the Canada Constitution Act of 1980, the powers of the federal government would be dramatically reduced and the federal government could no longer by itself in effect proclaim law or change the division of power between the province and the federal government.

Professor La Forest: I think that would be the general effect of it, yes.

Mr. Tobin: Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Tobin. The Honourable Perrin Beatty.

Mr. Beatty: I would just like to pick up on a point made by Mr. Tobin. I think it is a most interesting argument. As I understand it, the argument he is making, Professor LaForest, in favour of an amending formula is that it would put legal constraints on the federal government which simply do not exist today, on that basis, you believe it would be desirable for us to incorporate an amending formula in the constitution in order to put those constraints upon the federal government?

Professor La Forest: I think it would be valuable to have an amending formula. I am not making an argument for or against this particular one; but a general balance.

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So it is desirable and would limit clearly the legal power. But how it affects the political situation, the political power, is another thing.

Mr. Beatty: If I might observe parenthetically what Mr. Tobin suggests in his argument that he is so horrified by the power that Ottawa has that he has to put an end to it—it seems a curious situation!

As I understand it you are not, Professor, passing judgement on the worth of the amending formula proposed by Mr. Trudeau, the modified Victoria Formula; You are saying you are in favour of an amending formula, but you are not saying that is the be-all and end-all but that it is acceptable to you, is it?

Professor La Forest: The Victoria Formula I know from bitter experience was negotiated with a great deal of difficulty.

Personally I would like a more flexible formula, but I do not think we are going to be able to get it.

Mr. Beatty: So Victoria is acceptable to you?

Professor La Forest: Yes, generally it is.

Mr. Beatty: Now picking up on the line of reasoning Mr. Tobin was using, there are two amending formulas which are included in this resolution: the first is the principle of unanimity for two years; the second is the modified Victoria Formula.

Mr. Tobin was arguing that we have to include an amending formula in the constitution to prevent these awesome powers from Ottawa being used in the future.

May I ask you this. With the other amendments to the constitution that Mr. Trudeau and the Liberal majority are asking Westminster to make, that is, the charter of rights and various other changes which they are asking the British Parliament to incorporate under these provisions, is it your understanding of the situation today that Mr. Trudeau’s amending formula, either the principle of unanimity or the modified Victoria Formula, which is included in this resolution, would either of those formulas, if they were in place today allow Mr. Trudeau to make the changes which he and his Liberal majority are asking Westminster to make today?

Professor La Forest: To make here?

Mr. Beatty: Yes. Could those changes be made here, instead of going to Westminster under those amending formulas but is there unanimous agreement today to make those changes or is there the agreement that is required under the modified Victoria formula included in this resolution?

Professor La Forest: You could, of course make the change. With the unanimity principle, of course, I think you are in trouble and that gets us very far afield.

Mr. Beatty: You are saying there is no unanimity today.

Professor La Forest: With the Victoria one, of course it could be done under that, but the question is, is it to be done

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now? But you are then faced there with a question to which I do not want to reply, because ultimately it is a question for you.

Mr. Beatty: The question is, is it your understanding that, if the Victoria Formula were in place today, if these changes being asked for by Mr. Trudeau and his Liberal majority, were to be achieved through the Victoria Formula, that is the modified Victoria Formula, do the conditions exist today which satisfy the Victoria Formula?

Is there the agreement today in Canada which is mandated by the Victoria Formula which would be necessary to make those changes under the Victoria Formula in Canada?

Professor La Forest: I do not think obviously that there are seven provinces or whatever the number is that is required to agree.

Mr. Beatty: Then, could I put the question to you, if, indeed, the Victoria Formula is a good amending formula for the whole future of Canada to be used to make amendments to the basic law of the land, the Constitution of Canada, and if, indeed, the changes which Mr. Trudeau is asking the British Parliament to make, using this awesome power which you and Mr. Tobin have referred to, could not be made under the amending formula proposed by Mr. Trudeau, then what does this say to you about the amending formula proposed by Mr. Trudeau or about the course of action proposed by the Liberal majority in asking Westminster to make changes which under their own amending formula they could not make in Canada if it were in place today?

Professor La Forest: Well, it tells me what I have said before, that it is, in my opinion, too rigid, but it is about the only thing, in the ball park about what we are likely to get. I wish it were more flexible. That is what it tells me.

But at the same time reality tells me we are not likely to get anything less flexible.

Mr. Beatty: Mr. Trudeau makes the argument that, unless we use the power which Westminster has today, unless we go over the heads of the provinces and use this awesome power to ask Westminster to make these changes in Britain, which his amending formula would not allow him to make in Canada, then the charter of rights and the other provisions he is talking about would never be found in the Canadian constitution!

Well, Professor, this raises a very serious question in my mind, as to whether or not the only substantive change we would ever want to make in Canada to our constitution would be made this time. If that is the only change which would need to be made, it is a one time only proposition, and then perhaps the Victoria is satisfactory.

But if we accept the proposition that there may be amendments in the future which need to be made, and if you accept Mr. Trudeau’s suggestion that these substantial amendments could not be made under the Victoria charter, then surely we are doing a very grave disservice to Canadians by putting an

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amending formula into the constitution which is unworkable, which would not allow amendments to the constitutions which are as desirable as Mr. Trudeau says these ones are to be made in Canada.

Professor La Forest: There may be shifting tides of politics. It may that more provinces will accept—fewer provinces will accept the bill of rights. I can remember, for example, during the Victoria period, there were more provinces that accepted it than now.

The very same premiers may, in a few years, change their minds, so I do not think that that necessarily cannot be done; but now, insofar as Mr. Trudeau’s decision to act now is concerned, he has the power now, or at least the Government of Canada has the power to go to Westminster and do it. All right. That is obviously a serious decision. It is obviously a decision on the part of the Government of Canada that this is serious enough to use the powers which are there now, because they are sufficiently committed to a Bill of Rights to take the chance that it involves by saying “we are acting now in a way that we could not act later without the consent of the provinces.”

So it raises a question which you, as an opposition, must raise with the people and with regard to which the government, in its own way, will say, “well, it is more important than all the rest of the amendments you can come up with, the protection of the rights of the individuals to a bill of rights is extremely important to us.: Well, that is the decision, and that is the one that the government must sell and the one which presumably the opposition would like to oppose.

Mr. Beatty: Final question. If the amending formula, which Mr. Trudeau is proposing, is sufficiently good to be written into the constitution for all time and to be used in future for any change over the course of 1000 years that we may want to make in Canada, if it is that good, then do you not feel the government has an obligation to simply patriate the constitution with that amending formula that they believe is that good and to make such tentative changes to the constitution here in Canada using that amending formula which they feel is good enough to serve Canada for all time?

Professor La Forest: Again, in a different way you are putting the political question of whether the government should act under the power it has now and ignore the fact that later it would have to get the provinces to act.

But, surely, that is a decision for the government to take and to take its chances on, and for the opposition, if it thinks it is unfair for it to act until there is a more rigid one, to say, “it is unfair”.

I could give you an opinion on that, but it would not help you.

Mr. Beatty: It would indeed help us, because we are charged with the responsibility under the terms of reference given to the Committee, of saying whether or not this resolution should go forward at all, or whether it should go forward in an amended form.

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Clearly, if you accept the logic being put forward by the government about this amending formula, that it is a good amending formula—to use Mr. Tobin’s argument that it is necessary to restrain this awesome power, then the government—and this is why I want your opinion—the government is obligated, in my judgement to patriate the constitution with this amending formula, which some other acceptable amending formula, and to make substantive changes to the Canadian constitution here in Canada, using the amending formula which it feels is good enough to be incorporated in the constitution for all time.

Professor La Forest: As I say it is a judgment.

Now, you may feel—and 1 do not know if you do—that a bill of rights is not that important in a constitution.

Mr. Beatty: That is not the point at all, Professor.

Professor La Forest: You can wait to have an amending formula that you think will not give you a bill of rights. Now, if you were to ask me right now whether that formula will give you a bill of rights in the next five years, I would say no. I think the likelihood is against it.

I happen to believe very strongly in a bill of rights, you see; and so there is an opportunity to go one last time without cutting down on the division of powers which protect the rights of people, because essentially the argument is, how do we go about protecting the rights of the people, and I can understand the quite legitimate argument, that, “well, the legislatures will do that, and they have to respond to the public.”

I have become convinced that is not the way to go, and that has to be retained, of course. We are not going to part with our traditions with a bill of rights, and people are not suddenly all going to go to court; they will continue lobbying, and apply pressure and try to educate and all the rest of it.

So I happen to believe in a bill of rights and I do not see one coming for the next five or six years.

So, my temptation is, you know, that it does not affect the balance of power. They are both losing something, but that is a personal opinion. It is quite easy to argue against that.

The Joint Chairman (Mr. Joyai): That is your last question, Mr. Beatty.

Mr. Beatty: Thank you, Mr. Chairman.

The value of the professor’s testimony is that it cast very serious doubt about the workability of the amending formula which has been proposed by the government. I appreciate the professor’s contribution.

Mr. Mackasey: That is in your opinion.

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Mr. Beatty: In the Professor’s opinion. He said you could not make these changes under that amending formula.

Professor La Forest: You could make them if you could change the opinions of the premiers.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Beatty.

The Honourable James McGrath on a point of order.

Mr. McGrath: If you are about to discharge our witness, Mr. Chairman, we, as a committee should apologize to them, because we have kept them here from 9.30 without a break. Perhaps we could make arrangements for the other expert witnesses when they appear, to at least give them a break so that they could respond to nature.

The Joint Chairman (Mr. Joyal): I am very concerned that after two months of sitting, Honourable James McGrath, you have finally discovered the Chair is in the same position.

Mr. Nystrom: Mr. Chairman, should that be enshrined as a constitutional right in the constitution?

The Joint Chairman (Mr. Joyal): I understand Mr. Nystrom would like to ask a short question but he will understand, after what has been said by the Honourable James McGrath, that time is now open for us to relieve him. So far as there is an agreement to resume our work at 2.00 this afternoon with Professor Maxwell Cohen, I hope members will be as interested as they have been this morning at 2.00, that it is my privilege and honour on behalf of the Honourable Senator Hays, and I am quite sure on behalf of all honourable Members, to thank you for your contribution. No doubt as a result of the questions which have been put to you and the comments made in reply, you realize the responsibility we have will be much better received and implemented in view of the light you have shed on matters which we have received from you this morning.

Thank you very much, Mr. LaForest.


Professor La Forest: Thank you.

The Joint Chairman (Mr. Joyal): So, the meeting is adjourned until two o’clock this afternoon when we will hear professor Maxwell Cohen from McGill University.

The meeting is adjourned.



  • 1410

The Joint Chairman (Senator Hays): Honourable members of the Committee, we are privileged to have Professor Maxwell Cohen again with us.

Professor Cohen, you know the procedure, of course, and on behalf of the Committee members and the Joint Chairman we welcome you back.

You may proceed, please.

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Professor Maxwell Cohen (McGill University): Thank you very much, Mr. Chairman.

Honourable Senators, members of the Committee, 1 am honoured to be invited again. I thought that one of the rules of life is once bitten, twice removed, and consequently having been here once before I would have thought wisdom would have dictated ignoring me thereafter. Even more wise would have been my refusal; having had so pleasant and cordial a reception from this very able Committee, I am perhaps daring the future by coming back again.

Nevertheless, when you asked me to come, Mr. Chairman, and members of the Committee, I understood your position was to explore in more general terms what may be my personal thoughts other than those I expressed as Chairman of the Canadian Jewish Congress Select Committee on the Constitution. That brief speaks for itself on some issues, I stand foursquare on all issues in that brief as I did then, but on some matters I would have gone a little farther personally and I have prepared an outline for all of you of the general scope of my remarks today which I will not read but allow you to use as a basis for a discussion with me.

If that is satisfactory, Mr. Chairman, perhaps that might be a wise way for me to proceed, to refer to the document, not to read it, and to give members the maximum opportunity to engage in a dialogue with me.

The Joint Chairman (Senator Hays): Senator Roblin, on a point of order.

Senator Roblin: I appreciate what Professor Cohen is saying but I hope that when he refers to his document he might perhaps give us a running summary because I, for one, have only glanced at it this second so it is hard to know what is in there, if you could help us with it.

Professor Cohen: It is very difficult to summarize beautiful prose but I shall do my best.

I may say I am delighted to see Senator Roblin here because there is one crucial sentence in this brief that arises from something he did in Montebello many years ago when he was a distinguished key speaker at a McGill conference. He may recognize the sentence.

I thought first, Mr. Chairman, I would allude to the, in an introductory way, to where I would go farther than the Canadian Jewish Congress did in its brief.

For example, I think I would have gone farther on mobility rights. We supported mobility rights, I thought in fact that the Charter was a little less hesitant in the area of protecting mobility rights, not merely the right to move and achieve the opportunity for employment, but I could not see why the concept of the ownership of property, the concept of the movement of capital, goods and services, subject to reasonable local limitations made necessary by the circumstances, should not somehow find its way into the Charter.

[page 57]

Otherwise, you face a dilemma in the future, you face a restrictive interpretation problem which, at the end of the day, will increase the feeling on the part of local legislators that they have a great deal of scope for restrictive legislation, and I think that would not be wise to do.

You want to find language of a kind of balance where the provinces, yes, may experiment with land ownership on a local basis, for example, Prince Edward Island; yes, may give preferences in affirmative action programs to their own people if need be, for example, as in Newfoundland; but no, not to so encourage the dimension of localism that it really interferes with the basic economic union which this country is partly all about, because if we are not an economic union what are we, at the very least on a nonspiritual level? On the spiritual level I presume, Mr. Chairman, we are something else; but on the material level we are certainly at least an economic union.

I do not get that feeling from the mobility rights provisions, the adequacy of emphasizing the economic union character of the Charter.

Under Section 11 of the Charter I would have gone farther than our brief did then, Mr. Chairman, with respect to the tainted evidence rule. You will recall that Section 26 of the Charter says that the existing rules of evidence are assumed to be in force, and Section 11 dealing with a variety of legal rights does not touch upon this very controversial issue, namely is evidence that is obtained illegally usable by our courts.

The Supreme Court of Canada in Re.Rae a few years ago made it clear that they are not going in the direction of the US Supreme Court, to some extent, in forbidding tainted evidence, evidence gained by illegal means. They are willing to leave it to the discretion of the court to weigh in the balance the degree of illegality as compared with the need for the successful problem of proof in that particular trial.

The Canadian Civil Liberties Association before you, sir, made a strong plea for the clear prohibition of illegally obtained evidence to be used in Canadian courts. I do not go the full distance with them, I think that is not a realistic appraisal of the modern needs of criminal law enforcement, but I do think the language of the Charter should be tilted in some way in favour of the preservation of the individual accused from the maximum use of tainted evidence. How you do that is a very sophisticated and difficult matter, but to be utterly silent on it or to even entrench the present rules as Section 26 does seems to go farther than you need. You might consider, therefore, the elimination of Section 26 and hope that the courts will take the hint as they suggest they might do in Re.Rae.


[page 58]

The freedom of schools problem under Section 23, freedom of education, I thought the Canadian Jewish Congress brief made a very serious effort to come to grips with a very difficult problem. I stand with them on that, but if you are asking for my personal inclination I would like to maximize wherever possible in this country, in the name of unity, in the name of the authentic bilingualism that should permeate much of our hope for the nature of the Canadian psyche in the next 50 years, even within a multi-cultural Canada.

I would think that the maximum movement or freedom of choice should be encouraged and it seems to me that this raises problems for many provinces with very modest French speaking populations, good examples are Saskatchewan, Alberta, British Columbia even more, perhaps Nova Scotia, where the number of French speaking Canadians would raise real questions for systematic approaches to freedom of choice, but I think the price is worth it, and what I think we ought to explore is language which maximizes freedom of choice.

Now, this of course raises the question of Quebec. There I think one has to recognize that an authentic sense of concern still permeates so much of Quebec thinking, that freedom of choice would lead to a diminution in the number of French speaking Canadians over time and threaten the language and the culture.

I have now been a Quebecker, except for my recent years in Ottawa, since the end of the war. My mother was born in Quebec. I regard myself as having some understanding and feeling for the problem of the people of Quebec.

I find it paradoxical that at a moment in Canadian and Quebec history when French culture and French language, French theatre, French universities have never been stronger, never been more vital, French novels, French poetry, that there should be this continuing sense of vulnerability. Something must be done to overcome that sense of vulnerability and perhaps the need for excessive protection inside Quebec would be moderated over time by the knowledge that other provinces are behaving with generosity to equalize the problems in Quebec itself.

You would release the head of steam in Quebec of fear by a sense of equality from coast to coast as far as one could get it in language that is acceptable to all the parties so as not to put excessively onerous administrative and fiscal burdens upon them.

Nevertheless, I recognize the Quebec fears, 1 respect them, but 1 no longer feel they ought to dominate the life of Quebec as much as they do.

My support for the Charter as whole remains as firm as it was when I was here subject to the views we expressed about the difficulties line-by-line, and I hope and I realize from the many things that you have done and said that I have heard over the air and watched on the TV that you are taking very seriously into account and your final draft report will reflect many of the changes that are emerging.

[page 59]

Now, the second paragraph on page 1 of the document, going down to page 4, I tried to do something which you may or may not care too much about but I thought it was urgent. I tried to put the debate you are having here about the proposed resolution, the Charter, the patriation and the amendment problem in the context of Canadian constitutional and federalism history. How do we get to this point and how does one put this in perspective historically and analytically?

I think it is fair to say we began Canadian federal life in 1867 with a very strong image of a strong central government. I think it is fair to say that by the middle 1930s we had heavily decentralized through judicial committee decisions the previously strong central notion of a strong central Canada, and indeed so much so was this that probably it would have been said, and it was said by no less a person than Dean Vincent MacDonald at Dalhousie as he then was in an article in Volume I of the University of Toronto Law Journal, a rather celebrated article, that we have reached the low ebb in the concentration or distribution of powers in favour of the provinces as interpreted by the Privy Council and it remains an open question: is Canada federally viable at that point?

What rescued the situation from this decentralized trend for 80 years was World War I and its temporary centralization powers under the War Measures Act, and more particularly the enormous economic changes and powers in World War II.

The equilibrium then shifted sharply to a strong centralist federal system in World War II and shortly thereafter, and that was further added to, Mr. Chairman, by the fact that the tax sharing agreements persisted after World War II.

The cash flows were very heavy in favour of the federal government as the collector of the taxes. A strong bureaucracy with first class brains and imagination, a post war general dynamic increased the social sense and opportunities of all post war governments so that you had indeed a translation from the old equilibrium of decentralization to a new factual, if not legal, central power that was unthought of in the middle 1930s and indeed thought to be lost forever.

By the late 1950s, early 1960s, social policy and economic policy were essentially in the hands of the national government aided by their tax collections, aided again also by the control over fiscal and general monetary policy through the Bank of Canada.

You had a paradox in Canadian life, the paradox was this: that legally great powers still remained in provincial hands, great powers interpreted over many years; factually and politically, however, power was increasingly in the hands of the central government and able to make priorities in shared cost programs which are too attractive for the provinces to refuse, and here I borrow from a remark made by Senator Roblin when he was Premier of Manitoba, that indeed the great problem of his day was that priorities were being set by the federal government whether the provinces liked it or not.

[page 60]

Indeed, that problem probably as much as any exacerbated the problems of developing a new equilibrium between the federal and provincial governments, and yet the net result was a more dynamic social policy under post war governments than one would ever have expected, a more creative approach to economic development, to social development than what could have been predicted in the late 1930s.

So you have this double problem of a federal system in which the legal side tended to be on the whole heavily decentralized through a series of old and new judicial decisions but the political factual side tended to increase the power of the central government.

That was true until about the middle sixties when an important change took place, the change was in the growing power of the provinces economically, the growing share of their revenues, until as Professor LaForest reminded us this morning, by the middle 1970s the picture had changed radically from a position where a federal government has a preponderance of revenues to a position where it now was a minority income recipient compared to all the provinces and municipalities, and so you had great social programs initiated by the federal government, shared cost programs with the provincial governments, and slowly with the balance between them, the equilibrium between them changing in monetary terms and changing in other terms as well.

In all of this there was a great temptation to say: how do we modernize the constitution? And the word modernization here had two aspects: one, how do we bring the equilibrium abreast of the facts of life; and secondly what is there now in our constitutional system that is defective and needs repair?

One, of course, was the constitutional anomaly of Westminster still being the home of the amending process, and the other was the uncertainty with which we approached the activist interventionist state of our time. Did we need a bill of rights? Did we need something to put a brake on executive power and on legislative power? Was there a point being reached in the life of Canada where there was a need to reexamine the basis upon which neither the bureaucracy nor the legislature could transcend certain minimum basic principles of behaviour?

Of course all of this is greatly influenced, Mr. Chairman, by the UN Covenant on Human Rights, the Declaration of the UN Charter, everywhere in the Western world human rights movements were having their impact and they had their impact in Canada.

The Diefenbaker Bill of Rights was a noble experiment, to borrow a phrase. It was essentially a rather glorious failure. It was seriously meant but seriously flawed. Its most important flaw was, of course, that fact that it was not a duly entrenched instrument, and we came, therefore, to the conclusion, I think by the end of the 1960s, that two great changes had to take place in the life of Canada: one was we had to find a way of getting the constitution back into Canada, getting rid of the

[page 61]

locus for the amending process in the United Kingdom; and the second one was: how do we develop a new equilibrium in the balance between federal and provincial power at the same time as we entrench a whole series of basic rights, linguistic, political, democratic, mobility, economic, natural resources, et cetera, et cetera. And the great debate since the 1960s has not been on the amending formula alone, it has been on this complex of how much revision of the whole constitution should we attempt to undertake at this time.

So we reach the present proposals. The present proposals, therefore, are a reflection, in my view, of the failure to be able to go the general route which has been developing since the Pearson-Trudeau of 1968 and 1971, which ultimately had their tragic failure in Victoria.

We then tried throughout the 1970s to still go that route of having a more general revision of powers, et cetera. The September conference here was, I suppose, to be regarded also as a failure, regrettably, and I presume, and no one has told me this since I have no personal knowledge, I presume that this resolution is an attempt, Mr. Chairman, to say: look, a holistic approach to constitutional revision simply does not work. What might work is to get the constitution back into Canada, get a sensible amending formula, try to get rid of the tremendous irritations and anxieties over language and education rights, and perhaps put that into a general rights package which might thereafter become a shared system of values for the whole country; not a simplistic Bill of Rights view but looking at a Bill of Rights as the best statement we can get of what values we share at the highest level of our political and legal aspirations.

I suspect these were the motivations, 1 have given you the best possible interpretation, whatever other subtle, machiavalian—there were none, of course. Everyone speaks on the highest level of good will, but for my own part I see the direction of thought in the past few months as saying: look, we cannot go the holistic route, what is the best route to travel? This is the route that was chosen.

Now we look at that route and I conclude my opening remarks by two or three comments on the central issues as I see them.

When, on October 6 the Government of Canada announced the proposed joint resolution it seemed to me at that time that, given the failure of the September conference, the search for patriation, the search for an amending formula and the search for those rights which can be entrenched and get rid of some of the major Canadian anxieties in the language education dispute and some of the other areas, was a valid search.

What one could not have foreseen, Mr. Chairman, in October, what has happened today. One could not foresee the battle over patriation, the legal and political issue which you discussed so fully this morning with Professor LaForest, one could not foresee the degree of objection that has taken place

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to the referendum aspects of the amendment formula and one could not foresee, finally, that there would be an energy debate which would bring into collision some of the principal parties and thus colouring the constitutional debate itself. These things could not have been foreseen.

This leads me to believe that you have now an unusually difficult job. You not only have the line-by-line job that you are going to do, and I have just learned that you are doing it under the cameras which I think is surely heroic on your part and you all deserve the George medal for undertaking it in public view, but your job was made more difficult and do you have any sensible answers or how are you going to be coloured by the debate over patriation and its legality as seen in the UK or in Canada, the debate over the amending formula since the referendum issue has raised among all parties serious questions, and the problem of getting a resolution to the energy crisis and the debate over it which has its constitutional aspects as well.

Now, I suppose I really should stop here because I would like you to explore perhaps with me and among yourselves how you see the impact of these three unexpected debates since October on the nature of your work on this document: one, the debate over patriation and its legal and political aspects which are now before the courts; two, the debate over the amending formula, particularly the referendum; and three, the interlinking of the energy debate with the general constitutional debate.

Given your ability to absorb that intelligently and creatively in your own work, you will have helped Canadians in a brilliant way for the next generation.

The Joint Chairman (Senator Hays): Thank you very much, Professor Cohen.

Our first questioner is Mr. Allmand.

Mr. Allmand: Thank you, Mr. Chairman.

Professor Cohen, I want to put a question to you on a matter that has not been raised by you in your opening remarks but on which I know you are an expert and it relates to remarks made on earlier occasions and again this week by Mr. Epp when he pointed out correctly to some of our Indian witnesses that Section 50 of the proposals would permit amendments regarding the Office of the Queen, even the possible abolition of the Queen.

While I know the section will certainly allow for amendment with respect to the Office of the Queen, I am not certain whether it would provide for complete abolition but I will not argue that. It might.

However, while he was correct in reminding the witnesses of that section, in my opinion, he incorrectly stated and perhaps misled the witnesses and the Committee—and I do not say he did so intentionally—but I think he was incorrect and I want your views in suggesting that possible changes in the Office of the Monarchy and in particular the abolition or near-abolition of the Monarchy in Canada would repeal obligations made in

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the name of the Queen by governments of Britain and this country.

Now, I give you the examples in point. All the treaties are made in the name of the Queen with either other states or they were made at the time, if one reads the documents, with nations of Indians in this country and in the United States, prior to the Revolution in the United States.

Mr. Epp was suggesting that if the Queen was removed that that would in fact render null or inoperative the obligations of Canada with respect to those treaties and I would like to point out that there were several important treaties prior to Confederation. Witnesses before this Committee have pointed to the Robinson-Lake Huron, the Robinson-Lake Superior Treaties in Canada of 1850, there were the treaties prior even to the establishment of many of the provinces.

What is your view on that and, in commenting on it, I understand that Section 132 of the British North America Act transferred all treaty obligations, international obligations to Canada from Britain with other constitutional documents, but I would like your view on that because I know it is one you have dealt with in the past.

The Joint Chairman (Senator Hays): Yes. Mr. Epp.

Mr. Epp: I apologize to Professor Cohen for interrupting but I just want to have it shown very clearly and to Mr. Allmand, yes, I did point out Section 50 and I have fears in Section 50 in terms of the Monarchy but, apart from that, I think Mr. Allmand would agree with me that the native people who were before us were stressing their case, that is, the protection they felt they had in the Monarchy, in the Crown, and they feared that changes in the Monarchy could in fact jeopardize the treaties they have. I concurred in that view and the record will show that that is the manner in which we are proceeding.

Mr. Allmand: That is right, and I completely disagree, I do not think the rights lie in the fact that the name of the Monarchy was there as a symbol and I would like Professor Cohen to give us his expertise on the flow of obligations with respect to treaties, whether the Monarchy is still there or not.

Mr. Cohen: I am reluctant to debate fiercely with a fellow Manitoban but the situation, very briefly, members of the Committee, is this.

Take the most dramatic scenario, a scenario in which Canada is completely severed not merely from the Crown but from the Commonwealth. The international law of states succession is quite clear. There is a very large literature on it and that is that states take over the obligations that were there whatever maybe the nature of the change in their government.

Now, you can have, of course, a revolution situation. When the Bolshevik Revolution took place—which I do not suspect is on the horizon here in the immediate future—the USSR denied many of its international treaty obligations and particularly those dealing with concessionnaires to foreign investors.

That led, of course, to a breach of diplomatic relations with many countries, which eventually Roosevelt restored, but there was never any doubt in the international community that

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States have legal obligations by way of treaties which are not destroyed even by revolution although some states attempt to do so and thereafter have to make compromises by way of new agreements or a settlement of some kind.

In the case of Canada, under Section 50, if we are to change the powers and style of the Queen, if we were to become even more independent within or without the Commonwealth than we are today, no change would take place at all, in my opinion, to any of the treaties that have been binding upon us, either pre-Confederation or post-Confederation, if one has a clear understanding that those treaties were at one time binding.

Let me give you an illustration. I take it that all the agreements that the U.K. signed on our behalf dealing with United States boundaries, the Jay Treaty in which they stole a large part of New Brunswick and gave it to Maine—strike that verb from the record, please! I am stuck with it? On dear, I will never be invited again anywhere!—or take the Alaska boundary dispute about which there was so much Canadian— the decision there, we regard as binding upon us, or take the Oregon boundary dispute about which so much discussion took place. Sorry, Alaska was 1905, but all of these were pre- Confederation. The Rush-Bagot treaty with respect to warships on the Great Lakes, there is a whole network of treaties that were pre-Confederation treaties and post-Confederation but free real independence treaties of which there is no doubt they are binding upon us.

Now, to come back to the specifics, Mr. Allmand, I take your debate with Mr. Epp turns on the legal status of the so-called Indian treaties signed in the name of the Crown and how the Indian community would feel about them should that Crown disappear from Canadian constitutional life. That is the issue between you.

In my view, it should not change at all. It should not change at all.

Once we have—what we have not got yet, Mr. Chairman— one we have a legal image of some precision as to what those various Indian treaties mean, then the Law of States Succession simply continues those particular claims into whatever type that Canada follows.

What is missing in the Canadian juridical, political, constitutional framework about native rights is there is yet unclear position of all the conflicts of those rights that now make up the totality and the variety of native claims. That is what is missing, but not the legal theory of state succession to which we would be responsible.

Mr. Allmand: A follow up question.

Mr. Cohen: Does that answer the point, Mr. Epp?

Mr. Allmand: Mr. Epp will have his chance a little later.

Mr. Cohen: On, I am sorry.

Mr. Allmand: We are on my ten minutes.

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Mr. Epp: Thank you, Mr. Allmand.

Mr. Allmand: A supplementary question. Many treaties were signed by the British Crown with North American Indian nations and tribes prior to the American Revolution.

Mr. Cohen: Right.

Mr. Allmand: Some of these were signed in Boston …

Mr. Cohen: Yes.

Mr. Allmand: Some in New Hampshire, some in Detroit, some in Windsor and in Niagara, U.S. Niagara now but at that time all British territory, but applying to tribes of Indians which today are on this side of the Canadian border.

Mr. Cohen: Or broken.

Mr. Allmand: Or broken, such as the Iroquois, such as the…

Mr. Cohen: Cayuga.

Mr. Allmand: The New Brunswick Indians. The fact that those treaties were signed out of the present-day borders of Canada and were signed by the British Crown when all treaty obligations were transferred to Canada in the British North America Act of 1867, with Section 132 would Canada inherit those treaty obligations as well with respect to those persons that were intended by the treaties, although the treaties were signed in what is now the United States.

Mr. Cohen: That is a very interesting question.

Now, I cannot claim to be an authority on an awful lot of the recent material here. The classic case, you will recall of course, you once took, Mr. Allmand, was the Cayuga Indians case, Mr. Chairman. In that case, the question was: what was the right of certain Cayuga Indians living now in both Canada and the United States after the War of Independence when an original treaty made by the British Crown with the Cayuga Indians gave them certain rights which they now claim operated equally in Canada.

A tribunal was set up to look at the Cayuga Indians case and the general problem for the tribunal was this: is the Cayuga nation a nation known to international law which then justifies treating their treaty as something known to international law. The tribunal said no, the Cayuga Indians are not known to international law …

Mr. Allmand: Excuse me. Was this the Canadian or the American tribunal?

Mr. Cohen: A joint tribunal.

And the difficulty remains with respect to our transboundary obligations and the point that Mr. Allmand raises will come up again and again with respect to those tribes who claim rights in Canada for treaties made in pre-revolutionary or post-revolutionary times before Canada itself had any degree of independence to share in it and was simply a successor to an agreement between the United States and the British Crown to make an agreement of a certain kind with an Indian tribe which had part residence in Canada and part residence in the United States.

My guess is that I cannot answer categorically. I would think frankly that the equities of the future would require, in

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many cases where you have a transboundary tribe, you have got them here at Cornwall on the St. Regis Reservation, where you have a transboundary tribe that can show its historic unity, that both countries ought to have so far as possible a common approach to the equities of their claim in order not to have one side feel aggrieved as against the other, and this might be an area worth exploring in future Canadian-U.S. native rights relations.

Mr. Allmand: My last question, Mr. Chairman.

With respect to the Royal Proclamation of 1763 and similar proclamations which are unilateral, not bilateral, instruments where rights are given or rights are recognized, to what extent do you believe the Royal Proclamation of 1763 can be amended in Canada and, if it can be amended in Canada, I am talking about under this proposed formula, or need it be expressly amended, must it be referred to. In other words, if rights were given under the said Royal Proclamation and by some statute, federal or provincial, those rights were taken away either without intent or with intent but no reference was made to the Royal Proclamation, would that be sufficient or can these types of proclamations be amended by ordinary amendment processes either as we have them now or as they would be?

Mr. Cohen: In my view, the nature of Governor Murray’s 1763 Proclamation which had, as you know, as one of its great achievements the preservation of French language and civil law and religious rights for the peoples of Quebec …

Mr. Allmand: In addition to granting allegedly many rights to Indians.

Mr. Cohen: To Indians, and in addition, granting a whole complex of rights to the native populations, that particular instrument, once the sequence historically moves toward the emergence of a federal Canada which increasingly is independent of the mother country, though the Crown remains the same, the legislative effect of growing independent is to make it possible for either level of government within in its own appropriate areas to make such amendments to the law as would be required in their own wisdom at that time.

Now, with respect to native rights, those native rights in the Proclamation of 1763, in my view, would, if they came within the jurisdiction of a Parliament of Canada having jurisdiction over Indian and Esquimo claims of all kinds, those rights were amenable to the sovereignty of the federal parliament.

Now, the question becomes one larger question of equities. If you have a right to amend Governor Murray’s Proclamation in this Parliament, as I think you historically have a right to do, what credence, what respect ought you to give to this whole series of rights based upon that Proclamation of 1763.

That is my judgment, is far less a legal question than a question of political judgment. The legal question is answered: Parliament may do as it pleases, up to certain points. Now, if you have—to come back to Senator William’s point this morning—if you have a charter of rights which attempts to entrench by language however carefully chosen the entire

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network of antecedent relationships with native peoples, from Governor Murray’s Proclamation to much looser documents, you have undoubtedly given a degree of additional protection to native groups in Canada but you have undoubtedly also increased the degree of sophistication with which you must understand what you are doing and realize the consequences for future legislative enactments and judicial interpretation.

So, it is by no means a simple matter, but the preservation of a continuity is one thing, the rights of Parliament another thing and, then, the role of a charter is a third, all to be linked together in some understandable collectivity.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand.

Mr. Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Professor, it is a pleasure and a privilege to see you amongst us again.

I have a series of questions that I would like to ask you both in connection with your brief and with the extemporaneous comments that you made.

When you were before us the last time and wearing the hat of the Canadian Jewish Congress, you indicated, and I quote:

In relation to the situation of unity within the country today…

you made this statement, and I quote:

I go further and I say that given the reality of Canadian disunity at this time, one of the great triumphs of a well-drafted, well-understood, well-rooted charter is the unifying effect it can have on the whole country as a statement of commonly-shared values.

Unless we see it in that light, I think we miss a great opportunity.

Today, on page 8 of your outlying notes, at the bottom of the page, you cristallize that general thought in perhaps a more concrete form and you say, I quote:

Finally, the question has to be asked whether the Canadian public has had the fullest opportunity to debate the issues, not merely those raised by the proposed Joint Resolution, but of the general constitutional context within which we are envisioning the Canadian future. It will be argued that this is a recipe for delay, not achievement.

And here is what I would like to emphasize:

But handled wisely and managed well, the delay will be minimal in relation to the opportunities offered for advancing the national self-image and its future framework.

This Committee, Professor Cohen, has to make a recommendation to the House, we all have to come to a both individual and collective minds on what it ought to do. I wonder, given your suggestion to us in your conclusion this afternoon, whether your thinking had progressed to how long a delay there ought to be in order to achieve the kind of national

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consensus-making that you envisage and, secondly, had you had in mind any specific organizational models or any content to the process that you are recommending to us so that we can achieve the national consensus that you are suggesting to us.

Mr. Cohen: It is so easy, Mr. Crombie, to put forward ideas, it is so hard to cross the t’s and dot the i’s, is it not? That is why the classroom is such a safehaven for all of us.

Mr. Crombie: Yes.

Mr. Cohen: It is a toughie?

I like your point. I would say that I was caught in drafting that between my desire to see the charter move ahead as rapidly as possible and my desire to see the charter be the best statement of values we could draft in this country and my desire nevertheless to put it in the context of where we are going in this country generally, and that is why you will see the emphasis I place in my memorandum, sir, on page 8, re Federal-Provincial Cooperation.

If you look at items 3 and 4, they really should be read together-…

Mr. Crombie: Yes.

Mr. Cohen: Because I always thought it a very interesting possibility that the Government and Parliament as a whole should say to itself, look, we do need this charter, we do need an amending formula, we do need patriation and get rid of the anomaly that now exists, but surely, to use a phrase that came up this morning, we also must make the system work and what is not being given the attention it deserves at the parallel level of political and professional concentration, in my view, is the search for better instruments for federal-provincial co-operation. I regard that as a missed opportunity and it seems to me that given the great Canadian national interest at this time in constitutional change, evolution and improvement—and I do not go along with these people who say that this ought to be on the back burner—I think it is a great mistake, it is a real issue, it ought to be addressed, we have had a lot of constructive and destructive moments about the Constitution, let us try and do the best job we can in order not to have it become a festering element in our national life, but when we do it, let us not forget that there are many components here. We are not merely dealing with patriation, amendment and rights, we are dealing with how will the system work from here on and that is why I think some attention must be paid, certainly at the political level and, ultimately, at the constitutional-legal level, on the instruments of methods for improving federal-provincial co-operation.

I notice Senator Goldenberg is not here today but I understand that he and Senator Tremblay and Senator Lamontagne were largely responsible for that excellent volume which just came out from the Senate dealing with certain constitutional matters.

Part I is a very good summary of the possible instruments for future federal-provincial co-operation. I recommend that document to all of you because the Senators themselves, well, Senator Connelly knows more about it than I do. I read it and I think that it provides the kind of guidelines that will improve the whole climate of this country at this critical time and make

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the context in which Parliament is proceeding with the Charter of Rights, patriation, amendment package much more relevant to the totality of making the system work. So that we want not merely patriation, not merely an amending formula, not merely a first class statement of rights, but we want to improve the system of making the system work and that means new approaches, fresh approaches to federal-provincial cooperation which I miss.

Mr. Crombie: Professor Cohen, in both your comments, and indeed in your excellent essay in the Globe & Mail—on December 4, you again counselled delay and you used the word I thought rather well and you indicated that we ought to be specifically talking about a delay at this time, that raised my interest and concern because …

Professor Cohen: I do not mean delays, Mr. Crombie, if I may interrupt you …

Mr. Crombie: No, I use your word, I do not mean to misinterpret it, but what I was concerned about was I do not think anybody, on all sides of all of the issues, wishes to simply have us delay and do nothing so my interest was in whether or not, for example, you favoured the establishment of a constitutional conference or whether you established a broadened version of this Committee or indeed any other instrument prior to going to Westminster.

The reason I ask is that you conclude your article in the Globe & Mail on December 4 by saying Canada cannot tolerate chronic threats of confrontation, litigation or separation as a way of life. Unless appropriate institutions are created, what was to have been a triumphant constitution may become a tragic bitterness.

It seemed to me that it was at this point that you were talking about what we ought to do now?

Professor Cohen: Well, what is it that is always said: would that my enemy had written a book or article? I would say that the point you are making is exactly the one I tried to make myself, namely that I think this is a great opportunity. I fully support the Charter mystique and the Charter approach. I fully support the going to Westminster for the purpose of getting this anomaly finished and having a domestic amendment formula, but I do not see why at the same time sensible men cannot say to themselves: what about the rest of the operational facts of life in this country?

That does not mean you delay. Let me put to you what I said earlier: I think if you look at the Pearson-Trudeau and the post Pearson-Trudeau conferences in 1971 down to September, one lesson that comes out of it, I think, for practical men is this: after 113 years of a fairly successful constitution, and look at the rest of the world and you can see you make a country as complicated as this work for 113 years, it has been a pretty good success but it still has, obviously, dangers and difficulties.

You do not try a simplistic, holistic approach to rewriting. I just think that is fine for seminars carried on by non-academics but it is not life. Life has to be handled when the problems are defined.

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Now, you have got a very skillful arena of definition you are now dealing with, a particular area, but do not let that arena let you close your eyes to the other arenas that are awaiting parallel interest and activity, and I would say: go on with this work, get it done, tell Professor Marshall and Professor Wade and Professor Ladderback who have been giving evidence to the British that there is a whole problem here, can the UK Parliament do this in view of certain historical rules or, rather, conventions; our professors are as good as their professors, at least modesty prevents me from saying anything else.

However, I do not think that really ought to prevent you from proceeding as your wisdom sees fit. I do think that the Committee would be wise, with all due respect, to say to itself: okay, we are doing the best job we can here but outside the door are these other problems, what are you doing about them?

Mr. Crombie: In that connection, Professor Cohen, and again relying on your excellent article in the Globe and Mail on December 4, you had this to say about the process we have been involved in. You said: perhaps the moment has arrived when as much attention should be paid to the means and institutions for improving provincial input into decision making and federal-provincial co-operation generally as has been devoted to the patriation, amendment, charter package.

I think you raise quite properly the question of the relationship between means and ends, or politicians still call it process and content, I think, but moralists at any rate, theologians would call them, and I suspect yourself, might refer to them as you do, refer to them as means and ends, and it has always been something I think held by yourself in other things that you have written that I have read, that you cannot achieve ends, however good you may think they be, by the adoption of bad means, and it was in that context that I read your note in the Globe and Mail and would like to ask you, given that, given that now is the time perhaps when we should give thought to the means by which we are trying to achieve those good ends, what in your opinion is the role that custom and convention and tradition and usage of a political and constitutional nature plays in that process, what appropriate means do we have?

Let me, before you answer, say that for many people I might represent in my own riding, and perhaps other people I might see, when 65 per cent of the people in Canada who are asked the question: are you in favour of unilateral action? They said no. Now, maybe they do not know what they mean by unilateral action, maybe we might disagree on what unilateral action is or is not, but I suspect that what we could probably get common ground on is that unilateral action occurs when we have used means which are not generally agreed upon by the participants who are going to be affected by the decisions.

So I am asking you what traditions Canada has going for it that keeps us away from the sheer power of the federal government in relation to the protection of both individuals and provinces.

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Professor Cohen: Well, let me divide your question, Mr. Crombie, really into two parts: one is the legal question, the other is the political question.

The legal question, you had a very formidable debate this morning and the matter is now before the Manitoba Court of Appeal as to whether or not the Canadian series of experiences in going to Westminster have led to a binding rule of law which makes illegal going there unless you have provincial consent wherever the rights or powers, I think the Province of Manitoba question reads, rights and powers of provinces are affected. That is the legal question now before the Court of Appeal.

It will be before, I presume in similar terms, before the Quebec Court of Appeal on January 16, before the Newfoundland Court of Appeal on February 14 if I remember correctly. Those courts of appeal will make judgements and I have no doubt in due course they will be appealed automatically to the Supreme Court of Canada where, in the usual course of events the Supreme Court, on giving—or there is a right to appeal I think in these cases, they will be consolidated into a single appeal.

Now, you put me in a bit of a spot here from the point of view of the niceties of the matter. Frankly, if the case were now before the Supreme Court of Canada I would not be prepared to discuss that with this Committee. I will tell you why: I do not think one should put pressure on the Supreme Court of Canada when it is making a very important constitutional judgement, even in the case of a reference which is an advisory opinion. However, I am not reluctant to discuss the matter when it is before the Court of Appeal and I will tell you why. I think there is an important difference here.

If we develop the concept in Canada that when a matter is before a Court of Appeal of a province by way of a reference, and a federal statute or a federal joint resolution or a federal bill is involved in that reference and therefore Parliament cannot discuss it, and of course you are a member of Parliament, you could then have very, very unpleasant games played by provinces by sending a reference to the Court of Appeal in order to interrupt a whole federal process.

That would be very, very unwise to do, very unwise of Parliament to say: we stop talking about a particular subject because it is before the Court of Appeal of Manitoba or Newfoundland or Quebec because of the way it can be abused.

However, when the matter is before the Supreme Court of Canada that is a different kettle of fish. There I am not so sure that I would want to see a serious public debate about an issue of this kind while the case is pending before the Supreme Court, but it is not there yet so I am caught in the grey area, and you are asking me for an opinion when the ambiguities per se are large and when the timing of your question is in this grey area.

However, my natural predisposition to silence means I will give you an answer.

I am very impressed with Premier Blakeney’s presentation before you and I went through it just before I came down to

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the meeting, and I was very impressed with Professor LaForest’s discussion with you this morning which I heard on the air. I have been reading much of the material in all the briefs, all the facts that are before the Court of Appeal of Manitoba. 1 have also been looking at the material surrounding the documents that were before the Imperial conference of 1930 which led to the Statute of Westminster. I believe that we are dealing with what we call a bifurcated question, political and legal.

On the legal issue, I do not believe that the achievement of a concensus on the part of the province is binding at all upon Parliament and binding upon the courts before it moves in this kind of direction to ask Westminster. I think to make it a rule of law from the way in which it has developed would be to overstate the mechanism of converting custom-convention into a binding rule of law.

Let us not go into that too deeply, it has a different flavour, I may say, in public international law than it does in Canadian or Commonwealth constitutional law. There are some differences in the role or idea of custom there.

So I myself do not think, and I will know better when the Court of Appeal of Manitoba speaks, that this has become a binding rule of law, but I do think it is an issue of considerable political importance, which no student of Parliament can ignore, namely: is there a political tradition, whatever its legal weight, that must be given at least some attention to?

Now, on that your judgment is as good as mine and I really am in a difficult position here because it is very easy to say if one were in the moment of history when it was not an issue to sit back and look at it and have a discussion, but when it is in a moment of political history, when you are all sitting around the table with a very sophisticated mix of legal and political judgments to make, then I am not sure that you want a rather uninformed academic like me to guide you on what is a profoundly important political question. You have to make the political judgment, looking at all the evidence, is there really here enough evidence to justify the statement that, given the Canadian political tradition you do not go to Westminster in this kind of case.

It is not a legal question, it is a political question.

The Joint Chairman (Senator Hays): Thank you, Mr. Crombie.

Mr. Crombie: I have one small item not related to these central issues, but it was related to a matter that I raised …

The Joint Chairman (Senator Hays): You have had about 20 minutes.

Mr. Crombie: Have I?

The Joint Chairman (Senator Hays): Yes. Could we come back to you?

Mr. Crombie: Oh, sure. It was dealing with war criminal trials. It was a matter dealing with Section 11(e) and Section (f) but I will come back. Thank you.

The Joint Chairman (Senator Hays): Thank you very much.

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Mr. Rose.

Mr. Rose: Thank you, Mr. Chairman.

Professor Cohen, I do not have a sign and my name is Mark Rose. I have not had the opportunity to hear you earlier, so therefore I cannot really call upon your previous testimony. I have read only a summary of the Jewish Congress’ remarks and I have made some notes about it. A great deal of what I wanted to ask is covered by Mr. Crombie’s discussion and intervention, but 1, too, am concerned about really what you are hinting at here at the bottom of page 5 under “unexpected legal and political problems involved in the patriation process”.

Professor Cohen: My notes of today?

Mr. Rose: Yes, in your notes of today, and then you go back to it again on page 8 and 9, you talk about recipe for delay, not achievement; handled wisely and managed well the delay will be minimal, etc.

You come awfully close to, if not saying, at least hinting at your being an anti-unilateralist, if that is a word?

Professor Cohen: No, that is not my purpose. My purpose was to raise a warning flag that there are issues as important as this one before the Canadian people, and the issues are: how do you make the system work better?

I do not want to interrupt this process, Mr. Rose; I do want to see it go hand in hand with the other process which is, what is the future of federal-provincial co-operative institutions?

Now, I think it was either Mr. Crombie or Senator Roblin who asked me that already, what do I propose by way of the detail of such co-operation?

Mr. Rose: Well, could I interrupt you just at this point? Are you saying, then: Look, in effect we have tried the other things up to now for 113 years, it is time you bit the bullet, you have gone this far, full steam ahead, but at the same time in the future do not forget the necessary techniques and issues and accommodations necessary to achieve more support than you now have, for what you are doing, provincially?

Professor Cohen: I go further. I say that while you are doing this exercise here, while you are going to London, while you are fighting that battle, remember there is another struggle of equal importance and perhaps in the long run of greater importance; how do you make the federal system operate without the frictions we now see and have had in the past, short of, to use the paragraph Mr. Crombie quoted to me, short of having frequent problems of confrontation, litigation and threats of separation.

1 think the only answer to that, frankly, is for intelligent and imaginative men in political life to say to themselves: All right, what are the points at which the friction takes place? What are the issues over which they seem to be chronically dominant? How do we find methods of improving it?

I will give you a little illustration. I do not like talking in the abstract. I find it very difficult as a Canadian to fully grasp all of the issues in the energy debate. Now, I admit that I am not a full-time student of the energy crisis, but it seems to me incomprehensible that there should be an energy debate of this danger to the Canadian system at this moment without there

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being some common public understanding of the facts and common agreement on the facts.

Clear the basic facts. Is there agreement on the nature of the total Canadian reserves? Is there agreement on the types of pricing policy which relate to what kind of conversation? What are the alternative sources?

I cannot imagine us going forward for the next 25 years with a complex of issues of this dimension with the two levels of government unless we have developed some kind of common fact-finding machinery on which the federal and provincial governments can agree in order that the public understand, here are the issues because there are the facts upon which there is a common concensus.

Unless you do that, where are you in the future problems of disputed settlement between the provinces and the federal government?

Mr. Rose: I understand that point, but I wanted to ask as well, I understand now since you responded; I did not before; but is there in your view anything that we can do or the government of Canada can do, or this Committee can do now concurrently to, or have we exhausted all those possibilities? Do you feel that the lines have hardened so firmly with court cases and all the rest of it that there is really no wriggling room left, room for accommodation?

Professor Cohen: With due respect I would propose that this Committee, which is going to have a very big job to do in the four weeks of drafting, ask itself the following question: Do we have an obligation to point out in this report that there is this other great area as yet unresolved in Canadian federal life to which government ought to be paying prime attention while this particular package goes on its way, and to even make suggestions like those in Part 1 of the Senate Report, to which I refer, because I do not see any serious discussion in this country on the mechanics of future federal-provincial co-operation.

Now, there was for a time, when the Beige Paper came out and we had Claude Ryan’s Federal Council, there was for a time suggestions of an improved Senate for providing better provincial input. I think we have now gone beyond that. I want to see mechanisms for the permanent dealing of federal-provincial problems, certainly at the common fact-finding agreement level which do not yet exist, and without it I wonder whether you can really avoid the frequent confrontation which now takes place?

Mr. Rose: Well, if we could avoid those tensions I think all of us would be very grateful.

Professor Cohen: But you cannot do it without some institutional changes, and it is those that you might at least raise as a necessary priority.

Mr. Rose: Perhaps you might elucidate on the nature and kind of these institutional changes?

Professor Cohen: Well, I would suggest one: I think we are long overdue for a federal-provincial permanent secretariat where you would have some of the best civil servants you can

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get full-time devoted to the particular problems that are coming across the federal-provincial desks of each government and developing as far as they can a concensus on the facts to send to their political masters.

I see no reason why a federal-provincial secretariat of some kind is not long overdue in a country as complex as this.

Mr. Rose: Thank you.

I have got a couple of other matters that I would like to turn to briefly.

Professor Cohen: I may say that idea is also supported in the Senate Report.

Mr. Rose: One of them has to do with Section 26 and what you had to say about the acceptance of what you described, I think, as tainted evidence.

Professor Cohen: Tainted evidence, yes.

Mr. Rose: And I wanted to know, some witnesses have suggested that the acceptance of so-called illegally-obtained evidence allows the power of the state to intrude far too greatly on individual rights, and in addition, leads the police to believe that they as a police force are beyond the law.

Would you like to comment on that?

Professor Cohen: Well, I think you are entirely correct in saying the dangers are formidable in having no substantial doctrinal control on the admissibility of otherwise illegally- obtained evidence.

On the other hand, as I said on November 18, Mr. Rose, it would be very unfair to the law-enforcement agencies not to recognize the enormity of their job under modern urban crime conditions, and if one does not recognize the burden on police, one is making a very great mistake.

I was trying to draw a balance between those two values, the values of giving the police a decent hand in the job they have to do and the value of achieving what you say is to prevent excessive intervention, unlawfully into the houses, homes and files of all of us.

Mr. Rose: That is again another conundrum, is it not, to find out where that line actually is?

Could I ask you a final question, I will not go beyond my allotted time if I could possibly avoid it, certainly not in the questioning; you might care to do it in the response as you did with Mr. Crombie.

There have been a number of groups, native groups that have come before us asking or requesting for their further protection that they have their aboriginal rights and titles enshrined in the Charter, claiming that Section 24 does not give them enough protection or does not guarantee them enough protection, does not add anything to their rights, although it may not take anything away.

You also said in response to Mr. Allmand, that perhaps if you did enshrine certain rights, that if you were able to get the wording, which would be extremely difficult, the language was eloquent and accurate enough, in addition to increasing the protection to native people you might hobble yourself or your

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freedom of movement in dealing with their problems in the future, which appeared to me to suggest that you were really not at all that happy about enshrinement of native rights. That is one assumption that may or may not be correct.

However, we heard from at least one native group that had this to say, that Section 24 confers no rights, grants, no new rights, all it does is assure that grant rights will not be taken away, but rights certainly are not enshrined in Section 24, and had this to recommend, that the natives maintain aboriginal rights and titles until such rights are extinguished by treaty. In other words, without the necessity of defining precisely what these rights are, or may be, or might become, that the fact that this mention the explicit reference to the fact of the existence of aboriginal rights and titles would go a good way to reassuring native people and would not necessarily hobble our country or future governments and would allow, in addition, certain institutions, provinces, the federal government, to settle claims.

Now, the suggestion was that until aboriginal rights, whatever their definition is, are extinguished by treaty, that is by mutual agreement, they should remain and persist. What is your attitude to that?

Professor Cohen: Well, it is a very difficult question you pose, Mr. Rose. I think going beyond the language of Section 24, as I myself believe you should do, nevertheless requires a degree of wisdom in drafting which neither says too much nor too little, and I would, without transgressing upon my own common sense at this time, I would think that you could find more and better language than you have now without really closing the door to the legal and constitutional ability you need for proper handling of a great variety of cases.

Look at the extraordinary range. You have got, as Mr. Allmand pointed out, agreements that are pre-1867 dealing with Indian families of communities which transcend both boundaries now. That is one type. You have got those post- 1867 made in this country with some of the native groups in Canada by the Crown.

You have got the aboriginal rights simpliciter of the Inuit family, and in no case is there an actual agreement with an Inuit or group up North.

So you have a purely aboriginal rights theory there.

Mr. Rose: James Bay, Northern Quebec.

Professor Cohen: That is a very exceptional case. Historically, you only have an aboriginal rights theory there. How you put that all in a few eloquent phrases, Mr. Rose, is very difficult.

But the objectives should be to make the native population of Canada feel that in any great constitutional document there is an awareness on the part of the community that there are these historic claims upon the rest of us and that there is an overriding sense of historical equity involved and that somehow we are finding language to express that without pretending to answer all the questions. That is all you can do.

Mr. Rose: But would you use the language, the terms that they request, as I understand it, aboriginal rights and title?

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Professor Cohen: Until extinguished by further treaty.

Mr. Rose: Right.

Professor Cohen: I would have to consider that, Mr. Rose.

I would be inclined to think on first blush that would not answer all the questions, either plus or minus. I would want to reserve judgment on any particular language.

It is a very difficult and highly sophisticated question. It is one which needs your best attention.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Rose.

Mr. Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Professor Cohen, I was very impressed with your last appearance here as part of the delegation of the Canadian Jewish Congress. I also did read the article that was referred to in the Globe and Mail. To me you were reflecting in the Globe, however, the agonies of concern as to, on the one hand, what we are dealing with is a needed, and, on the other hand, are we doing it properly. Am I right in that assessment?

Professor Cohen: Not so much doing it properly, Mr. Mackasey, but the central double points I tried to get across in the Globe and Mail article was, one, that in October 6 no one could foresee the complexities which were emerging since that time. More than the complexities, no one could have foreseen entirely the need for an equivalent effort in the direction of federal-provincial co-operation.

Mr. Mackasey: I need hardly remind you that your whole career, really has been bound up in, as one of your many talents, an interest in federal-provincial conferences.

My approach is more simplistic. I cannot lay claim to be a member of the legal profession or even of the academic world.

But as a concerned Canadian, I share the same concern. But 1 do not think it is right to presume—and 1 am not saying that you are—that the government—and I must speak for the government—is unaware of the point you have made.

I would not go so far as to say that we were unaware in October that proceeding with this particular resolution would be and is being confused intentionally or unintentionally with the whole problem of the budget, energy problems, the insecurity that is felt right across Canada.

It would be naive of me to presume that it is not there.

But certainly this Committee is charged with one specific issue. It has done it, if I may say so, in a nonpartisan way, functioning remarkably well, in that we have, considering the give and take which you get in a Parliament, which is not of a personal nature, but within the civilized rules which have emerged we have been remarkably responsible in remaining rather faithful to the issue before us.

We are not trying to resolve all of the issues, nor are you suggesting that. Naturally, some witnesses do bring in the problem of energy and certain points are then scored.

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But 1 do think that we have to take the first step. I would like to say, for instance, before coming back to the Bill of Rights, that the events of September, the federal-provincial conference in September, was a terrific disappointment to me, at least, not talking as a parliamentarian, but as one who has been concerned with the issue for a very long time.

Why? Because last summer I think the government—the Minister of Justice—set out on a journey across Canada to accomplish one thing: the broadest possible consensus based upon our inability in the past, although we have been tantalizingly close, as you know, to achieve some break through and to get an amending formula which would permit the BNA Act to be a truly noble document.

When in the dying days the Premier decided once again, to trade human rights for material things, economic advantage, 1 think all of us who were very close to the event felt a moment of real despair.

I think the Prime Minister shares your, my and everybody’s view that the ideal situation of achieving what this resolution desires would be through consensus with the support of the provinces.

But from a practical point of view, I think there is no evidence to show that support is or would be there if you were to wait for another conference; although I hope that in the next 24 months the provinces do take advantage of the appropriate provisions to eliminate one of the referenda or to come up with a mutually acceptable amending formula.

I would like to say that I would like to see this Committee continue with a different mandate. I do not presume that I would be a member of it. But that is not the point. But I think there is a need for a similar type of Committee through progress with a mandate, not unlike what has been proposed by some of the well thinking groups which have come here.

But I do think it is the time to bite the bullet. I would like to say that Professor La Forest made a point which you made many times, the relationship between politicians, the academics, and the law, and in the final analysis it would be the people who are the judges as to whether what we are doing is right or wrong.

But I, for one, cannot find any other way of finding an amending formula and of enshrining a Bill of Rights. I say that in passing.

Much as I share your concern about the need to find a solution for energy, and the need to improve provincial federal relationships and the need to establish a better rapport between both levels of government, these are problems which are not unique to Canada, but are common to all systems.

I am not as cynical as some people are about the future of this country. I think Canadians inevitably rise to the occasion when they come to the conclusion, valid or invalid, that somehow or other the politicians are messing it up. I have great confidence in the collective wisdom of the people.

What I would like to ask you is that in the light of Premier Blakeney’s view on Section 1 of the Bill of Rights, the view

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expressed, for instance, quite eloquently by you on behalf of the Jewish Congress, that Section 1 be deleted, the limitation clause, where I was very clear in my own mind two weeks ago that we should delete it, I am having second thoughts, perhaps because Professor La Forest spoke today of the wisdom of the political process, and I have a little more, paradoxically, confidence in the courts when he pointed out that the judges do read the newspapers to find out what people will or will not accept. What is your view? Do you feel it should be deleted, as you suggest, or if not, how would you amend it?

Professor Cohen: Your point, Mr. Mackasey, is a very central one to the viability of the Bill of Rights.

My mind has not changed since November 18th, sir. I believe in the way which Section 1 is now worded makes no serious contribution to the protection of the rights system.

You will recall in that debate, we said that if the objective of article 1 was to provide a reserve of emergency power so that in a particular type of crisis, whether military, domestic or financial disaster, you would have an overriding power in Parliament to move, then what you really need is an up to date view of an emergency power concept. That we give you on page 18 of our brief. I retain that concept.

I do not think that the attempt to balance Section 1 as article 1 does, that the following rights are guaranteed subject to whatever is necessary in a responsible and democratic society—I do not think you can expect the courts to be really happy with that, and you cannot expect history to be happy with it.

I think you are better off having a frank statement on emergency power, and then leaving it to Parliament to pass laws pursuant to it, and, assuming the courts reading the newspapers will know these emergency powers are trying to meet the situation and are applicable under the following conditions.

Do not needlessly weaken the rights themselves by having a sort of “if but” clause, and go straight to the heart of the emergency doctrine per se. I still think that is the sensible approach, and you lose nothing by it.

Mr. Mackasey: Because I note that quite a few members would like to take advantage of your presence, I do not propose to put many more questions.

But putting aside for the moment the turmoil in the country and possibly that we, unintentionally, could be even adding to the confusion and dissension are you in favour of patriating the constitution? I would like to have that placed on record.

Professor Cohen: Oh yes. I have not really changed my fundamental view at all.

All I have done today is to point out the warning signs.

In all fairness to the kind of questions which have been put to me by Mr. Crombie and others, I think it is terribly important not to lose sight of the multiple objectives to make this country work of which this is one particular move.

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Mr. Mackasey: I am not disagreeing with you. I share your view. But I am simply pointing out that we do not have that mandate.

Professor Cohen: But you have a mandate to be thoughtful about the other problems.

Mr. Mackasey: That is reflected in the cross fire of the team members here particularly. I say that in all conscience, having served on many committees, and indeed the spirit of acrimony in other committees would put this one to shame. This has been a very good one.

But I would like to come back to a fundamental matter. You are in favour of patriation obviously and with an amending formula.

Professor Cohen: I have grave doubt about the present need for and language in the amending formula which includes the double referendum approach.

I think you can have a much more intelligent amending process without the open-ended second referendum in which the rules of the game are entirely in the hands of one level of government et cetera, et cetera, and moreover, not only that, you have a certain impermanence about it; it could always be used; in my view whoever dreamed it up was really doing a disservice to an otherwise intelligent approach to the first part of the amending formula.

Mr. Mackasey: Well, I hope he or she, if listening, will take that into account and act in consequence.

But you do agree that we need an amending formula?

Professor Cohen: Yes, absolutely.

The Joint Chairman (Senator Hays): One more question, Mr. Mackasey.

Mr. Mackasey: That is about all I need, thank you. I say that quite objectively.

You want patriation, you want an amending formula, and you want a Bill of Rights?

Professor Cohen: Absolutely.

Mr. Mackasey: Thank you very much.

The Joint Chairman (Senator Hays): Mr. McGrath.

Mr. McGrath: Mr. Joint Chairman, first of all, I want to say to Professor Cohen that I was very struck by his presentation in his last brief, because all of us can find a little haven or some succour in it, no matter what side of the argument we are on. In that regard it is masterful.

Professor Cohen: I want a clear explanation of that remark.

Mr. McGrath: It does, indeed, highlight a number of our concerns. But I would like to digress for a moment. Perhaps I could take up where my good friend, Mr. Mackasey, left off.

I represent one of the smaller provinces, indeed the second smallest in the confederation.

When we became a province of Canada in 1949, we signed a contract with Canada to incorporate it in the British North America Act as the terms of the union.

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That contract assured us of protection of political institutions, the integrity of our boundary; the opportunity within the federation to preserve the Newfoundland culture.

We have had no problem up till now. But 1 am concerned, because the rules of the game are being changed now. Indeed, the contract is being changed unilaterally. I am referring now to a contract between sovereign peoples, a contract which assured us our unique educational and political rights, and the preservation and integrity of our boundaries.

Section 42 could change all that by the use of the federal referendum.

Indeed, the provisions of the amending formula could change all of that, by setting up, as it does, two classes of provinces, giving, for example, veto power to the province of Quebec, which could of course use that veto power to force a reopening of the boundary question between Newfoundland and Quebec.

Our political institutions no longer are protected if this measure in the form in which it is, goes on in the form of a joint resolution to Westminster and enacted into law.

That is a very serious matter, sir, because I suppose our province is unique in that respect, because we are the only province which came in with our sovereignty.

Any suggestion of the federal government taking it upon itself to act unilaterally would have to be viewed with the gravest of concern by the government and the people of Newfoundland.

My concern was aroused by evidence presented here this morning by one of the experts to appear before this Committee, nominated by the government, who held that there were in fact no restraints on the power of the federal government in terms of an address to the Parliament of Westminster to change the constitution unilaterally. That was the thrust of the argument put forward by Professor LaForest.

That means, of course, that the protection that we thought we had under the terms of union between Newfoundland and Canada, we in fact no longer have, if that is in fact the case.

Whether or not it is the case is a question, of course, which has to be decided.

But we have to decide as a Committee whether or not we recommend to Parliament that the joint resolution should go forward, and that is a question with which we are seized. That speaks to process and it speaks to substance. We are concerned with process.

We have indicated, and I am glad you did, that you have grave doubts about the referendum powers contained in this bill, because these powers are one-sided. The same powers to appeal to the people of Canada are not afforded to the provinces, but only to one partner in the federation.

It means that all of the conventions that we thought protected our constitutional rights are now suddenly in doubt, because people have come before this Committee and upheld the right of the federal government to act unilaterally in a way which would change substantially and substantively the balance of power between the federal government and the provinces.

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It is interesting to note in passing that when the government of Canada tried to operate within the powers it had in terms of the federal structure to change the Senate, the Supreme Court ruled that in fact they could not change the Senate because the Senate incorporated within it certain constitutional guarantees of the provinces which were part of the whole package of confederation. 1 ask you, Professor Cohen, as one who has devoted his life to the study of constitutional law, if you hold to the position that the government of Canada is, in fact, omnipotent, and does hold these awesome powers which were referred to by one of the honourable members opposite this morning, and that it can do just about anything it wants to do in the form of a joint address, in that it can ask Westminster to change the boundaries, it can ask Westminster to change the institutions, it can ask Westminster to change the whole linguistic and cultural fabric of the federation if it wants to.

Indeed it was suggested by one who has served Canada well as one of our distinguished provincial premiers, if you carried the argument to its logical conclusion, it can ask Westminster to do away with the provinces and turn Canada into a unitary state.

Do you hold that position? Because I, as one representing, as I do, some of the people of Newfoundland, will tell you, sir, that we would look upon that as a matter of the gravest concern in terms of the impact it has on that solemn pact which was signed between Newfoundland and Canada in 1949.

Professor Cohen: You have raised some extremely important juridical and political questions.

I do not believe—and I differ here with Professor LaForest for whom I have the highest regard; he is one of the half dozen first class students of public law in this country—but I do not believe that the power of Parliament extends to the point where, in presenting a joint resolution to Westminster while Westminster is still the repository of the amending process for our basic constitutional document; I do not believe that any recommendation which goes to the heart of the federal system and portends its destruction would be a lawful document either morally, politically or legally.

That seems to me to be not a convention, not a rule of law, but it seems to be, instead, a way of looking at what was intended by the very nature of the union itself.

That Parliament should by the accident of historical language, either the statute of Westminster or the joint resolution process, be able to have another body destroy the union itself substantively, if not formally, seems to be totally outside the scope of anything Parliament has a right to do.

Having said that, there is a whole gray area here. Consequently, it is easy to talk about extremes. It is very hard to talk about the gray areas and the middle areas, and to talk sensibly about them.

To come back to the point you made, Mr. McGrath, because I think it is one which I think is fascinating—and I wish I had the competence in terms of historical knowledge to give you a judgement; but when Newfoundland agreed to the terms of union, and when the British North America Act was accordingly amended on the admission of Newfoundland, and

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when, as the record points out, it was done without consultation, which was confirmed in all the documents you have here from the provinces as well as the dialogue with Mr. La Forest this morning, you had a right to say to yourself: “Now, we have made a bargain. The bargain affects our boundaries; the bargain affects our internal social, legal and political structure. That was the condition on which we entered.

Now what protection have we got against that if a future amending process somehow manages to destroy parts of that bargain?” That is a perfectly valid question, and you should address yourself to it, and one way of doing that is to make sure as the Fulton Favreau Formula tried to do—and it was a very serious and very credible effort—where you have a vital bilateral interest which goes to the very heart of the reason why you came into confederation at all, it seems to me you have to have some language which assures you that without your consent nothing can be done about it; and if you are in doubt about it, this is the place to say it—in your own Committee.

I really cannot help you very much there, because in all fairness, Mr. McGrath, to the importance of your question, I really have not done my homework to be able to answer it intelligently; but my political and legal common sense tell me you have a problem which you have to deal with frankly by yourselves in this Committee.

Mr. McGrath: I put it to you, Professor, that it is not a problem which has to be dealt with in isolation, because it does impact on the whole set of proposals that we are dealing with here today.

Professor Cohen: Well, give me other illustrations.

Mr. McGrath: When we entered confederation and opted not to go our separate ways, we did so because there was a third party that was, if you like, the trustee of the contract between the two partners. That third party was the Parliament of Westminster.

Now that can be said for the nation as a whole, because Westminster is, in fact, the third party to our amending formula.

Professor Cohen: Yes.

Mr. McGrath: It is a very important part of our amending formula.

Professor Cohen: Yes.

Mr. McGrath: It is a very important part of our amending formula.

Professor Cohen: At this time.

Mr. McGrath: At this time. Whether or not it remains is another question. I, for one, would like to see Canada sovereign. I have also to look out for the rights of my own province and the rights of the nation, the rights of the federation, which we still are.

So you cannot then separate the role of the Parliament of Westminster from the legality of what we are doing here today because they are bounded if in fact conventions have any force in terms of putting flesh and blood on the bones of the law, they are bounded just as much by these conventions as we are

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because they are the custodians, if you like, and if there is going to be a unilateral change in the contract then we would look to the custodians and say, look, we appeal to you to protect our rights because a partner to the agreement is unilaterally changing the agreement in a very fundamental way. Now, that can be said for all of the provinces and that can be said for the legality and indeed the morality of what we are attempting to do here today.

Professor Cohen: I am not sure that the leap that you have made from the special case of Newfoundland can, with similar ease, be made elsewhere. Let me give you the very important Manitoba illustration. The Manitoba Act of 1870 was a document which in Sections 22 and 23 try to emulate for Manitoba what was done in 133 and 93 as the British North America Act, language and school protection rights.

Over the years we know what happened, until the Forest case came before the Supreme Court two years ago.

Now, there was a statute both of the Parliament of Canada and of the Parliament of the United Kingdom legalizing the entrance of Manitoba into confederation and the term under which it entered into it, and as Chief Justice Freidman in his very valuable judgment of the Court of Appeal pointed out Manitoba entered into Canada with certain ideas of the rights and conditions under which they were entering and when he interpreted Section 23 as he did he referred historically to these expectations, and the statute therefore had been violated all these years by the province of Manitoba perhaps without malice but certainly violated and therefore the ball game had to be changed, and the Supreme Court of Canada confirmed that view.

Now, those are cases resting specially upon the situation. If anything ever happened in any future amendment under the amending process, which violated the terms of union and the statute under which you entered confederation I would expect the Supreme Court of Canada to behave towards you exactly as it behaved towards Manitoba in the Forest case and say this is wrong and therefore it seems to me one must expect the history and law and document where they are on your side will essentially be able to take the result that you are now concerned about.

If you say, put aside for the moment the referendum question, I guess we cannot put it aside, a referendum technique which frightens members of the confederation system, or the federal system such as Newfoundland because you think it can bypass you. Nevertheless, that referendum technique will have to face the ultimate interpretation of the result where it affects Newfoundland the way in which the Supreme Court of Canada sees the terms of union.

The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath. We will take a five minute adjournment and Professor Cohen will be back.

The Joint Chairman (Senator Hays): We will resume the meeting and the next person on my list is Mr. Irwin.

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Mr. Irwin: We are very glad to have you back again before this Committee. I think you serve as a reminder that sometimes we take ourselves much too seriously and if we do not have some humour and look at all sides of the argument eventually we may not have a country.

I would like to start with the balance of power. And as I understand a rule of thumb of running a municipality it is usually about one third, one third, on third as far as the funds—one third municipal, one third provincial and one third federal and from the complaints I hear there is a very serious lack of texts on municipal funding and legislation and complaints of the mayors are to the effect that perhaps for every one time they have to come to the federal government they have to go to the provincial government ten times, as far as their needs and I really am undecided myself whether this is a lack of power on the federal side or a lack of use of that power.

In 1867 Sir John A. MacDonald saw the situation, he wanted a very strong federal government, with most of the power to the federal government and I noted with a certain amount of amusement yesterday when the challenge was made, would a province today join under these conditions, I think they would rush to these conditions as compared to what they had in 1867.

But between 1867 through an evolution of privy council decisions, there has been a drastic shift of power and not only through the legislation but through our own doing, a drastic shift of the funding. It is a myth to think that the federal government is the most powerful government right now. The last figures I saw were more serious than the figures we saw this morning, that last year 75.4 per cent of the monies spent in Canada, the tax monies, are sent by the provinces and the cities and the municipalities are down to—pardon me, the federal government is down to approximately 25 per cent—24.6 per cent.

Now, the reverse, if you look at the chart, the reverse of this, and I am sure you are familiar with it, back in 1945 was exactly the reverse, 75 per cent federal and 25 per cent provincial and municipal, and you allude to that.

I really do not know what a fair balance is but coming from a border city, and I go to Michigan, the federal government has taken so much power there the state senators and state congressmen do not even sit at the head table with the federal senators and congressmen because of the shift in power, the significance of their respective positions has shifted. I do not know what a true balance is and I look at what Mr. Justice McRuer said, I cannot define justice, but the average man knows what injustice is, he has a feeling injustice occurred, and maybe the same applies to balance.

I would like to have your reflection and draw from your experience as to what happened with the privy council decisions

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and what has happened in the shift of power. If you think there has been a shift, if you think the balance is still there or it has gone severely towards the provinces.

Professor Cohen: Just to give a very brief and no doubt very superficial statement, I think it is fair to say that your perception is correct. One thinks of the way in which Canada began, there is no doubt that there were two very powerful thrusts to the definition of having a strong central government.

One was the example of the United States. Everyone realized the importance of the U.S. Civil War on Canadian federal thinking at the time. They did not want to have the conditions as they saw them with a theory of sovereign states, with the ability, or claiming the right to succeed, which lay behind the ideological rationale of the southern states. They wanted to avoid that.

Secondly I think there was an implicit assumption that the federal government became the inheritor of the relations of the imperial government and the colonies and the federal government would have a relation to the provinces much like the imperial government had in relation to the colonies. You can see this, for example, I am sure a historically minded student of the problems such as Senator Tremblay will confirm this, that you would hardly have had a Constitution in which the power of disallowance, the power of reservation of bills, the residual clause, the peace, order and good government clause and the doctrine of Parliament Supremacy and declaratory power would not all have been there if they did not envisage something almost similar to the relations of the imperial government to the colonies which are now transferring to the Canadian federal central government.

What, after two or three generations the privy council probably in some degrees wisely and in some degrees unwisely probably saw that excessive centralization was really incompatible with what Ontario and Quebec and New Brunswick and Nova Scotia saw of their lives and their evolution, the need to draw a new equilibrium.

In my view they overdrew that equilibrium so that by the middle 1930’s you had the extraordinary situation of a federal system in which provinces, wages, resources, rentals, education, welfare, administration of justice were all at the provincial level. There is probably no federal system in the world in which that much decentralization has taken place through the process of judicial interpretation over an 80 year period.

When you introduce the comparison with the United States bear in mind our extraordinary, perhaps two extraordinary facts that did not apply to Canada. One was that in the opening of the west over 50 per cent of western lands were reserved for federal jurisdiction, ownership and control. That made all the difference in the world, all those lands now and which the United States alternative policies for energy are now being developed, synthetic sales and so one, are mostly federal lands being opened up under federal control. The dominance therefore of the federal presence in a resource sector in the United States of course is quite different than the situation in Canada, and secondly, the U.S. Supreme Court had no trouble form the 1870’s onward developing the commerce clause into

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an extraordinary powerful instrument, so much so, you know, that it comes as a surprise to any Canadian who compares Canadian, say, anti-trust laws. In the U.S. Supreme Court competition control even wholly inside the state with no external consequences can be in their view a transboundary or transborder or interstate matter sufficient to come within the U.S. commerce clause.

So the imbalance in Canada became very, very severe by the middle 1930’s and of course the new deal cases which went up to the privy council in 1937 really put the climax on it. You can talk about the aeronautics case, you can talk about the radio reference case but you have to remember the labour conventions case, you have to remember the Dominion, Trade the Industry Commission case, all those cases really brought the situation where one could say we were much, much too decentralized for an effective federal system. Then came the war and rescued the whole thing again and indeed the war and post war years titled the balance to a new equilibrium and there the equilibrium perhaps was titled too far where the legal position remained the same but the factual position remained largely the result of taxation, control, tax sharing with the provinces and with an enormous cash flow they were able to set the pace, and with a first class bureaucracy, were able to set the pace for social policies, et cetera which no one would have dreamt of a generation before.

Now since that time the provinces have grown stronger, they have their own resources to a degree no one could have foreseen 25 years ago and we have another tilt, tilt in which strong provinces, strong resources, strong revenue position and we now have to worry about the equilibrium again.

So these shifts of equilibrium are fundamental it seems to me to understanding the nature of the tensions in the Canadian federal system and if you add to that the unique problem of Quebec where a strong and persisting and realistic assessment of their needs for a kind of survival technique for their own purposes introduced a new element that became dominant in Canadian thinking over the past 25 years.

So we have the double Canadian issue, tension in developing a general equilibrium province federation and the particular problem of a bilingual bicultural country where the impact would be felt constructively from coast to coast and there is the Canadian story.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin.

Mr. Irwin: May I have two short questions?

The Joint Chairman (Senator Hays): It is a quarter to five that we are going to let Professor Cohen leave and I have five people …

Mr. Irwin: That will be fine, Mr. Chairman, thank you very much.

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The Joint Chairman (Senator Hays): Will that be fine? Thank you very much, Mr. Irwin, for your co-operation.

Professor Cohen: I am sorry I took so long to answer your question but that is the danger of asking me a question.

The Joint Chairman (Senator Hays): Mr. Betty.

Mr. Beatty: Thank you very much, Mr. Chairman.

Professor Cohen, I want to deal with just one area where my interest was peaked by the exchange you had with one of my colleagues earlier and that has to do with the question of the role of the courts in making a decision as to the legality and constitutionality of the government’s actions. As I remember your statement you said that you did not believe that the federal Parliament should be prevented from discussing an issue just because the issue was before one of the appeals courts of one of provinces. By discussing do you mean also coming to a resolution of and passing legislation while something is before the courts?

Professor Cohen: Do not push me too far, Mr. Beatty. I much prefer my own level of ambiguity as a defence.

Mr. Beatty: You remind me of—I do not know whether you have read a Man for All Seasons, a Robert Bowles play about Sir Thomas Moore and one point when Moore is being questioned about whether or not it was legal and proper for Henry VIII to get his divorce he gave a very convoluted answer. He said I trust I make myself obscure.

Professor Cohen: That was a fine play and Sir Thomas Moore was a remarkable man.

In answer to your question I must say that politically I think it unwise of Parliament to proceed helter skelter with a piece of legislation when before the Supreme Court of Canada the same problem is now in issue. I think it does something to the respect for the court, something for the respect of the legal system. I am not willing to go that far for the provincial courts because, certainly on a reference case, because I think the reference can be abused as a technique for halting the work of Parliament.

Having said that, Mr. Beatty, I am reluctant to really go much deeper into this because it is almost a case by case situation, buy the general principle I think that ought to be a guideline for all of us is this. Do we do anything which brings the work of the supreme tribunal into any disrepute or give it the attribute of appearing to be second rate in its importance, and that we should not do.

Mr. Beatty: I am not a lawyer myself, Professor, and you are one of the most distinguished legal scholars in the country. I would like to get your guidance on a couple of related matters. If I understand it if the provincial jurisdiction has serious doubts as to the constitutionality or the legality of action taken by Ottawa it does not have the right to go directly to the Supreme Court but rather would have to initiate the case in the court of appeal.

Professor Cohen: You are now speaking of the reference technique.

Mr. Beatty: Yes.

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Professor Cohen: Remember the reference is only an advisory opinion.

Mr. Beatty: Yes.

Professor Cohen: Remember the reference can be given by the Lieutenant Governor in Council which really means that the cabinet of the day of that province can ask the local court of appeal for an opinion on any subject.

Mr. Beatty: Indeed.

Professor Cohen: I think the phrase in the Manitoba Act is any subject and I think that phrase is repeated, perhaps Premier Roblin would refresh my memory on this, it is repeated in a number of provinces and Mr. Mackasey may know something about the Quebec side, whether the language of a reference there has that phrase in it. I suspect it does.

Therefore you are faced with this dilemma, Mr. Beatty. What do you do when a provincial premier wants to play games.

Mr. Beatty: Precisely. I just wanted a clarification of one point. They could not go directly to the Supreme Court?

Professor Cohen: No.

Mr. Beatty: They would have to go to the court of appeal. Yet if the federal government had concerns about the constitutionality or the legality of the actions of one of the provinces they could go directly not to the court of appeal…

Professor Cohen: Which they did in the margarine case. Duplessis attempted in the margarine case to forbid the use of margarine in the province of Quebec and did so by having a certain regulation under the Act passed affecting its colour. He knew that people would not buy green margarine, and his guess was very good on the issue. It went by way of a reference as I recollect to the Supreme Court of Canada.

Mr. Beatty: Is it your position then that when the federal government makes a reference that the provincial legislatures are prevented from the point of view of propriety and decorum from taking action on matters which are before the courts and yet when the provincial government has serious doubts about the legality or constitutionality of an action taken by Ottawa they are not the same constraints.

Professor Cohen: I would have to in fairness to your very good question examine all the instances in which there was in fact a federal reference dealing with a provincial bill.

Mr. Beatty: Yes.

Professor Cohen: I simply do not know.

Mr. Beatty: In the interest of fairness here and in the interest of federalism, is there not a necessary symmetry and balance between the two.

Professor Cohen: Except for one very important difference. It would be a pity, without going as far as Professor La Forest went this morning .. .

Mr. Beatty: No, we would not want to do that.

Professor Cohen: In describing the ultimate of power of the federal Parliament was a majority party of the House. It would be a pity not to see a very positive side to the federal Parliament and federal parties. After all is said and done they

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are a part of the national system. The Supreme Court of Canada is your national court, it is your highest court, and it seems to me if one loses the sense of the unity of the institutions in the ultimate supremacy of the Supreme Court of Canada and the Parliament of Canada in a really ideological sense over all other parts of the federation, we have lost something very profound and very important, and I think, Mr. Beatty, since you opened the door to this cataract you must now bear the consequences. I will put the question to you. Are you not unhappy with the overuse of the theory of two levels of government of equality, because in fact are they really equal? Do you conceive of the provinces? Yes, they have jurisdiction, they have exclusive rights in a particular area but are we really talking about equality in the ideological overall political historical sense. Do you not want to retain the sense of there being an overriding Canadian national identity and interest.

Mr. Beatty: We are talking, sir, about a shared sovereignty, a divided sovereignty in the country, and it is my feeling that that system has served Canada well and should be prevented from damage by either partner.

Professor Cohen: But there would be at moments a certain perception of ideological and political inequalities which are correct and certain perceptions which are incorrect.

Mr. Beatty: Yes, but let me just put my final question to you in this way by perhaps rewording it because I think the one thing that stood out from your testimony today is your sense of fair play, that the only way that we can succeed, the glue that holds Canada together is the sense that everybody is being dealt with fairly and there is equity in our system.

Professor Cohen: Quite right.

Mr. Beatty:  You have talked about the possibility that the matter than something could come before an appeal court in a province could bind Ottawa’s hands, could be used as a political weapon by the provinces to create stalemate, prevent Ottawa from acting, but surely in the interest of fair play and justice, because this is precisely…

Professor Cohen: I am sorry, I did not answer you correctly. There is nothing to stop the province of Quebec from proceeding with that legislation even though there is a reference to it at the Supreme Court of Canada.

Mr. Beatty: Yes, but you are saying that in your judgement it would not be right to do that.

Professor Cohen: In my view the scenario would be something like this. A province A decides to pass a law on a certain subject. The Supreme Court of Canada before the law is passed says, hey, we think that really goes very far afield, we are taking a reference on it even before it is passed. There is nothing to prevent the province going ahead.

Mr. Beatty: Yes, except you feel that it would not be right for them.

Professor Cohen: Well, I feel that they would be very redundant if they pass that statute and then tried to enforce it in the face of a reference which said is it is ultra vires.

Mr. Beatty: If I can just finish my question, sir, your concern was that if the federal government’s hand were tied

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by a province going to an appeal court it could be used, the courts could be used as a political weapon.

Let me put it to you the other way: if indeed the fact that the provinces cannot go directly to the Supreme Court, they must first go to their own Court of Appeal, is used by the federal government as a stalling technique which would give it the time to take actions which may be unconstitutional prior to a matter becoming so sub judice that Ottawa should not act, then is this not a threat to our system of government as well, and could I ask you for your opinion of the advice that was given to Mr. Trudeau and to the federal Cabinet in the infamous document prepared by the Privy Council office and the Department of Justice which said that Ottawa should rush this resolution through Parliament and ask Westminster to put it into effect before the courts have had a chance to rule?

If indeed it is improper for the provinces to use taking Ottawa to court as a political weapon, then is it not equally improper for Ottawa to use the fact that the provinces have to initiate their case in the Court of Appeal before going to the Supreme Court, equally unfair and equally improper if they try to rush these things through before the courts have had a chance to rule?

Professor Cohen: Well, you raise a question which goes to the whole atmosphere of fairness in the country, and I think this is quite a correct position for you to raise. Let me give you a preliminary answer without having given it the thought it deserves.

I would be inclined to think that if there is a very good chance that this resolution would get to the Supreme Court of Canada, that the Privy Council document saying you better get over to Westminster before the Supreme Court hears about it, bespeaks a political strategy which is understandable but not terribly acceptable to a fair minded person.

An hon. Member: Hear, hear.

Professor Cohen: On the other hand …

Mr. Beatty: I was going to thank you right at that point, Professor.

Mr. McGrath: Maybe you should move on.

Professor Cohen: I do not want premature applause here because you may not like what I am going to say next.

On the other hand, games can be played by a lot of people in a lot of ways and it seems to me that one of the dangers here is that a great Canadian moment becomes a moment of gamesmanship and that would be equally a tragedy, on both sides, and I think that what this Committee has to educate their colleagues about in the House of Commons and the country is that despite your party affiliations and your party loyalties, your highest loyalty is to make this country work, your highest loyalty is to make everyone feel that they are part of what for better or worse is a Canadian family with all the difficulties that geography, race and language, still pose for us in asserting

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and maintaining a value system which we commonly can share and use.

Having said that, I will not sit in judgement on the correctness of going to Westminster before the Supreme Court of Canada speaks or not until I know all the circumstances.

My instincts are that if the case were before the Supreme Court and it was a question of going right at that moment to Westminster, there would have to be very cogent reasons to make me feel that fairness had been executed in that particular situation.

On the other hand, there may be facts here which I do not know, which if I did know I would take a different position on, where games are being played where fair minded men might say these games do not have to be played out in this way, and until I know all those facts I am not going to make a judgment on that.

Mr. Beatty: Thank you, Professor Cohen.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Beatty.

We have about 12 minutes left, I have three people that want to question Professor Cohen. Mr. Berger, we can get them all in if you can make it brief.

Mr. Berger: Thank you, Mr. Chairman.

Professor Cohen, in your remarks and in the text you painted a picture of declining federal power since the mid 1960s which my colleague, Mr. Irwin, referred to …

Professor Cohen: As it was in the mid 1930s.

Mr. Berger: Yes, and in his book on the Conservative interregnum Geoffrey Simpson in Discipline of Power also notes this trend but noted that paradoxically the shift of power was accompanied by growing provincial complaints about federal power.

Professor Cohen: Yes.

Mr. Berger: On page 7 of your brief you remarked that the proposed resolution, I do not think that is something that has been referred to, is not destructive of the essential relations of the two levels of government in Canada or of the distribution of powers they share.

Professor Cohen: Right.

Mr. Berger: Why, then, and I grant you that further on in that page you do raise some concern about Section 42 as it is presently worded, but apart from that then why is there such controversy about these proposals?

Professor Cohen: I was present, by one of those pieces of good luck, in the opening days of the February, 1968 constitutional convention. Among the provincial premiers were two very wise men, Ernest Manning and John Robarts, and I think you, Senator Roblin, were there too. Also a wise man.

Mr. Mackasey: Just on a point of order, I was going to make sure you added that point.

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Senator Roblin: Do not worry, I was listening intently to make sure that he did.

Professor Cohen: And I recall very readily, Mr. Berger, that Mr. Pearson tried his very best to get the premiers to accept the proposition that the time was right for a language educational entrenchment concept, and at that time Mr. Robarts and Mr. Manning both said: We support this as a program but not as an entrenched idea.

I think you, Senator Roblin, were pointing out that already Manitoba had a number of programs under way, programmatic, and I look back upon that as both a success and a failure.

It was a success in the sense that Mr. Pearson brought out this sense of the importance of the occasion and the importance of the subject. It was a failure in the unwillingness of the premiers to go along with the correctness of these judgments that the time was ripe to look at the two language groups in an entrenched constitutional sense.

I think this time is ripe, I think after all these years the moment is right, or put it conversely: if we do not do something about it we will pay for it later on.

Mr. Berger: Well, sir, I thank you for that retrospective, I suppose, into our recent history and it is a good lead in to the next question I wanted to ask you.

First of all I would like to thank you also for your very perceptive comments about language rights. You indicated that you wished to maximize freedom of choice but you recognize the concern for survival, the historic concern for survival in Quebec and you said that this concern could perhaps be relieved by generosity outside of Quebec with respect to the kind of guarantees you were just talking about?

Professor Cohen: Exactly.

Mr. Berger: But yet we have a province such as Ontario which has the largest French speaking population outside of Quebec, I think perhaps over 400,000 or maybe half a million French Canadians, and they are reluctant to take that step still, 12 years later, and you correctly pointed out that this is not something that Mr. Trudeau has brought up as he is accused of doing very frequently, but it goes back to Mr. Pearson’s time and before that time.

So the question I ask you is: when and how?

Professor Cohen: I have no difficulty with my answer, Mr. Berger. I think the time is ripe to put to rest the ghost of Lord Durham’s report and that goes back and awful long way and I think it is time to face up to that aspect of the Canadian reality, and if we do not do it we make for the profound discomforts which in part explain our present crisis.

The Joint Chairman (Senator Hays): Does that complete your questioning?

Mr. Berger: Thank you.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Berger.

[page 94]

Senator Roblin: Mr. Chairman, on a point of order or correction here, on reflection I recognize that I had given up the premiership of Manitoba before that conference had begun, although 1 was still a private member of the legislature, and I assume that is the reason it was not the perfect success that it could have been.

The Joint Chairman (Senatory Hays): Mr. Friesen.

Mr. Friesen: Thank you, Mr. Chairman. As I do not have very much time, I would like to move directly into my questions.

Page 5 of your brief, Sir, there are some recurring phrases. On the first line, you say: “what could not have been foreseen”; and in the middle of that first full paragraph under “1” you say: “which originally assumed the automatic response of the U.K. Government”; and then the last line: “the intensity of the U.K. discussion was not foreseen”; in the next line: “was not foreseen”; toward the bottom of the page: “perhaps this could not have been fully anticipated”; and you get that recurring theme of something which was not foreseen.

Now, it has been my feeling for some time that great ideas need time to percolate, or that you have to ruminate on them, and I keep wondering whether there should not have been time before the introduction of the resolution on television at the beginning of October and the time that it was debated in the House, and perhaps the time when this Committee began sitting, that there needs to be a percolation for the public to assimilate a lot of the ideas that are contained in this report, and I gather that on page 5 you are making the same point, that there has to be a time for percolation?

Professor Cohen: That really was not my objective. My objective really was to show that the substantive merits of the issues of patriation, amendment and the charter itself were now being made much more complex for appreciation and even support in some quarters, but more and more likely for appreciation, by these developments.

No one foresaw a rigorous U.K. debate on this issue of patriation. No one foresaw the complexity that would be now seen in the referendum technique, and it seemed to me that unless I brought that to the forefront I would be doing a disservice, it seemed to me, to the analysis. It does not mean that I support this program any less; it does mean that I do not think one could ignore the significance of what has happened for purposes of your consideration.

I would go so far as to say that I am glad to see, for example, that this Committee is taking note of the nature of the British debate, if only to understand the nature of that debate; otherwise, it is an important English debate, is it an intervention in our affairs, how far does the Commonwealth—you will find in my little summary there I point out there are really three legal systems here: the Canadian constitutional system, the Commonwealth constitutional system and the international legal system, they are all involved here in understanding the British point of view.

[page 95]

I hesitate to support Professor Marshall, Professor LaForest, Mr. Wade, I read all three of their presentations to the House of Commons Standing Committee on Commonwealth and Foreign Affairs, and probably it has been read by most of you, too. I do not agree with the position they have taken, but it seems to me it is a position which a reasonable man can in fact look at and say, “I must take it seriously”. That is as far as I am going.

You see, the logic of your question would say: “Let us take a deeper look at all of these issues before we go any farther”. I think you have done a pretty good job since you began here in November, I think you have got another month of homework to do on your drafting. You will have done probably as much work in depth as any political group in this group has done on a single document and you ought to be able to, you have had at least 50 or 60 submissions, perhaps half of them first-class, I would imagine from that you got a lot of very good ideas and you should be able to come up with a pretty good result to meet the kind of consensus I would like to see.

What I hope in the end, frankly, is this: I hope this country emerges with a shared perception of the future of the Canadian system and a shared perception of the values we share. That is fundamental and maybe you can make a contribution by the definition and the outlining, in memorable terms, the values we share.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Friesen.

Mr. Friesen: Well, I just want to make this point that I think Austria is not the only country that suffers from avalanches. I really did not expect that long an answer to my question.

Professor Cohen: Well, I did not want to get a snow job on you either.

The Joint Chairman (Senator Hays): Mr. Friesen, with great respect, I still have two people and we have two more groups this afternoon and then we have our evening session. Thank you for your co-operation.

Senator Tremblay.


Senator Tremblay: Thank you, Mr. Chairman.


The Joint Chairman (Senator Hays): One question, please.

Mr. Epp: He has not asked it yet, Mr. Chairman.

Senator Connolly: Well, I want to thank Professor Cohen for the help he has given to the Committee today. 1 have two questions to ask you.

The Joint Chairman (Senator Hays): I am sorry, he did indicate to me that he wanted to be on.

Go ahead, one question.

Senator Connolly: I have two questions to ask you.

Professor Cohen: I will make my answer very short.

Senator Connolly: Well, I will make the questions very short if I can get into them.

[page 96]

They really both concern the Charter. This is a simplistic summary of what the Charter contains, but I think Section 2 to Section 15 of the Charter deals with individual rights and while I think that some of them must be changed, reworded and improved, by and large that is what is comprised in those sections and what I ask you in the first instance is what you think about the absence of a section in here that would deal with enforcement on the part of individuals, of these clauses if they are abridged in respect of any individuals or any individual.

What, in other words, remedies for redress perhaps should be in the document? That is question No. 1.

Professor Cohen: Yes.

Senator Connolly: Question No. 2 deals not with the individual, but with collective rights, with group rights, and as I see it there are four categories of these that are dealt with in the document: linguistic rights, which originally are in Section 93 of the British North America Act, but seem to be in Sections 16 to 23 here; secondly, denominational rights, particularly in respect of schools, they are dealt with in Section 133, as you know, of the British North America Act.

Professor Cohen: I am very sorry, it is the reverse, Section 93 and Section 133.

Senator Connolly: Sorry. It is just the other way around, yes.

And there is nothing here directly about denominational rights, except in the sense that Mr. McGrath talked about in connection with the possible changes that might come as a result of the application of the formula or a referendum.

The third group are native rights, they are obliquely referred to in Section 24; the fourth group I think perhaps I categorize as ethnic rights.

Now, I wonder whether there might be some sense in redrafting, if we get to that stage of it, where we have a heading in the document talking about “group rights” or “collective rights” as distinct from the individual rights that are referred to in Sections 2 to 15, because while I have mentioned four different groups, there may be many other groups, undoubtedly there are many other groups that would like to see some reference to their immediate requirements in a constitutional document, and if we are to provide a framework do you think we should have such a framework in a document as it is being redrafted?

Professor Cohen: Well, thank you, Senator Connolly.

On your first question of enforcement, if you would be kind enough to look at the section on enforcement which the Congress brief submitted on pages 14 and 15, you will see there that we have strongly recommended that the Charter reflect the obligation of Canada under the 1966 U.N. Covenant on Political and Civil Rights which provides, under Article 9(5) that states members who are signatory to the covenant provide for enforcement procedures and we have

[page 97]

drafted a Section 25(a) which we hope this Committee will take notice of.

Senator Connolly: What is the section in the International…

Professor Cohen: The International Covenant, Article 9(5). The enforcement and compensation one, and we have drafted Section 25(a) for your consideration and hope that you will look at it.

If you do not mind, Senator Connolly, I will give you a brief but very inadequate answer to your second question. The classical Anglo-Canadian, Franco-Canadian civil rights tradition has been individual, not collective rights. You and I had rights, the group as such was not known other than very, very special cases, I suppose. We did not have minority treaties as they had in eastern and central Europe. That was very unfamiliar ground to us.

However, life changes that and we now have, it seems to me, a political acceptance in Canada that there are a form of group identification that deserves constitutional treatment, native rights is one. We have it in the BNA Act, as you pointed out, in Section 93 and Section 133. And therefore, it does not surprise me that we should have reflection of that, and your Committee will have to look closely at the extent to which you could have it, but the final question you put before me is a more difficult one.

I have had this put before me before, Mr. Chairman, and I am sure you have had it in a much more sophisticated form. We have an official multicultural policy in Canada. Does one transmute that generalized multicultural concept into a constitutional concept? That is a very difficult question.

My initial response is to say: “Let us by all means support multiculturalism, but if you ever entrench it, you are opening a series of doors that may be very difficult to manage, both politically, financially and legally. The provinces will have great trouble in handling many otherwise thoroughly integrated Canadian minorities who want their own particular cultural image reflected in the school curriculum, in teaching rights, etc., etc., etc.

I suspect, Mr. Chairman, that though all Canadians in this multi-ethnic society strongly support most ethnic cultural policies, it is quite another step to entrench them in a constitution per se.

The Joint Chairman (Senator Hays): Thank you very much, Senator Connolly.

Senator Tremblay, you have one question.


Senator Tremblay: Can I ask my question, Mr. Chairman? I only have one question but I must say, right away, that I do not have any objection to Professor Cohen answering me in an ambiguous way because I have noticed that his ambiguities are often creative.

[page 98]

Having said that, my question refers to section 42 and section 47 taken together. If I understand them well, section 42 enables Parliament to bypass the veto of the provinces on a given amendment by way of a referendum.

This referendum process can even be used under section 47 to amend the very amending formula covered by section 41. If my interpretation of both sections is correct, a question then arises: if the proposal were to be adopted, would this be a substantial change? In the affirmative, the question of the unilateral action now taken by the Canadian Parliament might take on a particular meaning.

I would like you to tell me first if I have understood these things correctly and secondly if you see the same implications as I do.


Professor Cohen: Well, I looked at that and I did not understand it. When I say I did not understand it, I will say, Senator Tremblay, that I think the parliamentary draftsmen had in mind saying to themselves where there was an existing procedure already operative for amending the constitution in a particular way, then Sections 41 and 42 would not be used.

Now I do not understand that. Let me put it this way. My assumption is that once we have adopted a final amending procedure we end up in Canada with two processes, once the interim period is over; one, the procedure adopted in Section 41; the other is the open ended situation in Section 42, that is the end of it; that is forever.

I do not understand, therefore, the kind of exceptions expected in Section 47.

Senator Tremblay: But I am referring to the last part of Section 47.

Professor Cohen: Yes.

Senator Tremblay: Sections 41 and 42 shall nevertheless be used to amend any provision for amending the constitution which includes Section 41.

Professor Cohen: Yes.

Senator Tremblay: So we can use Section 42 to amend Section 41, if I am reading it correctly.

Professor Cohen: It says Section 41 or Section 42 shall nevertheless be used. It is an option. This says it is an option. The question you are asking is who decides the option?

Senator Tremblay: As I read Section 42, it is left to the initiative of the parliament.

Professor Cohen: Yes. And that is one of the reasons why I think more thought has to be given to the elimination of the open endedness of Section 42; and that is why I think there is no reason to create such an atmosphere of uncertainty about the amending process which Section 42 in its present language does.

Senator Tremblay: Thank you.

[page 99]

The Joint Chairman (Senator Hays): Thank you very much, Senator Tremblay.

Do you have a short question, Mr. Hawkes?

Mr. Hawkes: Yes, Mr. Chairman.

I will be as brief as I can.

We have, over the last couple of days, in many situations talked about a strong central government, and provincial governments, and the power legal power was the topic this morning.

Today there was talk about money power. I suggest that there is a third power which might have been alluded to in your December 4th article, and it is what I call people power, or legitimacy power.

My reading of history says that when governments lose legitimacy, then at the very least you have a climate which is ripe for revolution of some kind.

When you mentioned that the responsibility of this Committee and members of this Committee, the thought which went through my head was that people legitimacy, the power which flows from legitimacy, is enhanced or detracted from by the conduct of those people in the institutions of government, whether elected or appointed.

Professor Cohen. Yes.

Mr. Hawkes: As someone from Calgary who is living through that region which has the strongest opposition to the process, I have said that if the House of Commons and Members of the House of Commons, or if the Members of the Senate or the Members of the Supreme Court, anyone of those central institutions of this country, were to stop or challenge this process in some way which was acceptable to the people of my region, then the central government would be viewed as stronger; that it would be a stronger central government because the institutions which form it would be enhanced by reputation, because they worked. They might come out of this process with that sense of better belief, better legitimacy in the central government if in fact that happened.

My question is: Of these three kinds of power, legal, monetary, people power, legitimacy power, to my mind I find the legitimacy is preeminent and the most important.

Your article of December 4th left them roughly equated and your brief today did the same; but 1 would say that the legitimacy power is really the fundamental issue if we are going to have a union or a country that works.

Professor Cohen: Well, your question is a profoundly poetic one and not a legal or constitutional one.

The glue which would hold Canadians together is not merely some academic notion of legitimacy, but a sense of community which over a time is present because events caused it to be there.

As to how we do that, and whether the poets and the legislators, professors and workers of this country are able to have a sense of community over a period of time and have it now, you are as good a judge as I am.

[page 100]

Now on your central point, I entirely agree with you: no government survives without ultimate legitimacy.

I would hope that you are not raising doubts—that people have doubts about the legitimacy of our institutions.

That there are grave tensions, I would agree with you. But as to legitimacy, I would really not care to admit, otherwise that goes to the very heart of the survival of Canada which I do not admit.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes.

Mr. Hawkes: I hope you are wrong.

The Joint Chairman (Senator Hays): Order, please.

Thank you very much Mr. Hawkes; I appreciate your cooperation.

Professor Cohen, I could spend an hour thanking you this afternoon, and I would like to do that. Your evidence was excellent, and I look forward to reading it, as it was recorded this afternoon, and I hope every Canadian will read it.

We appreciate your being here.

On behalf of Mr. Joyal, the Joint Chairman, and all members of the Committee, thank you.

Professor Cohen: Thank you very much for having me here. I enjoyed the privilege very much of being here.

The Joint Chairman (Senator Hays): Thank you very much Professor Cohen.

And now I would like to call to the table Canadians for Canada, Mr. Robert A. Willson, Chairman and Chief Executive Officer of the Northland Bank; and Dr. John Crispo, Coordinator; Mr. Alan Scarth, Legal Counsel, and Mr. Donald Skagen.


Order, please.

I would now ask the honourable members of the Committee to come back to the table so that we can proceed with our witnesses this afternoon.


It is my pleasure on behalf of the Honourable Senator Hays and all honourable Members of this Committee first to apologize for the delay. You have been in the audience while we were having our discussions with our first guest this afternoon.

You will have noted the great interest that each member showed to get as much information as possible from our witnesses, and that would explain why we ask for your leniency over the delay in opening up the discussions and dialogue with you this afternoon.

It is my pleasure to welcome Mr. Willson and to ask him to make the usual opening statement and possibly, afterwards, if agreeable, to receive questions by honourable Members of this Committee.

Mr. Willson.

Mr. Robert Willson (Chairman and Chief Executive Officer, Canadians for Canada): Thank you, Mr. Chairman.

Perhaps it would be in order for me to say initially to the members of this Committee that as Canadians we are indebted

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to you for the time and patience and the overstimulation that you must be experiencing on behalf of all of us. We do appreciate the opportunity to add whatever we can, to the best of our ability, to this process of understanding.

I might say also, Mr. Chairman, that I owe the members of the Committee an apology for failing to provide well in advance of this meeting a brief that you could read.

But please interpret that not as a discourtesy but rather as clear evidence of the spontaneity of our efforts.

Indeed, Mr. Skagen, on my right flew in this afternoon from Vancouver to be with us and will be returning to Vancouver within two hours. It is an indication of our wish to join you in this enterprise even if we are not as fully organized as we might wish to be.

Coming to our presentation formally, Mr. Joint Chairman and Committee Members, we have come together spontaneously and by a personal referral from one person to another as a non-partisan, non-political group of committed Canadians because of our concern for the future of our country.

I was very much impressed by our learned scholar’s observation that I copied it down to assure committee members that we, too, recognize the highest loyalty is to make this country work.

It is in that spirit that we are with you today.

We are deeply troubled about attitudes hardening across regions of Canada which could lead to fragmentation of its parts. In the absence of a unifying strategy responding to the felt interests of all parts of the country, we are witnessing the growth of disturbingly negative attitudes in one province or region after another.

Should this fragmentation proceed much further, the resulting suspicion and anger could take years to dispel. This will lead to diminishing prospects for a united Canada.

We are convinced also that Canadians in all walks of life are suddenly aware of their country to a degree unparalleled in our memories. There will be no reversion, in our judgement, to passive abstinence from public affairs in the foreseeable future by business people like ourselves and by a lot of others whom you would like to have involved, but have had some difficulty in getting involved. Canadians now wish, and are ready, to be involved.

We believe that the immediate, critically urgent task, nationwide, is to create a new Canada capable of fulfilling our collective aspirations. We must nurture our unity with appropriate recognition of contemporary conditions, and we must do it through discovery and political manoeuvre and not through the gamesmanship that Dr. Cohen referred to a little earlier.

This new Canada will take time to develop.

We are prepared to contribute to the process thoughtfully, deliberately, and yet with urgency. That is because we know it

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is for the sake of ourselves and for our grandchildren rather than to satisfy any one political timetable. We do not accept the proposition that federal-provincial negotiations must fail. We are prepared to help them succeed.

Canada has a potential for its people’s well being second to none in the world. We must not, because of haste which arouses correlate resistance and denies time for committed Canadians to participate, close off efforts to define a new Canadian consensus.

Regarding the constitution, to serve us well, a new constitution must demand more provincial and public support than is now apparent to us in response to current federal proposals.

We recognize that no general constitutional proposal developed to date has captured unanimous provincial and federal endorsement, although the record shows that negotiations by these two levels of government have come close on a number of issues.

With so many complex and changing considerations, impatience is not justified. Further and continued exploration is imperative in our view. The ultimate prize of general support overwhelmingly justifies the effort of continued negotiation.

We are dismayed by the prospect of patriation of the British North America Act to Canada carrying amendments and amending formulae, and let me observe that I wanted to say it both ways, because I am not legally able to express it perhaps properly, but carrying amendments and or amending formulae enacted by the United Kingdom Parliament on the unilateral request of Ottawa.

There is evidence that this plan does not encompass the interests of newer regions or Indian or native peoples, let alone carrying the support of the majority of the provinces within the present confederation.

We see clearly the necessity of preserving the vitality and commitments of the partnership of the provinces within a federal state. We do not believe in unilateral action by government in this situation as being suitable for Canada.

We should not ask the British Government to perform our task for us. In the absence of further federal provincial agreement on other matters of sustenance, the only request we should make of the United Kingdom Parliament is for patriation with an amending formula acceptable to Ottawa and the provinces. Then Canadians can get on with the business of developing their own made-in-Canada constitution.

Regarding energy policy—and Mr. Chairman we have included this because we see them almost inextricably interrelated—failure of the federal and concerned provincial governments to reach agreement on a national energy policy is not unrelated in our view, to the constitutional crisis. It relates to the matters of the constitution in term of the question of effective ownership and control of resources. In addition, it is adversely affecting the climate in which constitutional changes are being debated.

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Opposition to the proposed energy policy is bitter, and please understand, Mr. Chairman and Committee members that we speak as businessmen, and, therefore, with perhaps a narrower view, but I promise you an informed view. But opposition to the proposed energy policy is bitter, it is general and it is growing. Criticism is more than political or government jousting. It comes predictability from oil and gas businesses which have created a large employment base in western Canada and have steadily attracted the capital investment we have needed—and will continue to need; but it comes also from industry suppliers who are already reporting the departure of needed hardware, technology and management skills from Canada.

It is beginning, Mr. Chairman, to come from Ontario domiciled industries which base their employment and capital investment in considerable degree upon a thriving western economy and see their business prospects diminishing.

Now, we realize that there are widely conflicting interpretations of the impact of the energy policy on the health of the oil and gas industry, on its interdependence with Canadian industry wherever domiciled, on the likelihood of national energy self-sufficiency and on the Canadian economy.

This confusion, Mr. Chairman, has to be resolved promptly, before Canada loses credibility internationally to compound the discouragement of this vital industry.

Many senior economists, including those associated with the Economic Council of Canada and the Ontario Economic Council, have expressed grave reservations about key aspects of energy policy in its present form. If this were purely and exclusively a one-industry, one-province protest, others in Canada with differing preoccupations might understandably wish to turn it aside. We see the lack of accord on energy policy to have an immediate and lasting detrimental effect on the entire Canadian economy. And we urge the federal-provincial accord concerning a revised energy policy be reached without delay to arrest further economic decline.

Here again, informed Canadians are eager and prepared to contribute to the political intelligence of the issues to be resolved.

Picking up my opening comments, Mr. Chairman, to the effect that we are just a beginning organization, we propose to co-ordinate and structure ourselves as quickly as possible for the purposes of making the thoughts and voices of individual leaders in Canadian business heard by our federal and our provincial governments. We intend to offer our services, a politically towards the early resolution of the energy impasse, and towards positive, thoughtful resolution of the constitutional crisis, as is evident in your hearings.

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We are assured of broadening support among individual Canadian businessmen who have already declared themselves spontaneously along lines similar to this statement. They will be representative of all regions and they will include Indian and native leaders. We, as an example, Mr. Skagen, who is president of the largest 100 per cent Canadian-owned integrated oil and gas company, is from Vancouver; Mr. Scarth on my far left, a corporate constitutional lawyer and general counsel to a number of major businesses, is from Winnipeg; Professor John Crispo, a political economist about whom I will speak in a moment, is from Toronto and myself, coming from Calgary; but with a sixth generation Canadian background originating in Ontario.

We intend to develop a national steering of two persons representing each province, the Yukon and the Northwest Territories. Once borne, this steering committee will organize itself to offer assistance towards resolution of these two major challenges, to the best of our ability. We anticipate immediate action because we will be using all communication means at our disposal. To this end, we have retained as coordinator-consultant political economist Dr. John Crispo of the University of Toronto, on my left, formerly Dean of Management Studies who will have temporary offices in Toronto. With him, to guide specific economic research or investigation of research matters, we will have associated a consulting economist of national statute and recognition.

Mr. Chairman, it is our purpose to do all that we can to ensure a meaningful, fresh approach to solving both the constitutional and energy questions now dividing our country and curtailing its economic progress. We believe that this parliamentary committee will serve Canada best by recommending a delay in pursuing the existing constitution resolution, a delay long enough to achieve a concensus of partners. While this is in progress, we urge that an accord on energy policy be worked out as promptly as possible.

That, Mr. Chairman, is our formal brief and we count it a privilege to sit with you today and if we can add in any way to this, to your deliberations, through the best answers we can give to your questions, we look forward to that.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Willson.

Mr. Willson: And, Mr. Chairman, perhaps I could add just one point, might I ask, before those questions, if Dr. Crispo would tell us of our approach to him to be coordinator and why he has seen fit to accept it.

The Joint Chairman (Mr. Joyal): Certainly.

Professor Crispo.

Professor John Crispo (Coordinator Consultant, Canadians for Canada): Mr. Chairman and members of the Committee, I would just like to take a few moments to explain my presence

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with and support of these gentlemen and in the process to underscore their concerns.

I have to say that I am very worried about the unity of this country. I am especially worried about what is going on in Alberta and what could be going on and could happen in B.C. and Saskatchewan, not to mention other parts of the country, but let me just stick for a moment to Alberta.

I have been out there a lot recently, more than I have ever there before in my life. I have been doing a lot speaking, but I have also been doing a lot of listening. Some of you who know me, like Bryce Mackasey, will say, “You have never listened in your life”, but 1 have done a lot listening out there. It has been hard on my system. It is good for me.

Now, what I have discovered out there should worry us all. There is an awful lot of anger and frustration; there is a great deal of alienation; and there is some separation. 1 do not want to exaggerate that. It is nothing to worry about at this stage, except that it is in the formative stage.

Besides history and tradition, 1 only wish I could take your time to review with you the many things that are bothering westerners. I have managed myself to sort out about five major issues that are very divisive right now, and they do not even include the constitution. The constitution is another matter. I think it is a key matter right now, not just because it is symbolic to the west and particularly to Alberta, but because it has become a test of goodwill in this country, and I underscore that point. It has become a test of goodwill in this country.

Now this brings me to Robert Willson and my other colleagues here today, and the others we are already meeting with and those they speak for. I am going to say this, I am not usually full of praise, but I believe them to be darned good Canadians, not that the rest of us are not, but I want to tell you this. I am in Calgary enough these days to know that it is difficult to stand up publicly and be a good Canadian. It is just not that popular out there. Now, when they asked me to lend a hand, when I came across this group I had no idea they were in existence and I guess in a sense you were not in existence, you were just a group looking for a way in which to contribute what you could to the resolution of these difficulties in Canada, I could not resist lending a hand. This is a very traumatic experience for me personally because, despite a long history of non-alignment, if I can use that term, I have been a lone wolf all my life, fighting labour, management, whoever was around, governments more often than not, my own union, I could not refuse their request. I believe they deserve support across this country. I intend to do what I can to ensure that they get it.

How do I conclude, because I want to stay brief. Well, I just want to underscore what 1 said at the beginning, what they are really saying and what I fully subscribe to. There are two essential points they are making. They are basically the same, they just refer to two different and very controversial issues.

First, I want to say this as adamantly and perhaps as dogmatically as I can. There is no use bringing home a

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constitution that sows the seeds of discord and, second, there is no use introducing a national energy policy that could do more harm than good, and the evidence available of what that policy is likely to do is not clear-cut at all. There is a lot of evidence that it could do more harm than good.

I guess what we are all saying in this group, and we intend to be a much larger group before these issues are finally resolved, the risks and mistakes involved are just too great for the federal government to proceed unilaterally in either area. Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much Professor Crispo. I understand that you would be agreeable to receive questions by honourable members of this Committee so I would invite the Honourable Jake Epp to open the dialogue with our guests this afternoon.

Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman. I would like to welcome our witnesses here this afternoon. Gentlemen, your good intentions have come to the fore very quickly and they are similar to the witness that preceded you, Professor Cohen, when he said on page 8:

Finally, the question has to be asked whether the Canadian public has had the fullest opportunity to debate the issues, not merely those raised by the proposed Joint Resolution, but of the general constitutional context within which we are envisioning the Canadian future.

Then he goes on. You are really saying the same thing, I take it.

But I say to you gentlemen, and I am not trying to be facetious or difficult, are you not too late, are we not all too late?

Professor Crispo: Well, my brief answer, if I may be permitted a brief answer is that it is up to you, this Committee.

Mr. Epp: I was hoping I would get that answer, Professor Crispo. In my more sane moments after this Committee adjourns at midnight, over the days the book that I have been reading is The Miracle of Philadelphia, which is an exposé of the men that came together at the Continental Convention, who came there with their opinions as to the state rights. They had just been through the American War of Independence, they had had their first taste of a national government and the congressional system; they knew that they had to develop a country which had to have the wherewithal in which to develop a future for its citizenenry, and they came with their biases as we have come with our biases to this Committee, but the success of that convention was rooted in the fact that after people had expressed their biases and put that behind them they were willing to compromise for the greater common good.

I suggest that also happened in the Canadian experience starting in Charlottetown and Quebec City in 1864.

I believe some progress toward that end has been made in the interchanges between members of this Committee over the last weeks. I think members from both sides would agree to it, but I say with also respect, gentlemen, I am not convinced that

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those who have the power to change the course that we are now embarked on and seeing the wisdom of that change of course, despite their testimony and others, and I say to you quite openly that members on this side are willing to cooperate and change where we feel and can be shown that change is good for the working of the nation, but that needs a reciprocal approach.

So I hope that you are not too late and I want to also say to you that we intend to follow in our amendments and in our approach next week very much along the lines that you have suggested, but I ask you, you are now forming this organization, have you got any assurances that we do not want to stop the process, nor do we want to delay it but we want to make it more complete? Do we have any assurances that in fact those that have the power or the ability to give us a type of a forum are willing to do so?

Mr. Willson: I think, Mr. Epp, there are probably I would venture, two answers to that question. If we felt that it was utterly futile to make the presentation that we are making we would not be here. We believe that the members of the Committee will listen to us and will take into account whatever evidence we can provide. That is the reason for our presence.

Assurance, no. We have had no assurance, but we would draw perhaps on some past experience with the democratic process to suggest that if there is an informed opinion to be heard that it will be heard and we have faith still in this country and in the governments of this country to believe that we will be heard.

Now, 1 can understand, although I have not ever had the privilege of being in political office, I can understand that under some circumstances an elected political leader would perceive that he had a duty to do something for a constituency that they have not yet perceived the need of doing. I can understand that. Indeed, the Chief Executive Officer of a business will sometimes take a decision in anticipation of a problem, solving a problem, that the constituency may not recognize that it has.

I would say that the process that the government has set in motion, the very fact that you have convened this parliamentary committee, the very fact that there have been speakers on these issues across the country, has excited the interest and involvement of Canadian people to the point where never before in my own memory have I seen Canadians so willing to be involved, some angry, some frustrated, but willing to be involved; and 1 say with the most sincerity I can commend, please do not turn off access to that aroused Canadian constituency too soon. You now have it. Please put it to work.

We can contribute to the resolution of these issues, if you give us a chance.

Mr. Epp: Thank you, Mr. Willson. That is what we intend to do, but I say to you as well that Archbishop Scott said the same thing yesterday. Others have said it, and I hope also, not only on your behalf, but on Canada’s future that the government is listening to the plea that you give.

Professor Crispo, I was pleased that you mentioned the reaction that you had perceived in Western Canada. For those

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of us who come from that region, we have been saying that for some time. We are glad that Torontonians are also saying it.

The reason I make that statement is for the following reason, that those of us who have been saying it have been labelled by some as being “prophets of doom”, and also some have gone so far as to say we are aiding and abetting those who want to break up the country. Nothing could be further from the truth on both counts, and your message today as well bears out the adage again that one should listen to the message and not necessarily shoot the messenger.

Professor Crispo, you wrote a book, Mandate for Canada. In it, you spent some time in describing the Quebec situation and your concerns about Quebec. Now, in view of your experience in Western Canada and obviously, your deep knowledge of the Quebec situation, we have not had many people here from Quebec giving us the Quebec view. Unfortunately, that has been the case. If you could give us your view now, in view of the fact you have had the Western experience and you have this knowledge of Quebec, does this process and does the substance that is before us, in your mind, satisfy the aspirations and the issues that were before Quebeckers up to May 20 last.

Professor Crispo: Oh boy, that is a loaded question. I mean I could not speak for my colleagues on this. Anything I say would have to be a personal reflection and if they are willing to allow me to engage in such a reflection I would not mind taking a crack at that.

It raises a couple of concerns I have had about this whole process. We have been told by the Prime Minister and others, it seems to me, that there are two fundamental reasons for moving ahead rapidly with constitutional change in this country. One is to satisfy the people of Quebec who voted to stay in Canada. The other has been that we have been debating these things for 50 years if not 100 years and we will never resolve them any more speedily than we will now, let us get the job done.

The first part of that explanation suggests that there is something in this bill, this resolution that will really satisfy Quebec. I cannot speak for Quebeckers, not for a moment. I can only say that those I have talked more or less asked me what is in it for us. They have a veto right in the amending formula but that can be overruled by a referendum. I do not know what else they got.

I think, I am not a lawyer, I have had lawyers tell me that under this resolution there may be real problems with the constitutionality and the legality of Bill 101 which is very precious to Quebec. There is nothing about special status for Quebec. There is very little that would enshrine even those aspects of special status which Quebec already has and I feel deserves.

So I do not understand that rationale.

As to the second part, I guess I would refer, if I might, to Premier Blakeney’s brief which I think, personally, again I stress personally, is the most reasonable and reasoned one you have received. And I have read a lot of them. And as he said,

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you know, to argue that we have been debating these things for 50 years is terribly inaccurate, because during those 50 years there was no discussion of an entrenched bill of rights, there was no discussion of a referendum formula.

So, I do not know whether 1 am answering your question. Perhaps I should just add quickly that what bothers me is to see one part of the country after another terribly upset about what the federal government is purporting to do.

In one part of the country, In Quebec it went to the point of a referendum. I hope it never goes that far in the West. But I do not think you can govern a country by continuous brinkmanship and confrontation and I apologize if…

You have drawn some thoughts out of me. I am not sure they began to answer your question. I again must stress they are my own personal views and not necessarily shared in any way shape or form by my colleagues.

Mr. Epp: Mr. Chairman, I do not have another question. I just want to express to our witnesses what you are saying is really what we are saying and that is let us expand the process but let us keep working and let us bind the country together.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

Mr. Nystrom followed by the Honourable Bryce Mackasey.

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman.

I want to also commend the witnesses for appearing today and presenting a brief about their concern about the future of our country and the Constitution. To me the Constitution is the basic law of our country, it is the essence of nationhood and I think people perceive a lot into it and I think one of the comments made by Mr. Crispo was very accurate, that there are a lot of perceptions out there as to how it is done in terms of the future union of our country that are very important.

What I want to do this afternoon, Mr. Chairman, is to ask questions in two or three areas. I will start off with energy because you are commenting here that energy policy is obviously very important. I agree it is, I agree it is very, very controversial in western Canada and to state my bias right away, I do not want to debate the policy on energy, I want to talk about energy as it concerns the Constitution solely.

I am sure I have a different concept of what I would like to see done in energy policy than your organization does. I am a member of the New Democratic Party, I come from Saskatchewan, I come from that tradition, I read the polls that show a majority of Canadians, including westerners, want the gas and oil industry owned publicly. I am fighting for public ownership of that industry, I would like to see done to gas and oil what has been done to potash except to a much more serious extent. I want to see it publicly owned, and by publicly owned I do not mean nationalized solely and uniquely by the federal government, but I also want to see an involvement there, of course, of provincial government, community organization, co-ops and the like, but that is my bias and I feel it very strongly.

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I feel that we have had many, many, too many dollars flow out of this country in terms of dividends and profits to investors in the United States and I assume that you have another bias, you would like to see it remain in private hands, but I do not want to argue that with you today, what I want to ask you instead is what constitutional change do you want us to consider in the field of energy, and regardless of ones ideological concerns, there are many things that are shared in common with both the left and right in terms of energy. Premier Blakeney and Premier Lougheed will agree on a lot of things in energy in terms of revenue sharing, in terms of whether or not there should be certain federal taxes.

We in our party, for example, in the House oppose the export tax on natural gas, we do not think it is the right kind of thing for a federal government to do and we opposed the budget, and a lot of that budget, of course, is an energy policy in it.

However, what I want to ask you instead is what recommendations do you have as to constitutional change as it pertains to energy?

Mr. Willson: Mr. Chairman, it is not possible yet to answer that thoughtful question as it deserves because, as I indicated, Mr. Nystrom, we are just forming but we will have some proposals to make to you, I promise, if there is time for them to be considered, and I am pleased that you made reference to the public ownership because Mr. Skagen’s company is 100 per cent employee owned, which is about as public as one can get.

So we will not have any arguments as to view on that point.

Do you have a comment, Mr. Skagen?

Mr. Skagen (Canadians for Canada): Thank you. If I may, Mr. Nystrom, I appreciate your frankness about your attitude to the industry. I presume I should be dealing with some of that very briefly. Ownership publicly as you have described it is not alien to our kind of thinking. You assumed, incorrectly, that we would oppose.

Now, if you put the proper parameters on it and you have a Canadian government owned oil company which competes on an equal basis, which is limited to its growth by its generation of capital rather than drawing on relatively unlimited funds which their competitors produce, if that is the case you really do not have any trouble with thoughtful people in the business.

Now, if you are talking about coming to my office and telling me that you now own my company, you are going to be in trouble.

Now, one of the reasons that we see, or personally that I see the mix of the energy problem and the Constitution …

Mr. Nystrom: What I will do, though, is I will have Allan Blakeney as my council and legal advisor.

Mr. Skagen: Well, I believe that when you go into a war you should take everything with you that you can get. And we would be waiting with similar equipment.

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Now, the Constitution, it seems to me, should set the parameters within which this country operates. If we can set those parameters so that they are reasonable, so that we maintain and encourage a free country, then I think you get reasonable people together and you discuss the problems under reasonable parameters, you are going to come to a satisfactory solution.

Now, perhaps we cannot leave the oil industry in limbo in the meantime because I think that is a rather long process. The industry needs to move ahead and be aggressive and make substantial investments. Under the current circumstances we are encouraging, through our current proposed energy policy, something that is rather different than that.

So, on the one hand it would be better to solve the energy problem after you have a competent acceptable Constitution, but I would suggest to you that if you wait that long you would have to restart the industry.

Mr. Nystrom: In your opinion what parts of the energy problem are constitutional?

Mr. Skagen: The fact that the things can happen that are happening, that these things are not restricted by our Constitution. There is a question of ownership, there is a question of taxability, and any time you have those gray areas and you have a strong, aggressive central government, they are going to push as hard as they can and yet you do not have a clear, distinct: this is my bailiwick and that is your yard, so you have this conflict.

Mr. Nystrom: How do we determine which is your bailiwick or your yard in terms of ownership and taxation constitutionally?

Mr. Skagen: I suggest that in discussion with people who want to make contributions, who wish to contribute to that process, that you establish the rules in a Constitution and then play by the rules and do not change them in the middle of the game.

Mr. Nystrom: Would you be in favour of a constitutional amendment which would allow the provinces to get into the field of indirect taxation, which would allow the provinces as well concurrency in terms of international trade, concurrency in terms of international trade with federal paramountcy, in the resource field. These are amendments that have been talked about by members on the Committee as well as by Premier Blakeney and others.

Mr. Skagen: You are past me, I am not informed on that and do not have an opinion on it.

Mr. Crispo: Can I just pick up on that?

I think we have a problem here because apparently there is to be some amendment ensuring that the province do have the ownership and control of resources including the right to engage in indirect taxation, and including some of the other things that you mentioned, but it will clearly be a field of concurrent jurisdiction and when you get that, how do you keep each side on the proper side of the fence? I do not know exactly how you do that.

I know in the west right now there is a feeling that the statement implying that the west and any other province has

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ownership and control over their own resources does not mean very much when in fact, 1 think within a week of that, a national energy policy is announced which amounts, and this is the western perception, to almost a total invasion of that industry. So there is a real problem of drawing lines there.

I wish I knew the precise answer, but when you have concurrent jurisdiction and you have something like federal parainountcy-…

Mr. Nystrom: Professor Crispo, we do not have that now. You see, what we have now in terms of interprovincial trade of resources is strictly something that falls within the federal authority and what we are discussing now is making that concurrent, but since the resources go across the provincial boundaries we still have federal paramountcy so that does give the provinces a bit more power.

Mr. Crispo: Oh, I agree with that, but once you allow that paramountcy how do you keep it within a reasonable check? I do not know.

Mr. Nystrom: I wanted to pursue one other area. I see the Chairman nodding his head rather sagely.

Just a couple of questions that crossed my mind when you were going over your brief. On page 2 you say: we are prepared to help them succeed; this is the negotiations, the federal provincial negotiations, and you say that Canadians want to participate, and I like what you are saying, I commend you for saying that and I just want to ask you how you think Canadians should participate? Are you talking about a constituent assembly, are you talking about travelling committees, are you talking about travelling provincial committees? You say you want to help have these negotiations succeed; what are your plans, what are you planning on doing? Are you planning on publicity campaigns, lobbying the premiers, federal politicians? 1 just wanted you to elaborate a bit on those two points?

Mr. Willson: Mr. Chairman, in replying to that, you covered several of the ideas, Mr. Nystrom, we had in mind.

I would say that specifically because we are not yet the organization that we expect to be, we have already set in motion, for example, some meetings with Ontario business leaders and western business leaders. We have had a preliminary meeting with some Quebec business leaders and we will be following this up very shortly.

We see some of this travelling committee idea that you referred to as being an effective way of getting us to gether but we do not believe, since our intelligence is limited to the economic area, we will not be so presumptuous as to come back to people such as these, the members of this Committee, and say the answer is clerly so and so. We will, however, contribute what we can to your overall appraisal of what can be done.

I would expect in that process that we will meet and indeed we already have had one meeting with one provncial premier and we are seeking further meetings. We expect to meet with the member of the privy council next week in Calgary, we will

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be seeking opportunities to meet with members of all parties, MLA’s, MP’s, those whom we have elected to guide us, but we recognize that we have a responsibility not to leave them out on the end of a limb trying to guide us; we want to participate and offer something to their thinking.

Is that perhaps an answer?

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

The Honourable Mr. Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Mr. Willson, I have a feeling that you and I would get along very well together.

Mr. Beatty: Careful how you answer that, it was a trick question.

Mr. Mackasey: You will have to learn to ignore the rabble- rousers around here.

Mr. Willson: We will, Mr. Mackasey. Carry on, sir.

Mr. Mackasey: Mind you, they are not really bad rabble- rousers, just inexperienced.

However, I did sense, Mr. Wilson, your sense of integrity and sincerity with which you presented an idea, a concept, and it is not the first this week but it is the first from the business community and it is significant to me because it does reflect the growing concern of Canadians about the future that is coming; more importantly, their desire to participate in some positive fashion, and too many are participating in a very negative fashion, those who endorse separation, for instance, in the west or Quebec or wherever; that is a negative way, although it may be well motivated.

So I applaud your efforts, for one particular reason, because in 1978, or 1977, one that was, like Bordeau wine, not a vintage year for Bryce Mackasey, but a well known Canadian company, the firm of Drake International, liked something I had expressed in the Globe one day and asked me to travel across Canada saying pretty well what concerned me about the future of this country, and the format frightened me, it was an 8:30 in the morning breakfast meeting of business people, starting in Vancouver to Halifax, 12 cities in about 15 days.

The significant thing was that after the breakfast meeting which was really around my views, a poll was taken and the significant thing to me was that there was not plus or minus two per cent right across Canada, Halifax, Vancouver, Calgary, you name the city, in the perception of what the business community wanted, because frankly they were the business community invited by Drake International, about 500 people, and I have these results if you are interested in them, but they all wanted a stronger sense of government; a concern about the community, that somebody had to be in charge of the ship, somebody had to be making decisions and that came through in the brief put before us by the Canadian Chamber of Commerce.

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What I am suggesting, sir, is that I think, my own personal view is that it perhaps is impractical to suggest we stop what we are doing when you think if the debate in the House, the 85 or so witnesses we have seen, the hundreds of briefs that have been submitted, the input by, as you heard, Professor Cohen and groups later, it is rather unrealistic to think that we would stop.

It is also unrealistic to think that your kind of activity will not be wanted and needed even as we proceed down the line, since the finalization of this first step is several years into the future and I think back to the fact that there will be a 24 month hiatus where your kind of independent, apolitical input can do a lot to persuade federal politicians, the Prime Minister and provincial premiers in that 24 months to sit down and improve the package.

John will have a hard time to remain apolitical because his views are powerful, strong. Under normal circumstances I would bridle at his analysis of Bill 101 as a very superficial one. I lived in Quebec, I was in the Quebec assembly when Bill 101 was adopted; I lived every Clause of Bill 1, which we do not hear about, which was struck down by the Human Rights Commission of the province of Quebec, and although Bill 101 does seek to redress certain basic injustices in Quebec, it does prevent the business community from advertising bilingually, to go into Eatons and Simpsons and ask for a description of a shirt or a suit in the two official languages of the country, and prevent me from putting a bilingual sign over my door, such a very regressive, discriminatory piece of legislation.

Now, you might ask what are we doing here for Quebec? John is right, we are not doing anything for Quebec, we are doing a lot for Quebecers.

I have friends who now feel safe to move to Calgary with one of the retail outlets in this country, a man of such conviction, sir, that he has refused promotion after promotion in his company, his multi-national corporation, because his pride and dignity as a French speaking Canadian was such that he wanted his children educated in the French language. In his move to the west, which could have been followed later on by a move to the Atlantic provinces, and he wanted that right in the provinces because he wanted it as a right not as a privilege, and what we are doing here says categorically that a French speaking Canadian, an individual moving out of Quebec to another province, can have the rights to have his children educated, or her children, in French.

By the same token we are saying in the federal government, because of our concept of one nation, the businessman from Calgary can now come into Quebec, secure under the Constitution that he or she can really participate in Quebec as equals, and have access to English for his children and this to me, if nothing else, is perhaps the most significant change we are making.

Now, I say this with a tremendous degree of conviction because I have listened to a lot of debate and I really meant it when I said I think we are on the same wave length. I feel very inept and did during the referendum, but very proud of French speaking Quebecers such as the Chairman, such as the Prime

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Minister who is supposed to be, in the west, the architect of our problem. I have never met a man who speaks with a greater conviction and passion about Canada than Prime Minister Trudeau, who stood up in Quebec, when John finds it hard at times to stand up as a Canadian; it was very hard, John, to stand up as a Canadian in Quebec in the 1960’s and very hard to stand up as a Canadian in Quebec, and the former speaker of the Senate and other French speaking Canadians who come to Ottawa and found it very hard to stand up here as Canadians faced day in and day out with the injustice that they have suffered.

So I happen to think that the constitutional changes that we are proposing are well overdue, and 1 would have preferred to see them achieved not by unilateral action but, as you said, and this is my conclusion, sometimes the chief executive officer has to make decisions and hope to God that the shareholders approve.

Thank you, sir.

Mr. Willson: Mr. Chairman, may I respond to that as if it were a question?

Mr. Mackasey: It was meant to be. We do understand each other.

The Joint Chairman (Mr. Joyal): You are welcome to, Mr. Willson.

Mr. Willson: Indeed we are, Mr. Mackasey on the same wave length.

The persons with whom I am associated instinctively and by conviction believe in a strong central government.

Having said that, I would remind you that it has been said by one of the apostles of management that power to be legitimate must be exercised in the interests of the people over whom it is held. That is a lesson for me as an executive.

In short, as I believe one of the members said during the presentation by Dr. Cohen, the power to continue to be legitimate must be perceived by the people over whom it is held to be exercised in their interests.

The strength of the central government, in other words, can be the greater, and not in any way lesser; it can be greater by reason of its willingness to listen to the contributions that people like ourselves are prepared to make.

We have not done a very good job of making that offer until now. But you have helped us to be aroused to the point where we are now ready to make it, and, in effect, we say “Please give us the opportunity before you freeze on course. Listen to us and we will help you build a strong central and united Canada inclusive of the provincial regions.”

Professor Crispo: I would like to add that at the time of the referendum in Quebec—and I feel Mr. Mackasey would testify to this—before the referendum there were a lot of good Canadians in Quebec who did not stand up, and waited to see what would happen. My concern is that we have a great deal of the same sort of phenomenon in Western Canada right now, and I do not think that is healthy.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey and Mr. Crispo.

With no further names on my list, it is my privilege and honour on behalf of the honourable Senator Hays and all honourable members of this Committee to wholeheartedly thank you for your contribution.

As the honourable Jake Epp has remarked we have received many Canadians who have put forward the same views, and it does help us in the conclusions which we have to come to in reporting to the House, and if one of the conclusions is to continue the process one or the other way—and it is up to us to define—then I think that would be a major contribution.

Thank you very much.

Mr. Wilson: Thank you very much.

The Joint Chairman (Mr. Joyal): I would now like to invite to the witness table the representatives of the group, Campaign Life.

The Joint Chairman (Senator Hays): We have appearing Kathleen Toth, the president of Campaign Life, Mrs. Gwen Landolt, the legal counsel; Dr. Edward Rjadki, and Dr. Michael Barry.

I understand, Mrs. Toth, that you are going to read the brief.

Mrs. Kathleen Toth (President, Campaign Life—Canada): I have an opening statement and then Mrs. Landolt will read the brief.

I would like to thank the Committee for hearing us. I know it is really above and beyond the call of duty, and 1 certainly appreciate it.

I would just like you to know that we are here, too, as concerned Canadians. I come from Edmonton and I have the feeling that it is difficult for us to be heard here in Ottawa, and although my organization is a national organization we come from right across Canada; so I am here to say that our concerns are equally as important as the concerns for energy and for rights of different kinds.

I would like you to listen and consider what we have to say, because the constitution, if we do not get legal rights in the constitution for our unborn children—and we have not been able to get the law changed and there is still federal legislation and we have been working very hard; but once it gets into the constitution we will never be able to get it out. So please consider very carefully what we have to say.

Now Mrs. Landolt, could you read the brief?

Mrs. Gwen Landolt (Legal Counsel, Campaign Life—Canada): Thank you. Campaign Life is a national pro-life organization working at all levels of government to secure full legal protection for all human life including the unborn, the aged and the handicapped.

We regard it as our obligation to participate in this debate on the constitution of Canada, to speak on behalf of the

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citizens of Canada yet unborn who cannot speak for themselves.

Our view represent the views of millions of Canadians, both men and women, and our concern lies with the proposed entrenched Bill of Rights, which is a sharp departure from the British Parliamentary tradition.

If this proposed entrenchment of rights and freedoms is endorsed, it will affect, quite literally and very directly, the lives of those generations yet unborn.

We would like to state at the outset, however that there would appear to be a somewhat curious inertia on the part of many Canadians in respect to the proposed entrenched Charter of Rights. We would suggest a possible explanation for this is the fact that many Canadians are simply not aware of the tremendous implications an entrenched Charter will have on all of our lives.

In this regard 1 would also like to say that we certainly endorse the very fine statements made this morning and this afternoon with regard to the fact that the public must be made aware and this debate must continue and must not be forshort- ened, since the Canadian public are just now getting involved.

But it is our purpose today to attempt to analyse the implications of an entrenched Charter so as to determine whether it will, in fact, safeguard our rights and freedoms as it purports to do.

The most important effect of an entrenched Charter of rights would be that it would give rise to a shift in power from Parliament, which is subject to public opinion, to the Supreme Court of Canada, which is not. This shift in power would then open the door to a wide list of areas in which, for the first time, the judiciary, rather than the legislature, will have the final say.

We have only to look to the United States where the United States Supreme Court has the final word on any legislation passed by the United States Congress, to determine the tremendous consequences that would result from a transfer of this power.

It is appropriate, also, to look to the decisions of the U.S. Supreme Court on constitutional issues, as the United States constitution contains many of the phrases that are contained in the proposed Charter of Rights and Freedoms. Examples of these are: the right to life, which has been interpreted by the U.S. Supreme Court to exclude the unborn child; freedom of religion has been interpreted by the United States Supreme Court so as to prohibit the Lord’s Prayer in public schools; freedom of expression has been used by the U.S. Supreme Court to strike down some state obscenity laws.

There are inherent difficulties involved in transferring final power to the Supreme Court of Canada. For example, the Supreme Court’s decision may well not reflect public opinion.

Parliament is sensitive to public pressure, whereas the Supreme Court of Canada is not. Accordingly, the decisions of the Court may well reflect the views of the nine individuals in

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the Court rather than that of the general public, which will be permanently and deeply affected by the court’s decisions.

But the argument that it is beneficial that a decision on individual or minority rights should be made by a court rather than being left to the good will of the majority or the government of the day, may have been valid in the last century, when illiteracy was high and the communications system was poor. Public opinion, under those conditions, may well not have been an informed one.

However, in the latter half of the 20th century, with the very high literacy rate and almost instantaneous communications system, coupled with a majority of people with a genuine awareness of the need for civil rights, it would appear essentially undemocratic and an apparent anachronism that judges, who are appointed by the executive, who are not responsible to the people, and who are protected from removal by tenure, be given this tremendous power to impose their will on the elected members of Parliament.

It is a concern to all of us that just five individuals, bare majority, could rule on the great social and political issues of the day contrary to and regardless of the wishes of the general population.

Also, to put this into historical perspective, I would like to suggest that we look to our Canadian history and we find that the rebellion of Upper Canada in 1838, and the rebellion of Lower Canada at the same time was to prevent the holding of power by a small group of people appointed by the governor, and here we are, scarcely 100 years later agreeing that we should transfer all our natural power, the power of the people, being transferred to a handful of men appointed by the government of the day. It seems to me that we have turned our back on the development of our Canadian history in transferring this tremendous power to the Supreme Court.

It is quite true that there has been legislation in the past that, as a direct result of public pressure, has been both discriminatory and a denial of civil rights. An example of this was the removal of civil rights from residents of British Columbia of Japanese ancestory in World War II. Public sentiment at that time, because of the War, fed into latent racial prejudiced which resulted ultimately in discriminatory legislation.

Very few voices, unfortunately, were raised in opposition to that legislation. However, can we be certain that the courts, if it had been seised of the matter, would have reached any different conclusions? Unfortunately, we have all too many examples of court decisions in the past which would indicate that our courts can be as subject to prejudice as the general public.

If I may give you an example which is very dear to my heart, we have a decision in England in 1868 in the Charlton case, where Lord Justice Wills, discussing the right of women to vote, said back in 1868 said:

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That women should not get the vote because they have a certain fickleness of nature and an impressionability of their judgment;

And that was certainly a reflection the thinking in 1868, and I do not think our judges are any different from the general public. But that is just one example of how we found court simply reflect the prejudices of the day.

Another obvious example, in recent years, of discriminatory legislation, is the 1969 abortion amendment to the Criminal Code, which allowed the decriminalization of abortions, that is, the deliberate killing of human life in some circumstances. The exceptional circumstances occurred when hospital’s therapeutic abortion committee was of the opinion that the continuation of a pregnancy would endanger the mother’s life or health. These “exceptional circumstances”, that is, health reasons, have been so bent and tested by many therapeutic abortion committees that now according to Statistics Canada, 1978, the latest figures available, over 400,000 unborn children have lost their lives in the past 10 years.

Unfortunately, however, when the abortion amendment was passed in 1969, the pro-life movement, as we know it today, was not in existence, and abortion itself was such an anomaly in the Western world that few people had any understanding of it. As a result, neither the public nor many of the legislatures where aware of the tragedy that was about to unfold through the widening of the abortion law.

This abortion legislation, however, can and will be changed as the Canadian public, as well as many of our legislators, are now becoming very aware of the tragedy of the abortion situation. Parliament will, we believe, in the foreseeable future, amend the callous legislation passed in 1969.

However, the wishes of the public and Parliament which want to protect all members of the human family, born and unborn, may possibly be thwarted by the nine individuals who will be sitting on the Supreme Court of Canada, for there is little doubt that the right to life of the unborn child will be attacked through the courts by individuals who oppose legislation to protect the unborn child.

The Supreme Court of Canada, under an entrenched Bill of Rights, will have the power to undermine the will of the people not only on abortion legislation, but on other legislation as well. This check on the power of the majority would appear to be both retrogressive and undemocratic.

Also a decision of the Supreme Court of Canada would be absolutely final. The only way it could be altered would be by the onerous procedure of amending the Canadian constitution.

Unfortunately, as we know at this point in time in Canada, there is not even any agreement as to how (he amendment of the constitution would be carried out. Further, amending the Canadian constitution is inevitably, by its very nature, a very divisive and a very drawn out procedure.

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It is clear that a proposed amendment to the constitution will mean that Canada will fall prey to the enormous political and social upheaval that has occurred in the United States recently because of the demand for a Human Life Amendment to the United States constitution. This has led to tremendous soul-searching, divisiveness, and acrimony—a most unenviable situation.

Amending legislation passed by Parliament, on the other hand, is a much simpler process, and can be accomplished without the deep-seated problems that arise with the amending of a constitution.

Thus, even if legislation is passed, which may be regarded as being discriminatory or a denial of civil rights, it can always be quickly and fairly expeditiously remedied by Parliament. But this is not the case if the necessity to amend the constitution may arise.

Further, and very importantly, the appointment of judges to the Supreme Court of Canada is open to abuse. Under our present system, appointments to the Supreme Court of Canada are made by the Prime Minister and his Cabinet. Once the appointment has been made, the judges remain on the Bench until they reach 75 years of age and cannot be removed, except for grave reason. The appointment is absolute and is not subject to confirmation or rejection from any authority, such as Parliament. Granted, revisions to a method of appointment of judges to the Supreme Court of Canada is one of the changes recommended in the new constitution. However, agreement on this part will not be forthcoming immediately, with the result that our present method of appointing judges to the Supreme Court of Canada will remain the privilege of the Government in power.

This situation differs markedly from that in the United States, where the President of the United States has the authority only to nominate candidates to the Supreme Court, and that nomination is subject to rejection or approval by the Senate.

Even with this latter precaution requiring Senate approval, it is known that in U.S. history, presidents have indeed “packed” the Supreme Court so as to implement government’s policy. How much more lightly a situation of a “packed” court would be in Canada, when there are no controls whatever to the appointments to the Supreme Court.

Clearly, the awesome and absolute power to appoint judges to the Supreme Court of Canada is open to abuse and this would most certainly be even more so if we have an entrenched charter of rights with the resulting extension of power to the court. In short the government of power, if it wished to assure the implementation of certain of its policies, could simply do this by appointing judges to the courts whose views would be known to be in accordance with that of the government.

This point is a very real one and a very real consideration in Canada as several of our present Supreme Court Judges are

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now reaching retirement age. It is quite possible that the new appointments may well change the very narrow and very fine balance of the present court.

One of the other problems with entrenchment is that the prestige of the Supreme Court will undoubtedly be undermined. Historically, the function of our courts in the parliamentary system has been to adjudicate or to interpret the law, not to make the laws. As a result, our Supreme Court has, in carrying out its responsibilities during the past 113 years, remained both a respected and creditable court. There is a very real possibility, however, that one of the results of the Supreme Court of Canada having final say on legislation, is that its prestige and authority will be undermined.

The court, whether it likes it or not, will become embroiled in what are essentially political decisions.

Again, we need only look to the United States to see the result of this. The US Supreme Court in 1857, in the Dred Scott versus Sanford upheld that a black slave was without any legal rights and was the “property” of the slave owner, which was essentially a political decision, having to do with the political climate of the United States at that time. It took over 40 years, before the United States Supreme Court was ever able to regain any kind of authority or reputation in constitutional matters after the Dred Scott case.

The same situation occurred when the U.S. Supreme Court in 1973 handed down its controversial decision in favour of abortion on demand. The U.S. Supreme Court, as a result, eight years later is still reeling under the impact of the public’s reaction to that decision and its resulting loss in both prestige and authority. A similar situation is almost inevitable in Canada if the proposed bill of rights is entrenched.

Again, if I may give you another example of what has happened in the United States, there is the very serious question of desegration of the school, which fortunately, we do not have here, but the U.S. Supreme Court, which had no problems with public pressure decided to solve the problem of desegration by the bussing of children. The bussing of children decision of the U.S. has remained a runny, open sore of the United States. A U.S. Congress would never have made that decision because it would have been too sensitive to the public reaction and would possibly have found some other solution to the problem of desegration of the schools. That is another example of how the court, immune from public opinion, can make decisions—radical decisions which cause difficulty and acrimony and open sore in the face of a nation such as the United States.

In summary of the entrenchment of the charter of rights, it is our view that many of the difficulties and problems that would arise in Canada with an entrenched bill of rights, in our view the bill of rights should not be entrenched in our constitution.

Our present system of parliamentary supremacy has, during the past 113 years of confederation, served us well.

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Individual rights and freedoms have been, with few exceptions, preserved.

It is our view that under an entrenched charter of rights, many of our fundamental rights and freedoms, such as the denominational schools which we now take for granted, and which have long been established in this country, may be lost, if not permanently, at least until they are restored by the onerous procedure of the constitutional amendment. It would seem to be both a retrogressive and undemocratic step to entrench a charter of rights in Canada as we had into the 21st Century.

However, we understand from practical points of view it may well be that Parliament may subsequently decide that is its final decision in spite of a very strong and ardent protest that the charter of rights be entrenched in the constitution. If that is the case then it is absolutely necessary to the profile people in Canada that the present proposed charter or rights must be amended for us to provide protection for the unborn child. It is our view that the present charter is inadequate to provide this protection. In particular we would like to draw attention to two sections of the proposed charter which give us grave concern.

The first is Section 1 of the charter. I know this has been discussed by many lawyers beforehand but the Section 1 is that

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

That is a wide opening and it is our view that that section would give the Supreme Court of Canada unprecedented wide and sweeping powers to make political decisions. The court need only to decide what in its opinion was generally accepted in a free and democratic society, and that would be that. It is tremendously wide and opens the door to all sorts of ramifications. Also that wording of Section 1 will have the effect of rendering the remaining sections of the charter meaningless since it would override any of the rights and freedoms including that of the right to life allegedly enshrined in the charter.

Further, Section 7 of the charter which states

Everyone has the right to life, liberty and security as a person and the right not to be deprived of except in accordance with principles of fundamental justices.

As noted previously, the U.S. Supreme Court interpreted the words “right to life” in the Fourteenth Amendment of the Constitution, so as to exclude the unborn child. However, Section 7 of the proposed Canadian Charter differs somewhat from the Fourteenth Amendment, in that the latter uses the expression “every person has a right to life”, instead of the word “everyone” as used in the Canadian Charter. It is our view however, that the use of the word “everyone” rather than the use of the word “person” in no way assures the right to life of the unborn child will be protected. Therefore, it is necessary that the present S.7 of the proposed Charter of Rights, when it refers to “right to life”, must specifically spell out, in exact

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of the unborn child, conceived but not yet born. That is, the unborn child must be protected in the constitution from conception or fertilization onward, so that the future Supreme Court of Canada could not rule that the “right to life” in S.7 does not include the right to life of the unborn child. It is possible, of course, that a Canadian Supreme Court may reach a decision less discriminatory and arbitrary in its interpretation of the expression “right to life”, than occurred in the U.S., but, Canada cannot invite even the possibility of such an event. The most reliable way to ensure the protection of unborn children is to accordingly amend S.7 of the proposed Charter.

With regard to the expression everyone has a right to life in Section 7 of the proposed charter I should like to mention that in a brief presented to this joint committee by the Advisory Council on the Status of Women they recommended that the word “everyone” as appears in Section 7 of the proposed charter be changed to the word person according to the Canadian Press story, dated November 15, 1980, the purpose of having the word everyone in Section 7 has a right to life changed to everyperson simply so that the charter of rights cannot be interpreted as being applied to fetuses. This point is not lost of course, because the U.S. Supreme Court formerly decided in Doe versus Wade that the word person did not include the right to life of the unborn.

I should like to point out also to members of this Committee that the Advisory Council of the Status of Women are expressing their personal views only for those members or simply political appointees and do not represent any constituency.

It is indeed insulting to intelligent women in Canada that it is assumed by some that simply because a few women who are appointed by the government express an opinion, that their opinion automatically is regarded as speaking on behalf of all other women. This is nonsense.

It is also discriminatory to assume that only women can speak on behalf of other women. There are in fact many men whose views and philosophies represent the exact views and philosophies of many women in Canada. It should be clearly understood that there is no one single woman’s voice in Canada as women are as diverse as men and vote and think as do men according to their own social and economic backgrounds and not according to their sex.

Women, as many of you married men will probably know, will no more be told how to vote and think by women than they will be told how to vote and think by men.

Some hon. Members: Hear, hear.

Ms. Landolt: But it is indeed on the very issue of abortion that the majority of women are deeply and irrevocably opposed to the extremist feminist view as espoused by the Advisory Council that the unborn child should be denied all civil rights, should be denigrated and abandoned on the alleged grounds that it is a so-called women’s rights.

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There is no right to kill a human being, born or unborn.

In conclusion, I would say that a much vaunted Charter of Rights, if one is to be implemented, it must be a symbol of what is right and good. It must be a unifying element in Canadian society and it must not become a source of derision and disrespect or a symbol of confrontation or disunity. To avoid this the proposed Charter if implemented, must be amended so that the right to life of unborn children is enshrined in it.

Our former fathers of Confederation have been regarded in history as being men both of compassion and vision. Let those drafting our new Canadian constitution also be regarded as being individuals of compassion and vision.

If the proposed Charter of Human Rights provided protection for all human life, born and unborn, then it will be what it proclaims to be, an authentic Charter of Rights and Freedoms. Generations yet unborn will live to honour your faith in their future and that of Canada.

And, very importantly, this Charter must provide an absolute right to life to all innocent persons born and unborn. Any limitation on this right is not acceptable. Thus Section 7 of the Charter which provides that the right to life be subject to the principles of fundamental justice is simply not precise enough in meaning and it is so vague that it may not provide for the unborn child the absolute right to life.

This, unfortunately, is based on the fact that it is perfectly conceivable that a Supreme Court of Canada in the future if it wished to impose abortion on the country contrary to the will of the people, could interpret the authorization by a therapeutic abortion committee to destroy an unborn child as being in accordance with the principles of fundamental justice. This however is totally unacceptable to the majority of Canadians.

I do not have to tell many of you gentlemen and ladies here that we virtually have abortions on demand because of the abuse of the therapeutic abortion committees. And for anyone to say that the therapeutic abortion committee is in accordance with the principle of fundamental justice is totally, totally wrong.

In conclusion, our recommendations then are in order to ensure that each innocent human being, born and unborn, is given this absolute right to life, Campaign Life makes the following recommendations:

Recommendation one, that the Charter of Rights should not be entrenched in the proposed Canadian constitution. We do not want the final power to go to a handful of individuals appointed by the government in power. The final say on any legislation should be had by the members of Parliament who represent the voice of the people of Canada.

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However, if this Parliament should, contrary to our wishes and against our protest, ultimately make the decision that the Charter of Rights be entrenched in the constitution, then we make the following two recommendations:

We would like Section 1 of the Charter of Rights and Freedoms be eliminated. Section 1, as already mentioned, gives total and complete power to the Supreme Court of Canada to do what it likes, when it likes and how it likes. And no democracy can survive with a Supreme Court given the great power it has by Section 1 of the proposed Charter.

And our last recommendation, again, is that Section 7 of the Charter of Rights and Freedoms should be amended to read as follows:

That everyone from the moment of conception onward who is innocent of any crime has the absolute right to life then everyone has the right to liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Our point being quite clear, that we want to have the absolute right to life for the unborn child. Then and only then, will your Charter of Rights be one to be respected and honoured by Canadians.

Thank you.

The Joint Chairman (Senator Hays): Thank you, Mrs. Landolt. Does that complete your …

Ms. Toth: Yes, it does, Senator. If any members have questions concerning medicine if they would ask either Dr. Rjadki or Dr. Barry. If they have legal questions, Mrs. Landolt. Any other questions, I will handle.

The Joint Chairman (Senator Hays): Thank you very much.

Mr. Perrin Beatty.

Mr. Beatty: Thank you very much, Mr. Chairman.

I want to thank our witnesses for coming before us. I think that the brief has been a very constructive one. It has been very straightforward in terms of its recommendations and should be helpful to the Committee in terms of our study of the Charter.

I wonder whether I could get clarification of one point which continues to perplex me. We had supporters of the right to life come before the Committee to express concern that the Charter as currently written may lead to a diminution of the rights of the unborn.

On the other hand we have had other groups which support a more liberalized abortion law arguing before the Committee that the Charter may lead to a decrease in the number of abortions which take place in Canada or a taking away of the, to use their expression, woman’s right to have an abortion.

Now, could I get some clarification from you as to what exactly is there in the Charter that you feel gives you cause to believe the passage of the Charter would put an impediment in Parliament’s way in terms of rewriting the current legislation dealing with abortion to tighten it up in the way that you are recommending?

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Ms. Landolt: There would be, if I may answer this, no impediment to Parliament tightening up and giving full protection for the unborn child but the problem would be that legislation, as all legislation passed in Canada both federal and provincial will be subject to an entrenched Bill of Rights which would be paramount over all legislation.

And what happens, of course, is that the Supreme Court of Canada will look at any legislation and they can simply say: oh, that legislation to protect unborn children is contrary to the entrenched bill of rights. And that is what the whole point of our brief was that we do not want a Supreme Court—these nine individuals or really a bare majority of five, can decree contrary to everyone’s will or the will of the majority to protect human life, that in our exalted opinion we think that is contrary to the entrenched Bill of Rights and then out goes the legislation.

Mr. Beatty: Could I ask, precisely, what part of the Charter do you feel could be used by the Supreme Court to strike down any tightening of Canada’s abortion laws

Ms. Landolt: Well, I would think that though there is an enormous number of sections; it is opening a whole new battleground on the abortion issue; but specifically Section 7. As I say, everyone has the right to life. The US Supreme Court has said, you know, that does not include the unborn child. Section 1 which is a very pivotal section, and that is where they can say: in our opinion, you know, that will be so.

Also, Section 15, they may well use—discriminatory. It discriminates against women if our Supreme Court were so narrow-minded as to think that the Advisory Council, the National Action Committee represented women’s views; they may make that mistake and hand down a decision that: oh, it is discriminatory against women.

To be fair, the court could go the other way and simply say it discriminates, Section 15, it could be interpreted to discriminate against unborn children, the abortion law and they would throw out a widening of the abortion law but the point is the Supreme Court should not in the 21st century—remember, we are not making a constitution for the 19th century. This is for the 21st century and it is a whole new ball game, a whole new world we are going into and we have to make it where the people have the voice. And it is regressive and totally out of keeping with the 21st century that the voice of the people in Canada will not have a final say.

That is the whole thrust. Good or bad the legislation may be but the point is those nine men, appointed by a government would simply be controlling the great political decisions and the great social decisions of the day. And to that we object.

Mr. Beatty: Mrs. Landolt, just one final question. I appreciate your clarification but I had not thought of Section 15. I did not see how in Section 7 that could be used to further

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liberalize Canada’s abortion laws but in Section 15 I can see the possibility that it might be.

Could I ask just one final question though and that is that it is clear that the position that you have taken is that you prefer to see the issue of abortion not settled for once and for all by the constitution but rather settled by normal statute law by Parliament. And could I ask you, if that is the case, if Parliament decides to go ahead with including a charter of rights in the constitution, would it be acceptable to you if we searched for some sort of wording to put into the Charter which did not seek to resolve the issue of abortion once and for all but rather made it very clear that the provisions of the Charter did not deal with the question of abortion which was to be left to the courts.

Pardon me, not to the courts but rather to Parliament.

Ms. Landolt: If I understand what you are saying, you are suggesting that the Charter would specifically state the entrenched Bill of Rights but not apply to the abortion issue.

Mr. Beatty: Yes. I am wondering whether from both the point of view of groups advocating more liberalized abortion laws and also from your point of view it would not be desirable to leave this as an issue to be settled in the political sphere which you have argued here rather than having an entrenched settlement once and for all in the constitution.

Ms. Landolt: Well, if I had my rathers, as they say, or druthers, whatever the word is, if you are going to have an entrenched bill of rights, if I had the choice, I would want it clearly written in that the unborn child’s right to life shall be protected.

And, of course, the great effect of that would be no Parliament or no court could ever again touch the unborn child’s right to life except through this enormous problem of constitutional amendment, and that would be the way to go. If you must have an entrenchment it must specifically state unborn from the moment of conception onward shall not have its life taken through any procedure. That was what I would ask for. That certainly would be the best. If you have entrenchment, that would be the only protection we could really count on.

Mr. Beatty: Would you feel it would be an acceptable fall back position to put an exclusion in the Charter indicating the Charter did not apply to the question of abortion and to leave it to Parliament to settle?

Ms. Landolt: Obviously, this is a new thought, but maybe Doctor Rjadki would care to elaborate on that.

Doctor Edward Rjadki (Psychiatrist, Campaign Life— Canada): Well, I am not a lawyer but it would seem to me that excluding that issue when there is a perfect opportunity to include the protection for the life of the unborn, excluded would not solve the problem. What Ms. Landolt has said certainly points to the fact that an entrenchment of the rights would lead to complications.

On the other hand, if you must have those rights entrenched, please entrench the rights of the unborn.

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Mr. Beatty: Thank you very much.

The Joint Chairman (Senator Hays): Thank you very much.

Senator Lapointe.

Senator Lapointe: Ladies, even if I am in favour of your cause, I think that you are being a little bit, and I should say, supremely unfair to the Supreme Court, to the members of the Supreme Court because you seem to consider that they are enemy number one, because you say that nine individuals who are imposing their will to the elected members of Parliament.

They are not imposing their will, they are only interpreting the law. A little bit later you say that there is a fine balance in the Supreme Court actually and it has remained both respected and credible. So it seems a bit contradictory that you are so afraid of the Supreme Court and that you think if they were giving decisions on this subject of abortion later that they would be very unfair and very narrow-minded.

Ms. Landolt: Thank you very much for the very good questions you have raised. The point I would like to make is our present court is finely balanced. It is very finely balanced. There are going to be within the next few years two to three retirements. It is crucial who those two to three men or women are who are appointed to the court. If they are of liberal leaning, we are going to have one way. If they are more conservative it will go the other way.

But my point is the court should not have this great power and our court, as I mentioned is presently credible simply because it only has the power to interpret the law at present. You know, any decision of the Supreme Court of Canada, it has no power at present to make the law in Canada but the American Supreme Court does but our court at present can simply say well, we interpret the law, the interpretation is as such.

With this new power it will do much more: it will be making the law and say that is so and that is not so. It is a much more powerful court. They have the final say: whereas now, if the Supreme Court of Canada, if there is entrenchment the Supreme Court of Canada will say to the Parliament: your legislation is contrary to the entrenched Bill of Rights and that is that. There is no repeal. There is no way. It is contrary to the Bill of Rights. Parliament cannot go back and amend that legislation. There must be a constitutional amendment. You have a much more powerful court.

Right now, if the Supreme Court of Canada should say: well, some legislation is invalid contrary to the present Bill of Rights, Parliament simply goes back and amends it, tidies it up, but there is no power for Parliament to go back; it must have a constitutional amendment so as a result our court has always been credible because it simply interprets it and Parliament has the final say but no longer will Parliament have the final say.

Senator Lapointe: In your recommendation at the end of your brief you say that everyone from the moment of conception onwards who is innocent of any crime has the absolute right to life.

Does that mean that you are in favour of capital punishment?

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Mrs. Landolt: I thought I was being very clever by putting in this section “innocent of any crime” because I did not want to get involved in the capital punishment issue. I thought if I said everyone has an absolute right to life I would then be caught up in capital punishment because that would exclude capital punishment, but 1 thought if I put everyone innocent of any crime has a right to life it does not preclude Parliament from legislating one way or the other on the question of capital punishment.

I do not want to get involved in that, I am simply trying to protect the unborn child and by putting “innocent of any crime” it means I am trying to get out of capital punishment, it is up to Parliament to decide that.

We do not have a policy on capital punishment, we only have a policy on protection of unborn children.

Senator Lapointe: I would very much like to have the opinion of one of the medical doctors in the cases of rape, for example, or for a grave deformity detected before birth. What would be their way of dealing with these problems?

Doctor Michael Barry (Psychiatrist, Campaign Life—Canada): Well, as many of the members know the process of amniocentesis has come into vogue into the last few years whereby you can pick up certain deformities in children prior to birth, and these procedures are done in the Toronto area where I know of them in the teaching hospitals, maybe not in the suburban hospitals, and they are done in such a way that women over the age of, say 38 or 40 who might have conceived a Down’s-syndrome child, this can be picked up, certain genetic deformities can be picked up and then the opportunity is allowed for this women to have an abortion or carry the child to term.

One thing about the amniocentesis is that it is not 100 per cent accurate. In the practical use of this procedure in the Toronto area it is my experience that any women who gets an amniocentesis is pushed into having an abortion and there is a tremendous pressure on the individual to have an abortion if there is the possibility of a deformity.

It is my personal view and the view of this group that every child, whether deformed or not, has a right to life and we certainly do not condone but rather condemn any type of abortion, no matter what the deformity is.

It is a basic assumption in society now and it is becoming ever more apparent as maybe many of you know that there should be a certain quality of existence and that supposedly a Down’s-syndrome child is not a happy human being, there is something wrong with that child that will become an adult and that person cannot obtain a full human happiness as compared to the rest of us.

Now, we know what happened in the 1920’s and the 1930’s in Germany and was happening in Great Britain and America before World War II started, this whole idea of quality of existence, that some people are more human or better than others and some should be sorted out as to who should live or not, started this very way. This is not a new problem, this


problem started many years ago and after World War II it died down.

The same arguments were used at that time, that modern medicine cannot cope with “all the polio victims”, we cannot cope with all these retarded individuals, schizophrenics and mentally deficient individuals, it is costing the government a tremendous amount of money and so something in Germany and in certain other areas of the world was done about it, and this lead to a tremendous disrespect for human life.

I can remember Malcolm Muggeridge about five years ago in a talk stating that it is the old slippery slide from abortion to euthanasia. I did not believe him at that time for one minute and yet this proposed legislation in Ontario now under the consent act that is proposing operations, nontherapeutic procedures on people like mentally retarded people who cannot give their consent, if a committee similar to an abortion committee gives their consent.

Senator Lapointe: Thank you.

The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe.

Mr. McGrath: Mr. Chairman.

The Joint Chairman (Senator Hays): Yes.

Mr. McGrath: Mr. Chairman, I just wanted to say the fact that we are not intervening does not in any way reflect any lack of interest in this brief because it is a very important brief. The only reason we are not intervening, and I think the witnesses will understand, is because of the lateness of the hour and out of consideration to you, our Co-Chairman, and the staff.

I just wanted to say that because a number of us would have under normal circumstances intervened.

An hon. Member: Hear, hear.

The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath. I think that you reflect the feeling of all Committee members.

We would like to thank you very much for being here, Mrs. Toth, Mrs. Landolt, Dr. Rjadki and Dr. Barry. We appreciate your brief and I am sure that it will be taken into consideration in our deliberations.

Thank you very much for being here.

Mrs. Landolt: Thank you very much.

The Joint Chairman (Senator Hays): At 8:00 Professor Peter Russell will be here from the University of Toronto. Until then this meeting stands adjourned.




The Joint Chairman (Mr. Joyal): Order, please.


It is my pleasure, on behalf of honourable Senator Hays and on behalf of all the honourable members, to welcome Professor Peter Russell.

I understand that you are aware of our usual procedure. We usually invite our guest to make an opening statement and then accept questions by the honourable members of this Committee.

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We understand that generally you would like to see an adjournment around ten thirty, eleven o’clock, so it will give us an idea of the framework within which we will have a dialogue with you tonight.

So, Professor Russell.

Mr. Peter Russell (Professor, University of Toronto): Thank you very much, Mr. Chairman.

The first point I wish to address to the Committee has to do with the significance of entrenching rights in the Constitution which is part of the Resolution your Committee is considering.

I regard the process of entrenching rights in the Constitution as about as serious a constitutional act as a nation can ever undertake for it means in theory that certain powers are to be withdrawn from the governors elected from time to time by the people, and it establishes a new set of limitations on what elected legislatures can do to the people.

In that sense, it involves nothing more nor less than a change in the social contract between the governed and the government and it entrusts the judiciary with the task of interpreting the terms of that contract.

My purpose in appearing before you today is not to try to talk you out of that enterprise but to urge you to reconsider the means now proposed for carrying it out. I personally have real doubts about the merits of entrenching rights in the Constitution because of the false hopes that such an enterprise raises, because of the political burden it will surely impose on the judiciary of this country, because of the possibility that it will diminish our people’s reliance on the processes of public discussion and democratic politics for resolving disputes about fundamental principles.

You have already heard a great deal, I suspect, you will probably hear even more on these points about the merits of entrenchment. What I wish to argue is that assuming Canada is going to add a charter of rights and freedoms to its Constitution, assuming that is what we are going to do, we are going about it the wrong way. I suggest to you that there are three qualities which should characterize the process of defining the rights and freedoms which are so fundamental to Canadians to entrench in the Constitution.

The process should be considered, it should be reasonably popular and it should be as unifying as possible. The process of entrenchment should have those qualities because it involves the creation of a higher law, the law of the Constitution which will limit all Canadian law-makers in the future, and those who fashion constitutional guarantees designed to limit the powers of transient majorities must express and try to express the enduring will of our nation. They must not themselves be simply, and no more than a transient majority.

By these standards, 1 judge the means being used now to entrench a charter of rights and freedoms in our Constitution as seriously deficient. The charter has been drafted, I say in haste, at least pretty quickly, by some government officials, it is being put through this federal Parliament, sometimes closure has been used, deadlines have been and are being applied

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without permitting the Canadian people sufficient opportunity to consider and discuss all of its important implications. It is to be made part of our Constitution not by a constitutional act of Canadians but by a foreign legislature and in the teeth of some bitter opposition from a majority of provincial governments.

By this process, provincial governments which command the confidence of legislatures which are as sovereign as the federal Parliament in those spheres of jurisdiction assigned exclusively to them, to the provinces, by our Constitution are to have their powers altered by unilateral initiative of the federal Government and Parliament.

I think that these are unfortunate auspices for the institution of such an important change in our system of government, especially a change that is designed to enhance our freedom and express our nation’s enduring will. If we are going to entrench right in the Constitution, let us do it in a manner which is less divisive, which allows us to apply our best constitutional talents to the task and, above all, let us do it in Canada.

I would concede that there is no room for a counsel of perfection in the drafting of charters of rights and freedoms. Inevitably, such a charter will speak in generalities, leaving much room for judicial interpretation and adaptation. Still, I think we can do much, much better than the document which is before you now and which is regarded even by keen supporters of constitutional entrenchment as thoroughly flawed. We can do much to sharpen the definition of rights and freedoms, to discard verbal rubbish which guarantees confusion, to transcend unprincipled compromise and instill a more universal meaning into cultural and language rights and to carve into our Constitution with great care those rights and freedoms which are indeed so fundamental that they deserve to be upheld even when temporary majorities find it “generally acceptable”—the language of clause 1 of your Resolution—to set them aside.

One can scarcely think, it seems to me, of a more important act of constitutional self-government than the establishment of a charter of rights and freedoms and that is precisely the reason for not carrying out such an act until we, in Canada, are constitutionally self-governing, until we, Canadians, have custody of our own Constitution.

That is why I think the proper course of action for the Canadian Parliament and for the British Parliament is to confine the unilateral amendment of our Constitution, that is, amendment without the consent of the provinces, to just what is needed, only what is needed for patriation. We should first take custody of our Constitution in Canada, then use an all-Canadian method of constitutional amendment to entrench, if we wish to entrench, fundamental rights and freedoms.

To suggest that now may be the last chance, the last opportunity for Canadians to obtain such an important change in their Constitution is, in my view, to express a profound lack of faith in the capacity of the Canadian people and their

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governments to exercise responsibility for the development of our own Constitution. This lack of faith, it seems to me, contradicts the very purpose of patriation.

The purpose of patriation, as I understand it, and I think as many Canadians understand it, is to enable Canadians to take charge of their own constitutional destiny, but ramming a charter of rights into our Constitution when the final arbiter of our constitutional destiny is still the British Parliament is in essence to say, Canadians, we do not trust you to manage your own Constitution, so we are shoving this amendment through before you take over from Britain, and I find that difficult to accept.

I would like now to turn briefly to the proposed amending formula. I welcome the inclusion of a referendum system in the proposal. It seems to me that patriation should mean and has to mean really that the Canadian people replace the Imperial Parliament as the final—and I underline the word “final”—custodian of the Canadian Constitution. Such a change is a consequence of moving from a constitutional system based on the premises of imperialism and colonialism to a constitutional system which is based on the precepts of popular sovereignty.

But in speaking of the Canadian people as the final custodian of our Constitution, I emphasize the word “final”. In a democratic country with a parliamentary rather than a plebiscitary tradition of popular government, the submission of constitutional questions directly to the people should not be the first avenue, the first approach to constitutional change.

In a democratic country with a federal constitution dividing powers between two levels of government, each sovereign within their respective spheres, the right of submitting constitutional proposals to the people should not be assigned solely to one level of government.

Further, in a federal democracy such as Canada, the majority required to approve an amendment in a referendum should be more than a simple national majority; it should be a majority reflecting the regional and ethnic diversities of the country.

Now, applying these principles to the provisions of the proposed Resolution, the Resolution that is before you now, I would endorse the idea that has been put forward that the proposal be changed so that a referendum can only be resorted to as a court of last resort after a failure to reach the required consensus amongst the federal and provincial governments, and I would say that the exclusive power of the federal Parliament to initiate a constitutional referendum should be altered. My own personal preference would be that a referendum should be initiated solely by a combination of the federal Parliament and a small group of provinces, say three or four, a smaller group than is required for an amendment by the standard intergovernmental agreement method.

Also, 1 would suggest that it is essential to secure in your Resolution on the amending formula that the majority

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required for popular ratification of a constitutional proposal be more than a bare majority of persons voting, and 1 do not think that your Section 42.1 B properly secures that.

The provisions of the existing proposal before you now put that point in doubt by providing that over the next two years a simple majority in a national referendum may adopt an alternative method of amending the Constitution which could have the effect of altering the regional requirements for referenda on future amendments.

May I conclude, Mr. Chairman, by saying what a shame I think it will be if in this process of at last taking responsibility, after over half a century, to finally taking responsibility for our Constitution and in the name of protecting freedom there is a serious and unnecessary breach of the spirit and practice of reasoned accommodation which, I would submit, has been our greatest source of liberty since this country began, and I urge you, for the sake of Canadians who believe in this country’s capacity for constitutional self-government to patriate first and entrench or see if your wish to retrench in Canada later.

That is my main presentation, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Professor Russell, for your response. I am quite sure they will give rise to many questions from honourable Members of this Committee, and I would like to recognize, first, the Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

On behalf of my colleagues, and 1 am sure all members of this Committee, Professor Russell, we would like to welcome you here.

Professor, I take it that the burden of your proposal today can be summed up in the record of two eminent Canadians. They were both speaking in the House of Commons. One was speaking in 1925, Mr. J. S. Woods worth—and I have quoted this before, and he said:

Who then is best fitted to interpret, in the light of modern conditions, these laws of fifty or sixty years ago? Not, I submit, the men who live across the Atlantic, but the men who are living here in Canada and dealing with the everyday affairs of our Canadian people.

Or, the former Prime Minister of Canada, was quoted by Archbishop Scott when he appeared before this Committee, and he pleaded with members of this Committee to change the process and give Canadians a chance. He quoted the late Prime Minister, Lester B. Pearson, who was speaking in 1968 when he said that if a mistake is made in an ordinary statute, it can be remedied at a subsequent session of parliament or the legislature, but a constitutional error may be almost irremedial and the consequences serious in the extreme. The fundamental law is indeed fundamental and its examination and review must be so treated.

On page two of your brief, you mention, sir, that the work we have embarked upon is to build an even better framework

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for the country than we have had heretofore. I say that because 1 do not believe the framework we have to date is all that bad.

But we must bear that in mind, that the framework we have to date has served us well and that we want to build on it rather than break it down and then build something new.

I take it, from page two, where you say there must be three conditions; one, that the process should be considered; two that it should be reasonably popular; three, that it should be as unifying as possible.

I would like you to expand. Do you feel the present process and the manner in which we are proceeding meet any of the three requirements or criteria you have spelled out?

Professor Russell: I would have to divide my answer. Basically, as I said, as far as substantial changes in the constitution are concerned, referring basically to the charter of rights, no. Process is not considered; it does not meet my standard of popular participation in the discussion of the rights and freedoms that are to be entrenched and it is certainly not unifying.

As far as the amending side of patriation, the amending formula is concerned, it would be somewhat different. I think we have

been considering for many, many years, an ideal formula for amending all of the constitution, all of its fundamental features here in Canada. We have been working at that, as has been pointed out many, many times, since 1927; we have had many conferences and a great deal of public discussion, and I think there is pretty close to an unanimous sense in the country that it is about time we did that.

The proposal before you on that has, 1 think, some flaws in it, but they are not so serious that they could not be fixed up in a reasonable process with some flexibility built into it. There is a two year period in which a unanimously supported formula might come forward, and even if one does not, there is an opportunity for choice of formula and the one in the proposal is one which started to be discussed ten years ago at Victoria, and is a well understood formula.

So on the patriation side, Mr. Epp, I think I do not have a great deal of fault to find with the process; but I think it has been very confusing to me, and perhaps, to many Canadians to confuse the patriation part with the entrenchment.

We have not been working on entrenchment for 53 years. We have been united on entrenchment at any time. It has been a very difficult issue for this country to deliberate on, and it has been before the country now since at least the Diefenbaker Bill of Rights came before the country and there are strong differences of opinion, not only on whether there should be an entrenchment of rights in the constitution, but also on which rights and how they should be defined.

So, on the charter of rights, we are a long, long way from meeting my requirements, and a question which I would like to

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hear answered tonight, and I hope it will be, is why that has to be done now.

I have not heard any strong, good, clear reasons why the entrenchment of rights has to take place now and through the British Parliament.

But I may have missed something and perhaps good reasons do exist.

Mr. Epp: Professor Russell, far be it from me to give you the reasons because that is obviously not my role; and you have not heard any good reasons; but the only ones we hear—and I am not putting the word “good” before it, is that Canadians are not competent or will not be willing to consider the entrenchment of a charter. Therefore, the government is forced to ask the British to do it. That is the only reason that we have heard to date as to why the government has chosen that route.

But I want to say to you that I agree on the patriation side. I think we should clarify the record. Many around this table and for that matter around the country, now take it for granted that there has always been agreement about this. There were not many months ago when patriation did not enjoy the support that it does across the country today.

I say in that sense the process and the initiative have been positive, and I am the first to say that. I am pleased it has come to that point.

Many Canadians feel that what we are doing is patriating only, and they do not know that there are 50 plus clauses additionally to what we are looking at.

If that is the case that other than patriation, that the charter entrenchment is at this point in time not meeting the criteria you have laid out, you are very firm as I read your brief on the sovereignty of the two levels or two orders of government—apart from the process now, if this proposed resolution goes forward as a joint address, from you mind, what would be the effect on the sovereignty of the two levels of government should this process and proposal go forward?

Professor Russell: Well, it would seem to me to implicitly put the provincial legislatures in a subordinate position in the Canadian constitutional structure, because it would mean that they are definitely subordinate to the British Parliament and not equal; they do not have a sovereignty equal in status to that of the British Parliament, because it would mean that the British Parliament can reduce their powers without their consent, which is not happening to the federal Parliament. Indeed the assumption seems to be almost the opposite with the federal Parliament, that it is almost superior to the British Parliament and the British Parliament must do what Canadian Parliament asks it to do.

That certainly seems to me to implicitly rearrange our federal system into a system of a hierarchy of power, rather than a division of powers between sovereign legislative bodies.

Mr. Epp: Professor Russell, in the amendments of 1949, the Prime Minister of the day, the right honourable Louis St. Laurent, gave a very clear undertaking that the federal government would not exercise, through the amendments that

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where then being contemplated, that new-found power to subordinate or lessen in any way or abrogate in any way the power of the provinces; but that amendment would be used to change, amend areas that were exclusively in federal jurisdiction.

That commitment of 1949 by the former Liberal Prime Minister, is that being broken by this proposed resolution?

Professor Russell: I suppose you could say the spirit of it is. In a sense the letter is not; because, as I understand it, this resolution does not aim at becoming an act of the Canadian Parliament passed under Section 91(1) of the British North America Act.

Mr. St. Laurent’s remarks were addressed to how Parliament would use its newly acquired power of amending the constitution of Canada under Section 91(1). I understand this resolution will not be enacted as an amendment to the BNA Act by the Canadian Parliament under Section 91(1); it is just a resolution to request the Queen to put the proposal before the British Parliament.

But it certainly seems to go against the spirit of Mr. St. Laurent’s remarks to be taking an action which goes directly towards reducing and limiting the powers of the provincial legislatures through the U.K. parliamentary process without the consent and, indeed, even against the objections of a number of the provinces.

Mr. Epp: I would like to dwell on that point for a minute. You say it might not go against the letter of the law, because the amendments that were referred to at that time were Section 91(1).

Professor Russell: I believe that is correct.

Mr. Epp: But that it might have violated the spirit by the manner in which they were presented and by which they were defended.

One matter that this Committee has to wrestle with would be matters which go beyond the law, that go to the spirit of the country, the relationships of the country, the integrity of the country, and in a federal state relationships are very important, more important than in a unitary state, I would suggest.

The very fact that the spirit of the country or the undertakings can be overridden through the supremacy of Parliament, does that not cast serious doubt on the validity, then, in terms of the spirit, the integrity, the unity, the future of the country, on the process that we are now embarking upon?

Professor Russell: I believe it does. I believe this country is built on an understanding that the fundamental terms of our federation, particularly the powers of the respected levels of government will not be altered by unilateral action by one side.

I think that goes as far back as the way in which Confederation was brought into being in the first place.

Since you have mentioned Mr. St. Laurent, it conforms with his own view of the implications of the statue of Westminster. I am sure you have been reminded before my appearance of Mr. St. Laurent’s very eloquent presidential address to the Canadian Bar Association immediately following the statute of

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Westminster which certainly addressed itself to this issue and the fundamental fact that the provincial legislatures were not to have their powers reduced by unilateral request of the Dominion Parliament to Britain to amend the constitution.

So Mr. St. Laurent was clear on the spirit, and 1 agree with his reasoning and that of other Canadian statesmen of all parties who have said much the same thing.

But I would just like to add one point, Mr. Chairman. 1 just would not like my answer to your previous question to be taken to mean that I am absolutely sure what is being done is legal.

I do not think that there is a problem with Section 91(1) of the BNA Act being violated in this resolution, because it is really irrelevant to this resolution.

But I am not at all so sure as my colleague, Professor LaForest seems to have been, that the statute of Westminster might require for an amendment of this kind a request from the Dominion, and the Dominion might mean more than the Dominion Parliament.

I think there is a very strong, arguable case that, unless the statute of Westminster is amended, there is a legal bar on the British Parliament, without amending the statute of Westminster, to go ahead without provincial consent for a resolution of this kind. At least it is arguable, and I would not want to concede that point.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

Mr. Nystrom, followed by the honourable Bryce Mackasey, and then the honourable David Crombie.

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Joint Chairman. I want to welcome Professor Russell here this evening. I would like to say too that I appreciate having an opportunity to question some experts about the constitution. What I want to question you about this evening is the amending formula.

We have heard a great deal of talk in this Committee and in this country about two different options: the Victoria Charter and the Vancouver consensus. We have had witnesses before the Committee suggesting three other options. The Premier of Saskatchewan suggested what I will be getting into in a few minutes, and there was a suggestion for the Toronto consensus, and we will be dealing with that one as well, and one witness suggested unanimity, and I will leave that until last in case we run out of time.

Criticisms were made of the Victoria Charter by a number of witnesses, saying that it creates two classes of provinces, giving the veto to Ontario and Quebec but does not give a veto to the other eight provinces, although it gives vetoes to the other four regions, if you want to regionalize Canada.

I am wondering whether or not you accept the Victoria Charter, and if you do, why, and if you do not, why?

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Professor Russell: Yes, I accept it with the slight modification that is in Section 41(1), requiring two Atlantic provinces to represent 50 per cent of the Atlantic population.

I do not accept that it is accurate to say that the Victoria Charter gives just two provinces a veto. It gives any province that acquires 25 per cent of the population.

You must remember when you are talking about constitutions that you are not talking about a law for today or tomorrow or this decade. We are talking about a law for the centuries ahead.

We have had a constitution for over a century, and I hope we carry on as a country for many more centuries, and there are going to be very, very large population shifts on this continent and in this country. There is a tremendous population shift now in Canada to the West, and there is a very important population shift, of course, going on south of us from the north of the United States to the south.

I do not think we should be simply mesmerized by the current situation. I think the province that acquires 25 per cent—a quarter of the population—is large enough to merit the veto.

I think also for historic reasons, and my understanding of the historic compact in Canada between the French and the English people, it is always important in the province of Quebec in a sense to have a veto. Perhaps not all peoples share that view, but it is my own understanding of the spirit of Confederation in 1867—that there was a basic agreement between our French and English people.

Mr. Nystrom: I appreciate that answer, and I have considerable admiration for that possibility as well as an amending formula and I am not arguing against that.

I wonder why you reject the Vancouver consensus? Is it because it balkanizes the country too much?

Professor Russell: Yes. As I understand it, and please correct me, Mr. Nystrom, if I misunderstood it, I do not have it in front of me this evening, it would give any province who disagreed with the consensus in Canada, that is with two thirds of the other provinces, the majority of the Canadian people, give any province the right to opt out of an amendment.

I think that could lead to a great deal of diversity in the constitutional rights that citizens enjoy in Canada, and the constitutional arrangements; too much for me. I think constitutional rights should be shared in a fairly uniform way by Canadians from coast to coast and I do not like the idea of a single province, in a sense, being able to opt out, so that is why I could not accept the Vancouver formula.

Mr. Nystrom: I want to come back to the Victoria formula, once again, and point out that I suppose the reason why a number of people are raising questions about it can be summed up by perhaps what Premier Blakeney said to us, that it singles out a couple of provinces that will have a veto, rather than blocks of population that can have vetoes, and what the

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premier suggested as an option would be that an amending formula could be a majority of the provinces representing 80 per cent of the Canadian people, two of which must come from the Atlantic region, two of which must come from the West.

What are the problems with that? The Premier argues that it takes away the feelings in the West that some kind of special privilege is being granted to certain provinces that are named. I am not necessarily advocating his position, but there has been some concern, particularly in Western Canada, that we are naming a couple of provinces per se that have a veto, but we are not naming other provinces that have a veto.

Professor Russell: I have not seen his proposal, is it eight provinces?

Mr. Nystrom: A majority of the provinces representing 80 per cent of the population of Canada, and in that majority of the provinces you must have at least two from the Atlantic region, two from the West, which gives you that national consensus.

Professor Russell: I am not upset by that. I think I still prefer Victoria, but it would not appal me to have that and I might tell you why.

I am not one who is seeking a great deal of constitutional change and that one’s answer to your question probably hinges on how flexible, how malleable you want the constitution of Canada to be, how much change you want in it.

I am not one that sees a need for a great deal of change; we have one of the oldest constitutions in the world and I think we have done pretty well by it. That may offend a lot of people, but I believe that.

So I am not looking for a formula that will allow a great deal of changes; still, on balance, I find that just a little more rigid than I would like. I would be happier if it were Victoria but if that was a formula which the provinces and the federal Parliament agreed upon in the two-year period they have to work out another formula, then I would not be terribly upset by that; but my own choice would continue to be Victoria.

Mr. Nystrom: Mr. Bryce Mackasey had pointed out to the Premier when he was here that one of the problems with his amending formula suggestion was that in the future Quebec could perhaps be less than 20 per cent of the people of this country and therefore would lose the veto and that is very important to the people of Quebec, and I agree with Mr. Mackasey that it is a very distinct society and I was wondering, Professor, whether or not. . .

Professor Russell: Well, I apologize, I overlooked that. There is no veto power for any province at all on the basis of ever having a percentage of the population in the Blakeney formula; is that right?

Mr. Nystrom: That is right.

Professor Russell: Well then, I would agree with Mr. Mackasey, that that would upset my view of the Quebec situation.

Mr. Mackasey: Great minds think alike, Sir.

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Professor Russell: I agree with you and I would not like that feature of it.

Mr. Nystrom: I was wondering because of that feature, because I agree with Mr. Mackasey as well, whether or not you have given any consideration to some arguments that are advocated in the 1960s, in particular by Mr. Stanfield and by Tommy Douglas and others, that perhaps there should be a different status for Quebec and perhaps you could have an amending formula such as the one that Mr. Blakeney talks about where you have a majority of the provinces representing 80 per cent of the people, etc., etc., but when it comes to things that are very important to Quebec like language, perhaps, they could have the right to opt out and therefore they would preserve, even though they are less than 20 per cent of the people, say, 50 years from now, that they would preserve their distinctiveness in terms of a culture. Would that type of thing be worth looking at?

Professor Russell: Yes, I suppose it would. It underscores, of course, their separate status and highlights it and puts a red circle around it in a way that other Canadians might find offensive, Canadians who do not feel the way I do about the bi-national aspect of our country.

If most Canadians felt, as perhaps Mr. Mackasey and I do, then I think it might go down quite well, but I think that highlighting it like that might be a rather divisive thing in other parts of the country, so I think I would still, 1 am reacting rather quickly to a proposal, 1 might have a different reaction tomorrow, but my quick reaction is I am still more inclined to favour the Victoria approach.

Mr. Nystrom: The other amending formula that has been suggested to us was what is commonly called “the Toronto consensus”.

Professor Russell: Oh, really.

Mr. Crombie: Scarborough.

Mr. Nystrom: Scarborough consensus. It is a bit of an evolution of the Vancouver consensus; the Vancouver consensus, I agree with you, would create all kinds of problems for this country, it would give each province the right to opt out and creating special status for themselves and create a checkerboard or ragtag Canada, but the Toronto consensus would change that a bit as it evolved, and here you would need seven of the ten provinces representing, I think, 85 per cent of the Canadian people, or maybe it was 80 per cent, I am not sure, but for three things: you would need unanimity before you could have any changes, and one of them is language rights, which of course would be very useful for Quebec; another one was education, and again I think education is important, not just to Quebec in terms of cultural development but to perhaps protecting the diversity, cultural diversity and so on of many other regions; and the third thing was resources, resources of course being very important to the provinces.

What is your reaction to that kind of an amending formula? The advantages there, of course, you would not be naming any specific provinces, and you would not be creating a checkboard

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Canada to at least the serious extent that the Vancouver consensus would, it is sort of a compromise between the two?

Professor Russell: Well, that is going back, I suppose, to earlier proposals before Victoria where the idea was that there were some sections that would be so fundamental that unanimity should be required and others where something short of unanimity would be all right.

My problem with that is, again it is likely to be rather shortsighted in time. You have mentioned three areas that are very fundamental or seem to be fundamental now, fundamental importance today in 1981, but who knows in 20 or 30 years whether they are going to be the fundamental issues. I think even now 1 am not sure that those are fundamental issues to, say, the province of Quebec. I think it is also worried about its powers in other areas than education and language. I do not think those two have a premium on importance to Quebeckers.

I know resource management and control is of terrific importance to the western provinces, but it seems to me there is a worry that that may make it difficult to reach some kind of accommodation on the resource question which we have to reach in this country between what I might call consuming and producing areas, and it is almost a recipe for eternal confrontation on an issue like that, to give the resource-rich provinces a total veto on change there.

So I do not think I would favour that, the Toronto consensus, even though that is where I live. So it is a consensus minus one, anyway.

Mr. Nystrom: Thank you very much. As Mr. Crombie calls it, it is the Scarborough, or perhaps the Rosedale consensus; there is nobody living in Scarborough.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

I would like to invite now the Honourable Mr. Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Welcome, Professor Russell. Although I do not agree with much of your document, I am sure you appreciate that, but what I do appreciate is the forcefulness with which you make your point because to me it reeks of something very desirable, of Canadian nationalism, I do not know whether I am reading more into it or not; your emphasis on doing the whole thing right here in Canada, it is refreshing and to me reflects someone who feels very deeply about this country.

1 think we do recognize the uniqueness of Quebec, that is why I did have a chance to discuss with Mr. Blakeney his proposal, which in effect would have shifted the onus away from Quebec to the West, and put Quebec in the dilemma that when and if their population dropped from 25 per cent it would not be in a position to exercise its veto in the areas of importance and, mind you, Quebec is not without sin; it can stretch the point as to what is important and what is not, and

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what is culture and what is not, and what is communications equipment or not, but that is a political process.

I think its uniqueness is one of the reasons that we do not always appreciate in the fact that it makes us different from our good friends in the United States, that great pride and joie de vivre that I would love to see expanded across the country and this is why I feel very deeply about language rights and education rights, anything that will make it easier for Quebeckers to expand across their country and live not as second class citizens with great hardships but free of the concerns and worries of education for their children, whether their rights will be there tomorrow or next year.

I think we are all trying to do the same thing and I assure you 1 am not particularly pleased with the process. I have to say, however, that as a politician 1 do at times mistrust politicians and the process. You are absolutely right when you infer in your document that this represents a mistrust of our system, and I have got to come back to Premier Hatfield when he was here, who has not been mentioned quite as frequently as he should around this table because he has a great understanding, 1 suppose with his many years exposed to the Acadian people and their determination to survive and his understanding of the importance of that to this country, I think he has come out as a great Canadian, Mr. Hatfield, and when he was here he was discussing with Mr. McGrath and others, he said this, if 1 may reread it, he talked about 1971, being one of the few that was around at that time, and he said in that year we had a substantial number of problems and were prepared and said so, to go to their legislatures and ask that the official languages of French and English be recognized at the provincial level, or that Section 133 should apply to them. I wish I had the constitution of Canada in Canada, which is what you are saying, so that that agreement could have been put in that constitution at that time.

I want to tell you that I think we could have avoided 1976,1 think it could have been avoided if we had had our own constitution.

I want to say that I remember a time when every province in Canada supported the principle of equalization without reservation. I wish we had our constitution then so we could have done something about it, but because we have waited for the ideal, for the most perfect solution, the best strategy, we have not been able to do it. I want to tell you that I am convinced now that the only thing that is going to come about as a result of delay is delay. I think this country has delayed long enough and that the country must move forward, the people of Canada want to see Canada live up to its potential and I suppose it is that feeling of frustration but urgency and intuition on the part of Mr. Hatfield, at least, and the Prime Minister, that if we do not do it now it will not get done because 1 think I know why Victoria was acceptable in 1971 and not acceptable in 1981, and that is because of the emergence of economic blocks in other regions of the country and suddenly the understandable

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selfishness that we all have as people rears its head and the national good is not necessarily put above regions.

Would you agree that that is a new factor at this time?

Professor Russell: I do not see much new there. I think this country has had strong regional sentiments, economic and cultural, since the day it was born and they focus on different issues and different areas.

A few decades ago it was my province, Ontario, that was the most provincial rights minded province going and other provinces at other times become very concerned about their local rights and interests.

However, Mr. Mackasey, what I do not understand in your remarks, if I may say so, sir, is what it is that we have to do now. I can see why it is time we brought the constitution to Canada, not back to Canada, it has never been here, but brought it here for the first time. That I understand and I am with you and I understand your impatience and the impatience of your colleagues and other Canadians on that point.

I cannot see why you apply that thinking to a substantive change in the constitution such as the Charter of Rights, and perhaps you can explain to me the impatience there, and I do not see flocks of Canadians impatient at getting that into our constitution.

Mr. Mackasey: Well, sure, I think I would like to address myself to that.

There is much in your document I agree with. For instance, I am sure that you recognize better than I with your expertise in this field the need for an amending formula, start with that.

You have quite categorically stated that that amending formula has escaped the best Parliamentary minds for half a century.

Now, I suppose that makes us a little concerned that unless it is imposed this way we are not going to have one. Would you agree with that?

Professor Russell: Yes, I think it is time we got going on this.

Mr. Mackasey: So you do agree that a constitution comes to Canada and in order to make that meaningful and simply not ceremonial it must have an amending formula?

Professor Russell: Might I just say that I might not have agreed with that a couple of years ago but I agree with something that Mr. Epp said a few moments ago, we have made progress in the last few years, we have made progress in Quebec and I think now the idea of patriating without substantive constitutional change is not a divisive idea in this

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country. There are some who will oppose it but 1 think Canadians in a all provinces, in French and English Canada, can accept that, and that is progress and we should capitalize on that.

Mr. Mackasey: Now, the Bill of Rights, the Charter of Human Rights, the importance, and again I may not have a feel for my province, or ex province as I now look across Lake Ontario to your city and I represent Lincoln, but somebody today asked me what we were doing in this Charter for Quebec and I suggested we were doing something for Quebeckers.

Now, one of the things that is important to the average French speaking Canadian in Quebec is the right and assurance that he settles elsewhere in this country, and more and more of them are being asked to do that as they enter the business community, and if they want to go up the ladder in a multinational corporation, they must accept challenges in other provinces, if only for five or ten years of their life.

We feel, rightly or wrongly, that unless we introduce this charter in the method we are doing it that such basic fundamental issues such as the right of a French speaking Canadian to have his children educated in French in the rest of Canada would be unobtainable. I do not know if you think that our ten premiers have evolved to the point where they are prepared to do these things?

Professor Russell: Well, the question I think you are proposing is can we trust Canadians to do a good job with the development of their constitution, and it is not just a matter of whether can we get ten premiers to agree on educational language rights; the proposed formulae, none of the ones that I know of that have a fighting chance of being accepted require unanimity. There is in this proposal a referendum back up if governmental agreement is not obtained, and I think if you are going to do something for people, if you are going to do something for the people of Quebec, of Canada, like give them education rights which you say they need and will enjoy, in my understanding of democracy you go to the people and tell them what you are going to do, give them and their governments a chance to discuss it.

To say we are going to do it for you but we do not trust you to accept it is to me defeating the whole process of patriation. We are saying we are going to patriate but we have got to make a lot of changes before you people take over.

Mr. Mackasey: I can understand your concern with this. In our judgment we feel we have to do it which is why we are doing it. One of the criticisms before this Committee is that we are not doing enough. The Prime Minister has been reluctant to do too much and it is significant that probably 80 per cent of the groups that have appeared before us want to see it happen.

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Just to move on to another point because I am seeking information, it is a learning process for me . . .

Professor Russell: They want to see it happen this way, unilaterally?

Mr. Mackasey: Yes, they do.

Professor Russell: Unilaterally, 80 per cent.

Mr. Mackasey: Yes, they do. That is my view and of course again that is judgement and judgement varies from point to point. Mr. Hawkes has not been here 80 per cent of the time, he would not know.

Finally, Mr. Russell, certainly the people representing the Japanese community, the Ukranian community, the Jewish community, the Bar, I think a very great cross section of people. They may be all wrong, the majority is not always right, but I am only expressing the view from the tally we took.

But 1 do appreciate the one observation you made because you are one of the few that made it and that is the fact of the 24 month period where the premiers can and the federal government can, and 1 am not here to apologize for the federal government, they are not without sin but I think in that 24 months that an aroused Canadian public, and whose indication that they are becoming aroused as you have expressed, could demand from the ten premiers and the federal government in that 24 month period that they sit down and find a suitable amending formula and at the same time and through the same process sitting down and discussing an improvement over this amending formula, particularly with the threat of a referendum in the background, that they could go on then to improve the Bill of Rights. Do you think there is a possibility there?

Professor Russell: Oh, yes.

Mr. Mackasey: Because I am dying for someone to do it.

Professor Russell: I think that is a very good mechanism built into the resolution that calls for a further attempt to get a kind of unanimous agreement on a formula.

Mr. Mackasey: Professor Russell, you have made my day because I was beginning to think I was the only one that understood that or appreciated it or maybe I was reading more into it but it seems to me that that is the reason the Prime Minister and the Minister of Justice had included it because otherwise they did not need to include it at all. They could have said okay we have struggled for so many years, here is a document and we will live with it. But the document says more than that. It says even when it comes back to be a 24 month hiatus when hopefully we can resolve our differences, and we will resolve them only if the public are aroused enough to tell us they want them resolved. That is my point.

Professor Russell: Again I would add I think that the chances of resolving them through that process of negotiation are reduced if in the teeth of provincial opposition the federal government has gone ahead and made substantial changes in

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the Constitution against the wishes of the premiers. That is certainly creating an atmosphere more conducive to discord than .. .

Mr. Mackasey: But despite that, if the will is there and the desire is there and we put national interests above selfish interests, it can be done. Thank you.

Professor Russell: You are an optimist.

Mr. Mackasey: Most Irishmen are.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. The Honourable David Crombie, followed by Mr. Ron Irwin. Mr. Crombie?

Mr. Crombie: Thank you, Mr. Chairman. Professor Russel, welcome to the Committee. Although I disagree with some parts of your brief I think it is one of the neatest, most concise statement of some of the difficulties I have and a lot of Canadians have with the government’s actions that I have read.

Before I ask my own questions to you, sir, I would not want my friend Mr. Mackasey to lead you astray with what has happened to this Committee when you were not here.

Mr. Mackasey: A point of order. I think a man of the integrity and wisdom of Professor Russell is not going to be lead astray by Mr. Mackasey or Mr. Crombie.

Mr. Crombie: Well, indeed, Mr. Chairman, I was only suggesting that the beguiling Irish charm of Mr. Mackasey of course—he has been speaking to the little people again—he may get you off your normal understanding. In particular two things, I just wanted to make sure that you did not seem to be saying things you did not intend. The 24-month period in the resolution, I assume that you did not want the Charter of Rights already established by the British Parliament during that 24-month period?

Professor Russell: Oh, no.

Mr. Crombie: Mr. Mackasey does.

The second item, I am sure he does not mind, Mr. Chairman, the second item dealt with the Charter and unilateralism—he indicated that the Canadian Bar Association and the Canadian Jewish Congress and a number of other groups have come up and said certain things. I want to assure you that their major concern was with the Charter. They were not speaking about unilateralism and I know that Mr. Mackasey overlooked that point.

Mr. Mackasey: Point of order, and I am serious. I at no time said these groups were satisfied with the contents of the Charter. What they had agreed with was the principle of a Charter enshrined in the Constitution.

Mr. Crombie: That is right, but they did not speak to the question of unilateralism which I think is the point you are making.

Mr. Mackasey: Nor did I suggest they did.

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Mr. Crombie: Well, I will not fight that part, but anyway in case he did, Mr. Chairman, in case he did 1 know that Professor Russell would be interested in the record.

My question, Professor Russell, first of all relates to page 1 in your brief. You are one of the few persons who has come before this Committee who has indicated that their personal preference is not to entrench rights in the Constitution although that does not become the burden of your paper because you deal with other matters, I was somewhat interested in the reasons that you gave for your own doubt as to the wisdom of putting rights entrenched in the Constitution.

In the first one you note that false hopes can be raised. Indeed I think most people would understand that.

The second one and the third one that you offered as reasons for doubt are something that I would like you to elaborate on if you would. The second one is that there would be a political burden imposed on the judiciary. Some people have felt that what that means is that by the adoption of a Charter of Rights, and entrenching it in the Constitution, we would move speedily to a more Americanized system for our judiciary. I wondered if you felt that way and indeed if you have any elaboration you would like to make as to what you think the consequences will be for our judiciary if we entrench rights in the Constitution.

Professor Russell: I believe that a Charter of Rights only guarantees a change in the way in which certain decisions are made. It does not guarantee rights or freedoms, it guarantees a change in the way in which decisions are made about rights and freedoms.

Rights and freedoms raise, every case, difficult policy decisions. Take any right or freedom in your Charter, just start with the right of free expression, free speech. We can all immediately think of a whole range of policy issues as to what the limit of that freedom should be. Is it an abridgement of the right of freedom of expression to require broadcasters to have a certain amount of Canadian content? Is it a breach of free expression to prosecute people for violating the obscenity provisions of the Criminal Code and so on and so forth.

They are difficult decisions and those decisions will be made as the result of a Charter in a different way from the way in which they are made now.

The way will be different in this sense: the court will basically, and fundamentally it will be the Supreme Court, will essentially set down the basic guidelines on how far you can go in expressing those rights or enjoying them and how far government can go in limiting them.

Government will be in a sense given direction by the courts. The courts will say how far you can modify free broadcasting by having Canadian content. Both the courts and the legislatures will continue to be active, as they are in the United

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States, but there will be almost a transfer of functions. The court’s function, instead of taking general standards set by the legislature and interpreting them and then the legislature, if it finds the court is going too far or not far enough, correcting the courts, it will be the reverse. It will be the courts, in a sense, correcting the legislature.

Now, among other things, that tends to put a lot of political focus on the judges. They will have the kind of focus on them that you ladies and gentlemen are used to having on you. They will be in the limelight, make some fundamental policy decisions and they will be open inevitably, as you ladies and gentlemen always are, to criticism no matter which way they go, whether they interpret the Charter very conservatively or very liberally.

That will subject them not only to a burden of political criticism, it will also greatly expand of course their work and give them less time for the other kinds of business that courts normally deal with.

Now, if Parliament and the legislative people want that change, that is the kind of change they will get. It is not all bad, I do not think it is all good, but it is very problematic.

Mr. Crombie: Thank you. Professor Russell, the third reason that gives you doubt for entrenching the rights in the constitution is perhaps not one that we have heard anything about and one which really attracted my attention. Let me read that. You said: it contains entrenching rights in the constitution, contains the possibility that it will diminish our reliance on the processes of public discussion and democratic politics for resolving disputes about fundamental principles. I would like you to elaborate on that.

Professor Russell: Yes, that really falls from my second point.

People tend to gravitate in their participation in public affairs to the arena where the final and most binding decisions are made and I think that that will mean a lot of the people, whether they are individual citizens or interest groups, will tend to fight out their particular approach, fight for their particular approach to a public issue, more in the courts than through the legislative process.

I could give many examples, but just to take one of the sections that gives me a great deal of anxiety in the proposed Charter, the one that has equal protection of law without discrimination. Say because of age, just to take that for an example, and of course there is another subsection that allows for some affirmative actions.

But one of the issues that immediately arises is compulsory retirement which we all face sometime in most walks of life,

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certainly in mine at age 65. Many people who are getting into their sixties or already there think that is highly discriminatory and now fight, usually in the administrative arena or in their own work place or with their own particular branch of government, if they are government and through the legislature, over compulsory retirement legislation.

Such groups, with the Charter, would tend to go to court and get a Supreme Court decision on that as a primary focus.

Another example, in the area of criminal law, you have not got really very many meaningful legal rights at all and if you left this in there, hardly anything would happen because the rights are so limp, if I can use that word, as it is defined here; but let us say you toughen them up as some will propose and instead of having, for instance, a right not to be subjected to search or seizure except on grounds in accordance with procedures established by law, say that was replaced by something more like the American guarantee which is a guarantee against unreasonable searches or seizures, that kind of guarantee would invite the courts to look at the Criminal Code and indeed all the other search powers that are in your legislation and decide whether the powers granted in and through the Criminal Code that allowed the search of premises under law are reasonable laws. So that individuals who are being searched by the police felt that the searches were excessive, instead of trying to change any legislation they would go to the court and fight in court to have clauses in the Criminal Code or other legislation ruled to be unconstitutional, as unreasonable searches or seizures.

So it would take some of the pressure, I suppose you might say, off Parliament in developing criminal procedure in the code and amending it. The direction they would be given, as it is in the United States on criminal procedural rights and the rights of criminal suspects, the direction would come basically from the Supreme Court. That is where most of the action would be.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie.

I would like to invite now Mr. Irwin followed by the honourable James McGrath.

Mr. Irwin: Professor Russell, welcome to our Committee. I very much enjoyed your remarks. Did I hear you correctly, did you say that the Victoria charter was basically a good formula?

Professor Russell: Of the ones I am aware of I do not know any I prefer to it, I will put it that way.

Mr. Irwin: And there are many that we have heard of.

Professor Russell: There are many but I still find it, on balance, the most acceptable.

Mr. Irwin: Thank you.

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After hearing you, Professor Russell, I must confess because this has been a long process for me and for many of us, going back to October 6,1 feel much more comfortable with what we are doing because these things become layers, we hear what various Prime Ministers have done in the past.

It is a historical fact that Prime Minister St. Laurent had appeals to the Privy Council abolished when Duplessis in Quebec was actively opposed. So it is not good enough to quote from that Prime Minister unless you are willing to look at the historical fact or when you say that Confederation happened by consent, that is true in the first place, but in 1949 when Newfoundland came in with no consultation with the other provinces and it has worked and we are happy it happened and I think it has been good for Newfoundland and good for Canada that they are part of Confederation.

So for each point there is a counterpoint. You say that you do not prefer the federal government having the initiative on referendums. Yet, in Australia, that is the case. The federal government of Australia does have the only initiative on referendums. In 64 years they have had 24 referendums and only four have passed, so it is not that easy to get these passed. As a matter of fact their balance, I think there are about six provinces or six states, they have to have a majority in each region or state, an overall majority, which is much like what we are proposing here.

Professor Russell: A majority in a majority of states.

Mr. Irwin: Right.

Professor Russell: An overall national majority and a majority in four out of the six states.

Mr. Irwin: And you are hoping that things should be less divisive and I would prefer that too. I would like to have the whole country happy but I have to be a realist and I know that that is not going to happen.

I want to really deal with the Bill of Rights. You say if the people of Canada want that changed, so be it. You have come as an expert, but really you are giving your preference. You are not too happy with the courts dealing with this and you would feel more comfortable if we held back. But you say we are ramming these things through and there has been a lack of discussion. Now, you make two points, the ramming and the preference of the people.

I will start with the so-called ramming theory. In 1968 a discussion paper was published, I am not going to even go back to 1927, I will deal specifically with the bills of rights in the last 12 years.

In 1968 to 1971 they were widely published. There was a constitutional conference continuing over that period in which they discussed this Charter of Rights. There were two Special Joint Committees of Parliament in the seventies had public hearings. They studied all aspects including the Charter of Rights, the Bill of Rights, and reported supporting a Charter both in 1972 and 1978.

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Similarly, with the Pepin-Robarts task force, they heard evidence and they supported the Bill of Rights and the Canadian Bar Association had a constitutional committee that reported in 1977 and 1978 in favour of the Bill of Rights.

Over and above that, you say there has not been lots and lots but you say there has been a significant and influential number of people come before this Committee. The Canadian Human Rights Commission, they say the grounds are incomplete, they want more. The Canadian Civil Liberties, same thing. The Canadian Jewish Congress, they want the disabled included in the Bill of Rights. The National Action Committee on the Status of Women; the Canadian Advisory Council on the Status of Women; the Canadian Association for the Mentally Retarded, they want a stronger bill over the five or six basic rates that we have; the New Brunswick Human Rights Commission, the Canadian Bar Association, the list goes on and on and on; the Saskatchewan Human Rights Commission. Most want not only what we have but a stronger Bill of Rights.

Over and above this, the September polls that were taken, I will read the question, that the constitution guaranteed democratic and legal rights, fundamental freedoms, non-discriminatory rights and so on to all Canadian citizens in such a way that no law, federal or provincial, could go against them.

81 per cent in favour, 13 per cent opposed, 6 per cent no opinion.

And the Canada West opinion polls, which I would suggest are the most impartial polls we have, indicates 70 to 80 percent in favour of these bills of rights, and it goes on and on. So it comes down to a matter of preference and has nothing to do with expertise. Is that correct?

Professor Russell: I agree.

Mr. Irwin: I am saying to you that the Canadian public support the bill of rights. Is that correct?

Professor Russell: That may well be. But my point is that the Canadian public should be given a proper chance to do that through constitutional processes in Canada. I certainly do not think an opinion poll is the way to change the constitution.

I heard the phrasing of your question. It is an extreme over-simplification of the proposal. It would give the average person answering that question the dimmest of ideas of what is in it.

If the Canadian people are in favour and the Canadian governments are responsible to the Canadian people, why do we not patriate our constitution and then consult the Canadian people and their governors, and if, as you say it is their will to have changes of that kind in the constitution, then so be it.

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But why are you in such a hurry to do it before the Canadian people are responsible for their own constitutional changes.

Mr. Irwin: I am not in a hurry. I feel comfortable with five or six things in Section 15. I feel comfortable with them. I will ask you about them. You mention age. How do you feel about the others—non-discrimination because of race; non-discrimination because of national or ethnic origin; because of colour; non-discrimination because of religion, non-discrimination because of sex.

Now those are as old as the bills of rights of the forties and the Diefenbaker Bill of Rights. Do you have problems with those?

Professor Russell: Some of them are not. Some of them are rather novel. I cannot speak for the whole world. But I think I know the Canadian record. Age is rather latter-day as an addition to the list; national origin has not been in all drafts. They all would present some difficult questions for the courts.

To take age, personally I treat it differently as a basis for discrimination than the other categories, because we all age and we all go through the ages of life and our social institutions and our laws make all kinds of discrimination based upon age: children cannot do certain things that adults can do. Adults have responsibilities and opportunities up to a certain age which they do not have after a certain age and so and so forth.

Age is something we all experience together as long as we live. I have great difficulty in seeing why our legislatures should be barred from discriminating on the basis of age just like that. 1 do not think that is wise.

Mr. Irwin: I suggest to you I have the same proposal as you have, that we have to put some room at the other end to allow for these people coming in, and not only the aged, but most of the public support a clause which provides for non-discrimination because of age. It is a matter of preference and not expertise that we have to reflect some, at least of the opinions of the public, if we cannot put everything in; at least we should put those opinions we are sure of.

Professor Russell: Well, I am all for laws that legislate against unreasonable and unacceptable discrimination based upon age, national ethnic origin, religion or race. But is a matter of putting them in the constitution, sir, and giving the court the final say on how to draw the line.

We have laws now—and probably not enough laws that define the unreasonable discrimination properly.

We have legislation. The point I am addressing myself to— and I think this is what the charter is all about—is whether we should put this kind of clause in a constitution and make a constitutional right and not legislative right.

Mr. Irwin: Thank you, Professor.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin.

The Honourable James McGrath.

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Mr. McGrath: Thank you, Mr. Joint Chairman.

Reference has been made by Mr. Irwin and reference was also made earlier today as well, in supporting the argument of the right of the federal government to a joint address which would substantially change or affect in any way the provinces without their advice and consent.

The argument was put forward that there was no consultation made in 1949 with the provinces upon Newfoundland’s entry into Confederation.

Well there was none for a very good reason, Mr. Chairman, and that is that the original partners in Confederation, when they framed the British North America Act in 1867, made provision for Newfoundland’s entry and it remained the British North America Act to this day, and it just took almost 100 years for Newfoundland to take up the option.

I wanted to make that clear because I did not have a chance to correct the record this afternoon.

I would like to share some of the concerns put forward by our learned witness, Professor Russell, with regard to some of the consequences of the entrenchment of the Charter that is before us in the resolution before this Committee.

Earlier today, Mr. Allmand made reference, in his questions to Professor Cohen, to the possibility of Section 50 being used in some way to change the monarchy in Canada, and hence repeal or invalidate some of the treaties between the Crown and some of our native peoples.

Indeed, if your read Section 50 it provides specifically for amendments to the constitution dealing with the office of the Queen, the Governor General and the Lieutenant Governor of a province and the Charter of Rights and Freedoms and so on and goes on to state that the procedure prescribed for such an amendment is contained in Sections 41 and 42.

I am one who believes, Mr. Chairman, with Professor Russell, that Canada has been well served by its present constitution. We should not fall into the trap of believing that, because there is need for modernization that we should throw out literally the baby with the bath water. There is very much about the existing constitution which should be retained because it has served us well.

Now, that includes the Canadian Monarchy. I believe Canada has been served well as a constitutional monarchy. That is particularly so in the present monarchy.

I suppose if you were to define the Canadian monarchy, Professor Russell, as a constitutional expert he would have to say that the Queen of Canada is the Queen of England, and her successors are governed by the statutes governing the Crown in England. Is that correct?

Professor Russell: Yes, the Act of Succession, yes.

Mr. McGrath: That causes me some problems, because I happen to be a firm believer in constitutional monarchy, the parliamentary democracy that we enjoy today.

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I want to put this proposition to you Professor. I had hoped to put it to Professor Cohen today, and I hope he is watching us tonight in the comfort of his livingroom, because I had a chance to consult with some of Mr. Mackasey’s little people, and I came up with something which did concern me very much, and that has to do with the entrenchment of fundamental freedoms, specifically the potential impact of Section 2(a) on the Canadian monarchy.

If the Canadian monarchy is the English monarchy, and if the successors to the throne of Canada are determined by English statutes of succession—and you have identified the Act of Settlement—then I want to put this proposition to you, because I will read in part from the Act of Settlement:

And it was thereby further enacted, That all and every person and persons that then were, or afterwards should be reconciled to or should hold Communion with the See or Church of Rome or should profess the Popish Religion, or marry a Papist, should be excluded, and are by that Act made for ever uncapable to inherit, possess, or enjoy Crown and Government of this Realm and Ireland and the Dominions thereunto belonging, or any Part of the same or to have or exercise any Regal Power, Authority, or Jurisdiction within the same.

And it goes on.

Very simply, Professor Russell, the next Canadian monarch will be Queen Elizabeth’s successor. If Prince Charles were to fall in love with a Canadian who professed the Papish religion …

Mr. Mackasey: I know just the girl!

Mr. McGrath: I seriously put this proposition to you. That there could very well be a challenge, and I ask for your learned opinion on this. There could be a challenge to the monarchy in terms of the provisions of the Charter of Rights as contained in Section 2(a) particularly (a) freedom of conscience and religion.

Professor Russell: It is a little far-fetched.

Mr. McGrath: It may not be as far-fetched as you may think.

Professor Russell: As I said at the beginning of this discussion, the one thing a Charter of Rights guarantees is that a certain number of policy questions get referred to the Courts.

The limits of those questions are really only set by the imaginations of lawyers in the pocket-books of their clients, and the imaginations of our lawyers are getting ever greater, and I do not know about the pocket-books of their clients, but people do put up money to go to court for odd reasons, and I suppose anything is possible.

But I must say I have never thought of that.

Mr. McGrath: I can assure you it is a serious proposition, because we are dealing here with the Head of State of Canada

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And the Head of State of Canada is determined by this ancient statute that I have just quoted from—the Act of Settlement.

Professor Russell: But I cannot see what the action would be about. I think the British would have a problem with their Act and their monarch, and I know this very issue is a matter of some debate and discussion in the United Kingdom, as you are probably aware. Now, I am not a betting man, but I have a hunch that we might see a change in that legislation in this generation—in English, and that bar on royal marriage to a Roman Catholic might be removed. I think that may happen. In Canada, it would be a difficult issue for the courts. The plaintiff would have to argue, I guess, that the monarchy, as such, violated Section 2(a) of the Charter of Rights. That would be your point. We would hope for a ruling—if we ever get one, from the Supreme Court of Canada that the monarch is unconstitutional.

I might say that the phrase “freedom of conscience” and the other one, “freedom of expression” when you get down to detailed drafting, if you decide to go ahead with the charter at this stage—and of course I hope you change your mind on that, but you may not; but if you do go ahead, I hope you have second thoughts on phrases like that.

Now, I did use the words “verbal rubbish” in my little paper, and if you were to ask me what I was talking about, I would say one piece of rubbish is “freedom of expression”. I do not think that in any society which has any sense of order there can be any absolute freedom of expression. There is no point raising such enormous false hopes. There are all kinds of restraints we have to make in our expression of all kinds.

It is speech, political speech, speech critical of government, speech on public affairs, that is the kind of speech and expression which in a democracy must be sacred and a fundamental right.

“Freedom of conscience” is again a phrase which bothers me a great deal. My conscience often moves me to do some pretty funny things, and maybe yours does; but I do not see a place for that in the higher law of Canada.

Mr. McGrath: If I may be permitted one more question, Mr. Chairman, perhaps it might be wise if I as a professed Papist, got my eye off the royal boudoir and go into the classroom.

What do you foresee, Professor, as the impact on the right of separate or denominational schools in Canada with respect to Section 2(a) of the proposed charter, given the experience of the U.S. Supreme Court, for example, where they ruled that the recitation of the Lord’s Prayer was unconstitutional and that it violated the Constitution. Could that happen under Section 2(a) in Canada?

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Professor Russell: Yes, it could.

But you must remember that the first amendment of the American Constitution, the one to which you referred to, in addition to a guarantee of freedom of religion, has a freedom from an established church. There is an anti-establishment clause. The cases in the United States that deal with problems of constitutional validity of programs supporting denominational schools and the like often are ruled unconstitutional because of the non-establishment or anti-establishment clause of the American Bill of Rights, and not always the freedom of religion which cuts them down; but certainly the freedom of religion clause will raise questions like that, and the lawyers, again, in the first years of the Charter’s existence would wish to test its limits, where their litigants have interests, and one could be those groups which dislike reciting the Lord’s Prayer in school and may regard that as a violation of their freedom of religion.

Another likely area is Sunday closing, Sunday observance legislation, and certainly in the United States that has been a fertile source of litigation on the freedom of religion clause resulting in some limitation on Sunday observance legislation.

Mr. McGrath: Just in conclusion, Mr. Chairman, what you are saying is that freedom of religion means freedom from religion as well?

Professor Russell: Well, in the United States it means freedom from a state supported and sanctioned church. They cannot have an established church in the United States that is funded by the government and supported by the government, and then you get into difficulties when there are tax arrangements that are helpful to denominational schools or support of transportation systems for children who are using denominational schools and the funds come frome the state. There is a whole set of problems that have to get sorted out in that area. Then there is the school prayers questions.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.

Mr. Corbin followed by the Honourable Perrin Beatty.


Mr. Corbin: Thank you, Mr. Chairman.


Professor Russell: Excuse me.

Mr. Corbin: No, I will speak to you in English, I am bilingual coming from New Brunswick, French is my mother tongue but I like to accommodate people from time to time in their mother tongue, so we will have this exchange in English.

I would like, Mr. Chairman, for Professor Russell to expound a little more on what he means exactly by a more universal meaning, and I am quoting him, a more universal meaning to cultural and language rights. Would you expand on that a little more, please?

Professor Russell: Yes. I am particularly concerned about the right to use either of our official languages in the parliaments and legislatures of Canada and in the courts of Canada,

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and I am dissatisfied with this proposal that, for one thing, it does not extend the right to use both official languages to Ontario where there is a very, very large, as you know, francophone minority and it seems to me as a matter of principle absolutely essential that the rights that our constitution already affords the English minority in this respect in Quebec should be extended to the French minority in Ontario, and I cannot think of any reason or principle for not having the right in both places. That is the prime example and that offends my sense of justice and I think it makes this charter, we are talking about trying to do something for Quebec, I think it makes this charter very unsatisfactory to many people in Quebec for that simple reason.

Mr. Corbin: Well, I am extremely pleased to hear you say that and to hear you say it with the conviction that you have used and 1 think that we have come a long way, quite a long way in this country, certainly in my way of seeing Canada and Canadians over the years and I am still a relatively young man, to hear someone from Toronto, someone with your standing in your university community to come out and say this.

However, I am a little disappointed that there are not enough of you around in Toronto and Ontario to convince the Premier of the Province of Ontario to go that way, and this brings me to a comment that you are making, I think it was in reply to Mr. Mackasey, that you recognize, in the context of keeping this country together, in the ongoing evolutionary constitutional effort, that we have made some progress in Quebec, you have recognized that, you have stated that.

Then you have just said that this is more than mere tokenism, it is more than just getting the people in Quebec happy, it is a matter of simple and fundamental justice; is that not so?

Professor Russell: Yes.

Mr. Corbin: Now, I come from a linguistic community which comprises close to a million French speaking Canadians who do not live in Quebec. New Brunswick has shown some sense of justice in that respect inasmuch as in 1969 under Louis Robichaud, the Liberal Premier, and in more recent years under Richard Hatfield, a Progressive Conservative premier, we have come a long way fast and I feel very strongly that we have a heck of a lot of catching up to do in other parts of the country, and in that connection I think there is enough goodwill, there is more than sufficient goodwill in Ontario to go the way New Brunswick has, not in a condescending way, not in a paternalistic way, but in the way that you yourself have suggested to us, Professor Russell, and so again I commend you for your comments and I feel more reassured as a Canadian, not one coming from Ontario, but one currently living in Ontario with his family for the last ten years, and I hope you will do what you can to foster this continued development of good will and better understanding amongst Canadians of all linguistic and cultural backgrounds.

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You have touched as well on another matter which has raised some curiosity as to exactly what you mean by the spirit and practice of reasoned accommodation. Did you have anything special in mind when you put this down on paper, was it simply in a general reference to a charter of rights or did you have anything more specific in mind?

Professor Russell: No, I think you can really trace it right through our historical experience. We have been at our best, I think, when we have sat down and reasoned it together. I think of the years leading up to Confederation, years of great difficulty.

We had tried from 1840, if you will recall, in a most doctrinaire way formed a country, a new country based on a single culture which would eventually, just by weight of numbers and the status of one group, assimilate the other group, and that did not work. We recognized that it did not work and we sat down and reasoned together on how we could share common citizenship and our leaders did that. They were poles apart on some very basic issues. Some of the leaders from Upper Canada, Canada West as it was then known, and Canada East. Some of them believed vehemently in representation by population, and others believed that such a formula would be absolutely lethal to the survival of the French culture in British North America.

They were apart on principle, they got together, they talked, they reasoned together, they formed a coalition of interest and created a new country based very much on an understanding in which neither group got exactly what they wanted but they each got that residue of liberty which was essential to both, and I think that got us off to a good start.

We continued to do that as we had strains and difficulties in our federation over the years. We have almost institutionalized it, I suppose, in the meetings of first ministers; we have had great difficulty, 1 know, in getting agreement the last few years on a lot of issues but 1 do not think we should give up this effort to accommodate rather than force the will of some upon others, and I think we weaken our national community when we do that on fundamental questions.

I think it is a mistake, therefore, to force this charter issue before we have tried in a reasonable process of accommodation to work out an amendment, and I am very interested in your view about Ontario. I think, I really do believe that if we waited to incorporate language rights in our constitution, waited until after it was patriated, and we have the referendum system as a backstop if governmental agreement does not occur, I believe the people of Ontario, I do not know what Mr. Davis’s position is, he ought to speak for himself, but I think the people of Ontario would support official bilingualism.

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However, again, that is another reason why 1 would advise you not to rush into a Charter that in this case has a right that does not convey justice to Canadians. It would be better to work for something that is just and reasonable and I think you could get that in Canada. I have that confidence in Canadians that they can do that.

Mr. Corbin: One final comment, Mr. Chairman, if I may with your permission.

In the same spirit and practice of reason and accommodation, surely we have had many opportunities over the years, some of the provinces have had with respect to recognizing or doing something about the wishes of the minorities to have their language recognized, be it as a right, but certainly in terms of services to which they feel they are entitled as taxpayers and you are now suggesting that we wait a little while longer.

I am not sure that, if we do that, that we are going to accomplish anything sooner or faster or do it any better. I feel very strongly about using this historical opportunity not to sock it to anyone, not to impose it against their will but to put it across as a matter of fair play, principle, fundamental justice and therefore, inasmuch as when the original constitution was drafted in the year 1867 and the months prior, some of the provinces did not quite get what they wanted; some conceded a number of things, and even when we had the constitution some wanted to get out of it again, down East.

I do not find the present situation any more difficult, I think it is just as challenging as the work that the original fathers of Confederation had before them, and therefore there had to be some leadership, some decision by some people who have the power to do so, to come forward with the minimum package and this has been, as far as I am able to appreciate and I have not been contradicted on that point, that this is a minimum package. We wish to respect the powers that the provinces always had, we are not adding any substantial powers to the federal or the central government, but in terms of individual rights we feel that we must move now, in terms of language rights we must move now and this is why we are doing it.

I personally do not, inasmuch as I certainly respect a lot of the things that you said tonight, I think we must move now on the language issue; we must tell Premier William Davis of Ontario that now is the time to recognize French language rights in Ontario. That is all I could add.

Professor Russell: Well, I guess we just differ on two points.

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I think we can do it better. 1 know you are doing it very fast, we could not do it sooner than you are doing it, 1 do not argue about that, but I do think we can do it better.

The second point, and I think you and I have already seen one point where we could do it better, on that question of the language rights issue, I think we could do that better. We also differ on our confidence in what the Canadian people are capable of. 1 am more confident about my fellow citizens, I believe, than you are and that troubles me, why you should lack such faith in the capacity of your fellow citizens who sent you here, I might say, to develop a constitution in Canada.

I think that is showing undue impatience with our own people and I think we can do a good job in Canada on language rights and other aspects of the constitution.

Mr. Corbin: Well, I beg to differ with you on that point as one who has belonged to a minority and who has had to make considerable sacrifices to catch up with the majority in this country in terms of having to learn two languages, in terms of being held back because I could not always relate equally with people who enjoy the language of the majority and the opportunities that opened up for them at college, at university, in the world of business.

I beg to differ and I say I cannot wait any longer nor can close to a million French Canadians outside of Quebec.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Corbin.

The honourable Perrin Beatty, followed by Mr. Manly.

Mr. Beatty.

Mr. Beatty: Thank you very much, Mr. Chairman.

Professor Russell, twice over the course of the evening you have turned the tables on us and put a question directly to the Committee, once in response to Mr. Epp and the second time you put it directly to Mr. Mackasey.

You asked us what conceivable justification could be given by the government supporters for acting now to ask Westminster to make substantive changes to our constitution instead of simply asking that they incorporate an amending formula and send the constitution home so that we could make changes here in Canada.

I think, Professor Russell, that it is telling that you have not had a direct answer to that question, and I think it is useful to perhaps bring to your attention the fact that there have been two answers given over the course of the past several weeks to that question. The first was by the Prime Minister who said that if the government did not use the opportunity it had

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today, if we did not ask Westminster to make changes and to write a Charter of Rights into the constitution, this would never be done. We just patriated the constitution and tried to make these changes here in Canada.

Secondly, Professor LaForest today said in his judgement, at least for the next five years, if we were to simply patriate the constitution with an amending formula, that amending formula would not permit changes to be made to incorporate the proposals being made by the government.

I want to ask you, in view of the fact that the argument is made that this is an instance where the end justifies the means, where Mr. Trudeau is saying that we have to end the last vestiges of colonialism after he has used those last vestiges to make substantial changes to our constitution, but he is saying it is necessary to do so because the Charter of Rights is so important and could not be done in Canada that it has to be done by Westminster, how do you counter that sort of an argument?

Professor Russell: It is difficult. It seems to me self-contradictory for those who want to patriate, it seems to me it is a desire to get Canadians, as I have said several times, in charge of their own constitution, to say out of the other side of your mouth: yes, but there are certain things which we are afraid Canadians simply will not be willing to do with their constitution once they get hold of it. So that is kind of half-hearted support, it seems to me, of patriation, to go at it with that sense of distrust of what Canadians will or will not do after they get hold of their constitution.

I just urge those who feel that way to reappraise their position and give us a chance in Canada, and how anyone can be such a clear headed prophet of the future to know what the Governments of Canada, and remember there is a referendum procedure, what the people of Canada will or will not accept for the next five years, ten years, twenty years or in the next century, is just beyond me. I have not a clue, really, in the long run what they will accept or reject and we are talking about not just the short run but also the long run.

In the short run I think there is a good chance for some of the proposals in this Charter and other parts of the resolution, take the equalization part, for instance, to win endorsation, either by the standard method in Section 41 for amending the constitution, or the referendum method in the next section.

I think equalization is an example. I am optimistic about the language of government rights. There may be several other sections, we have not spoken to it tonight but I would hope a stronger section on native rights might win the support of Canadian governments, and if not the governments, the people of Canada.

So I cannot take that dismal view of ourselves.

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Mr. Beatty: Professor Russell, assume for a minute that Professor La Forest and Mr. Trudeau are right on two points and you are wrong on them, first of all that it is necessary to have a Charter of Rights, that it is desirable, almost self-evident that we should have one and Mr. Mackasey and others have indicated to the Committee that much of the testimony that we have had before this Committee gave support to the concept of a Charter of Rights; assume that is correct, it is self-evident that we must have a Charter of Rights, it would be desirable for Canadians and that the vast majority of Canadians would want one.

Assume secondly that Mr. Trudeau and Professor La Forest are correct in their political judgement that the amending formula being written into the constitution by the Liberal government would not enable Canadians to have that necessary and desirable Charter of Rights, and could I ask you what does that say to you about the quality of the amending formula which Parliament is being asked to approve to have written in our constitution for all time?

Professor Russell: Well, again, it does not say very much to me. I think the amending formula is all right. I am rather inclined to ask a different question. Take Section 42, which makes it possible to amend the constitution if a majority of the country and a majority in the various regions approve.

Now, that seems to me a pretty reasonable basis for changing something in the constitution. Now, if a majority of Canadians and a majority in the regions do not want a change, is Mr. Trudeau and his supporters, are they telling me they better have it anyway? The British Parliament are going to force it on them? Ultimately does it not come down to that? Are you taking the sort of paternalistic view that there are certain things that are just good for the people of Canada, they may not be able to accept it…

Mr. Epp: Like cod liver oil.

Professor Russell: But they ought to have it. Fine, but that is an imperial view of our constitution.

Mr. Beatty: Mr. Epp says it is similar to Dr. Trudeau prescribing cod liver oil: you may not like the taste but it is good for you and we know it.

Professor Russell: Well, I do not know about that, but that is why, by the way, it is quite true that the Fathers of Confederation, some of them were quite explicit, believed the Imperial Parliament should be the custodian of our constitution, because it was a more reliable institution to look after our deeper constitutional problems than the people of Canada themselves.

Now, if that is still our philosophy then I am not sure why we are patriating. It is not my philosophy, I think we should patriate and follow through and let these amendments be made in Canada.

Mr. Beatty: Exactly. It is an example of the worst form of colonialism.

One final question, Professor, and that is one area which I put earlier today to one of the witnesses who was before the Committee, Professor Cohen, which we have not dealt with tonight. As you are aware there has been a succession of

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references to provincial Courts of Appeal in Canada to contest the constitutionality and legality of the measures being taken by the government. I asked Professor Cohen whether he felt the government had an obligation to reject the advice which was given to them by the Privy Council office and the Department of Justice to ask the Canadian Parliament to quickly pass a joint address to have the British Parliament change Canada’s constitution before the Canadian courts had had a chance to rule and I think that it would probably be helpful to the Committee if we had your judgement as to whether the government has an obligation in your opinion to allow the Canadian courts to rule before Westminster is asked to make changes to our constitution in Britain?

Professor Russell: Well, yes, I think when a matter is before the courts and bears on the legality or constitutionality of what a legislative body is doing, a proper respect for the rule of law by a Parliament requires respect for the judicial process to be completed.

To me it is again rather illogical to be developing a Charter of Rights to be interpreted by the judiciary and which will be binding on legislatures, and in the very process of doing that ignoring what the courts may be saying about the legality and constitutionality of what you are doing now. You may believe as a Parliament or as a government that what you are doing is constitutional and it may well be. There are good arguments on both sides. However, I think the normal practice in a system which has the rule of law is for legislatures to let the judicial process complete itself as long as it is not being abused and taken advantage of in an opportunistic kind of way.

However, I do not think that is the case at present.

Mr. Beatty: Thank you, Professor Russell.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Beatty.

Mr. Manly.

Mr. Manly: Thank you very much, Mr. Chairman.

Professor Russell, I was pleased to hear you a few minutes ago say that there should be a stronger section on native rights, and I note that you have a history of support and advocacy for such rights.

In your brief you objected to the Charter of Rights for altering the powers of the provincial governments without their consent and it seems to me in this debate we often see the constitutional process in terms of a struggle between the federal government and the provincial government and the relationship that we have in Canada with the Indian people is overlooked and lost sight of in that power struggle. I would like to ask you what is the present status of Indian people in Canada’s constitution? Is it limited to Subsection 24 of Section 91 of the British North America Act, or have we inherited from Great Britain a trust relationship between ourselves and the Indian people?

Professor Russell: That is a big question. There is, besides Section 91, there is no mention of Indians or Eskimo people in

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Section 92, but in Section 91 of course, legislative jurisdiction over Indians and their lands is vested in the Parliament of Canada and that has been interpreted to apply to the Inuit people.

In addition, Section 146 of the constitution which has to do with the addition of Rupert’s Land to our territory, preserves whatever rights the Queen had recognized and extended to the native people in that area and makes those rights part of our constitution.

We also have, through several judicial decisions, a recognition of the existence of aboriginal rights of native peoples that have not been explicitly extinguished as being rights to the enjoyment of their land, and that is recognized by our courts; and there are some other instruments that protect or mention these rights, but my own worry is that this section 24 is very, very weak because it simply says that the charter would not deny the existence of whatever rights the native people now have.

At the very least, I would prefer that it recognized and affirmed the rights they have. It is one thing to not deny, but I plead with you to, at the very least, put in the Charter that you recognize and affirm the rights they now have and make them parto f whatever is guaranteed here.

Further, my own view would be that human justice requires us to guarantee not to abridge or alter those rights without agreements that are freely entered into by the native people concerned and our own governments. That seems to me a principle of fundamental justice. We arrived here, we have used their land. In some cases, it is too late for many of them, but there are large parts of Canada where we have not settled with the native people or we have settled through treaties that, to some extent, would appear to be fraudulent treaties. We still have to make an arrangement with those native people, and I hope it is an arrangement based on accommodation and due process and not force. I would think much more of this country if we are able to do that in this century what we were not prepared to do in earlier centuries.

Mr. Manly: One of the problems that Indian people see, and I think it is a very real problem, is that while the federal government recognizes a certain responsibility towards Indian people and has inherited this responsibility, the provinces often deny it and there is a very real fear—-a well-founded fear that if the constitution is patriated without some specific entrenchment of their rights, that they will never get those rights after it is patriated.

This is why I have some difficulty with your suggestion that we simply bring the British North America Act home with an amending formula. That does not include the Indians …

Professor Russell: Well, again, I do not want to cut off my nose to spite my face. I do not want to say that to help the native people get their rights, I am going to deny the Canadian people their right to develop and change their own constitution. That would be bad logic in my view and I again, do not think that the British Parliament should be making such fundamental changes in our constitution that might affect

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provincial powers across Canada without the participation discussion of the provinces.

Further, 1 think the most difficult area of native rights are again in the northern territories which are under federal jurisdiction, and if this Parliament and this government is really concerned about protecting native rights, it can begin tomorrow to negotiate land claims arrangements that are fair and reasonable and just. That option is open now and has been open for years, and does not need any action in Britain. The native people are asking that you go ahead and treat them fairly now.

Mr. Manly: I suppose I would want to ask whether or not there is not a relationship that the federal government has with Indian people that has to take some precedence even over the federal government’s relationship with the provinces; that this relationship is one that was inherited, one that the federal government has by virtue of such things as the Royal Proclamation of 1763.

Professor Russell: Well, I certainly think, if you are talking about the native people who are under federal jurisdiction through such an act as the Indian Act, then obviously, that responsibility of the federal government should not be given up and surrendered to the provinces. But I had not understood that there was any proposal to do so and the federal government remains responsible for working out a better arrangement with the native peoples that are under their jurisdiction and not just turning them over to the provinces and leaving them to the whims of the provinces.

Mr. Manly: What, for example, would be the status of the Royal Proclamation of 1763? Native people are very concerned that that should have some entrenchment.

Professor Russell: Well, you would have to look very carefully at the terms of the Proclamation and first of all, what territory does it apply to; what rights does it extend; and to what extent has it been modified by valid legislation, either federal or provincial, since 1867; because English laws of that kind, colonial laws of that kind, are only laws of Canada after 1867 to the extent that they have not been modified by federal or provincial legislation. And that is a very difficult legal question to address in a few minutes.

Mr. Manly: I realize that and I realize that the question of the extent to which the Royal Proclamation applies to the total are of Canada is one for some legal debate …

Professor Russell: Yes.

Mr. Manly: Even Indian people in British Columbia feel very strongly that that Royal Proclamation is their major statement of a guarantee of aboriginal rights, their major statement that the Canadian Government, or the British Government rather, had to have some process by which these rights were recognized before their could be settlement. And I am wondering, for example, if you would see the possibility of including that as a schedule to the British North America Act

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at the time that it was patriated, if we followed a simple act of patriation?

Professor Russell: I would consider it, but 1 could not give you an informed opinion on that without giving a lot more analysis of the Proclamation and its suitability for that purpose. I am sorry, I just could not do that off the top of my head.

Mr. Manly: Thank you. Just one final question, if I might, Mr. Chairman. I take it from what your said earlier that you would favour that in an amending formula Indian people should have some say in matters that directly affect them.

Professor Russell: Yes, I don’t know if it is part of an amending formula. It should be built into a clause dealing, as I have suggested, with the rights of native people that they not be altered or changed without agreements freely entered into by them and the governments concerned, which I agree, amounts pretty well to the same thing. I would not make it part of the amending formula: I would build that into a clause like Section 24.

Mr. Manly: Thank you very much.


The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Manly.

Mr. Hawkes, I think that the honourable Bryce Mackasey would like to ask a short question.

Mr. Hawkes.


Mr. Hawkes: Thank you, Mr. Chairman. I am going to have a series of short ones, I think, rather than one single one because it may go faster for us.

I want to thank you this evening, you said with some clarity, some words that I immediately identified with and they were sets of words that I had not had before, but you said clearly that the Charter of Rights will not protect rights, but simply transfer the jurisdiction over rights to another source. And I did not have it phrased in that kind of sense …

Professor Russell: Just so I can keep the record straight, I did not say they would not protect. I said it would not guarantee…

Mr. Hawkes: Okay.

Professor Russell: … because the results of judicial decisions may well be seen to be more protective of rights than legislative decisions, although I think it is a toss-up. Often legislatures are more protective of rights than courts. That frequently occurs. Just to give one example discussed before, I do not know here, but you take the question of capital punishment and whether it is cruel and unusual and should be unconstitutional.

Our legislature, the Parliament of Canada, is being pretty protective if you like, of the right of the minority of people who are involved in that, and has taken a position that in my view protects rights pretty well. The courts sometimes, take the United States has gone back and forth on capital punishment and is now expanding the acceptability of capital punishment, so you cannot tell in advance whether rights will be better or worse protected. Your process is changing. That is

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the point. You are not guaranteeing anything but a change in the process.

Mr. Hawkes: Okay. Before I was elected in May of 79, I was teaching a social policy course in University and that is what I had done for some length of time. With beginning students I would say, “The one thing you must always remember about public policy is that when you make a decision in a certain direction, you are advantaging someone, or some group of people, but you are, at the same time in a relative sense, disadvantaging someone else” and that is your dilemma, whether you are talking about the tax system, you take from one group and give to another or where to build a road; those kinds of things.

When you said what you said earlier, I got back into that academic mould and started to think some things through.

As a politician, somebody takes a piece of paper and they write me a note and they put it in the mail and they do not even have to put a stamp and they give me an idea of an injustice. They have access to me as a politician.

If I was a Supreme Court judge, charged with this responsibility for social decision-making, I would say to myself, “what characteristics would get met these people to talk to?” and the first thing that hit me, I would have to be rich or have access to money because wanting to create that social policy change would take money. With the politician it can be done for no money, or very little money. Neither system will guarantee me the result I want, but at least in some areas of social policy, the rich would have an advantage over the poor I see you shaking your head in a positive way.

Professor Russell: This is the worry I have about this proposed change in our system of government. Take the issue, we have mentioned several tonight, school prayers. Whichever way you go on that, someone is going to be very unhappy. If you cannot say prayers in school, a lot of people are going to feel that is a very bad thing for children, and if you can say prayers in schools others are going to think that is a bad thing.

Now, as that decision gets fought out, and it is certainly an issue in my community and even at my school, and amongst my neighbors, but we can discuss and debate that. We can argue about it in Letters to the Editor. We can talk to our alderman, or if it is a provincial matter, to our provincial Member, but when an issue is before the courts, the process changes quite a bit.

You can go to court. Our courts are pretty good about allowing intest groups to intervene in judicial proceedings, but that is a fairly expensive and organized process. It is difficult to criticize the court very much, or put much pressure on it, and I do not think we want to see in Canada, when a case is coming up through the courts, everybody sort of ringing up the judges, or writing letters to the Editor telling the judges what they should do. The judicial process does not work well when it gets wrapped up into the political process and hence my worry about taking so many difficult communal policy issues and shifting them more or less from the political arena into a

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litigation, judicial arena, and I think we should think very carefully about that.

Mr. Hawkes: The next thing that occurred to me, we said “rich” rather than “poor” or the access thing changes. The next thing that occurred to me sitting here was that I recognized the fact that the Supreme Court does not make very many decisions in a year.

Professor Russell: No.

Mr. Hawkes: The consequence of that I would assume is that when the Supreme Court acts, and it has to act in a very broadly based kind of way, it has to lay down a principle and then that permeates through society down to whatever level, a company or school board or whatever, so you lose some degree of fine tuning because of that necessity of that sort of restricted range of decision.

Professor Russell: It means that your lower courts in this country, superior courts, county courts would have a very major role in interpreting rather general Supreme Court decisions say, on what constitutes a reasonable number of people to constitutionally require a French or English school, the Supreme Court might lay down a general standard.

The local courts in different parts of the country would have a very big responsibility in applying that to particular situations. That is what happens in the United States.

One other feature of that you should be aware of. You may find it necessary, this Parliament after awhile if it goes ahead with the Charter, to change your judicial system, simply because the Supreme Court of Canada may find it has to spend most of its time on constitutional matters. Now, the Supreme Court is deciding something a little over 100 cases a year, and it is only recently that it has had maybe as many as a dozen constitutional decisions in a year. Now, in the United States, the United States Supreme Court must spend virtually all its decision making time—it only has nine judges too—on constitutional matters and most of those constitutional issues are generated by their Charter of Rights. And it means that they have developed a very large federal court system to pick up much of the load of interpreting federal statutes and matters that are handled in their federal courts.

We might find we have to develop either our provincial courts or our federal courts much more to do the ordinary work. That is a technical point, but you should be aware that you may be bringing about a very substantial change in the role of the Supreme Court of Canada.

Mr. Hawkes: You mentioned Section 15 and I will just stay with that, but two things I think you dealt with were Section 8, at least you gave us some examples, and I wondered before, if we write that section badly or if the courts interpret it in a certain kind of way some major things in this country could be affected, the pension system which tends to be age-based, the family allowance system which tends to be age-based in the way that the legislatures have decided on it, if the courts made

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a ruling which made those large social programs, pensions and family allowances, illegal the way they are structured, what options would remain to correct it? You could go through the amending process for the Charter, but if you could not do that how would you work your way around a Supreme Court decision?

Professor Russel: You could not, if the Supreme Court says that the legislation or the regulations are unconstitutional, they are unconstitutional until you amend the constitution, and I suppose there is another way, it is happening in the United States, if there is a great groundswell of public opinion that the court has either not gone far enough or too far, it is politicians who appoint judges, and over time one finds a different type of person with a different—for lack of a better word—a different ideological outlook, is appointed at least to the Supreme Court.

That has happened in the United States. We have had quite a groundswell of criticism of the war in court, which was recently liberal and we have had rather conservative criticism of that and in the 70s, we are watching now, and we will watch more, we will see some conservative judges appointed, first by President Nixon and now I would guess some more by President Reagan, who will try to reverse some of the decisions on the rights of criminal suspects. I think they will try to reverse some of the decisions on women’s equality, equal rights and so on; so you do get a change through judicial appointments, It is very important to note than because I found studying this trend, not just in Canada but in other countries, judicial culture changes just a little more slowly than political culture, there is just a bit of a lag, but I think it would be erroneous for anyone to tell you that judges will always be liberal or conservative.

Right now, a lot of Canadian observers of our Supreme Court, sometimes rather characterized as a rather cautious conservative court on issues of civil liberties and a Bill of Rights, but that is very apt to change through criticism, professional criticism, a new generation of lawyers and different appointments to the bench, so there will be some dynamic developments likely if you have this Charter. Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you very much Mr. Hawkes.

The honourable Bryce Mackasey. You had a short question.

Mr. Mackasey: Yes, Mr. Chairman, it arises from some perplexity on my part which has now been cleared up, and that was your faith in the citizens. I have often expressed that, watching constitutional conferences with some of my own colleagues, some of the Premiers, 1 say in frustration, but what mandate do they have to take their position from the citizens, then I realized you were talking about the Charter that would be which would included a referendum in Section 42.

Professor Russell: Yes.

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Mr. Mackasey: Am 1 to gather from that, and I do not want to get into it this late, that you approve of Section 42 and the referendum and the formula for the referendum?

Professor Russell: I approve of Section 42 which is a referendum with one modification, Section 42.1(b) which says that the referendum would require to adopt an amendment, a majority of persons, that is (a) voting in the referendum but (b) is a majority of persons voting in each of the provinces and so on, and so forth according to the Section 41(1) formula, if I can simplify it.

I may have misunderstood this proposal. The Section 41(1) formula may change because we could have a referendum in this intervening two-year period on that and that could end up with a referendum rule not requiring a majority in all the regions, but 1 would be unhappy with that. 1 want to see all the regions…

Mr. Mackasey: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.

Before I recognize Mr. Friesen for a short question, I would like to apologize to Mr. Hawkes for the lapse—Mr. Friesen.

Mr. Friesen: Thank you. Just a short question, we have had witnesses appearing, making comparisons to the Supreme Court experience in the United States and the fact that the American Supreme Court legislates by its decisions and pushes social legislation in that manner, whereas our court interprets legislation. You wonder about that.

Professor Russell: Yes.

Mr. Friesen: The Supreme Court, I take it in both countries has the right to refuse to hear cases. Otherwise, they would never handle the full schedule.

Professor Russell: That is right, it can refuse to grant a Writ of Certiorari, yes.

Mr. Friesen: It has come to my attention that in one case, a 1973 case, the U.S. court especially, Justice Brown I think it was, deliberately accepted the opportunity to hear a case because it was inviting the opportunity to legislate in this particular area.

Professor Russell: Yes. I think it was Brennan, perhaps, you are thinking of.

Mr. Friesen: No, I think it had to do with the case that was mentioned earlier in the evening regarding abortions and the right of the unborn child.

Professor Russell: Yes.

Mr. Friesen: First of all, is that an accurate assessment of the dynamics and is that something you could foresee happening in Canada?

Professor Russell: Yes, I would not quite use your language and I would not make such a sharp contrast between the two courts. The difference is more in the constitutions than in the courts. Constitutions almost always have general words and phrases that require interpretation, which 1 guess is a kind of legislation. Take peace, order and good government and property

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and civil rights in our own constitution, my goodness, over the years they have had to be interpreted and that interpretation is a kind of constitutional legislation. The difference is that in the American Constitution there are many more opportunities for judicial interpretation of the constitution and judicial legislation, many more opportunities.

A Charter of Rights in the constitution will increase the opportunities for judicial legislation tremendously in Canada.

Just to again go to the U.S., the United States Supreme Court only decides by written opinion about the same number of decisions as our Supreme Court, somewhere between 100 and 200 a year. I have not got a recent count, but it is not significantly more, but it must hear thousands, 3,000, 4,000, 5,000 applications for leave to appeal, they do not call it that, they call it “Writ of Certiorari” and I would guess that a majority of those requests are based on claims of constitutional rights from the amendments to the American Constitution, American Charter of Rights.

So the American Supreme Court spends an enormous amount of time sorting out which cases it is going to hear, and, yes. Justices will take cases which they see as issues they would like to be acted on. Their rule is that if four of the nine judges, any four, want to hear a case that case will be heard and argued and decided by the court, and there is a great deal of, for the lack of another word, “politicking” that goes on as to which cases are going to be accepted.

One judge wants this, and you know, I will scratch your back if you scratch mine, that sort of thing. That would be an inescapable feature, I should think, of this change here that you are proposing.

Already our Supreme Court has to spend a good deal of time deciding what cases it is going to hear and does it in panels of three. That is a very big responsibility on the part of the Supreme Court. It turns down a lot of cases. It would have to exercise that sort of discretion hundreds of times more often, I would guess, with your charter than without it.

That is one of the other ways that this imposes upon the judiciary a very, very big burden.

Mr. Friesen: Just one point. You should be careful to whom you are referring when you say “your proposing”.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Friesen.

Professor Russell, on behalf of the Honourable Senator Hays and of all the honourable members of this Committee, I would like to thank you for making yourself available to members of this Committee. I am quite sure that the Canadian public in general will have an opportunity to view or read what has been said or discussed in this room in the past two days with those four Canadians we have had up to now an opportunity to hear—I should say four emeritus Canadians, the public will conclude that there are sufficient scholars and people in Canada who make themselves available to members of parliament in the responsibilities they have and the decisions they

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have to take, especially in the case of the very important decisions in relation to the constitution.

I am quite sure that the public will commend your for making yourselves available.

Professor Russell: Thank you, Mr. Chairman, for giving me this opportunity. I am very grateful to the members of the Committee.


The Joint Chairman (Mr. Joyal): The meeting is adjourned until 9 h 30 tomorrow morning. We will then have the opportunity to hear Professor Gilles Rémillard of l’Université Laval.

The meeting is adjourned.

Other Issues:

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