Document Information

Date: 1981-04-06
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8978-8980, 8987-8988.
Other formats: Click here to view the original document (PDF).

[…]

Mr. Gamble: The lack of availability to attend meetings or
even answer telephones has been made obvious by the response
of the Solicitor General, who cannot even speak to the attorney
general of the province of Saskatchewan, any more. I think if
that type of thing develops, it is very destructive of the system.
What the Prime Minister has just indicated is that Section 35,
although it is in the resolution, may in fact be useless like so
many other provisions of the resolution.

The Prime Minister has indicated that other leaders of this
party have said in the past that Parliament is indeed the
supreme court and that this House is the supreme court of
Parliament. Will the Prime Minister acknowledge that after
his constitutional resolution is adopted, that state of the law
will cease to exist when the Supreme Court of Canada alone
will legislate, as a consequence of its interpretation judgments,
in dealing with an interpretation of the resolution which he has
before this House?

Mr. Trudeau: On the preamble, the hon. member argues
that Section 35 is useless. The reason Section 35 is in the
resolution is so that premiers, if they wish, and if they can find
a better formula than the Victoria formula, can put it to us at
a federal provincial conference. That is why in an earlier
answer I said we would be happy to meet with them if indeed
they can find and have found a better formula. Well, an hon.
member says “Why not before?” Before we must have our
Constitution. If what they are worried about is an amending
formula, then they have a guarantee that they can reach
agreement on the amending formula and put it to us. That is
what the resolution says.

What the opposition seems to be saying is that they do not
want to have our Constitution until there is a national consensus.
We are saying that we have tried a national consensus for
54 years and it did not work. Let us have our Constitution and
then we can bring in the amending formula, if indeed it is
accepted by everybody.

As to the question itself regarding the role of the courts and
Parliament, it seems to me that the hon. member is under a
misapprehension. What I have said is that both branches of
government should be autonomous and should operate autonomously.
It is our job to legislate. It is the court’s job to judge
whether the legislation is intra vires or ultra vires. That is the
law of the land and that is the basis of Parliament. That is true
in a federal system and it is even truc in a unitary system,
where it is obvious that parliamentarians do not go around
asking themselves if the courts are going to give an okay to
what they do.

Mr. Baker (Nepean-Carleton): They don’t?

Mr. Trudeau: They don’t; no.

Mr. Baker (Nepean-Carleton): In a federal system, they do.

Mr. Trudeau: Madam Speaker, I have several interruptions

[Page 8988]

Madam Speaker: Order, please. In order to facilitate matters,
the Prime Minister might simply answer the question
posed to him.

Mr. Clark: You have insulted the premiers.

Mr. Trudeau: Madam Speaker, it is basic to our system that
three judges, five judges, or nine judges, cannot tell us what is
right. We are elected by the people. We are answerable to the
people.

Some hon. Members: Hear, hear!

Mr. Clark: What about premiers?

Mr. Trudeau: It is our job to pass laws.

Mr. McGrath: What about the premiers?

Mr. Trudeau: It is the job of the courts to judge whether
these laws are intra vires or ultra vires. What the opposition
has been doing is saying “We are timid fellows-”

Some hon. Members: Oh, oh!

Mr. Trudeau: -“because three non-elected officials have
told us that such a thing could not be done.”

Some hon. Members: Oh, oh!

Mr. Trudeau: And these some 90 elected members are
saying “We will wait until we get permission from the courts.”

Some hon. Members: Oh, oh!

[…]