Proceedings of the Special Senate Committee on the Constitution, 30th Parliament, 3rd Sess, No 3 (9 August 1978)
Document Information
Date: 1978-08-09
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 3 (9 August 1978).
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Third Session
Thirtieth Parliament, 1977-78
SENATE OF CANADA
Proceedings of the Special
Senate Committee on the
CONSTITUTION
Chairman:
The Honourable R. J. STANBURY
Wednesday, August 9, 1978
Issue No. 3
WITNESS:
(See back cover)
SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION
The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman
The Honourable Senators:
Argue
Austin
Barrow
Bosa
Bourget
Connolly (Ottawa West)
Flynn
Forsey
Fournier (de Lanaudière)
Godfrey
Grosart
Hayden
Lafond
Lang
Lucier
Marchand
Marshall
McElman
Olson
Petten
Phillips
Rizzuto
Robichaud
Smith (Colchester)
Stanbury
Wagner
Williams
Yuzyk
(Quorum 10)
[Page 3]
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, Wednesday, June 28, 1978:
“The Honourable Senator Connolly, P.C., moved, seconded by the Honourable Senator McIlraith, P.C.:
That a Special Committee of the Senate be appointed to consider and report upon the subject-matter of the Bill C-60, intituled: “An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”, in advance of the said Bill coming before the Senate, or any matter relating thereto;
That the Committee have power to engage the services of such counsel, staff and technical advisers and to incur such special expenses as may be necessary for the purpose of the inquiry; and
That the Committee have power to send for persons, papers and records, to examine witnesses, to print such papers and evidence from day to day as may be ordered by the Committee and to sit during adjournments of the Senate.
After debate, and—
The question being put on the motion, it was—
Resolved in the affirmative.”
Robert Fortier
Clerk of the Senate
[Page 4]
MINUTES OF PROCEEDINGS
WEDNESDAY, AUGUST 9, 1978
(11)
[Text]
Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:05 a.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Grosart, Lafond, Lang, Marchand, Marshall, McElman, Olson, Rizzuto, Smith (Colchester), Stanbury, Williams and Yuzyk. (21)
Present but not of the Committee: The Honourable Senators Cottreau, Denis, McIlraith, Neiman and Riel. (5)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
Witness:
Dr. W. R. Lederman, Professor of Law, Queen’s University.
The Committee resumed its consideration of the subject-matter of Bill C-60:
“An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”,
assisted therein by Messrs. Cowling and du Plessis.
The Chairman informed the Committee that the Honourable Senators Olson and Smith (Colchester) had been appointed to serve on the Sub-committee on Agenda and Procedure (Steering).
It was agreed,—That the Committee sit on Wednesday and Thursday, September 6 and 7 at 10:00 am. and 2:00 p.m.
Dr. Lederman made an opening statement.
On motion of the Honourable Senator Godfrey, it was agreed-That the two appendices which Professor Lederman did not read be incorporated in today’s Minutes of Proceedings and Evidence.
The witness answered questions.
At 12:25 p.m., the Committee adjourned until 2:00 p.m. this day.
AFTERNOON SITTING
(12)
The Special Senate Committee on the Constitution met at 2:05 p.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Grosart,
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Lafond, Lang, Marchand, Marshall, McElman, Olson, Rizzuto, Robichaud, Smith (Colchester), Stanbury, Williams and Yuzyk. (22)
Present but not of the Committee: The Honourable Senators Cottreau, Denis, McIlraith, Neiman, Riel and van Roggen. (6)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
Witness:
Dr. W. R. Lederman, Professor of Law, Queens University.
The Committee resumed its consideration of the subject-matter of Bill C-60.
The witness answered questions.
At 5:05 pm., the Committee adjourned until 10:00 a.m., Thursday, August 10, 1978.
ATTEST:
Flavien Belzile
Clerk of the Committee
[Page 6]
EVIDENCE
Ottawa, Wednesday, August 9, 1978
[Text]
The Special Committee of the Senate on the Constitution of Canada met this day at 10 am. to consider the subject matter of Bill C-60, to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters.
Senator Richard J. Stanbury (Chairman) in the Chair.
The Chairman: Honourable senators, before we hear our witness this morning, I should like to give Senator Lafond an opportunity to speak. I also have a couple of items to report as far as the business of the committee is concerned.
Senator Lafond: If there are any members of the joint committee present, and if perchance they are unable to attend next week’s meeting, would they please let me know now so that I can make any necessary substitutions.
The Chairman: As was mentioned briefly last evening, Senator Olson and Senator Smith (Colchester) have been added to the Steering Committee. The Steering Committee is now seven in number and representative, at least geographically, of the country.
A suggestion made by the Steering Committee was that we reduce our hearing days in September from three to two because of the nature of the prior weekend. The feeling was that by sitting three days during that week it would destroy the enjoyment of the Labour Day weekend for those who are living farther away. So the suggestion now is that we meet on Wednesday and Thursday of that week instead of Tuesday, Wednesday and Thursday. Is that agreed?
Senator Godfrey: When do we meet after that?
The Chairman: In the meantime we will be lining up witnesses and scheduling them as quickly as possible. Hopefully, we will meet every week or every second week, depending upon the availability of witnesses. That is the intention, unless someone has some contrary feelings.
Senator Godfrey: I am somewhat concerned that we are not meeting until September, and at that on only two days.
The Chairman: Unless there is strong objection, that is the way we will proceed. We will see then how matters progress.
Senator Neiman: Are you trying to avoid the scheduling or our meetings at the same time as the joint committee meetings?
The Chairman: Unfortunately, we cannot avoid doing that. I am afraid those on both committees will have to make a decision.
I should also like to advise the committee that a letter has been sent to the leaders of the provincial political parties telling then that if they wish to make representations to us, we shall be pleased to hear them.
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Senator Marchand: What is the purpose of that operation? They met yesterday. Are you saying we can expect them to make further representations?
The Chairman: The premiers met yesterday. The letter has been sent to the leaders of the political parties.
Senator Marchand: My only point is that the premiers are included. Of course, it would be difficult to exclude them.
The Chairman: Normally they are party leaders.
Senator Marshall: What they say in Regina will be political; what they say here will be truthful.
Senator Williams: Will there be an involvement of the Territories?
The Chairman: That is a good question. I do not think we have considered them.
Senator Lang: Shame!
The Chairman: Shame is right. I am not sure how we will deal with that question, but I will talk to the Steering Committee about it.
We shall now proceed with the business of the day. As you are aware, Professor William R. Lederman is present this morning, and by way of introduction I should like to read a brief biographical sketch.
William R. Lederman was born in Regina in 1916, and obtained his LLB from the University of Saskatchewan in 1940. A Rhodes scholar, after service overseas with the Royal Canadian Artillery during the Second World War, he received his BCL from Oxford University in 1948.
W. R. Lederman, one of the most esteemed constitutionalists in Canada, is currently Professor of Law at Queen’s University, Kingston. From 1958 to 1968 ho was Dean of Law at that university, and he built the Law School up from its infancy to a leading position among the law schools of the country.
Professor Lederman has taught constitutional law and has written extensively in this area. He has contributed articles to a number of learned journals, including the Canadian Bar Review and the McGill Law Journal. He was a member of Premier Robarts Ontario Advisory Committee on Confederation. He is the co-author of Canadian Constitutional Law, a text which contains cases, notes and materials on the distribution and limitations of legislative powers under the Constitution of Canada. He was a participant in the 1976 Conference on the Canadian Judiciary sponsored by Osgoode Hall Law School and the Canadian Institute for Administration of Justice, and his paper, The Canadian Judiciary, appears in the conference proceedings. Last May, 1978, he was awarded an honorary doctorate from the Law School at Dalhousie University, Halifax.
Professor Lederman has prepared a paper, copies of which have been distributed to members of the committee. I have asked him to provide us with an overview. We have been dealing in rather intricate detail with the special sections of the
[Page 8]
bill, and now we will have more of an overview which will give us an opportunity to put these proposals into the context of the constitutional proposals in Canada. This will raise our sights somewhat to the broad principles of the bill rather than to the drafting of this particular bill.
Senator Marchand: Is there a French translation?
The Chairman: Professor Lederman apologizes—
Senator Marchand: He need not apologize. It is not his fault. The committee should have had this translated.
The Chairman: What I was going to say was that he apologizes because it was only completed last night, so there was no opportunity to have it translated.
Senator Fournier (de Lanaudière): Would it be possible to have this printed in the Proceedings of the committee? If that were the case, it would be automatically translated.
The Chairman: I now introduce Professor Lederman.
Professor W. R. Lederman, Faculty of Law, Queen’s University: Thank you, Mr. Chairman. I am honoured to have been invited to attend here this morning. I thought it advisable to prepare a short paper, which, while it does not attempt to argue everything in detail, does at least pinpoint the main positions that lam prepared to defend and, indeed, explain.
This paper is intended as a framework for discussion, It will take me approximately 20 minutes to go through it. What the Chairman has asked me to do is present an overview of the main issues that are raised by the constitutional amendment bill of the Government of Canada of June of this year.
If I may, I will take just a few minutes to go through this paper. It might be useful if you get the whole picture of my views in a few minutes, and then I would be glad to respond to questions as best I can. I say “respond” rather than “answer,” because I do not pretend to know all the answers.
A little over a week ago, at the request of Senator Stanbury, I agreed to appear before this committee of the Senate to-day to discuss the current proposals of the Government of Canada for constitutional amendment, and to give some personal opinion of their relative importance, as well as of their merits and defects. As Senator Stanbury has explained, I believe what you wish from me is an attempt at a general overview of the proposals as a whole, leaving aside most of the finer intricacies and details of interpretation to which some sections of the constitutional bill give rise.
I am honoured to have been invited to do this, but the task is an enormous one in its extent. In an attempt to make it manageable, I have composed this short document, which is a bare outline of the points I wish to make and an indication of certain of the conclusions to which I have come, at least tentatively. I have not reduced to writing most of the reasoning and argument supporting these points and conclusions, but I
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am prepared to offer reasons and arguments orally here as time permits, and to respond to questions. I hope you agree that this is a sensible way to proceed in the circumstances.
First, I simply list the topics with which I propose to deal, and then comment on each of them briefly.
1. The Charter of Rights and Freedoms
2. The federal division of legislative powers between the Parliament of Canada and the legislatures of the provinces
3. The Supreme Court of Canada
4. The Head of State—The Queen and the Governor General
5. The second chamber of the federal Parliament—the Senate and the House of the Federation
6. Legitimate methods of constitutional amendment for the above-listed subjects. In addition, I have included two appendices, which I will not read, in which I have given more detail, by way of example, of changes I would favour in two important areas.
Appendix I refers to the division of legislative powers and suggests a new way of dividing powers over electronic telecommunications between the federal Parliament and the provincial legislatures.
Appendix II refers to the Supreme Court of Canada and makes suggestions for a stronger judicial nominating council and for a somewhat larger court.
1. The Charter of Rights and Freedoms.
I think these provisions are well-drafted, appropriate and necessary. In making these remarks I am referring to the text of the constitutional amendment bill. Of course they give important powers to the courts, especially to the Supreme Court of Canada, and place some limits on what the federal Parliament or the provincial legislatures may do by ordinary statutes. Thus the established independence and integrity of the courts, especially of the Supreme Court of Canada, is more important than ever. Nevertheless, these wide fields would remain open for some regulation by ordinary statutes at both the federal and the provincial levels, as section 25 makes clear. The point is that none of the specified rights and freedoms are unlimited. Also, section 22 includes in these protections the prohibition of laws that adversely affect the special linguistic interests of the anglophone or francophone communities in all parts of Canada. I will refer to this again when I comment on the proposal for a double majority in the House of the Federation respecting laws proposed for passage in the Parliament of Canada that have special linguistic significance in these respects.
The Government of Canada has been consistent in promoting a specially entrenched charter of basic human rights and freedoms for many years, and I consider this part of their proposals to be constructive and well-conceived.
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2. The Federal Division of Legislative Powers
The Government of Canada has not yet made specific proposals for changes in this respect, but most, if not all, of the provincial governments attach great importance and very high priority to some agreement concerning changes in the division of legislative powers. In its recent white paper on constitutional reform, the Government of Canada promises to undertake promptly serious negotiations in this area, remembering that re-allocation of legislative powers is a two-way street, and that while it will no doubt be necessary to enhance provincial powers in some respects, it would also be wise to enhance the central federal powers in other respects. If the federal government indeed means what it says, then at last it is ready to face issues in this vital area that it has been avoiding for over ten years.
In Appendix I, as indicated above, I have used the sensitive and important area of electronic telecommunications to make suggestions for a new way of dividing legislative authority in this respect, simply as an example that new and effective ways to meet problems of the division of powers are open to us.
3. The Supreme Court of Canada.
It would be difficult to exaggerate the central importance of the Supreme Court of Canada for our constitutional scheme of things in this federal country of ours; and this is particularly true in the light of proposed constitutional changes just mentioned. The court has the last word on the meaning of the power-conferring phrases in the constitutional division of legislative powers. Also, it would have the last word on the meaning of the power-limiting phrases in any specially entrenched charter of basic human rights and freedoms. So it is inevitable that we should seek constitutional changes respecting the Supreme Court of Canada that would enhance its independence and effectiveness. I believe this is high in everyone’s list of priorities.
In the constitutional amendment bill, the Government of Canada has proposed certain changes which I think are right and desirable in their main thrust and tendency. In an official press release, the nature of these changes has been summarized as follows:
The bill would expand the number of judges from nine to 11. There would be four from the Quebec Bar rather than the present three. Of the remaining seven positions there would have to be at least one from each of four regions: the Atlantic, Ontario, the Prairies and British Columbia.
The provinces would be consulted before judges are appointed. In the absence of agreement, appointments would be made by a nominating council. All appointments
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would be subject to approval by the House of the Federation.
I think this to be definitely an improvement on the present situation, which is that the appointment of Supreme Court of Canada judges is entirely in the discretion of the federal government of the day, and their process of selection, however virtuous, is largely secret. The nominating council and the requirement for ratification by the House of the Federation would I think, be distinct improvements in the selection process. Nevertheless, in my view, the nominating council named is much too limited in its powers under this proposal. The full potential of this method has not been exploited or realized.
Under the scheme presently proposed, the eligible candidate or candidates to fill a Supreme Court vacancy are still selected by the federal government of the day alone. If and when the nominating council stage is reached, the council must choose one of those federal nominees. In my respectful view it should be the other way around. A suitable judicial nominating commission or council should seek out and establish the list of persons eligible for appointment in the first place, and then the government of the day at Ottawa should be confined to appointing from this list, subject perhaps also to ratification by the House of the Federation. This is the usual pattern in the United States where judicial nominating commissions are used to good effect in a large and growing number of the States.
Moreover, the judicial nominating council or commission we use should not be composed just of lawyers and chief justices. These bodies should include as well persons who are laymen, and also some prominent parliamentarians from the opposition parties as well as the government parties at both the provincial and the federal levels. Among other benefits, you would thus get real provincial as well as federal input into the process of selecting judges for the Supreme Court of Canada, and this without prejudice to the high quality of judicial appointments. Indeed, the new process might well be better in this latter respect also. The details would take a lot of working out, but I do think this could be done. I give a more detailed example in Appendix II to this paper.
Also, in its proposals for the Supreme Court of Canada, the federal government has recognized that, to a very considerable extent, it is necessary to have regional quotas, in some cases provincial quotas, for membership in the Supreme Court of Canada. This has always been so in our federal country and, so far as I can see, always will be so. Again, though, I would expand the government’s proposal somewhat. I would compose a court of i5 judges, with a minimum quorum of 9. I develop this idea a little further also in Appendix II.
Finally, I must express a caution at this point. It was in 1970, in the Alberta Law Review, that I first advocated a judicial nominating commission for Supreme Court of Canada appointments, and also I recognized then the need for regional quotas in the membership of the court. When one does this, I find that one is frequently and unfairly criticized as downgrading the independence of the judiciary and as seeking to turn
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the Supreme Court of Canada into a body of regional delegates or representatives of some sort. Nothing could be further from the truth, and I am prepared to answer with reasons and arguments those who offer this adverse criticism. It would take too much space to do so in this document, but I do point out that, among the constitutional scholars of Canada, I have been and I am the principal defender of the independence of the judiciary and the primary constitutional importance of our system of courts. Indeed, many of my fellow constitutional scholars think I go too far in defence of the virtues of an independent judiciary. In any event, I am on the record with major published essays to this effect in 1956, 1965, 1970, 1975 and 1976. I should not have to say this, but out of abundant caution I will say it anyway. Nothing in what I have stated here is to be taken as a criticism or a disparagement of any Supreme Court of Canada judge or judges, past or present. We are talking about alternative systems, and whether one system would be better than another. This is proper and necessary with respect to the Supreme Court of Canada as well as in other constitutional matters.
4. The Head of State—The Queen and the Governor General
I am very dubious about the proposed provisions that would alter the relationship of the Queen and the Governor General, and their relative positions. What the proposals really amount to is that the Governor General becomes the Head of State, and the Queen ends up with some status secondary to that of the Governor General, the full nature of which is not clear. The Monarchy, as it has developed historically, carries important and powerful symbolism in favour of Canadian unity, and I fear this would be gravely impaired by the new arrangement proposed.
Furthermore, the new arrangements proposed, in spelling out the relation of the Governor General and the Prime Minister, do not seem to continue the proper relations between them that are essential to the Parliamentary and Cabinet system of government. Section 53 comes close to saying that the Governor General must do what the Prime Minister tells him to do, even though that Prime Minister may have lost his right to influence because of a confused or adverse situation for him in the House of Commons or because of adverse electoral results, or both.
In my view the present constitutional arrangements between Queen, Governor General, and Prime Minister, based on established usage, are working well. They are not particularly controversial, and should not be changed.
5. The Second Chamber of the Federal Parliament—The Senate and the House of the Federation
I am in favour of a second chamber for the central parliament of our federal country. It is valuable as a place where there can be sober second thoughts about and revisions of legislation coming from the House of Commons. It can also be a place where there is some representation for the diverse provinces and regions that is based on that regionalism and not
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on proportionate population numbers. In this way, important regional influences can be brought to bear on the functions of the central government.
I think the present Senate, with great respect, has performed well as a place of sober second thoughts and revisions, but that it has not succeeded as a second chamber representative of the provinces and regions; and I believe we do need a second chamber that can perform both functions well. I believe this does mean that we do need to have many of the members of the second chamber elected on some proper direct or indirect basis from the provinces. In this respect the proposals of the Government of Canada are ingenious and deserve very serious consideration. However, they have not been fully spelled out, and they should be more fully developed. I for one would want to be assured that direct or indirect elections of some kind are indeed intended and required in the provinces as well as in Ottawa. I do not think the members of the House of the Federation should be appointed, either by the Governor-General in Council on the federal level, or by the Lieutenant-Governors in Council on the provincial level. In both cases these second chamber members should be elected persons, probably elected by the members of the House of Commons and by the members of the respective provincial legislatures.
The subject is very complex, but there are just two other points I would make here.
(1) I think the powers of the new House of the Federation should be to impose up to a year of delay on legislation passed by the House of Commons. The present proposal that the power of delay be limited to two months is not enough to enable the second chamber to insist on some of its sober second thoughts and revisions.
(2) I do not like the double majority rule proposed for the House of the Federation in the case of measures certified to be of special linguistic significance for francophones or anglophones. If some special protection is necessary in this regard as a matter of legislative procedure, then let us require a straight two-thirds numerical majority of the House of the Federation for the passage of any such measure, without any distinction between anglophone and francophone members of the second chamber. In this connection, I also raise the question whether clause 22 proposed for the Charter of Human Rights and Freedoms is not enough protection for the special needs of English and French language groups. There are other sections in the Charter that are protective of language rights as well.
6. Legitimate Methods of Constitutional Amendment
In offering its wide-ranging proposals for constitutional change, the Government of Canada makes a distinction between those changes that can be effectively made to the “Constitution of Canada” by ordinary federal statute. and those which require the concurrence of the Provinces and a joint address of the Parliament of Canada to London for a British statute.
With respect, I think the Government of Canada has gone too far in specifying how much can be done by ordinary
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federal statute in Ottawa. I consider it wrong to say that such an ordinary statute of the Federal Parliament could legally bring about the change to the Governor General as Head of State, or the radical change of the second chamber from Senate to House of the Federation. These are matters which directly affect federal-provincial relationships and directly concern the provincial governments, as well, of course, as the federal government.
In the case of the proposals for a new Head of State, there are direct implications for the position and powers of the Lieutenant Governors as representatives of the Queen in relation to their respective provincial legislative assemblies and cabinets.
In the case of the House of the Federation, the very nature of the proposals is that federal-provincial relations shall be directly affected; indeed, half of the members of the House of the Federation are to be selected by the respective provincial governments and legislatures. In more general terms, any radical change in the nature of the second chamber of the central parliament of the federal union is of direct concern to the provinces. Accordingly, the full method of amendment is required for these changes, and ordinary federal statutes would not in my view be effective.
I will not develop fuller reasons and argument for these conclusions in this document, though I can offer such reasons orally to the committee as time permits. I do point out, however, that the constitutional need for provincial consents concerning the new House of the Federation has its advantages. It means that the method of selecting the members of the House of the Federation in the provinces and from the provinces has to be faced, and could be made uniform and constitutional across the country. I would add that I consider that to be desirable. As stated earlier, I believe indirect election of these members by the members of the respective provincial legislatures and the members of the House of Commons for the federal quota should be specified. The omission to do this is a serious defect of the present proposals for the House of the Federation.
Conclusion
These is much that is constructive in the current proposals for constitutional reform from the Government of Canada. They deserve serious consideration in the country, though, as I have explained, I have serious doubts and important qualifications concerning some of their proposals and some of their constitutional positions about what is needed to effect change. In any event, I have some real hope that the federal proposals embody a valuable initiative towards some, or many, of the changes necessary to satisfy our fellow-citizens in Quebec that Quebec should remain a province of the Canadian federal union.
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APPENDIX I
ELECTRONIC TELECOMMUNICATIONS—A PROPOSAL CONCERNING
A New DIVISION OF LEGISLATIVE POWERS
(1) I am speaking of radio, television, and cable television. The distinction should be made between “hardware” and “soft ware”; between the industrial equipment and technology of transmission on the one hand, and programme content on the other.
(2) The industrial equipment and technology of transmission is dependent on several things that are by their nature interprovincial and, indeed, international. I refer to broadcast frequencies for over-the-air transmission, micro-wave links in networks, satellites, community antennae for television (C.A.T.V.), and even cable networks with interprovincial or international cable interconnections. Quite apart from programming, the technological side requires public utility monopoly, uniform regulation of standards, and so on. I believe this power should reside in the Federal Parliament in the last resort. I would advocate concurrency of Federal and Provincial legislative powers in this field of communications technology, with Dominion paramountcy. Then different plans would be followed for different parts of the country, where desirable, in conferring the necessary public utility monopolies for radio and television broadcasters and cable TV. companies. But the Federal Parliament would be in charge in the end.
(3) As for content, this is where I would allow the Provinces into the picture constitutionally. For instance, I would specify that half the channels on cable T.V. were exclusively subject to Provincial regulatory control as to content, and that the other half were exclusively subject to federal regulatory control as to content. So, a private cable company, for example, which received its monopoly from the Federal authorities in Ontario would, nevertheless, have to respond to Ontario rules as to content for half of the channels. Converters are being advertised for home T.V. sets now that make 33 channels available, and the possible number is much higher. Thus, one could cater to the cultural sensitivities of Quebec, and the regionalism of other areas, with constitutional guarantees of control of content, as indicated. I say then that the engineers and scientists have really solved the problem by making so many channels available.
(4) With concurrent powers (with Dominion paramountcy) for technology, and divided exclusive powers over content, the constitution would have said enough. Federal and Provincial governments then would have to make detailed federal-provincial agreements against the background of this basic allocation of powers, and implement them by ordinary statutes.
(5) There would be a “Bill of Rights” problem about access to radio or television programmes. We don’t want a “big brother” operation from either the Federal Government or a Provincial government.
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APPENDIX II
THE SUPREME COURT OF CANADA
(1) A proposed judicial nominating commission for Ontario in relation to the Supreme Court of Canada:
The Prime Minister of Canada or the Minister of Justice for Canada.
The Prime Minister of Ontario or the Minister of Justice for Ontario.
The Leader of the Opposition (Canada) or a Member of Parliament nominated by him.
The Leader of the Opposition (Ontario) or a Member of the Legislative Assembly of Ontario nominated by him.
The Chief Justice of Ontario.
A layman appointed by the Government of Canada (M.P.’s eligible).
A layman appointed by the Government of Ontario (M.L.A.’s eligible).
The Head of the Law Society of Upper Canada.
(2) Size of the Court and Regional Quotas. I suggest a court of 15 judges, as follows:
1 from the Atlantic Provinces.
5 from Quebec.
2 from Ontario.
2 from Manitoba, Saskatchewan and Alberta.
1 from British Columbia.
4 at large from any or all Provinces except Quebec.
The minimum quorum for the Court would be constitutionally specified as nine, so that there would be only one court. A higher minimum quorum could be specified for important constitutional questions.
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Professor Lederman: That is a quick overview, ladies and gentlemen. I am now in your hands and in the hands of the Chairman, with regard to questions.
Senator Fournier (de Lanaudière): Mr. Chairman, I would like to know the opinion of this honourable gentleman about the change of name from “the Senate” to “the House of the Federation”.
Is it necessary to put aside a name that has been consecrated by time and that has been subject to the experience of time throughout the centuries from the Roman era to the present era in Canada and other countries? Is it necessary to put the name aside and change it completely to another that, in my opinion, is an insignificant name?
Professor Lederman: I agree with you, sir.
Senator Fournier (de Lanaudière): Thank you.
Professor Lederman: I would prefer to see the new body called the Senate, just as the present second chamber is called the Senate. I suspect that the change was made for drafting reasons, so as to keep the proposals for the new second chamber distinct by putting a new name on it; but I would hope that the new body, even if it takes the form that is specified for what is called the House of the Federation here, would end up being called the Senate, and its members would end up being called senators.
Senator McElman: Do you feel the same way about the Council of State?
Senator Lang: That is the Privy Council.
Professor Lederman: Yes, I appreciate that. I do not think it is necessary to change the name to Council of State. “Privy Council” does not have any special British connotation, which I suppose is the thing that it was thought might be eliminated.
Senator Connolly (Ottawa West): As a matter of fact, the expression “Privy Council” is of French derivation, is it not?
Senator Flynn: I think at the beginning of New France there was a “conseil privé”. No, I am told it was known as the “conseil souverain”.
Senator Connolly (Ottawa West): But the expression “Privy Council”, I think, is French in origin.
Senator Marchand: Can we consider this proposal as an amendment to the British North America Act, or is it a new constitution? The title page of your brief reads:
Outline of Some Personal Thoughts and Conclusions Respecting Proposals of the Government of Canada for the Amendment of the Constitution of Canada.
Are those your words?
Professor Lederman: Yes.
Senator Marchand: So you use the word “amendment”?
Professor Lederman: Yes.
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Senator Marchand: On page 11, under the heading “Conclusion”, you say:
There is much that is constructive in the current proposals for constitutional reform
You may say it is only a matter of semantics, but I think it is a little more than semantics. It can be proposed as a new constitution or just as an amendment or reform. I should like to have your reaction on that.
Professor Lederman: I was using the terms “reform” and “amendment” synonomously, interchangeably. Reforms, of course, require that the appropriate procedure for amendment be followed, given the nature of the reform. I can see a situation where, over the next few years, some of these proposed amendments or reforms will make it and others will not. I think that probably we shall see the present Constitution partially amended, and those amendments may go to quite an important extent.
Senator Marchand: In the course of public debate there will be a tendency, I presume, on the part of the federal government to say, “That’s it. It is an entirely new Constitution. This is a new federation that we are creating.” The provinces are probably going to play that down and say “It is only a few amendments.” The truth is probably in between. it is not simply an amendment. We just do not correct section 91 or section 133; and, at the same time, I cannot see it as being a brand new constitution, creating new political structures in Canada.
Professor Lederman: I think I agree with you, sir, in the sense that in the political, constitutional and legal life of a country you can never wipe the slate clean and start all over again. A great deal of what we have now—
Senator Connolly (Ottawa West): Unless you have a revolution.
Professor Lederman: Unless you have a revolution.
I am suggesting that there could be quite a considerable number of amendments, and after five, six or seven years you would look back and say, “Well, this is not an entirely new constitution, but in some respects it is quite new; a lot has been changed.”
I am reminded of a remark that the late Premier Daniel Johnson made in one of the federal-provincial conferences in response to this kind of question. He said “We don’t want divorce; we just want the marriage settlement rewritten.” Perhaps that puts it pretty well. You would not entirely rewrite the marriage settlement.
Senator Connolly (Ottawa West): I think he probably said the marriage contract.
Professor Lederman: Yes.
Senator Grosart: Perhaps it should be pointed out for the record that the document itself makes this distinction. Clause 1 says that this act may be cited as the Constitutional Amend-
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ment Act whereas Part I may be cited as the Constitution of Canada Act. It makes that distinction, and the explanatory note goes on to say that it leads to a new Constitution. It is on the second page of the bill.
Senator Marchand: One day I am going to read that bill!
Mr. Cowling: Professor Lederman, no changes are proposed to sections 91 and 92. The view has been expressed—and, of course, that is an important area, as I think you yourself acknowledged in your opening statement—that it would be better to negotiate a reallocation of such powers as are in sections in 91 and 92 and present a complete package for constitutional amendment, rather than to go at it in stages, as appears to be happening in this bill, where those important matters are being left to some future phase. Have you any comment to make on that?
Senator Connolly (Ottawa West): Mr. Chairman, might I supplement that by saying that I detect in the appendices your own view that this is only part of the package and that perhaps the important part of the package—namely, the reallocation of powers—really precedes, or should precede, this step.
Professor Lederman: I would respond to that by making two points: First, in my own view of the priorities, the most important constitutional areas for change, in view of the present crisis in Canadian unity, are the Charter of Rights and Freedoms, the division of legislative powers, and the Supreme Court. If we can reach viable, sensible, wise changes in those respects, we will have done the main job. I agree with the proposition that it is time for the division of powers to be front and centre.
Senator Connolly (Ottawa West): Would you also say that this bill, is a serious overreaching in the extent of the change that it proposes?
Professor Lederman: In the views I have just presented, I am making a distinction between the substance of the proposed reforms and the constitutional methods that are appropriate to bring them about. It is in the second respect that I am differing from what the Government of Canada says, more than in the first respect. But when one says, as I have just said, that changing from the Senate to the House of the Federation, or changing the Head of State, requires the same method as for changing the division of powers, I think I am upsetting the government’s timetable, because the rationale of the things which they can do by July 1 next year is that these are the things which, if it comes to it, they think they can do by ordinary statute in Ottawa. I think they have over-reached. Yes, I do think so.
Senator Lang: Perhaps I could direct Professor Lederman’s attention to his observations with regard to his proposals with regard to the Supreme Court. I have not had time to read the appendices, Professor, but in your brief you say:
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—it is necessary to have regional quotas, in some cases provincial quotas, for membership in the Supreme Court of Canada. This has always been so in our federal country and, so far as I can see, always will be so.
As far as the latter remarks are concerned, I do not read anything in the British North America Act that implies a quota or regional basis for the Supreme Court of Canada. I think rather that the converse is the correct interpretation— that is, that the Quebec representation on that court was not for the purpose of primarily representing Quebec as a province, but rather to ensure that there are judges learned in the civil law on that court. If what I am saying is correct, it grinds right in the teeth of what you are saying. Would you care to comment on that?
Professor Lederman: I realize—
Senator Lang: You may also be flying in the teeth of the Chief Justice of Canada on this in view of his recent address given in Halifax.
Professor Lederman: With respect, I do not think I am in collision with the Chief Justice of Canada. I hope I am not.
Senator Flynn: Why?
Professor Lederman: Because I have the highest respect for him.
I agree with you that there is nothing in the British North America Act which requires or even suggests that there be regional representation in the membership of the Supreme Court of Canada. A good deal of our Constitution is made up of unwritten but well established customs, conventions and usages which have emerged in the official practice of the country and which have been approved because they have been respected for many, many years. I believe this also occurs with the federal cabinet. There must be regional representation there.
The requirement is that there be three judges from the province of Quebec, as a matter of Statute, and as a matter of usage and practice, the remaining six break down as follows: one from the Atlantic provinces; three from Ontario; and two from the West.
I think this allocation of Supreme Court judicial vacancies has been consistently observed, so one has to ask why, what is the reason. I think it is important to make the point that there has to be some regional representation observed in the membership of the Supreme Court for the simple reason that this is a very diverse country. We have very diverse provinces and regions and I, as a citizen of Canada, would like to be sure that when the nine Supreme Court judges sit down in their private conference room, simply because of the lives they have led and the parts of the country they come from, that they are judges knowledgeable about all parts of our country, This is what lawyers call “judicial notice.”
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What I am really talking about is what one can take for granted the judges know. When that court is so important in its powers to determine issues of national significance, then one wants to be sure that when they are considering these issues as a court there is someone there who knows what the people from the Atlantic region know and take for granted, and what the people from the West know and take for granted.
I am not suggesting that a judge appointed from the province of Nova Scotia would look after the interests of the Atlantic region as if he were a member of Parliament from the Atlantic region. I am suggesting that someone with the background and the life of the Atlantic region in his bones be there.
Senator Lang: Would it not be better to leave this as a matter of custom and usage rather than incorporate it as a legal requirement?
Professor Lederman: I would be content to have it left that way because customs and usages can be very strong and enduring and command as much recognition and obligation as a written constitution.
Senator Lang: And be more adaptable?
Professor Lederman: Yes.
Might I refer to the suggestion I make in the appendix. In the appendix I suggest that the Supreme Court of Canada membership be increased to 15 with a minimum quorum of nine. This is done so that there will only be one court. If this were the case, there would be some room for manoeuvrability. My suggestion is that the breakdown be as follows: five judges from the province of Quebec, being a constitutional guarantee, if Quebecers wished it to be constitutional; one judge from the Atlantic region; two judges from Ontario; and three from the west. That would leave four judicial vacancies. These vacancies would be unallocated. I suggest that these four could come from any area of Canada other than Quebec, because Quebec is guaranteed five. So, I would modify the regional representation in that manner. You will find that idea developed in the second appendix.
Senator Lang: People far more knowledgeable than myself in these matters have suggested that to enlarge the Supreme Court of Canada beyond the number of nine would really reduce its manageability and effectiveness and turn it rather into a committee than a court of law. Would you care to comment on that?
Professor Lederman: Yes, senator. There are quite a number of courts in the world that are operating with larger numbers. I think the court of the European Community has about 20. I am not sure I have the figure exactly right, but the International Court of Justice at The Hague has 15 or 16 judges.
Senator Lang: Do they sit en banc?
Professor Lederman: I could not tell you that, but I think they do, in the main, sit en banc. The Supreme Court of the
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United States has nine only. The Americans have interpreted their Constitution as meaning that the full court of nine must sit, although I think they can proceed with a quorum of eight or seven if one or two are ill. I think perhaps the fact that the Americans have been at nine for so long has us a bit mesmerized about the number nine being of more significance than it is. With a court of 15 and a minimum quorum of nine there would always be an overlap of at least three between any two panels of nine of the court. I say a minimum quorum of nine, and I suggest also that on important constitutional matters you might get the full court sitting, or a higher number than nine.
With respect, if the number of Supreme Court of Canada judges was increased I do not think the collective and corporate quality of the court would be seriously impaired. Indeed, I think the court is overworked at the present time, and this would ensure them more judicial manpower.
Senator Lang: Do you mean even since the establishment of the federal judiciary rules of the Supreme Court on the limitation on appeals? Are you suggesting they are now, at this time, overworked, or are you talking about prior to the limitation on appeals?
Professor Lederman: They were certainly overworked at that previous time, as their backlog indicated at that time. I think the backlog is under better control now, but the Supreme Court of Canada judges still find themselves working very hard, and I believe the judicial business and the issues of importance in this country that will require their attention will increase, and they might welcome having more judicial manpower.
For instance, when a panel of nine is sitting the other six can be sitting in two panels of three hearing the applications for leave to appeal. That is a quite serious part of the work of the court. If they are going to have the consent jurisdiction they must have hearings for leave to appeal. However, I do want to emphasize, as I did in my paper, that I am one of the principal defenders of the independence of the judiciary, and I still do defend them. The proposals I am making are not in any way designed to impair, and I do not believe they would have the effect of impairing, the independence of the judiciary.
Senator Flynn: Rather than increase the number of judges of the Supreme Court, would you not consider that in constitutional conflicts—I am not speaking of constitutional matters-just conflicts between, let us say, the federal government and a province or otherwise, it would be better to have a special panel with, let us say, input by the chief justices of the provinces? As you know, the criticism of the Supreme Court is that it does not take the side of the provinces very often; not as often as the Privy Council used to do. Do you not think it would be better to have a sort of constitutional panel in conflicts? I do not mean when a statute is being interpreted.
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Senator Connolly (Ottawa West): Ad hoc.
Senator Flynn: Ad hoc, yes.
Professor Lederman: I am not in favour of that proposal. I would rather tackle the problem you have raised from another direction. That is why I have proposed the enlargement of the nominating council idea and the extension of the powers of the nominating council, so that there would really be input from the provincial governments and from the opposition parties into the establishment of the list of persons eligible for appointment; then the Governor General can appoint, but he is confined to appointing from that list.
I would rather approach the matter from the point of view of a mixed nominating council which assures that the attorneys general of the provinces and the ministers of justice of the provinces, as well as their opposite numbers in Ottawa, have a really effective input into the selection of the judges who are to sit on the Supreme Court in the first place. I would rather see that than a special panel of provincial chief justices dealing with constitutional issues.
Senator Flynn: I mean with members of the Supreme Court. I am not speaking of a panel composed exclusively of provincial chief justices. I am speaking of a panel composed of members of the Supreme Court.
Professor Lederman: I would rather go the other way, which I have described.
Senator Flynn: I appreciate that. However, I think that from the public viewpoint they would have, let us say, more confidence that the viewpoints of the provinces are being better preserved. After all, the attorney general of a province is only one members of the nominating council.
Professor Lederman: Yes, that is right enough. However, I think we have to face the fact that constitutional issues that reach the Supreme Court level are extremely difficult, extremely complex, and in the utmost good faith the most objective and impartial people can find themselves going in different directions on the issues. I believe this is the main point that Chief Justice Laskin was making in the address to which reference was made earlier, and I would entirely support what he says in that respect. Judges operating independently in the utmost good faith, and with great ability, will find them selves differing. I do not think you will be able to put together any group of judges who will find themselves unanimous on difficult constitutional issues. On difficult important constitutional issues in the country I expect that decisions of the constitutional court, however it is put together, will always be somewhat controversial.
Senator Flynn: Oh yes, of course.
Senator Neiman: Touching on the subject on the Supreme Court for a moment, I wonder how much you feel should be embodied in the Constitution, How much of what you have proposed, for instance, do you think should be embodied in the Constitution, and what should be left to, say, the Supreme Court Act or some amendment thereto?
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Professor Lederman: I agree with the government’s proposal that the status of the Supreme Court should be guaranteed in the Constitution. At present all we have in the Constitution is that the Parliament of Canada has power to constitute a general court of appeal for Canada by ordinary statute. I think we should go as far as the Americans have gone and prescribe in the specially entrenched part of the Constitution that there shall be a supreme court.
Senator Neiman: But not specifying, for instance, its size or its composition on a regional basis.
Professor Lederman: So far in Canada and in the United States we have been successful in leaving this to ordinary statute. The number of Supreme Court justices in the United States is established by a statute of Congress, and the number of Supreme Court judges in this country is established by a statute of the Parliament of Canada. If the people are willing to accept that, then well and good. But again, it may be that Quebec, and other parts of the country, too, would want more assurance about not only the constitutional status of the court, its existence and its essential jurisdiction, but assurance about its membership. If we find, for instance, that Quebec wants that kind of assurance, then I think we will have to go ahead and probably entrench these things in the Constitution.
Senator Neiman: Then with regard to your statements about the government having gone too far in specifying what can be done by ordinary statute, I would just want to be clear on this matter, Professor Lederman. What you are really saying, in effect, is that you feel that a good part of what is contained in this bill is, in fact, beyond the reach of the government of Canada to accomplish by itself; that, in fact a lot of that should be done by agreement with the provinces; and that the government of Canada is attempting to do too much in changing the status of the Queen and the Governor General as well as the upper house by unilateral action.
Professor Lederman: That is right. That is my position. In those two respects, I think the governement of Canada is wrong to say that it can accomplish these things by ordinary federal statute. I distinguish this from the substance of their proposals. They have, I think, readily conceded that on these matters they should be consulting with the provinces and should get provincial opinion, but they are in effect saying that in the end they could go ahead with ordinary federal statutes, and this is what I am denying. I am referring to our established constitutional usage about constitutional amendments and about when we have to follow the more elaborate process requiring the concurrence of the provinces and the parliamentary address from Ottawa to London. I am saying that there are more matters in that category and fewer matters in the ordinary statute category than the constitutional experts of the government of Canada believe. So I am differing from them. I am a bit of a heretic.
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Senator Bosa: Mr. Chairman, on page 8 of his brief Professor Lederman states:
I think the present Senate, with great respect, has performed well as a place of sober second thought and revisions, but that it has not succeeded as a second chamber representative of the provinces and regions;
I am not aware of any device under the present system whereby the senators could speak for the provinces or regions from which they come. So far as I am aware, there is no provision which could allow them to meet with the provincial legislatures or the government of a particular province in order to advance the interests of that particular region. I have not seen anything in the proposed House of the Federation, nor have I seen any provision for a mechanism—at least, not that I have been able to discover—which would cure this anomaly. Even if the members of the House of the Federation were elected directly, as you have stated, or were appointed proportionately according to party affiliation, how would they present the views and judgments in the new chamber? Whose judgment and whose views would they present? Would it be the views of the provincial legislature, or the views of the government of the day, or the views of the party to which they are affiliated? I fail to see how this anomaly can be corrected. In other words, what I am trying to say is this: Does the stage remain the same, the only change being that the actors would be drawn from different unions? Is that the only change that would take place?
Professor Lederman: I suppose that in making that statement I am thiking of one thing; I am thinking of how the present Senate is perceived in the country. I think the weakness there, with great respect, is that there is no electoral process behind the selection of senators, as there is, for instance, in the United States or Australia. I think the credibility of the Senate, the power of the Senate and respect for the Senate would be greater if somehow a suitable electoral principle were introduced into the selection of senators. Now that does not address your point directly. Let us suppose that this is done and all these ladies and gentlemen arrive in Ottawa, half of them from the provinces, and half of them, if I had my way, elected by the respective members of Parliament of the various parties in the House of Commons, would they perform any differently than does the present Senate? I do not know the answer to that, but I would make the same kind of comment that I made to Senator Lang about the fact that I would like to be sure that there was a good quota of people from all the major regions of the country representing in the second chamber all the things that people in their respective regions of the country take for granted because they live with them and know about them, while people in other parts of the country do not necessarily live with them or know about them. But I could not predict whether the so-called House of the Federation would succeed better in this representational sense than the present senators in fact do.
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Senator Bosa: Would it then be just as well to develop a formula, or some mechanism, whereby there would be dialogue between the members of the House of the Federation and those of the legislative assembly of the province that they came from? Should there not be a provision whereby there would be meetings at given periods between the two groups?
Professor Lederman: I do not think, sir, that you would have to provide for that. I think it would happen naturally.
The Chairman: It has not happened naturally over the last hundred years.
Professor Lederman: But I think in these cirumstances it would tend to happen, because the conditions would be rather different.
Senator Lang: If they wanted to get re-elected by the local legislatures I suppose they would have to go back and curry some favour.
Professor Lederman: Take the provincial senators from Saskatchewan, for example. This is going to be looked at again after each Saskatchewan election.
There is another point that I would like to make. I do not see the second chamber as a substitute for the federal-provincial conferences of first ministers, or for all the other types of federal-provincial conferences that go on. I think we need all of that as well. I do not think the first ministers of the provinces would perceive their provincial quotas in the House of the Federation as eliminating the need for federal-provincial conferences, or, indeed, as serving the purposes that those conferences serve.
[Translation]
Senator Riel: I might present a little bit of a problem here since I prefer to speak French because it is the language in which I am most proficient. Furthermore, I understand that provision must be made for translation.
Dr. Lederman, here is what I would like to ask you. From what you say on page 10 of your brief, you seem to doubt very seriously that in the present situation the Federal Parliament would be granted, by amendment or by statute, the power to adopt an amendment to the Constitution the power to modify the Senate, for example, in fact to abolish and replace it by another House. Am I correct in understanding that this is what you believe? That means that in the case of a serious constitutional matter affecting the rights of the provinces, or in which the provinces would have an interest,—the Senate, for example-—the Federal Parliament would not be empowered to abolish it unilaterally. Did I understand you correctly?
[Text]
Professor Lederman: Yes, sir, you do understand me correctly. That is what I am saying. When you are making a major renovation, a major change, in the whole basis of the second chamber, then I say you have to follow the special constitutional amendment procedures. There would be a great many lesser changes that could be made by statute, of course.
Senator Marchand: Is the reverse true? When Quebec abolished the Legislative Council, for example, I do not think they asked for the consent of the federal government.
Senator Flynn: That is not the same thing at all.
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Professor Lederman: Your point is well taken, sir, about the abolition of the provincial legislative councils; but those were not the central councils of the Parliament of a federal union. They were the second chambers of provinces only, and they did not have federal functions to perform. The second chamber of the central Parliament of a federal union is a different matter.
Senator Lang: It is section 92.
Professor Lederman: Yes. The second chamber of the federal Parliament of a federal country is in a different position, I would say, from that of the second chamber, within a province, of the provincial legislature.
Senator Marchand: I think it is more of a philosophical attitude than a constitutional one.
[Translation]
Senator Riel: Anyway . . .
The Chairman: Another question?
Senator Riel: Yes. With your permission, I should like to ask a couple of questions. With all due respect for Senator Marchand, we will take up the abolition of the Quebec Legislative Council between the two of us.
But, that means that you would go as far as saying that if for example, there is a statute or a constitutional amendment aiming to abolish the Senate, that amendment in order to be enacted, would have to be approved by each of the provincial legislatures which would confer it more legal weight, would it not?
[Text]
Professor Lederman: Yes, sir. I would say that abolition of the Senate, or any other second chamber of the central Parliament of the federation, would require provincial consent.
Senator Riel: Of all of the legislatures? Unanimously? If one were to object, the proposal would not have legal force, in your opinion?
Professor Lederman: Well, the present position is that the unanimous consent of the provinces is necessary for special constitutional amendments; so, yes, it necessarily follows logically from what I am saying that one province could veto the abolition of the Senate, or any other second chamber that we had at the national level.
Senator Connolly (Ottawa West): So could the Senate.
Professor Lederman: So could the Senate, of course.
[Translation]
Senator Riel: That is it, the Senate would also have to give its consent on top of that?
[Text]
Professor Lederman: Oh yes. The special amending procedure involves a joint address of the House of Commons and the Senate of Canada, and if the senate refuses to concur with the House of Commons you do not get the joint address, and that is a veto, too.
Senator Forsey: How much is left of section 91, head I, in your view, Professor Lederman?
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The Chairman: I think we had better stick with Senator Riel for the time being.
[Translation]
Senator Riel: Yes, I shall only ask a couple more questions.
According to you, Professor Lederman, is not a constituant assembly elected by the people of Canada to study and pass a new Constitution the best way to give our country this new Constitution?
[Text]
Professor Lederman: I must apologize, sir. My French is very poor.
Senator Riel: I was relying on the translation system.
Professor Lederman: You are asking if we should compose some kind of special constituent assembly to deal with these special, important constitutional changes that are proposed. My view on that, sir, is that I am opposed to the idea of a special constituent assembly. I think it is necessary that we should work out our destiny by the use of our existing legislative bodies, our existing political parties, our existing parliaments and our existing governments. The amending processes are there to be followed, involving consent of provincial governments, consent of the federal government, consent of both houses of the federal Parliament, and this kind of thing. I would not want to see the process of constitutional amendment given over to some special body of “prominent citizens”. I think this would bring with it a great many problems with which we could not cope. It is going to be difficult enough to deal with these problems with our established political systems, our established bodies, our established parliaments and governments. That will be difficult enough. I think a special constituent assembly would get us into a position where really nothing would move at all.
Senator Riel: In the United States, when they had their constitutional assembly, believe it lasted for about five or six years. That was in Philadelphia. In France they have had several, as you know. Even in the Catholic church the council lasted many years. In connection with one measure and fundamental change that was made in the sixteenth century, they sat for over thirty years.
I am fifty-six, and over the year I have heard of changes in the constitutional field in this country, and of constitutional meetings and wranglings, first ministers’ meetings, and so on. Perhaps it would be worthwhile to have a constitutional assembly elected for five years and to say, “Try to give us a constitution; if you cannot, we will keep what we have.”
So long as we are going to submit, as you have said, any major change to the unanimous consent of all the provinces and some are not as large as others we might not be able to proceed for a century from now.
I thank you, Professor, I would like to ask you one further question. You know that the system of electing senators by the assembly has been in force in the United States for a long time, and that it was abolished in 1913 by an amendment to the United States’ Constitution, The two senators for each state were elected by the local assembly, and apparently it
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gave rise to some abuses. You are aware of the system that was prevailing at that time, I am sure. Do you see a similarity between what is suggested in this proposal of the government to elect senators by the local assembly and the members of Parliament, and the election of senators that took place in the United States before 1913 when they were elected by the assemblies?
Professor Lederman: The trouble is, one is not sure what the government is proposing about how the provincial senators get there. I am saying that I would like to see an electoral process. I do not think there would be any harm in trying it as an indirect election process to start with. If that did not work, we could then go on to direct elections in the provinces, as the Americans went on to direct elections in the United States. We could try it out.
My point generally has been that in any constitutional change in our country we stay with the legitimacy and authority of our established constitutional usages and the regularly elected and appointed people who man our government systems now. I would not want to turn to a special constituent assembly. We shall have to work out our fate by the use of our existing systems.
Senator Denis: Mr. Chairman, I have a short question related to that. Professor Lederman, do you think, having regard for the way it is written, that the provision in this bill for changing the Senate into the House of the Federation means abolishing the Senate.
Professor Lederman: Yes sir, I think it means abolishing the present Senate, and substituting for it what the bill calls the House of the Federation.
Senator Connolly (Ottawa West): Therefore you think it requires the unanimous consent of the provinces?
Professor Lederman: With regard to this matter of unanimous consent of the provinces, I will make reference to lecture that I gave in March for the Law Society of Upper Canada series of March lectures, in which I gave a rather long paper on constitutional amendment and Canadian unity. Constitutional usages do develop and change. With the greatest respect to the Prince Edward Islanders, it is unlikely that a Prince Edward Island veto would prevail. As a matter of our special amending procedure—the procedure which requires the concurrence of the provinces—if you got the concurrence of the three of the four Atlantic provinces, of Quebec, Ontario, either Saskatchewan or Manitoba, and also Alberta and British Columbia, that probably would be accepted in Canada and Great Britain as substantial concurrence of all the provinces.
I have developed this argument in great detail in this series of lectures, and it is now published and available. Certainly a very high degree of provincial concurrence would still be necessary for the special amending procedure. But with the
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greatest respect for the Prince Edward Islanders, I do not think that a Prince Edward Island veto (a) would be very likely politically, or (b) if it occurred, would alone take effect.
The Chairman: That is a good example of a short intervention turning into a long intervention. I will have to be a little more careful about the questioning. There are a number of senators who wish to ask questions. Senator Grosart has apparently lost patience and has left the room for the time being. I ask honourable senators to limit themselves to their question, and supplementary questions dealing with the same subject should be asked at the same time. Otherwise we shall be hopping from subject to subject as different senators raise different questions.
Senator Godfrey: I have a series of supplementary questions, the first of which is as follows: You gave an opinion on the question of the abolition of the Senate. I am not sure whether you were giving an opinion on what you thought was constitutional usage or whether you were giving a legal opinion. In other words, have you examined the provisions of the 1949 amendments and decided under that wording it would be found to be illegal, or is that what is proper and right? Which opinion are you giving us?
Professor Lederman: I am arguing, Senator Godfrey, constitutional law. I think unwritten usages and customs can reach the level of crystallizing into constitutional law. In using that phrase, I am quoting Chief Justice Duff in the Labour Conventions case, the part of it in respect of which he was not overruled higher up.
So, constitutional usages can crystallize into constitutional law. When that has occurred, they should be recognized by the court. To contravene them would be contrary to constitutional law. ln other words, it would be illegal.
Senator Godfrey: Earlier on you talked about inserting in the written constitution regional representation whereby certain regions would want assurance of representation. Speaker on behalf of the province of Ontario, I should like to ask you what would happen to Ontario? Under your proposal and under the proposal set forth in this bill, Ontario loses the custom and usage of three Supreme Court judges. In effect, it is only entitled to one seat on the Supreme Court bench, and two seats under your proposal. Why do you worry about the other provinces and not Ontario?
Professor Lederman: I suppose it is because Ontario is big enough to take care of itself without special constitutional safeguards. Ontario is an anglophone province. It is not primarily a francophone province as is Quebec. It is not by itself in that sense. There are eight other anglophone provinces. I do not think Ontario needs protection by special constitutional measures. I suppose this is why Ontario governments have been usually pretty quiet about it.
Senator Godfrey: You said that it would be difficult to predict how the members of the new House of the Federation
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would perform. In trying to predict this, would it not be fair to look at the performance in the Senate of the former premiers of the provinces in determining whether they are primarily interested with their own province or whether they are Canadians in the wider acceptance of the word. Would that not be something to consider?
Professor Lederman: Senator Godfrey, I cannot answer that question.
Senator Godfrey: You have not studied it?
Professor Lederman: I have not sat in the gallery of the Senate on too many occasions. I dare say there are many people in this room who can answer that question, but I am one of those who cannot.
Senator Godfrey: One other matter I wish to raise is that you do not comment at all in your paper on the proposal with respect to Civil Code matters. I should like to ask you why Quebec needs this special provision? There has been a paper written by Professor Kwavnick with respect to the statistics on the differences of opinion held by common law judges and civil law judges. I should like to know whether you think Quebec needs that; whether there has been any agitation among Civil Code law professors; and so forth, and why, if Quebec needs that protection, do the common law provinces not need equal protection. In other words, why should Civil Code judges be qualified to sit on common law questions, but judges trained in the common law be prohibited from sitting on matters dealing with the civil law?
Professor Lederman: This is an important point. You are quite right when you say I omitted to raise that in my paper. However, I have a number of things to say about it.
I believe Professor Peter Russell did an important study on the Supreme Court of Canada for the B&B Commission some years ago. He explored very carefully the question as to whether the Supreme Court of Canada had distorted the civil law of Quebec in appeals from Quebec. He could find no satisfactory evidence that the Supreme Court of Canada had, in fact, distorted civil law issues or misconceived them when they appeared before that court. For instance, he found that, when the majority of the Supreme Court judges went a particular way on a Quebec Civil Code issue, at least some judges of the lower courts in Quebec had gone the same way.
Many of these issues are controversial, in any event. We all know that when judges divide, they divide as often on civil law issues as on common law issues, whether they are civil law trained judges or common law trained judges.
A second point I should like to make—and again Iain in the presence of those who might know a better answer to this—is that I suspect that there are not many pure Civil Code appeals
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reaching the Supreme Court of Canada now, because of the control the Supreme Court has by way of consent jurisdiction over civil cases. It is not necessary now for Civil Code cases to go to the Supreme Court of Canada unless they raise some issue of national importance, such as some interpretation of an insurance law section which is found in other provinces as well as in Quebec. Unless there is something like that, the Civil Code issue will not get leave to appeal, and the decision of the Quebec Court of Appeal will be final. I suspect there is a great deal of that happening now, so that the issue is not as real as it once was. I honestly do not think this protection is necessary.
Another point is that the pure common law is now greatly modified by statute in all common law provinces. I think most of the cases that come before the court involve statutory interpretations, and not common law points. I think increasingly that the same thing is true in the province of Quebec. Increasingly it is a question of rather new statute law, some of it no doubt as a result of reform to sections of the Civil Code. A great many issues before the courts of the country are statutory interpretation issues and no longer pure common law or pure civil law.
Senator Godfrey: I have one more question. I am watching my time.
The Chairman: I am asking you to be courteous to your colleagues.
Senator Godfrey: When are we supposed to finish this?
The Chairman: There is no rush to finish. Please continue.
Senator Godfrey: According to your paper you are in favour of the ratification of appointments by the proposed House of the Federation. In view of this rather elaborate procedure of nomination that you are advocating, and the procedures provided for in the bill, what is this ratification for? Is it purely cosmetic? What useful purpose will be achieved by ratifying a Supreme Court appointment in the House of the Federation when you have gone through all this elaborate procedure of consultation with the attorneys general and the appointment of all these people? Can’t you trust them? What is the point?
Professor Lederman: Your point is well taken. I have fudged that point. If we could get the kind of nominating council I am talking about in the appendix, then I should think ratification by the House of the Federation would be superfluous, and I suppose I should have said so in so many words. You are quite right on that point. If the nominating process is everything it should be and if it follows the best pattern in these matters, which for instance is available in the United States’ experience, then the ratification procedure is not necessary. The ratification procedure in the United States—and it applies to the Supreme Court of the United States and all
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federal court appointments—has not been particularly effective.
Senator Smith (Colchester): I direct Dr. Lederman’s attention to the sentence on page 8 with reference to the Senate, which reads:
I think the present Senate. . . has performed well as a place of sober second thoughts and revisions, but that it has not succeeded as a second chamber representative of the provinces and regions.
What evidence is there for the second half of that statement? What evidence is there, or what reasons are there to believe, that the method of appointment set out in the Constitution would improve that if mere regional distribution of seats is what gives regional representation its weight? Is there not a danger, if the people are elected on a pretty short—term basis and know they are going to have to get elected again if they want to return, that this will tend to make them mere lobbyists for the region, or even the political party, by which they are elected, and thus tend to give them very little opportunity to pay attention to the first role that you mention, namely, sober second thoughts? Also, will not the multitude of political affiliations tend to make the House of the Federation a rather incoherent place in terms of reaching any consensus of action on controversial subjects?
Professor Lederman: These are very vital points. This is where I must emphasize what I said earlier, that I would respond as best I can, but there are questions I cannot really answer. I am afraid I cannot answer, because to a very large degree what would really happen is not predictable One thing that impresses me, and one thing that is behind my remarks, is that the Senate would have a better image and a better profile in the country if there were an electoral principle of some kind behind the selection of its members.
Secondly, I would point out something that is in the federal proposal, which I think is very important, and that is that the quotas of senators by parties are proportionate to the popular vote in the immediately preceding general election. I think that is a very important provision. As I believe Senator Forsey, or someone, has worked out, it would mean, for instance, that the Liberal Party would be in a small minority if the House of the Federation today were composed in those proportions.
Senator Smith (Colchester): I would not find that offensive.
Professor Lederman: What I am saying is that you will get quite a different party composition. I have discussed this with a number of colleagues in my own department and in other departments at the university but of course I take responsibility for my own views. There is quite a difference of opinion about how stable membership of the House of the Federation would be under this plan. There are those who think—and on the whole I believe I am one of them at the moment—that you would not get a rapid change in membership in the House of the Federation, that it would be reasonably stable. For instance, the proportions of the popular vote in the respective provincial general elections and the federal general election
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don’t change that much. A small percentage change can get you a change of government in the House of Commons, but it is not necessarily all that great a change in the proportions.
Senator Smith (Colchester): But the people who have to get themselves elected indirectly might very well find themselves replaced by the people who are exercising that indirect right to vote. That is the question I have about that kind of argument.
Senator McElman: If I could interject, Senator Smith, I would point out that party leaders change very rapidly in provinces too, which is another factor.
Senator Fournier (de Lanaudière): It depends upon the party.
Professor Lederman: Certainly in this respect it seems tht we would be taking a step into the unknown. There are wide differences of opinion about whether the membership of the House of the Federation would be reasonably stable and would not change rapidly, or whether it would indeed change rapidly and be very unstable. I just don’t know the answer to that question at this time.
Senator Connolly (Ottawa West): How good would it be on the revising of legislation?
Professor Lederman: I am not sure what the answer to that is. I don’t know. I suppose it depends on the answer to the earlier question as to how stable the membership would be. If the membership proved to be reasonably stable, then the sober second thoughts and the revisions would be there. If the membership was constantly changing, then they would not be there.
Senator Smith (Colchester): I am afraid I would have to take issue even with that, because to me the weakness of the thing is that if it is going to be the desire of the members to stay there they have got to accommodate themselves to what their constituents wish; namely, the regional parties as well as the parties in the House of Commons. Consequently, they are not going to lend themselves very much to doing revising that those parties would not readily approve. I am almost certain that human nature is such that that would happen.
You don’t have to stay in politics to find that out. You can look at boards of directors, labour unions, or anywhere where there is any electoral process—even churches, if I may say so. The person who wants to hold a certain job, and knows he has a certain set of constituents on whom he must rely to hold it, is going to tailor his views to something that is not going to be very offensive to them, and that tends, I think, to colour his attitude towards any question that is or may become controversial.
Professor Lederman: Well, I would throw these two further thoughts into this discussion, senator, although I do not suggest that they are decisive. The first is that one could change the scheme so that the terms of the members of the House of the Federation were longer. The senators in the United States
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serve for six years. So you could give the senators a longer term. The other point I would make is that the life of the government does not depend upon what happens in the Senate or the House of the Federation, so that party discipline need not be as strict and would not be as strict. The life of the government depends on the House of Commons, and would continue to depend on the House of Commons, and it is this, for instance, that makes the United States Senate so effective. The life of the executive government does not depend on it.
Senator Smith (Colchester): But could not all this be achieved simply by the introduction of the usages and customs that you spoke about? There is no rule of law or constitutional custom that prevents the distribution of political affiliation of those appointed to the Senate from being precisely what you say it should be, namely, roughly according to the votes cast by parties in general elections in the country. So it seems to me that there is no need to change the Constitution for that.
The other point, professor—and I do not wish to be offensive about this s that I did not hear any answers tohe suggestion that there is no evidence that the Senate, as presently constituted, does not serve the original purposes for which it was intended.
Professor Lederman: Well, again I find myself in the presence of people who know far more about the operation of the Senate than I do, and I admit that. But as to evidence? Well, there is a lot of regional alienation in Canada at the present time. Would there have been as much of this as there is today if the Senate had represented the regions more effectively and given them more of a sense of participation in what is decided in Ottawa? Now I suspect the answer is that if the Senate had been more effective there would not be as much regional alienation as there is in the country today, but I could not prove that. And as for detailed knowledge of the operation of the Senate, as I say, I am in the presence of people who are far more expert abut that than I am, and I cannot offer any more evidence.
Senator Fournier (de Lanaudière): Mr. Chairman, I have a supplementary question. A few moments ago Senator Flynn put a question about the Privy Council. First, is it right to think that the Privy Council is more a council than a court, in the usual sense in which we think of a court? Second, regarding decisions of the Privy Council, is it right to think they were conceived more in terms of policy than in terms of judiciary? Third, might that explain the difference between a decision of the Privy Council and a decision of the judges of the Supreme Court here in Canada?
Professor Lederman: Well, Senator, I think my own views on the answers to your questions are these: The Judicial Committee of the Privy Council was, and is, truly a court. It is, in effect, five or six of the top judges of the United Kingdom. Occasionally, there is a chief justice from one of the overseas territories included, but usually it consists of four or five of the leading judges of the United Kingdom. It is almost
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the same court as the English House of Lords, the final court of appeal for Britain itself. So it is a true court.
Throughout the period of our Confederation it has operated as a true court, and our experience with the Judicial Committee, now that we can look back on it, is that they were very sensitive to the rights and powers of the provinces. Indeed, some would say that they safeguarded the rights and powers of the provinces, and others would say that they enlarged them beyond the intentions of the founders of the Constitution. But, on the whole, I think the Privy Council was sensitive to the true regional pluralism of this country in emphasizing the rather full extent of the property and civil rights powers, and so on.
There was one respect in which the Privy Council was not very sensitive, and that was minority rights. Their record there was not so good, and the record of the Supreme Court of Canada was better. I am thinking of the appeals on the Manitoba school question, for example. I think that the Privy Council was, and is, truly a court. Its weakness, of course, was that it consisted of members who did not live in any part of Canada and who did not have in their bones the peculiar knowledge and special knowledge that Canadian judges have.
Mr. Cowling: Does the role played by the Judicial Committee as a sort of pro-provincial rights body perhaps accounts in part, from the early stages, for the Senate’s not having to focus on the question of provincial rights as much as it might otherwise have done, if indeed it is true that it did not? Did the Privy Council, to some extent, usurp the role of the Senate in that regard?
Professor Lederman: No, I don’t think it did. It was doing what the final court must always do. It was confronted with phrases which conferred power on the federal Parliament and phrases which conferred power on the provincial legislatures. These phrases overlapped in their natural meaning and at times they were conflicting, and the court had the job of reducing their meaning by interpretation and establishing an equilibrium between them. I don’t think this had much influence on what the Senate either did or did not do.
Senator McElman: Mr. Chairman, I would like to go back to the Supreme Court, but before doing so I want to comment on the proposition of Professor Lederman that we should go to direct or indirect election of the second chamber. He is proposing, with regard to indirect election, a system that was found to be unworkable in the United States and was rejected after long trial. The United States later went to an elected system, but a congressional system; not the British parliamentary one.
The other example Professor Lederman gave us was that of Australia, which went to a fully elected second chamber and, to use the words of Senator Forsey, have developed a mishmash which is proving difficult if not unworkable. That is simply a comment, Mr. Chairman, that I wished to make before going on.
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With respect to the Supreme Court, the witness proposes an increase in the court even beyond what is proposed in bill C-60, and he gave us examples of other courts that are larger, such as the one at The Hague, I believe, and the court of the European Economic Community. It must be pointed out that these are courts with national representatives on an international body, which is quite a different matter from what we are discussing. In those courts, numbers are weighted in accordance with the nations involved. The witness did mention the Supreme Court of the United States, which has nine members.
Professor Lederman, you did not make reference in that regard to the final appeal court of the United Kingdom, the Judicial Committee of the House of Lords. Is it nine?
Professor Lederman: No, sir. I think there are something like a dozen law lords authorized, and there are certainly eight or ten filling the appointments. The usual panel is five as specified by the Lord Chancellor.
Senator Connolly (Ottawa West): A quorum used to be three. It is now, I think, five, and they sit in committee rather than in the whole house.
Professor Lederman: Yes. So the way the House of Lords operates is quite different, and you could certainly get at least two panels, which are the House of Lords, and which are quite different judges. I do not think we would want that.
Senator McElman: I understand the current number is nine.
Professor Lederman: I cannot recall any situation in which nine judges sat.
Senator McElman: I am talking about the total number.
Professor Lederman: It is authorized in the legislation, and I think it is up to 11 or I2.
Senator Godfrey: Are not all former Lord Chancellors automatically judges in the House of Lords?
Professor Lederman: Yes.
Senator Forsey: Are not ex-Lord Chief Justices, too? I do not remember.
Senator McElman: At all events, is it a regional court?
Professor Lederman: The House of Lords?
Senator McElman: Yes.
Professor Lederman: I do not think any attention is paid to regional representation, though I cannot think of any time when there were not Scottish law lords. The present Lord Chancellor is a Welshman.
Senator McElman: In other words, it is a matter of custom and usage.
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Professor Lederman: I expect there would be some custom and usage. They would never get into a position where there were no Scottish law lords, I am sure.
Senator Flynn: God forbid.
Senator McElman: One of the reasons given for promoting regionalism in our court in Canada is that we are so diverse in our makeup as a nation. Are we more diverse than the United Kingdom, with Northern Ireland, Scotland—which is talking about breaking away—and Wales. Are we more diverse, really, as a nation? We are larger, but are we more diverse?
Professor Lederman: I really cannot answer that question with any certainty, sir. It involves so many facets of comparison that I really cannot do it.
Senator McElman: All right. Let us go to the United States, where there is a court of nine. Is that court regional?
Professor Lederman: I do not think they have any formal regional requirements.
Senator McElman: Custom and usage?
Professor Lederman: It would be custom and usage again. I am not just sure what the customs and usages are.
Senator McElman: Could you paint a picture for us of what the Supreme Court of the United States would look like if an attempt were made to create, under the Constitution, a regional court in that very diverse nation with all of its regions, its ethnic makeup. and it racial problems. Could you picture a court for us that would be regionalized in the United States as to size and makeup?
Senator Lang: It would be a pretty big court.
Professor Lederman: As you say, there are so many diversities and so many differences in the United States that I would certainly not attempt to do so, even as a matter of speculation, which is the only way I could answer that question. As far as Canada is concerned, we do fall into some pretty definite regions, certainly more so than they do in the United States. We have fewer regions that are more definitely divided by geography and experience than in the United States. They are beyond the point, I expect, where they could be very explicit about regional representation on the Supreme Court of the United States, but as far as Canada is concerned we are talking about four or five main regions, which to have a lot of distinctiveness. Of course, I know a lot more about Canada than I do about the United States, so I would just rest on that latter statement.
As a matter of our experience, and as a matter of the way things have been done over a very long period, we have found ourselves doing this, have we not? There has been some kind of a necessity some kind of influence, impelling us to do it. We have, in fact, done it for as many years as I can remember. One has to ask why, and one has to ask whether it is useful to do it.
Senator McElman: Indeed, one has to ask whether it is useful. I would dispute your suggestion that the United States
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is not regionalized. One needs only a limited knowledge of the country to realize how fully regionalized the United States is in terms of what happens in its Congress, which is where the action is. We are talking about the action here in Canada as well, and that is where the action is, and regions are clear and explicit.
Professor Lederman: The whole congressional system is very different, of course, and that means that the expectations with regard to the Supreme Court are quite different. Two-thirds or more of the jurisprudence of the Supreme Court of the United States deals with the enforcement of the Bill of Rights. which is a somewhat different operation from enforcing a legisative division of powers. Division-of-powers issues, as between Congress and the States, before the Supreme Court of the United States are now very rare. Most of their constitutional jurisprudence is Bill of Rights jurisprudence. So what the system demands of that court in the United States is quite different from what our system demands of our final court.
Senator McElman: But it is still a court of mine?
Professor Lederman: Yes, thats right, it is.
Senator McElman: Could you give us some basis for your proposal that the Supreme Court should be increased to 15 members. I really have not heard a strong comment thus far in support of increasing the membership of the court to 15.
Professor Lederman: The pressure of work on the court is very heavy, and it can handle 120 or 130 major cases a year. The judges, of course, must all give their personal attention to the cases and they have to write their own judgments. The judicial function has to be performed personally. So there is just that upper limit on what any one court can do.
I am suggesting that the judges could carry a slightly higher case load if there were 15 of them, and they could operate with a quorum of nine. So I think there is some virtue in the greater number, in terms of the work load that is pressing in upon them. They do not want to be in the position of having to refuse leave to appeal in important cases because they are so hard pressed; and with 15 judges available, and a minimum quorum of nine, the court, as a whole, can get through more work.
Senator Connolly (Ottawa West): The same problem must arise in the Supreme Court of the United States, though.
Professor Lederman: Yes, it does. It is even more acute there, of course. But they are more highly selective about what they will deal with. They have complete power over what they will or will not accept, and, of course, they are taking primarily Bill of Rights issues and not division-of-powers issues. We expect to be asking this court to do both.
The other reason why I suggested going to 15 judges is that it gives you the chance to manoeuvre out of this regionalism, to
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some extent. You have enough judges on the Supreme Court tht you can give a minimum representation to the respective regions, and give Quebec the one-third of the members that it has at present, and yet leave, on the scheme I outlined, four places for appointment in the country at large without regard to region.
So one is always in some kind of a posture of compromise on these issues, and that is the posture of compromise that I ended up with. I was not able to get there without going up to 15 members.
Senator McElman: Do you subscribe to the theory, particularly in matters of law, that the larger the numbers the less likelihood of reaching consensus or unanimity?
Professor Lederman: No. Often the quorum would be nine. The present policy of the court is to sit as a court of nine whenever it can. In recent years it has been doing that regularly. The nine judges are frequently able to reach and concur in one Opinion. I do not think you get a change in kind in the situation by going from 9 to 11, or 9 to 13, or 9 to 15. Often a court of 11 or 13 would be sitting, but even if there were differences of judicial view—and, as the Chief Justice has pointed out, the issues are so difficult at times that differences are to be expected if it were 6 to 3, or 7 to 2, 9 to 2, or 9 to 3, you could expect that sort of thing frequently; and that sort of majority is an overwhelming consensus of the judges.
Mr. Cowling: It would be hard to determine the ratio decidedi. You would get a decision in each case—there is no doubt about it—but with the possibility of 15 separate opinions, I realize that would be rare; but fora law student or even a practising lawyer, to try to determine what that case stood for, or to decide “was it a precedent for this?” Would be difficult if not impossible. it seems to me that possibly the court would lose credibility as a result.
Senator Godfrey: That has been the main argument that they make.
Professor Lederman: The point is that the questions which go before the Supreme Court are there because they are inherently of great difficulty, and differences of judicial opinion are to be expected. Yet someone must have the last word, someone must settle these issues in order that the affairs of the country can go on.
Senator Connolly (Ottawa West): They have come through several courts before the problems are decided by the Supreme Court.
Professor Lederman: That is right, and the Supreme Court has the benefit of the reasoning of those lower judgments and the evidence from the lower courts. I would point out, for instance, that the most difficult Bill of Rights problem of which I know—the affirmative action problem—has just been before the Supreme Court of the United States. They divided 5 to 4 on that issue. I am referring to the Bakke case, an affirmative action program for admission to medical schools of quotos from minority groups. I know of nothing more difficult in the whole area of jurisprudence than the problem of equal protection of the law. The Supreme Court of the United States
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grappled with that question, and came up with answers which permit some affirmative action systems but not others. They found themselves in a posture of compromise, and I think the collective perfomance is pretty impressive—particularly the judgment of Mr. Justice Powell, who was the swing man. He said that the California system was too rigid, it was out; but the Harvard system, of trying to match the demographic makeup of the country, to get a microcosm of the demographic makeup of the country, that was in, that was all right.
That is the kind of problem with which you often confront these final courts. So they did split 5 to 4. They have not torn the country apart. They have preserved some affirmative action programs and not others. A lot of people are not very satisfied, but most people in the United States think they can live with it. I think that is a pretty distinguished performance.
So just because you get the judges splitting does not mean that in the collective result they come out with they are not giving you a pretty impressive answer.
Senator McElman: My final question has to do with the proposal to place in the Constitution a regionalized Supreme Court, with basic minimum numbers allocated.
One of the bases for this, of course, is that the judges from Quebec handle civil law cases. What would the witness’ reaction be if, as a solution to this, and, perhaps, not requiring regionalization of that court, that civil law cases of Quebec be dealt with as the final court of appeal by the appeal court of Quebec, thereby eliminating the necessity for, in effect, a two-tier Supreme Court of Canada and a court in which only some judges can sit on some cases and all judges on other cases which is, in effect, a double standard system. If all civil cases of Quebec have their final appeal to the Court of Appeal of Quebec, would this be a satisfactory solution in the witness’ opinion.
Professor Lederman: On Civil Code isues under the law of Quebec which do not raise issues of a national nature, I would be quite content to see them stop at the Court of Appeal of the Province of Quebec. I suggested that that is happening to a large extent now because of the consent jurisdiction. I would far rather see that done than see a two tier Supreme Court of Canada.
Senator Connolly (Ottawa West): Would the Quebec Bar agree with you on that?
Professor Lederman: I do not know.
Mr. Cowling: I think that was proposed by either the joint committee in 1971 or in the Victoria Charter, or both.
Professor Lederman: I think the interest Quebecers have in wanting a strong representation in the Supreme Court of Canada relates to the interpretation of the division of legislative powers and not to the interpretation of the Civil Code.
Mr. Cowling: Mr. Chairman, may I make one observation on this point. It is interesting to note that the only provision in
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Bill C-60 on this particular subject appears to be in clause 112, and this would appear to restrict the hearing of constitutional cases by the Supreme Court of Canada. When the draftsmen return, I have some questions to ask them on this particular clause. I do not know whether the witness has considered clause 112, but I found that to be a very surprising provision.
Senator Connolly (Ottawa West): You better tell us what it is.
Professor Lederman: When I read clause 112 I felt some doubt about it, but I think I understood what they were trying to do. Let me put it this way: An able counsel who wanted to get to the Supreme Court of Canada could frequently turn up a constitutional issue in his case. It is often relatively straightforward to find a constitutional issue in almost any case, because the constitutional list of legislative subjects distributed covers the whole legal system.
There would be situations where there was not really a great constitutional issue and in that case counsel would only have to make it appear that there was a constitutional issue. What that clause does is preserve a discretion for the Supreme Court of Canada to refuse leave to appeal on those cases.
Mr. Cowling: Could they not do it by exercise of their decision on the application for leave to appeal?
Professor Lederman: I think they are specifying what the Supreme Court of Canada may refuse on a hearing for leave to appeal. I do not think there are any hidden traps in that clause.
Senator Connolly (Ottawa West): Is that not an unusual provision to have in a constitution? It says that leave to appeal can be denied. It is already in the Supreme Court of Canada by way of the recent amendments.
Professor Lederman: It ought to be looked at carefully. You have raised something that I have not given sufficient thought to.
The Chairman: May I ask for agreement that the appendices which Professor Lederman did not read be incorporated in today’s Minutes of Proceedings and Evidence?
Hon. Senators: Agreed.
The Chairman: We shall adjourn now until 2 o’clock.
The Committee adjourned
The Committee resumed at 2 p.m.
The Chairman: Senator Argue.
Senator Argue: Professor Lederman, I was interested in your suggestion that the House of the Federation should be elected—I take it, through provincial legislatures. I am just wondering how you think that would be in any way a free vote or a democratic show of the votes of the legislatures. Don’t you feel that with the party structure we have it would in fact be a
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vote of the leader of the party? We have a party system, and I would think that in my own province of Saskatchewan if a vote were taken in the legislature on the names of those who were to become members of the House of the Federation the premier would decide how the votes of his members would be cast. It might be done by caucus discussion, but in fact the premier would do the selecting and then the legislature would ratify that selection.
Professor Letterman: I understand what is troubling you, and it troubles me too. What we have in the proposal is that there should be some kind of a provincial selection process, but there is nothing that I can see in the bill that tells us what the process is to be, except the specification that the quotas are to be proportionate to the popular vote in the preceding election, and we are left with that. My main point is that that is not enough. I would like to see some assurance of a proper electoral process for the provincial quota of members in the House of the Federation. I would also like to see it uniform across the country. I have argued that as a matter of constitutional law the amendment that brought this about is so important and so much a matter of interest to the provinces that it requires the consent of the provinces as well as of the federal Parliament.
What ought to be put in as the electoral process we are left to speculate about? You gentlemen are much more knowledgeable about the reality of electoral processes and political parties than I am. I really cannot say which would be the better process, except I would stick with my main point, that I think the new second chamber, the new Senate, would have more influence in the country if somehow a proper electoral process lay behind the selection of the new senators. Just what that process should be for the provincial quota and what it should be for the federal half of the senators is one of the unanswered questions. The government has raised this question and it has not given us any particular guidance about the answers yet. All I am prepared to say firmly at this point is “yes” to some kind of respectable electoral process, but I am not sure what it will be or what it ought to be.
Senator Argue: If the legislature is involved in that process—it may not be what you mean, but I took it to be what you mean—if the legislature is to do the electing, then I suggest that in fact it is appointment by the leader of the political party in that legislature who has the responsibility or has a quota that is given to his party in that province.
Professor Lederman: That is certainly a consideration that would lead me to look to some sort of direct election. Apparently the Americans found it was sensible for them to make the change, and perhaps we should go straight to direct elections of some kind.
Senator Argue: I am not endeavouring to quarrel with that particular part of what you said. I would just go on to another point. If it is not by a general election of the populace, if it is done by premiers or leaders of the opposition, or just leaders of parties, and they are eligible for reappointment, in fact they become the waterboys of the person who appointed them. If
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they are any good they will be out to get reappointed, and if they are any good that way they will be doing his work for him and not looking at the issues before them in a broad, unbiased way.
Professor Lederman: I think that point is well taken. Perhaps the way out is to make the senatorial term quite a long one, perhaps six years, as it is in the United States, and make the elections direct.
Senator Argue: I would say that if it were by appointment, the longer the term, in general, the more security you would have and the more unbiased you might be in your point of view. However, it should be without any possibility of reappointment, I would think a person appointed by a provincial leader but not eligible for reappointment would be a better person during his time here than if he was going to be judged by his behaviour as to wheher he was good enough to be reappointed. I would think they would be unbiased to some extent if they were not eligible for reappointment.
Senator Flynn: They wouldn’t come.
The Chairman: I wasn’t sure whether that was a question.
Senator Argue: I would like a response, although I did not put it as a question.
Professor Lederman: The prohibition of reappointment?
Senator Argue: Appointment, once, for a longer term, but only for one term, maybe ten years, or in any event, a substantial term.
Professor Lederman: Again I admit that I am at an early and uncertain stage in my thinking about this, but my present inclination would be that I would not favour a prohibition on reappointment. I think that re-election might be highly desirable in some cases.
Senator Argue: If it is re-election, as I said ealier, by the broad populace, then that would be all right, but if it is re-election by a legislature, then I think that would be an entirely different matter.
Now, on your suggestion that the new body should have a chance to impose a veto for a period not of sixty days but of one year, and coupling with that the certainty that in the second chamber the opposition parties together would always be in control—because I think that is the way our multi-party system in this country would affect the composition of this new house—can you see any possible way for the country to be operated if in this second chamber you have a permanent opposition in control, an opposition that would have a chance to set aside for one year every measure that would come before it? I know you are not fully acquainted with our process, but I can say that sometimes we have trouble delaying something for a week, because they think that is too long on the other side. Are you suggesting that this second chamber should have the right to veto everything for one year and that appointments should be made in such a way that you always have a minority situation—not perhaps a minority government in itself, but that could happen too if there were a lot of cabinet members—but you would have a permanent system, for all practical
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purposes, of minority government on Parliament Hill? I think that that is one thing that this country does not need.
Professor Lederman: I think they second chamber, particularly if there were an electoral principle behind it, would be conscious of the fact that it had to be careful about public opinion, and the delay of a statute for a year would be, in practice, I think, very much the exception rather than the rule. The normal thing would be to help most things through with revisions that appear to be necessary. Two months’ delay, what does that mean in the program for getting a bill through these days? Many of these bills take months anyway. So, theoretically, the power of the Senate at present is to refuse absolutely, and the consent of the Senate is necessary to the passage of any bill, but the Senate seldom exerts the force or the full strength of its power. I think this is for many of the reasons that I have been giving. And the new second chamber would be, in my view, equally careful. But if they do not even have the power of, say, the British House of Lords, to impose a one-year delay, where does their power come from when they get into a negotiating session about amendments with the House of Commons?
Senator Godfrey: The House of Lords has only one year from the date of second reading in the House of Commons.
Senator Argue: But if, instead of your suggestion now that election be by popular vote, appointment were by the means provided in this bill, do you think it quite likely that the second chamber would be a chamber of obstruction and delay? I can see that if the opposition parties are in control, then they will be controlling the second chamber in the interest of their political party and in the interest of somebody who is not in the chamber—who is either in the province or in the House of Commons.
Professor Lederman: I confess that I am at sea about this. We are into an unpredictable area because we are not told how these people are to be selected, and the manner in which they are selected will have an important influence on how they behave when they are in office. So, I am sorry but I just cannot predict because I do not know the answers, and it is a question of how many steps in the dark one is willing to take.
Senator Argue: There is no reference in your statement particularly to the House of Commons. I wonder if you have given any consideration to how the House of Commons might be reformed to assist in the operation of the country. The Senate is up for grabs and everybody else is being changed, but I have been in both places and I think that half the trouble, or even more than half the trouble, in the country is due to the way they run the other place. Putting it in another way, do you think the status of the private member in the House of Commons should not be strengthened and that his goal should be increased so that he in fact could be an improved representative from his region and his constituency, and not just a waterboy for his leader?
Professor Lederman: Again, I am in a room full of people who know far more about the workings of Parliament than I
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do, but I agree with the last statement, that it would be a very good thing for the country if something could be done to make the members of Parliament more powerful, simply as members of Parliament.
Senator Argue: What if I suggested to you that the white paper and this bill were never discussed by the private members, that is to say, that the substance was never discussed in advance by the private members of the House of Commons? What would your reaction be to that? Would. you not think that this important constitutional proposal should have had the widest possible input initially and the widest possible discussion amongst parliamentarians?
Professor Lederman: My reaction to that is that I am not surprised, but I regret it.
Senator Barrow: On page 3, under the heading “The Federal Division of Legislative Powers”, you say:
. . . and that while it will no doubt be necessary to enhance provincial powers in some respects, it would also be wise to enhance the central federal powers in other respects.
I am sure that before the week is out we will know what the first ministers will want from the federal government, but what did you have in mind when you said that it would also be wise to enhance the central federal powers in other respects?
Professor Lederman: What I had in mind there, and I am not in a position to spell it out very precisely at this stage, is the economic power of the federal government. We live in a very difficult and dangerous world economically, and I would want to be sure that they had reasonable powers to control the central finance and the economics of the country so as to cope with depressions, international trade, international financial markets, and so on. I am thinking mainly of the need to keep our feet in the international trade world, the world of multinational corporations, the world of other powerful countries, that is to say, keeping our feet economically, which is going to be a very difficult job.
Senator Barrow: But don’t they already have those powers?
Professor Lederman: They may have enough power already, but perhaps we should look at it. On the whole, they have very large economic power now. That is true.
Senator Lang: Would you agree with Professor Morrison, of the University of Toronto, who said that we are one of the most decentralized countries in the western world?
Professor Lederman: Yes, he made that statement. We are quite significantly decentralized, but I am not sure that there are not other countries that are heavily decentralized as well. As far as the division of legislative powers is concerned, I would be more worried, I suppose, about increasing provincial powers to some extent in areas where it could be done without
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prejudice to maintaining the national integrity, That is why I used the example of telecommunications and gave an example of what could be done in maintaining essential federal powers but giving half the channels to the provinces for regulation of their program content. You will find that in Appendix I of my paper. I gave that simply as an example of the kind of re-arrangement that might be feasible, and that would take care of a very sensitive problem in the area of culture and education—radio and television—and yet maintain the essential federal powers. That is the kind of balancing that I have in mind in relation to the federal-provincial division of legislative powers, and I intended that appendix as an example, It is a very large subject, and I am afraid no other examples come readily to mind.
[Translation]
Senator Rizzuto: I would like to ask the witness if, when we are talking about electing members of the House of the Federation, taking into account the present situation in Canada, in view of the fact that the majority of the Canadian population is english-speaking and the minority french-speaking and that there are majorities in Quebec and Ontario, this would not give rise to the same type of problems we are facing now and have faced in the past, problems which have generated tensions within the country, because, some minorities claim that their rights are violated, and whether it is true or not, it is still the opinion of a large part of the Canadian population and it does create some problems.
If the senator were elected in the same manner as the Members of Parliament, I think we would have to contend with the same weaknesses because a political party will always tend to address itself to the majority in order to get elected. Be it fair or not, the fact remains that all political parties will look to the majority to get elected. We had a case like that recently in Ontario with regard to the governments and the Prime Minister’s respective positions concerning the rights of french-speaking people in that province. We also have the example of the political parties in Quebec which have always tended to look to the French majority to get the majority of votes in order to get elected.
I thought it necessary to give you these explanations and comments as I believe we should take these problems into consideration in view of our present situation in Canada. I would like to hear your opinion in that regard. I would also like to ask you to explain to us the formula you are considering for the new House of the Federation, especially if we take into account the contents of Bill C-60, that is that 50 per cent of the members of that House would be appointed by the Federal and 50 per cent by the provinces, a formula which I find most logical. However, I disagree with the idea of having the senators appointed by the political parties of the various provinces or the Federal parties, It would still be possible to meet the aims of the draftsmen of this bill as they probably
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felt that all Canadian political parties, be they federal or provincial, should be represented at the House of the Federation.
This reform could be accomplished in the long term while keeping the existing senators in the new House and dividing their seats. Let us take for example, Ontario which has 24 senators, 12 senators could then be chosen from 12 specific districts. In that manner, the Ontario government would be responsible for nominating 12 senators and the 12 others from that province could then be chosen by the Federal government. But eventually, upon the death of a senator or upon a seat becoming vacant, the government of that province could choose a replacement so as to ensure continuity in the House. This system would allow, in the long term, for the adjustment of the real participation of the provinces, not forgetting that we have different political parties in the various provinces, such as the Conservatives, Liberals, NDP’s or even Social Credit.
We could then maintain more or less the same participation and the senators would be in a better position to protect the rights of the provinces. But if they were appointed every two, three or four years let us say, they would not have enough freedom to put their views across. They should not only defend the rights of the provinces, but also the rights of the minorities of the provinces, especially with regard to the problems we have encountered up to date, problems such as the danger of separation which poses a threat to Canadian unity.
I would like to have your comments on this.
[Text]
Professor Lederman: Well, sir, I think I should perhaps re-emphasize and try to restate more fully what I have been saying about the House of the Federation. I think it is important to emphasize that its quotas of memberships are not in proportion to numbers of population. They are regional rather than population quotas. How active and how effective these ladies and gentlemen were with regard to the protection of regional and minority rights would depend in considerable measure on how they were elected, or how they got to be in the House of the Federation; and in the course of the discussion this morning 1 have come to appreciate that perhaps direct election and fairly long terms for the members of the House of the Federation, the new senators, are what one would want.
As far as the protection of minority rights in this country is concerned, I think the House of the Federation would be in a position to be quite effective in that respect; but I think that in that regard I would rest mainly on the Charter of Human Rights and Freedoms, the rights of minorities, particularly the rights concerning language and education that are set out there, and the protection of these rights by the courts. I think that insofar as the protection of minority rights is concerned, I would point to that part of the proposals as being very important. This leads us back to the importance of the
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Supreme Court and the changes, or possible changes, that would be intended to strengthen the effectiveness and independence of that court, which we were discussing this morning.
[Translation]
The Chairman: Are there other questions?
Senator Rizzuto: Yes, Mr. Speaker. Now I can see how important it could be for senators to be more independent. In Bill C-60, there are references to freedoms. At the same time, it is mentioned that provinces should protect the rights of the majority and implement measures to do so. However, I wonder who will really have the power to protect the rights of minorities? I think that the Constitution should contain a guarantee in that regard, and that one of the functions of the House of the Federation should be to really protect those rights. But, to come back to political parties, I say that a political party, in a given province, must always worry about the next election. If the Senate or the House of the Federation could intervene in that regard it would give the government an occasion to put forward the requests of the House of the Federation and to protect those rights, rather than let the province always take the initiative, because in the provinces there is always a fear to lose the next election. That is why I think we must grant longer terms to senators so that they would not be replaced every time there is a change of government. Their freedom and independence would be much greater in their relations with governments and they would protect those rights more effectively. I think that is fundamental.
I would like to know your opinion on the possibility to eliminate the problems of these minorities. Of course, it will always be impossible to eliminate those problems completely, but we could at least eliminate most of the problems we are facing now in our attempts to strengthen national unity and guarantee the future of our country.
[Text]
Professor Lederman: I do agree about the longer terms. I think that essentially we do agree.
Senator Connolly (Ottawa West): Mr. Chairman, I have two questions. The first touches on the federal-provincial conference and the other on appointments to the Supreme Court of Canada. I shall start with the second one.
I should like to ask Professor Lederman as follows: Given the fact—I think we can take it as something we can take judicial notice of—that it is difficult today to induce the very best people from the legal profession to take positions on the courts, we have been fairly successful in getting very good jurists in our system. Given the fact that it is difficult to induce people to give up a profession to go on to any court, and looking at the procedures which are highly political in a very special sense, because the procedure involves consent from the Attorney General of Canada, the Attorney General of the province or provinces concerned, and possibly reference to a Board of Conciliation for practical purposes, and ultimate approval by the proposed House of the Federation, would you think that the system proposed would result in the appoint-
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ment of the legal luminaries in the country to the courts, more than does the present system? Perhaps I should ask you to comment on what is the British practice and the kind of courts they have.
Professor Lederman: To make sure that I understand your question, perhaps what you are suggesting is that the present process has a great value in that it is—perhaps “confidential” is a better word than “secret”—highly confidential; and by these highly confidential processes and negotiations you can induce some very good people indeed to accept judicial appointments; whereas if they have to expose themselves to a public hearing in the House of the Federation, or if, in a nominating procedure, so many people were involved that word would get out about a list of candidates, the best people just would not offer themselves or put up with the tensions that would go with the public process. Is that fair?
Senator Connolly (Ottawa West): Yes, I think that is quite fair.
Professor Lederman: I think myself that the use of a judicial nominating commission could be kept quite confidential, and, in fact, I think some of the American commissions succeed in the various states in operating a highly confidential process. In some of these instances the public does not hear much about it until the appointment is actually made and announced. But they do know that this system—
Senator Connolly (Ottawa West): They have to go through the Senate Judiciary Committee.
Professor Lederman: Yes, in the federal courts, but I am now talking about the state courts, their nominating commissions. The nominating commission procedure can be kept highly confidential, and, if this is a worry, I would urge improvement of the judicial nominating commission procedure along the lines I suggested this morning, and forget about ratification in the House of the Federation; because if your judicial nominating commission is good enough and representative enough, and can operate confidentially, one could finesse this whole problem.
Senator Connolly (Ottawa West): May I ask you to comment on the process of consultation with a special committee of the Canadian Bar Association, which has been going on to some considerable extent in this country. I assume you know all about that?
Professor Lederman: Yes, sir. I think the way it works is thin: at the request of the Minister of Justice, the chief officers of the Canadian Bar Association constitute a samll committee of very senior barristers, and when the Minister of Justice porposes to make an appointment to the bench and has settled on the name, he submits the name of the person he proposes to appoint to the members of this committee and asks them to report “qualfied or not qualified”. I think that is the system.
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Senator Godfrey: There are three categories. There is also “very well qualified”.
Professor Lederman: I am sorry; there are three: “qualified,” “not qualified,” “very highly qualified”. That is good as far as it goes, but you are only dealing with one name. At that point you are dealing only with the nominee of the government of Canada, and only the one nominee. So the function of the committee is quite limited.
I have here a quotation from a member of that committee, which I think is proper to use because it has been published in the Alberta Law Review and was part of the proceedings of a public symposium on the nature of the judiciary in Alberta, The members of this committee make enquiries and report to the Minister of Justice that they consider his proposed appointee qualified, highly qualified or not qualified. You must remember that there is only one name proposed—
Senatro Connolly (Ottawa West): At one time.
Professor Lederman: At one time. The person I am quoting is Mr. G. M. Stirling, Q.C., of St. John’s, Newfoundland. He is a distinguished senior barrister of this country and a member of this committee. At this symposium in Alberta this is what Mr. Stirling stated:
While I am sure that no one here would suggest that the mere fact that a man is involved in politics or has been a staunch supporter of a particular party makes him unfit for judicial appointment, yet I have found in many instances that where I have telephoned to an area of Canada in the course of the business of this committee, my friends have said time and again that, while the party mentioned is qualified for appointment, there are several far better lawyers in that area who are not being considered.
The members of the committee know people from their own area and know people from the other areas of the country. Therefore, they can operate on their own knowledge. Certainly, Mr. Stirling could operate on his knowledge as far as Newfoundland is concerned, but he telephoned people he knew for opinions on a nominee from other places. He might phone Winnipeg, for example, with respect to an appointee proposed from there. He says, time and again, that this is the answer he has been given.
While it is good to have this sort of safety measure in operation, its efficacy is quite limited. I am in favour of a judicial nominating commission because it can positively set out in the first place to get the list of the best people available and put up the list. That is my comment on that, senator.
Senator Connolly (Ottawa West): Have you Mr. Robinette’s comment on the system?
Professor Lederman: No, senator.
Senator Connolly (Ottawa West): It has been published, as I understand it.
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Professor Lederman: Yes, Mr. Robinette may have a different view of the efficacy of the system.
Senator Connolly (Ottawa West): I don’t know about that.
Professor Lederman: I don’t know either.
Senator Connolly (Ottawa West): I think one could well say that what Mr. Stirling described could, in fact, happen in many areas.
Mr. Cowling: There would be nothing to prevent that committee going back to the Minister of Justice and saying, “Now, look here, the results of our inquiries produced some more names.” It may not be set down in a formal regulation, but that could be done.
Professor Lederman: That is true, but I do not believe the committee reads its terms of reference in that manner. With the greatest of respect, I would hesitate to say that.
Senator Godfrey: They have never appointed a man to the bench the committee has said is not qualified.
Professor Lederman: It is a valuable safeguard, but it is at the last stage of the process and not at the beginning of the process.
Senator Connolly (Ottawa West): It is something that should be looked at carefully and is, perhaps, a system that could be improved.
Professor Lederman: The judicial nominating commission is what I am thinking of.
Senator Connolly (Ottawa West): This might be a judicial nominating commission.
Professor Lederman: If you are unqualified, you do not get on the list to start with.
Senator Connolly (Ottawa West): Would you say something about the British system in that connection?
Professor Lederman: As far as I am aware, senator, the British system depends very much on the Lord Chancellor himself. Lord Chancellors, by tradition, have sought out the leading members of the bar. For many years now, this has been largely, if not entirely, free of any political influence. It is a very effective system, but it depends very heavily on the peculiar office and the peculiar prestige of the Lord Chancellor of Britain.
Senator Connolly (Ottawa West): It is confidential.
Professor Lederman: Yes, it is confidential. However, we have no Lord Chancellor in this country to fall back on.
Senator Connolly (Ottawa West): Surely, we have to rely on the Minister of Justice?
Professor Lederman: I think we would be relying heavily on the Minister of Justice as far as input into the judicial nominating commissions is concerned. If there were such commissions, they would have to have confidential secretariats and employees to set out the essential information and to help
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establish the list. The Minister of Justice would play a very important role in this.
Senator Connolly (Ottawa West): I suppose what I am really asking you to do is compare the confidential processes that we have, and that Britain has, to the proposal to have public hearings, even in a political forum, such as the House of the Federation.
Professor Lederman: I am rather unhappy about the ratification in the House of the Federation. As I said, senator, I would prefer to see the matter being taken care of by a judicial nominating commission composed of elected people representing the principal political parties and one which gives the ministers of justice, both federally and provincially, an important role. I would like to see such a body operating in confidentiality.
Senator Lang: Is that not the secrecy that you described a few moments ago?
Mr. Cowling: While the witness is thinking about that, may I get one thing straight for the record? Isn’t the Lord Chancellor a member of the cabinet?
Senator Connolly (Ottawa West): Yes.
Mr. Cowling: He is the Speaker of the House of Lords; he is a sitting member of the cabinet; and he is the Chief Justice.
Professor Lederman: He is a peculiar fellow.
Senator Connolly (Ottawa West): He has a lot of strings to his bow.
Senator Smith (Colchester): He also sits as one of the law lords when he feels like it.
Mr. Cowling: Yes.
Professor Lederman: When I say “secrecy,” senator, I mean this: I am not sure that with a large judicial nominating commission you could count on entire secrecy and confidentiality. I must say, though, that I believe the record of some of the American commissions is that they succeed in operating in this manner. If we have to choose between some publicity and a better process of selection, I would put up with some publicity for the sake of what I think would be a better process of selection. I am saying, in light of the objections raised this day, that if secrecy is more important than I think it is, then—
Senator Connolly (Ottawa West): “Confidentiality.”
Professor Lederman: Yes, if confidentiality is more important than I think it is, then your nominating commissions can be run with confidentiality. But, of course, you cannot have that in a public hearing in the House of the Federation. If you do the nominating commission thing right, you don’t need the ratification of the House of the Federation.
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Senator Connolly (Ottawa West): Do you think you would get a better quality of person on the bench with this process that you are advocating?
Professor Lederman: I would expect so, yes, but again I don’t really know. This is not something one could prove, because it is not a step we have taken yet. I want to make it very clear that I intend no disparagement of the present or the past members of the bench.
Senator Connolly (Ottawa West): My second question has to do with the federal-provincial conference. It has been said that the purpose of the House of the Federation was to give the provinces and regions a direct voice in affairs on Parliament Hill. In view of the fact that in the bill there is provision for the calling of a federal-provincial conference of first ministers annually—and we know that there is such a thing established by statute, a Federal-Provincial Secretariat; that is in being and serves the federal-provincial conference when it meets—would you think that a more viable and credible voice for the provinces could be found if the concept of the federal-provincial conference were elaborated or structured so as to be a place where the views of the premiers, the first ministers, and the other ministers on occasion, could be heard, rather than use the House of the Federation as the sounding board for the provincial or regional viewpoint? In other words, is the cart before the horse here?
Professor Lederman: Perhaps the proper response to this is to distinguish two things. There are many matters that are undoubtedly within the power of the federal Parliament, the statutes concerning which will go through the federal Parliament, but which nevertheless critically affect this or that province, this or that region. One thinks of the budget, of interprovincial transportation, international transportation. These things are clearly within the federal legislative authority, yet everyone knows they have important impacts on the provinces. I think it is in this class of matter that the greater regional sensitivity of a new Senate would be operational and might be effective.
There is another class of matter where you have something like consumer protection, where you may have to change the Criminal Code, and the federal Parliament would have to do that; you may have to change the law of contract, and the provincial legislatures have to do that. That is something I would say the federal-provincial conferences should deal with. They get together and deal with that type of matter, where a subject has to be dealt with which overlaps both federal and provincial subjects of jurisdiction and it is going to require action by both levels of government; what you then need is intergovernmental agreement—”You do this, we’ll do that.” Even in the old concurrent areas such as agriculture you can have the federal department say to the provincial department, “We will look after the training of veterinary surgeons if you look after noxious weeds.” This is the kind of thing that is all through our federal system, inevitably and necessarily. There are perhaps two classes of matters there, and I think there would be plenty for a Senate more sensitive to regional influences to do in the realm of section 91 of the British North America Act alone.
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However, there is a great deal of federal-provincial legislative, administrative and executive co- operation required, particularly in the financial and economic realms. There I think it will continue to be necessary for the responsible ministers from the provinces and the responsible ministers from the federal government to meet, and the federal-provincial conferences will, I think, be just as necessary, and the ministers who go to them will be working just as hard, whether or not there is a new House of the Federation.
Senator Connolly (Ottawa West): Would you see a need to structure the federal-provincial conference more explicitly in a constitution than is proposed in this bill?
Professor Lederman: No. I think this is enough. It requires them to meet.
Senator Connolly (Ottawa West): Just the first ministers.
Professor Letterman: Just the first ministers.
Senator Connolly (Ottawa West): Is that enough?
Professor Lederman: I think that is enough because they will either meet and delegate many things out to other federal-provincial meetings, or they will meet only after there have been many other federal-provincial meetings at lower levels to prepare the way for them. .
Senator Connolly (Ottawa West): Would it not be wise to have provision for other federal-provincial meetings at other levels than at the first ministers level?
Senator Robichaud: There would be no end.
Senator Connolly (Ottawa West): There isn’t now.
Professor Lederman: I think they will go forward anyway. I do not think you have to call for them to go forward in the Constitution.
Senator Connolly (Ottawa West): I just wonder in my own mind whether the concept of the House of the Federation will make any real input into the legislative process from the point of view of the provinces, and whether you do not create a vehicle whereby you get more credible input if you develop the federal-provincial conference. That is the point I am making. You see, the second house does not, for example, discuss the budget. It discusses and has to pass legislation arising from the budget, but there is no debate in the Senate on the budget, and that is where you discuss the general economy of the country. You can do it perhaps as the legislation comes forward, but the policy involved in the budget, as such, is not discussed in a special debate in the second chamber. Maybe you would have to change the procedure in the second chamber for that, but what good does it do if the second chamber does not have a veto power or some financial clout in connection with economic policy, monetary policy and budgetary policy? That is the problem. I am not looking for an answer on that. That is all I want to say.
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The Chairman: Is that sufficient?
Senator Connolly (Ottawa West): Yes, thank you.
Senator Marshall: I am sorry I was not here this morning, and my questions might have been a bit preempted.
Professor Lederman, I am one of those fellows who believe in the basics, and something strikes me about the Constitution where it says in the new booklet that we got today that the Constitution provides for relations between the state and the individual. I think that is what this country is all about. I am wondering about something, in my confusion, when you say in your paper that the Senate has not succeeded as a second chamber representative of the provinces and regions. I think of the province of Newfoundland, which has seven members of parliament, six senators and 51 members of the House of Assembly. If you want to go further down the line, there are either elected or hired by the governments in the province of Newfoundland one representative for every 27 people. I am wondering where the Senate becomes a scapegoat as not representing the provinces and the regions. In Prince Edward Island there is one representative, either elected or hired, for every 17 people. Can you help me to reconcile the statement you make, that the second chamber has not been representative of the provinces or regions, with the facts I have given you?
You indicated to my colleague Senator Argue, I think, that you wished the Senate had more influence in the country. And, again, when I read of the activities of the Senate, where they have amended bills passed by the House of Commons some 203 times, which is better for the country and influences the running of the country, can you justify those two statements that you made in your observations and in your answer to Senator Argue, just to help me? I should point out that I am not trying to criticize you, but I would like you to help me if you can.
Professor Lederman: Well, I think my basic position is that the members of the second chamber will be more credible and more effective in whatever they do and in whatever they are able to do if there is some electoral basis for their selection. They will have more influence if they are elected people than if they are appointed people. Perhaps that is basically what I am complaining about with respect to lack of regional power. The people in western Canada think that they have been largely overlooked by the government in Ottawa and by Parliament generally, including the Senate, in matters of transportation on the Prairies. Whether they are right or whether they are wrong, this is the way they perceive it. The only evidence I can suggest to you is that there is a great deal of regional alienation in Canada today as between the provinces and the central government and Parliament in Ottawa. So I just wonder if the Senate had been more sensitive to regional considerations, for instance to pressing the matter of the occasional appointment of a westerner as head of the Canadian Transport Commission, or something of that kind—if the Senate had been more effective in some of these ways whether there would be as much regional alienation as we see today, it is a very complex statement and it is a very complex judgment to have made. It
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is one of those statements that is very hard either to prove or disprove, but on the whole I stand by it, and the evidence is that there is a great deal of regional alienation now. Why is it there? Where did it come from?
Senator Smith (Colchester): Mr. Chairman, may I ask Professor Lederman where the real power in this country lies? Does it not lie with the House of Commons and the government, and if there is alienation of regions are they not the people responsible for that? Is there not a greater number of elected persons in the House of Commons from every district in Canada, except two? Are they not the people who exercise the power, work out the policies, and are responsible for the results of those policies? Is that not a fair statement?
Senator Marshall: You are saying that the Senate has to be changed, when, if there is anything wrong in the evolution of justice and legislation, it started at the lower level. We are supposed to give the sober second thought. We cannot be blamed for something that is wrong with the system down below.
Senator Forsey: “The house of sober first thought.”
Senator Marshall: Change the House of Commons because there is something wrong there when it comes to handling federal-provincial relations. We have a first ministers’ conference every year, and all they do is repeat and repeat and repeat what was taken up in the House of Commons in the last session. That is where the mistake lies. And I speak, professor, as only a new member. a member of six months’ standing of the Senate, but I have had ten years in the House of Commons. I have never felt so good about what I can perform on behalf of the people I represent, and that is the basis of my thinking, to represent my people whether I am in the House of Commons or in the Senate.
Professor Lederman: I have conceded several times that I am in the presence of people who are far more familiar with the inside operations of the central institutions in Ottawa than I am, and while I think it has been a good discussion and while I have learned a great deal from it, I would point out that I am also a citizen of this country and a scholar of constitutional subjects, and I am going to stand by what I have said.
Senator Marshall: I hope you do not think that I am criticizing you, but it just brings to mind something that happened where there was a member, a representative member of the government of a province who got fed up and said he could not help his people at the provincial level and said he was going to run at the federal level, and he succeeded. Another fellow from the same province in the House of Commons said he was fed up because he could not do anything up here in Ottawa and he was going back to the province to try to do something better for his people.
Professor Lederman: I am groping for better ways of doing things, and we are confronted with a major scheme for the renovation of the second chamber. I have been trying to face up to the issues that have been raised, and I readily concede there are a lot of things I do not know and there are a lot of things I do not appreciate. I think I have learned a great deal
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today from the questions and from the comments of the members of this committee.
Senator Marshall: All I can say, professor, is that the Constitution provides for good relations between the state and the individual, and instead of fooling around with the Constitution, if everybody who represents people recognized what they were supposed to be doing for their people, then we would have that better relationship.
Senator Neiman: Mr. Cairman, just to follow up on what has been said, I may be quite wrong about my perception of this bill, but I feel that the framers of it, the people who provided the policy input into this bill, have moved somehow even farther away from a parliamentary system, a proper representative system in Canada. I do not know if I am using the right term, but we seem to be looking at sort of partly American institutions, and perhaps choosing parts of them. that are not the best. This is certainly downgrading the Monarchy, and I agree with you in saying that there is no purpose or reason for that, and I do not think it matches the sentiment of the country at the moment. The Governor General is supposedly placed in a pre-eminent position, but at the same time he has no real power either; he is another figure-head, as far as I can see.
Senator Forsey: Worse.
Senator Neiman: Power seems to be vested more and more in the cabinet system and in the Prime Minister.
I look at your comment here with respect to clause 53. What we have in effect done here, again, is, really, to pre-empt some of the so-called powers of Parliament. We have a House of the Federation that has very little real power in the bill as it is proposed here, and indeed, is practically useless, Parliament itself decides who can be in the House of the Federation, who the Speaker will be, and how the members are to be elected. This is all under clause 65. Then we get to the clauses on the cabinet and the Prime Minister, and the Prime Minister, in effect, tells the Governor General whether or not Parliament shall continue.
I would just like Professor Lederman’s comments on that. It seems to me that the elected people—and this is what Senator Marshall was talking about—have even less power, or less potential for power, under these proposed arrangements. I think the situation is bad enough as it is now, where the average backbencher has very little say in what goes on, and this bill, as has been pointed out, has been brought forward with no consultation of anybody on the back benches and, I would suggest, even without consultation of the full cabinet, except in its very late stages. I just do not like the general tone of these proposals, and I do not like the way we appear to be moving.
I would like, myself, to see far more power given to the elected representatives, There again, I listened to what you said about electing the upper house, and I am inclined to agree that that might be a good idea. If we do that, however, should we be looking at something very much closer to the American system? If we are going to go halfway there, should we
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incorporate some of the checks and balances of that sort of system, if we are looking at a new constitution? I am not committed to that point of view, but I would like to hear your comments on it.
I would also like to hear your comments regarding the proposed powers that the Prime Minister will have in connection with dissolution, and any lack of powers of elected representatives in the house implied in these proposals.
Professor Lederman: If I may speak first with regard to the clause 53 point, senator, I would like to point out that the great authority on this subject is Senator Forsey. He knows far more about the matter than I do.
Senator Forsey: Tut, tut!
Professor Lederman: What I fear—though it is not entirely clear to me what the clause means—is that they have impaired the essential reserve prerogative powers of the Crown, whereby the Governor General in this country, or the Queen in Britain, could refuse dissolution to the Prime Minister, or could refuse prime ministerial advice when the party situation in the House of Commons is confused and he has lost the confidence of the House of Commons, or perhaps of the electorate, or both. The bill seems to say on this point that nevertheless the Governor General must follow the Prime Minister’s advice, even when the Prime Minister is in deep trouble, and is in a position where he has really lost his influence. I agree that that is serious from the point of view of the rights of the people, and I think Senator Forsey has made this point many times in what he has written on the subject, because the Governor General, exercising the old reserve, unwritten, royal prerogative powers, or the Queen herself exercising them in Britain, would never interfere unless the situation were quite bad, and unless it were quite obvious that the rights of the people needed some protection. You have to be able to stop a Prime Minister losing one election and then saying, “Well, I want another election.” That is what I have in mind there.
I am uncertain about some aspects of this matter. If you start writing down these important established usages concerning the reserve prerogative power, you may only write down some of them and not all of them, or you may write them down badly. Is it not best to leave things the way they are? The system has been working and working well. Why not leave it the way it is? This is one area where I would leave things the way they are.
Senator Godfrey: It has not had to work since 1926.
Professor Lederman: But, you know, we were near to a difficult situation of this type in 1972, and you never know when such a situation is going to arise. It came up a couple of years ago in Australia.
Senator McIlraith: I was there.
Senator Riel: That was the reason; it was your fault!
Professor Lederman: But, as I say, you have in your midst a great authority on this subject, and I defer on this matter to Senator Forsey.
Senator Forsey: I say again, “Tut, tut!”
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Professor Lederman: What was your other point senator?
Senator Neiman: I was wondering, if we are going to elect another house—and I think we certainly should consider that option—whether we should consider changing the lower house, because I agree with some of the observations made here in that respect, that we need to reform Parliament as a whole, and not just the upper house. I am wondering if one of the ways we could do it would be by having the terms made certain in the lower house; that is, whether there would be seine virtue in considering having a four-year term, thereby getting away entirely from this problem of losing the confidence of the house, and thus giving the backbenchers a little more freedom to express not only their individual views but the views of the people in the parts of the country they represent.
I think part of our problem is that areas may feel alienated when they have not been represented in government for years and years, as is the case in certain parts of this country. We follow government policy and a government that is composed of people that essentially come from particular areas, and in recent times from the central areas, namely, Ontario and Quebec. So should we think about going to, say, a four-year term in Parliament? That might be a possible solution.
Senator Forsey: You can say goodbye to responsible government if you do.
Senator Neiman: I agree, from that point of view, yes.
Professor Lederman: I would be reluctant to move towards the American system, specifically. We hear of some of its advantages, but it has some serious disadvantages, too. It is weak in some of the respects in which the cabinet parliamentary system is strong and effective, and I would rather work at reforming the cabinet parliamentary system.
Perhaps, again, some kind of compromise might be possible, and here I am just speculating. You could make the maximum term of Parliament four years, for example. You ‘may not require an election every four years, but you can require one at least every four years. At present we have a requirement that there be an election at least every five years. You can shorten that a little, perhaps.
I would be prepared to borrow here and there some of the good features of the American system that could be fitted satisfactorily into the parliamentary system, but I would not want to go beyond that. I think you have indeed identified something which is not raised anywhere in the paper that the government has been issuing, namely, how well is the House of Commons itself performing? I think it is very valuable indeed to have raised that point. I have not been thinking about that, and perhaps I should have been.
Senator Lang: Would you favor the shift of power from the executive to Parliament as a desirable aspect of reform?
Professor Lederman: I would hope, as a matter of parliamentary procedure, something could be done to strengthen the ordinary committees of Parliament at the expense of the cabinet, yes; but, in the end, the authority of the cabinet and its ability to act is something that is very important—and the
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ability of the cabinet, in the end, to get the legislation it wants. This is the great difference between our parliamentary system and that of the United States. It can be very important that a government is able to get the legislation it wants, in many situations.
Senator Lang: Even against a parliamentary opposition?
Professor Lederman: They must be able to carry the legislation with a majority in Parliament or they cease to be the government, of course. This is very different from the United States. I would rather see things continue that way. President Carter remains there for four years, whether or not he can get Congress to pass pieces of legislation that he wants.
Senator Neiman: I have one question. One of the messages that we constantly get from the citizens of this country—and all governments get it—is that they feel that the are over—governed and that bureaucracy is weighing them down. I believe we all feel that as individuals, with the layers of government that we have.
In considering reform of the constitutional powers, as between the provinces and the central government, is it possible to eliminate or at least decrease to a reasonable degree the areas of concurrent jurisdiction which inevitably become overlapping jurisdiction, and should we be concentrating on this area? I notice in your Appendix I that you recommend an area of concurrent jurisdiction. Yet this inevitably builds up the bureaucracy and the red tape. I realize that in certain areas it is almost impossible to avoid it, but is it feasible to try to reform the powers of the respective governments by eliminating or decreasing significantly those areas of concurrent jurisdiction?
Professor Lederman: I do not believe that in any federal system, where you are dividing legislative powers by lists of subjects between the central parliament, on the one hand, and the provincial legislatures, on the other, you will ever be able to eliminate a great deal of the overlapping—another word for it is “interpenetration”—of federal-provincial responsibility and federal-provincial laws.
Here I think the main hope of getting rid of unnecessary duplication in laws and administration lies with the federal-provincial conference, which Senator Connolly was emphasizing. One of the main features of our federal system should be that in these federal-provincial conferences they plan to eliminate a lot of the overlapping. They agree to do it, and they go back to their respective parliaments and pass the necessary statutes or regulations in order to accomplish this. All the powers to eliminate a lot of the overlapping are right there right now; but to do it systematically you do need federal-provincial agreements.
It might be a sensible thing to include some provisions in the Constitution about the federal and provincial governments having to observe these agreements, being held to those agreements, once they reach them.
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That is what I had in mind in the field of telecommunications. The situation in Saskatchewan is quite different from the situation in Quebec and Ontario, as to who has the public rights of way that can be used for cables, and so on. A great many different arrangements are necessary, and you might find yourself making different arrangements in these concurrent areas.
My tendancy would be to look on a field of concurrent jurisdiction as an invitation not to conflict but to sensible collaboration; “You do this and we’ll do that, and we won’t both try to do the same thing.”
Senator Denis: Before I ask for your opinion, Professor Lederman, I would like to refer to an address by the Minister of State for Federal-Provincial Relations delivered to the Rotary Club in Three Rivers on July 11. It concerns the House of the Federation, I propose to read one sentence at page 12, and I quote from the minister:
Appointments would be made from a list of candidates and would reflect electors’ preferences at the time of general elections. As for powers,—
That is the most important part of the statement.
the House would exercise a right of “suspensive” veto for a period of two months over all government legislation; it would initiate bills and approve the appointment of judges to the Supreme Court and of several other federal agencies. However, its most important role would be that of “guardian of the status of English and French in Canada.”
My question is, which of those powers I have already mentioned are not already in the hands of the present Senate? Aside from the method of appointment — which is different, of course — at the present time, does the Senate have a right of suspensive veto? At the present time, does or doesn’t the Senate initiate bills? With regard to the appointment and approval of judges to the Supreme Court, you know that appointments come already decided, just as in the case of electing a Speaker in the House of Commons or the Senate. Do we have that power? If we have not that power, could it be put into the Constitution without changing the present organization?
If I understand it correctly, if the Senate is abolished the government will have to compensate the senators generously. The government will have to pay that compensation plus the salaries of the new members of the House of the Federation. In order to save money, why not say, as Mr. Sauvé said when he replaced Maurice Duplessis, “désormais,” from now on. We talk about the new method of appointment from now on. We will appoint senators in some other way without doing anything wrong in keeping dozens of able senators who have experience in the various fields. I will not include myself in that category, but they could assist the newly-appointed members of the House of the Federation.
I wonder how many Parliaments it would take to get rid of all members of the Senate in one way or another, whether we
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retire, die, or whatever. I suppose that in 10 or 15 years we will all be gone. At the present time there are 10 vacancies in the Senate. In two years there will be six, seven or eight more vacancies. In 15 years there will be another 10 vacancies. The present Senate has existed for 111 years, and I don’t think it would be unjust to ask for another 10 years. Then everyone would be happy.
The Prime Minister, whether he be a Conservative or a Liberal, will be responsible for the new members of the House of the Federation and not the provincial premiers. Those people will be in Ottawa and will be the responsibility of the Prime Minister.
I am asking for your opinion as to whether the powers enumerated by the Prime Minister are powers we already have or could easily be achieved by way of amendment.
Professor Lederman: The present powers of the Senate go so far as the power to refuse any legislation coming from the House of Commons. That is great power, indeed, and a greater power than the House of the Federation would have.
Senator Denis: Do you think it is too much?
Professor Lederman: The present Senate has, throughout its history, exercised the power sparingly and carefully. You certainly raise some important issues. I have not thought about them enough to be able to comment on them. In some ways it would be presumptuous of me to sit here and comment on some of the points you raise. Certainly, the Government of Canada should give serious consideration to the manner in which the new second chamber, if there is going to be a change, comes into operation. They could consider whether it should be done at one time or in stages; and if in stages—
Senator Denis: Could you give us your opinion on that?
Professor Lederman: I would like to see a specific plan on this, It is very hard to comment in the abstract. I feel somewhat limited and inadequate in the face of many of these questions because my knowledge is limited and inadequate in a good many ways: I am afraid it would be presumptuous of me to comment in detail on what you have said.
Senator Smith (Colchester): Mr. Chairman, I wish to refer to clause 96 of the bill which deals with regional disparities. I should like to ask the witness whether there is not some definite way of including this, if we are including it at all, and to indicate that the very fact that this appears here is an illustration of what could happen as a result of federal-provincial conferences.
As Senator Robichaud will recall, this subject was a matter for discussion in this context and first raised its head at one of the last conferences presided over by Mr. Pearson. Mr. Pearson wrote to the provinces and asked them to indicate what subjects they wished on the agenda. One province did put this on the agenda. This was the first time it appeared on the
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agenda. At that time it received full discussion. As a result of that, it kept increasing its prominence and recognition as an important subject until it appeared, if you look back, in the Victoria Charter, in one form or another.
We now see it again, and although I have not checked with the draftsmen yet, I suspect it probably covers equalization as well as what is normally thought of as being included in regional disparities.
I should like to point out something that illustrates what can happen at the federal-provincial conferences. In Mr. Pearson’s latter years as Prime Minister, he appointed, with the consent of the First Ministers, a committee called the Tax Structure Committee which functioned very efficiently over a considerable period of time and produced what is the basis of the present equalization formula that is related to tax-paying ability, and so forth.
I suppose this seems more like a lecture than a question, but I really want your view on whether there is a more definite way of ensuring the protection that this kind of provision is obviously intended to give to the people who need it.
Professor Lederman: If I remember correctly—and I cannot put my finger on it at this moment—there is a provision in these proposals whereby federal-provincial arrangements respecting equalization payments and similar types of payments cannot be changed, and that these agreements must be maintained for a definite period. They cannot be changed without notice by the central government.
There is that much assurance proposed that I do not think has been proposed before.
Senator Forsey: Clause 99.
Senator Robichaud: You review it every five years.
Professor Lederman: Yes, every five years.
Senator Smith (Colchester): That would be under the heading of things like equalization, I think, contributions to health plans, post-secondary education and things of that nature.
Professor Lederman: Yes.
Senator Smith (Colchester): Except for equalization, I do not think that would be covered by clause 96.
Professor Lederman: I think perhaps it is covered by clause 99, in the sense that you would get agreements for definite terms which would be binding on all governments, including the Government of Canada for that term.
Senator Smith (Colchester): That is the contract to pay money, which would be equalization, which is first a contract and then becomes a statute. However, that is only a portion of the problem of regional disparity.
Professor Lederman: Of course.
Senator Smith (Colchester): And therefore only a portion of what seems to be covered under the heading used here of
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regional disparities. I guess what I am asking is: Have you, with your very great and acknowledged experience in this constitutional field, thought of any more definite way of making it a responsibility of government to take seriously the question of regional disparity in itself, apart altogether from equalization?
Professor Lederman: I confess that I have not thought of anything beyond what is proposed here, that when a federal-provincial agreement is made and the province with which it is made relies on it and arranges to play its part in what it has been agreed to do, then both parties should be held to the agreement for the period specified in the agreement. As far as the Constitution is concerned, I do not see how you could do much more than that, because the matter of attempting to diminish regional disparity is so complex; it is something that has to be attacked on so many fronts. I would suggest that all you can expect from the constitution are some general guidelines and some general principles such as the principle in clause 99 that federal-provincial agreements once made have to be lived up to for the term specified.
Mr. Cowling: Clause 99 has some teeth in it, but if I understand Senator Smith’s point it is that clause 96 may be a fine, ringing declaration, but where are the teeth in it?
Senator Smith (Colchester): I guess I haven’t got across the concept of regional disparity as it has occupied my mind for a long while, and that is really a very much larger subject than the question of making equalization payments or of contributing money towards post-secondary education, although it is all part of it.
Professor Lederman: I am from Saskatchewan.
Senator Smith (Colchester): That is what I thought.
Professor Lederman: I lived many years in Nova Scotia, and it is only in the last twenty years of my life that I have lived in Ontario, so I think I do know what you mean by regional disparity. However, I do not think it is amenable to treatment by provisions especially entrenched in the Constitution itself. I think it takes a complex of government policies over a great range of fields, which policies, insofar as they require law, get the law from ordinary statutes; with revenues it is the comparative revenue-raising powers and the wisdom of your economic schemes and advisers. I don’t think these things are amenable to treatment in a constitution.
Senator Smith (Colchester): No. The most you can do is impose an obligation on the states, or provinces, or countries which are governed by their constitution to take due note of it in many respects.
Let us return to equalization. In some countries there is a specific formula enshrined in their constitutions which requires the payment of equalization where the conditions of the formula are met. I am thinking of Germany and Australia, for instance. In Australia they have a commission whose duty it is to assess the problem of equalization and decide who gets what
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and so on. Do you see any difficulty with that kind of thing being set out in a constitution?
Professor Lederman: I believe the Australian Grants Commission is dealt with in the Constitution. However, I am not an expert on that and on how well it has functioned. There might be something that could be done in that direction, but I must say that I have not made a study of it so I am afraid I cannot offer anything more useful.
Senator Smith (Colchester): Thank you very much.
Senator McIlraith: My remarks perhaps arise out of the discussion flowing from the questions by Senators Marshall and Neiman. Our discussion today has been very wide-ranging and interesting. We have dealt with the legislative process, the Crown and the Governor General; we have dealt with the Senate; we have dealt with the Supreme Court, something new in interpreting the legislation; we have dealt with a charter of rights and freedoms.
As one who has been around Parliament for a while in one capacity or another, and quite a while in the House of Commons, I have always regarded the ultimate protection of our freedoms in Canada as being wrapped up and involved in part of the whole theory of responsible government through the elected members of the people in the House of Commons. That is where the centre of the protection, in my view, must remain, even although we put a charter of rights and freedoms in the new Constitution. The ultimate protection lies in keeping the government of the day responsible to the people through the elected representatives. That part of the subject has not been discussed, as I see it, and indeed is not dealt with very much in Bill C-60.
I want to ask you for a general comment on this. You may or may not wish to make it. Within the last ten years we have taken away the control of expenditures from the House of Commons. That was done by amending the rules of the House of Commons, a matter undoubtedly within its jurisdiction, not only within Parliament’s jurisdiction, but within the jurisdiction of one part of Parliament. They now go automatically to a great series of committees and then they come back to the House of Commons for a very limited number of hours. The former practice of the House of Commons being able to examine the administration of the government and hold the ministers individually answerable as individual members has been done away with, which was undoubtedly within the jurisdiction of the House of Commons.
Coincidental with that there has been a change in the committee system and the appointment of committees. Now, no longer are committee members appointed and controlled by the House of Commons; they are replaced by the various whips of the parties, and the House of Commons has the right, although it is no longer the practice, to appoint and replace the individual persons. It is done by the whip on say—so, without notice and from day to day.
The third thing which has coincided with those two has been a cabinet committee system whereby all cabinet business goes first to a committee of cabinet rather than to the cabinet, so
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that the minister does not present a matter to cabinet and have it dealt with there; it is automatically presented, in every instance, to a cabinet committee, with the consequent result, on that latter point particularly, that there has been a rather effective and sweeping transfer of power from the individual cabinet ministers in relation to their departments, if you note those three things, to the Prime Minister.
We have not examined that subject, and I doubt if it is within our terms of reference, but in any event there is no reference to it in the bill, that I can see, and there is no way that we can get at it. Yet if we are to deal with parliamentary reform, parts of Bill C-60 dealing with parliamentary reform are more significant and far-reaching. Have you any comment as to the general concern I have on this subject?
Professor Lederman: Well, senator, I concede in relation to yourself and to everybody else in this room that you people know a great deal more about the details of the parliamentary process in this house and in the other house than I do, and this is one good example of it. I am convinced at this moment that what you say is right, and I think the most important thing I have learned today is that the House of Commons and the cabinet system themselves should not be free of detailed scrutiny in this review of the Constitution that is being undertaken; and, as I say, the only comment that I am qualified to make is that what you have said and what others have said convinces me that both the House of Commons and the cabinet system ought to be carefully scrutinized as part of this process of review.
The Chairman: I would like to reassure Senator McIlraith about its being within our terms of reference. There is no problem about that at all.
Senator Grosart: Perhaps I could ask Professor Lederman some questions about the list of topics, to use his own term, which starts on page I and carries over on to page 2. Could I ask you, professor, if you regard this list, which you have numbered 1 to 6, as representing the order of importance in which you see the necessity for action on these topics? I think you indicated that the first three might be regarded as priority items in your order.
Professor Lederman: I regard the first three as the priority items. That is right.
Senator Grosart: And the others are more or less in priority order as well?
Professor Lederman: The others are important, but not of the same order of importance in meeting the constitutional crisis in the country as the first three.
Senator Grosart: Would you say then that this should be the necessary order of procedure in amending the Constitution, in the sense that these three problems should be resolved before proceeding to any other measure of constitutional change?
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Professor Lederman: Yes, I think that is essentially my position. In other words, I do not agree with the order that the government of Canada has set up. I think the provinces are going to make it clear that they want the problem of the division of powers faced up to right away, and I agree with that.
Senator Grosart: Would it follow then from that that you would not agree with the apparent intention of the government at one time, at least, to proceed on a temporal basis with Phase I and Phase II?
Professor Lederman: I do not particularly like the Phase I and Phase II scheme. I really do not think it is workable, and indeed my views on constitutional amendment mean that it is not workable.
Senator Grosart: Would you care to comment on the possible consequences of failure of the parties concerned to reach agreement on Phase II, or the essentials of Phase II, if Phase I had already been proceeded with unilaterally in the federal Parliament? Would you see very substantial problems arising if that were to happen?
Professor Lederman: I certainly would. This is just a political judgment as a citizen, but if the government of Canada proceeded with what it calls its Phase I without substantial agreement from the provinces, it would mean that they would be going forward in the face of considerable opposition and dissent in the provinces, and that would stir things up to the point where Phase II would certainly be all the more difficult.
Senator Grosart: Would you go so far as to say that the statement that has been made, that section 91.1 of the British North America Act gives the jurisdictional power to the Parliament of Canada to make amendments that are suggested in Phase I, might be modified by the suggestions that have been made that, for example, the Supreme Court of Canada, the Senate, the Monarchy, are all subjects in which the provinces are concerned, and that these deal with the “privileges” of the provinces as that word is used in section 91.1?
Professor Lederman: The amending power by ordinary statute of the Parliament of Canada is to be found in section 91.1:
91.1 The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subject by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, . . .
Senator Grosart: The “rights or privileges”—that is what I am concerned about.
Professor Lederman: I would make two arguments in favour of a narrow construction of what “Constitution of Canada” means there. The rights and privileges of the provinces are certainly involved in renovating the second chamber, and are certainly involved in the head of state for all purposes of the act. So that is the basis of my opinion wherein I differ from
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what the government of Canada is saying about its constitutional powers.
Senator Grosart: Has that interpretation ever been tested, to your knowledge, in the courts?
Professor Lederman: No, it has never been tested, to my knowledge, in the courts. Insofar as the Supreme Court of Canada is concerned, I think you are under a different section and that is section 101. That simply says:
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, . . .
So when we speak of changing the Supreme Court of Canada, although the provinces are vitally concerned, I am afraid the BNA Act is clear that an ordinary federal statute could do it; that is to say, it could change the membership or change the method of appointment. But on the matter of the head of state and the renovation of the second chamber, I agree with you. You are talking about rights and privileges belonging to the legislature or the government of a province, and anyway, I do not think that the rights and privileges of the legislature or the government of a province, or the powers of a province, should be thought of apart from the people of the province. It is, after all, the government of the people of the province, and I take a broad view of what it means.
Senator Grosart: It is certainly not apart from the powers of the legislature. We are so often confronted by a statement by the federal government that the government of such-and-such a province has agreed to something, when the jurisdiction is not, by sections 91 and 92 of the BNA Act, given to the government at all, but to the legislature. I think Quebec is the only province that has honoured that, in any important matter, by referring it to the legislature, rather than merely writing a letter to the Prime Minister of Canada saying, “We, as the government, agree” to something which seems to have no constitutional or legal effect whatever.
I was interested in the discussion that took place on your statement regarding the failure of the Senate to act so as to protect fully provincial and, by inference, I think, minority rights. Were you referring then, really, to the great expectations of the role of the Senate at the time of Confederation, that it would actually become the champion of provincial rights? Was that the purpose of your comment?
Professor Lederman: I think you are right, sir. Probably, out of my knowledge of Canadian history, this is what lay behind my statement as much as anything else. There were great expectations, and they have not been fulfilled.
Senator Grosart: Would you agree, sir, with the comment that is sometimes made, that the Senate did not in fact exercise that function because of the effect of certain decisions of the Judicial Committee of the Privy Council?
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Mr. Cowling: Thinking of you, Senator Grosart, I asked that this morning.
Senator Grosart: Oh, did you? I am sorry.
Senator Forsey: Most of this was covered this morning pretty adequately, I thought, though it is good to have it again.
Senator Grosart: Well, I think we are getting a slightly different statement, for the record, than I am told we had before.
Professor Lederman: Well, sir, as I did explain this morning, I think the Judicial Committee and the Senate behaved as they did, historically, quite independently of each other. The Judicial Committee was not that good a protector of minority rights either. It did strengthen the legislative power of the provinces, or it did take the broader view of what the power conferring significance of the phrase “property and civil rights” was. Starting out in 1867, you simply had the phrase “property and civil rights” versus the “federal trade and commerce” phrase, and it was up to the courts establish some kind of boundary between those two phrases. The Privy Council did perhaps lean towards provincial powers, but as one of the great authorities on our government, Dr. J.A. Corry has said, the Privy Council probably was right in honouring, as it did, the regionalism and the pluralism of Canada. They went about as far as it was necessary to go, politically. The Privy Council, he found, was just about right. You will find that in his Law Society lecture in March, in Toronto, entitled, “The uses of the Constitution”.
Senator Grosart: There are many opinions contrary to that.
Professor Lederman: Oh, of course.
Senator Grosart: On another matter—and this will be my final question for the moment, Mr. Chairman,—I was interested to find that you, sir, where as enthusiastic as you appear to be in the paper you gave us about the entrenchment of freedoms and rights in section 6, 7, 8 and perhaps 9. You say that clause 25 makes it clear that none of the specified rights and freedoms would be unlimited.
Professor Lederman: Yes.
Senator Grosart: Is entrenchment, in this sense, any more than window dressing if, under certain circumstances, such as are outlined in clause 25, where the public health, peace and security conflict with other rights and freedoms, any of these so-called entrenched rights and freedoms can be abridged by ordinary law, whether federal or provincial? Is entrenchment, in those circumstances, any more than window dressing?
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Professor Lederman: With respect, sir, I do not think it is that black and white. The reason I like clause 25 is that I think it is honest.
Senator Grosart: It is, of course.
Professor Lederman: And it warns people that they must not take these specified rights and freedoms, the equal protection of the law, and so on, as being without any qualification whatever, because there is no system of government anywhere that has ever been able to make a list of rights of that kind without any qualification whatever.
In the United States they do not spell out these things. There is no clause 25 there. Nevertheless, the Supreme Court has found it necessary to, in effect, put in a clause 25, and they have done so for all that, when you concede that there has to be quite a bit of room for ordinary statutory modification of these rights and privileges, there is, I think, considerable protection for them because a court is going to be in a position to say, “Thus far and no farther with your modifying statutes”; and from the point of view of safeguarding rights, whether individual or collective, this does something more for the citizen that if there were no Bill of Rights at all. I do like clause 25, because it is at the same level of general expression as the expression of positive rights, and it warns people not to be too literal in their expectations; but I think they are entitled to have some real expectations of protection, and I think the Supreme Court of the United States, the Supreme Court of Canada, and the court of the European Economic Community are demonstrating these days that there is something there.
Senator Grosart: Do you find any difficulty in reconciling clause 23 with clause 25? I am quoting from memory, but clause 23 seems to say quite clearly, that they cannot be abrogated by legislation, whereas clause 25 seems to say they can. I am not a lawyer.
Professor Lederman: I think that clauses 23 and 25 have to be read together. Clause 23 means, I think,—that there is a presumption in favor of freedom of expression. It has to be very strong before the court will accept a limitation under clause 25, so to speak.
Senator Connolly (Ottawa West): It might be better that way.
Professor Lederman: It would be better if it were put that way; I think you are quite right.
Senator Grosart: That was really my point, because it does not really say that at all. Someone may presume it was the intention to say that, but it does not say it.
Professor Lederman: You are quite right. There is a strange contrast between clause 23 and clause 25, and it could be eliminated without harm to what is being attempted.
Senator Connolly (Ottawa West): Adjusted.
Professor Lederman: Or adjusted, yes.
Senator Smith (Colchester): That seems to be a modern trend in drafting. They say you cannot do something, andthen they go along and say “but yes, you can”.
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Mr. Cowling: Professor Lederman, I was wondering whether, in your opinion, after entrenchment, clause 23 would mean that Parliament would be prevented from removing any law from the operation of the Charter of Human Rights by adding a section saying that it was to operate notwithstanding the Charter of Human Rights. in other words, could Parliament make the decision? I am talking about after entrenchment, of course. These provisions will be in effect before entrenchment.
Professor Lederman: After entrenchment there would be no question of the power of Parliament to do that. Parliament would be subject to these sections.
Mr. Cowling: So that is an example of where these provisions in this bill are a little stronger insofar as the Bill of Rights is concerned, than are the provisions of the present bill.
Professor Lederman: Yes. In the present Statutory Bill of Rights of 1960 there is the provision that if the statute recites that it is to operate notwithstanding the Canadian Bill of Rights, then it is not subject to the Bill of Rights. There is no equivalent of that here. I do not know whether or not in the intermediate stage they maintained it.
Mr. Cowling: I do not think so. In the intermediate stage, I presume it would be the same sort of situation as you have with the present bill.
Professor Lederman: So that “notwithstanding” clause belongs to the ordinary statutory version of the Bill of Rights and apparently it is not proposed at all here. It would, of course, nullify special entrenchment, because you cannot have special entrenchment and then put in a clause like that.
Senator van Roggen: Mr. Chairman, I have a supplementary on this point. What bothers me, coming back to clause 6, are the words dealing with personal rights and property rights, which are protected under the American constitution. I am not an authority, but my understanding is that if you must be deprived of your property, you must, under the American system, be given proper compensation under their “due process” clause. Here it says you will not be deprived of your property “except in accordance with law”; that appears toward the end of clause 6.
Mr. Cowling: We had an interesting explanation of that yesterday from the government witnesses. The explanation was that they had used the expression “in accordance with law” in connection with the enjoyment of property rather than “the due process of law” expression, which they use in connection with life and liberty, because of the experience under American jurisprudence. There the only expression, as I understand it, is the “due process of law” expression. Courts had found, for example, that certain regulating bodies had not allowed sufficient return on capital to certain investors, on the basis of that provision in their Bill of Rights, and so advisedly that distinction was made in Bill C-60 in order to get around that, and, indeed, to enable limited forms of—
Senator van Roggen: Compensation.
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Mr. Cowling: Confiscation even, I suppose, by using the words “in accordance with law”.
Senator van Roggen: Yes; so you pass a statute and do not pay the proper compensation and you stipulate it in the statute. .
Professor Lederman: This would permit that, and you are in the hands of the statute; that is right. You may have had an explanation of this yesterday, but there is the whole question of whether you can stop planning legislation—zoning by laws and that sort of thing—with a property clause of this kind. There have been terrific problems about the management of property and development in cities as result of that interpretation of the American clause.
Senator van Roggen: I could give you a dozen examples of provincial legislation stealing people’s property. They are more guilty than the federal.
The Chairman: I know that Senator Godfrey would like to react to that, but I won’t let him.
Senator Forsey: Mr. Chairman, I might perhaps be allowed to make one or two comments on one or two things that have been said, if only to lead up to the question I want to put to Professor Lederman. It is, I think, to be noted that in clause 53(2) there is provision specifically for the Governor General to refuse a dissolution of Parliament. Here I find myself for once pleading the case of the government on the bill. Another case where I might do it, I think—and I do it with great diffidence, in view of Professor Lederman’s eminence—is on the question of whether the things he speaks of are rights and privileges guaranteed to the legislature or the government of a province. I don’t see, frankly, that the constitution of the Senate has anything whatsoever to do with the legislature or the government of a province. I agree that the point he makes about the way this thing ought to be done is very sound, but I am inclined to think there is more to be said for the government legal experts’ view on this than Professor Lederman is willing to allow. I cannot see that the constitution of the Senate or, for that matter, the monarchy, though of immense importance to the province, vitally affecting them, are, in fact, covered by the language of 91.1. This is merely a statement of dissent by somebody who is ex hypothesi not really qualified to dissent from the opinion of an eminent constitutional lawyer.
Now, I want to raise a question also about this business of the Senate representing provincial interests. I venture to think that one reason why the Senate has not taken a very strong line in many instances about provincial interests is that its expected powers and functions in that respect have been, to a large extent, usurped by provincial representation in the cabinet. You’ve got the represntatives of the provinces sitting in the cabinet whooping it up for provincial interests in dominion legislation—legislation of dominion jurisdiction. They have, to some considerable degree, I think, pre-empted what was expected to be the function of the Senate. After all, the federalization of the cabinet was foreseen by Christopher Dunkin, but he was one of the ardent opponents of Confedera-
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tion. The provincialization of the cabinet in the beginning was regarded, I think it is safe to say, as somewhat provisional, something that we would get over in a little while when the country had grown together, but it did not turn out that way.
Now, the next thing I want to say about this provincial representation—and I am sure Senator Argue can speak more eloquently on this, because he has done so—is that I think it is worth noting that in the last couple of sessions we have had several marked examples of the Senate standing up for regional and provincial interests. One occasion was two sessions ago when we had a bill which would have implemented an international convention which dealt with the rights of creditors of airlines to seize aircraft, or something of that sort. It came before the Transport and Communications Committee. We looked at it and we said, “This is beyond the power of Parliament,” and we consulted with the attorneys general of the provinces. They all agreed with us, so we moved that the bill be not further proceeded with.
This is one of three instances in the last 40 years when this has been done. We have never thrown out a bill in the last 40 years. Three times we refused to proceed, and this was one of them. That was a support, a protection of provincial interests, and it worked, The government dropped the thing.
Then there were various agricultuaral measures where I think the Senate, through its Agriculture Committee and by the decisions it has adopeted by way of amendments, has done a great deal to look after the regional interests of prairie farmers. I see Senator Argue frowning. I hope that does not indicate dissent.
The Chairman: He is a humble man.
Senator Forsey: I think I am expressing inadequately what he has said better elsewhere,
Then there were the Maritime Code bill which Senator Smith (Colchester) and others of us will remember very vividly. This came up in what is technically called a blank and imperfect form from the House of Commons, and those words are a signal instance of English understatement. It was a dreadful mess, every lawyer in the house agreed. It was particularly a matter of concern to the coastal provinces, most especially the Atlantic provinces. The Senate, as we all know, proceeded to make 83 amendments, one of which was to knock out the perfectly fantastic proposal that the sole port of registry for vessels in Canada be, of all places under the blue dome of Heaven, Ottawa. A landlubber’s bill if ever there was one!
These are some instances in which the Senate, quite recently, has, in my judgment, stood up for and protected, and effectively protected, regional interests.
Senator Smith (Colchester): Did you forget the grand design for Air Canada we rejected?
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Senator Forsey: I had forgotten that one. How far that affected regional interests directly, I wouldn’t be too sure. I picked out these three conspicuous examples with which I am personally familiar. I was, unfortunately, perforce through no will of my own, absent from the committee during most of the discussion on the Air Canada bill.
Turning to another thing, I mention the fact that the Governor General does retain the power of refusing dissolution. But, lets look a little more closely at clause 53. It looks to me as if this is the one reserve power which he is specifically given. If you turn to clause 35, of course, you have that the federation shall be governed by the Constitution and “by the conventions, customs and usages hallowed by it”. There is no equivalent in the French text for “hallowed by it”, it simply says; “les conventions, coutumes et usages”—period.
But now where does this leave us, particularly when you go on to the extraordinary and radical proposal that if the Prime Minister doesn’t advise dissolution or is refused dissolution, then he can say he should be invited to form another administration? Well, of all things under the blue dome of Heaven! Here is a man who has been so thoroughly discredited by the I-louse of Commons, they have refused him confidence, and the Governor General has, in effect, said to him, “You can’t have another dissolution,” for one reason or another, possibly ” because you just had one a month ago; you can’t very well expect to get another dissolution, so I refuse it.” The Prime Minister, under the hypothetical circumstances, could then say, “Well, that is all right, then. I won’t resign. if you don’t want to give me a dissolution, I suggest that I be invited to form a new government.” If you take any notice of the marginal note, it says:
—to invite him or her… or another person (e.g. the leader of the Opposition)—
Well, this is a most subversive proposal, because one of the things that has absolutely been settled now in Great Britain, and I would have thought so here also—and I have authority for this in Sir Ivor Jennings—is that when a government is defeated in the House of Commons on a motion of censure or want of confidence or something that it considers tantamount to that, it must either resign or ask for dissolution. If it resigns, or if it is refused dissolution and resigns in consequence, as it probably would, then that is the end. It has absolutely no right to continue in office or to suggest another government. It is the duty, the constitutional duty of the Crown, by constitutional convention, to send for the Leader of the Opposition. If, of course, the Leader of the Opposition says he can’t do anything, then there might conceivably be a leader of a third party to whom the Governor General might then turn. There is a certain area of discretion there, perhaps.
Now, here we get on to questions that are much controverted questions on constitutional usage, which illustrate the danger of trying to put into the fundamental text of law matters on which there is great uncertainty and leaving them to be decided by a court, a good many of whose members may
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have very little political experience. That is not what they are put on a court for.
There are other reserve powers of the Crown which seem to me extremely important. 1 will give you a couple of illustrations of them. One is the power which Sir John Kerr exercised in Australia when the government was to be left absolutely without money to carry on most of the activities of the government for months at a time, and the Prime Minister refused either to resign or to ask for dissolution, either a simple or a double dissolution. Sir John dismissed him. There is nothing here about the power of dismissal. The Governor General, apart from the right to refuse dissolution of Parliament, appears to be pretty well kept in the hands of the cabinet, gagged and bound. It says, “The cabinet has the management and direction of the Government of Canada . . . .” It does not say, “shall be charged with” as advisers of the Crown, but states “shall have the management and direction”.
Well now, to take another thing, people raise the problem of what would happen if the present Parliament were to expire simply by efflux of time on July 31 next, when would it be legally necessary to have an election? Could the government continue without an election for any appreciable period? I think the answer is yes, it could. It would have to have an election in time for a new Parliament to meet by July 30, 1980. In other words, it would have to have an election by virtue of the law and the Constitution probably some time in May, 1980, However, between July, 1979, and May, 1980, it could proceed to govern without Parliament, without an election—I am talking about the sheer law of the thing as I see it—finding money by means of Governor General’s special warrants under section 53 of the Financial Administration Act, which has been used over and over again for months at a time to the tune of hundreds of millions of dollars, What would prevent that kind of thing being done by an unscrupulous government? I am not making any accusations about this government, of which I am a supporter, but there is a possibility of it, and in a constitution you don’t want to leave things wide open to unscrupulous people to manipulate the thing.
It seems to me that the only guarantee you have against that kind of thing now is the power of the Governor General at a certain point to say to the Prime Minister, “Look, Prime Minister, I can’t go on signing these special warrants, because this is not normal, responsible, parliamentary cabinet government. That means government by a cabinet with the support of the majority of the House of Commons. The House of Commons is dead and you are not advising me to call an election for a fresh one. This can’t go on indefinitely.” At some point, it seems to me, the Crown would have to step in.
Similarly, you have got the kind of situation which might arise after an indecisive election, where nobody has a majority and the Prime Minister in office decides he will just put off
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meeting Parliament until he finds it convenient. I remember after the election of 1963, when Mr. Diefenbaker had come off second, but nobody had a clear majority, Mr. McCook of the Ottawa Journal called me on the telephone and said, “Eugene, theres a rumour here that John is just going to carry on for some time without summoning Parliament. What is to prevent it?” I said, “What’s to prevent it is the reserve power of the Crown. He goes on month after month after month after month with special warrants. At some point “—I don’t know when it would be; how many grains make a heap?—” the Governor General would have to say, ‘I am sorry, Prime Minister, I can’t go on with this, because you must advise me to summon Parliament within a reasonable time’,” whatever that is—public opinion would probably be some guide there— ” ‘If you are not prepared to give me that advice, I shall dismiss you and call on Mr. Pearson’.”
It seems to me that these very valuable safeguards are left completely out of the present bill, and the one thing we have got in there to prevent the cabinet or the Prime Minister, absolutely in some of these matters, is the right to refuse dissolution, but it is coupled with this fantastic proposal, “Oh, well, then call on me to form another government. Just see how popular I am. The House of Commons has turned me down flat. You say I have no right to a dissolution, but if you don’t like me I suggest So-and-So and I suggest So-and-So” and so on.
I should like Professor Lederman’s opinions on some of those points. There is one other thing I should like his opinion on if I may put it in one sentence, and that is the double majority proposal in the new upper house on the linguistic legislation.
The Chairman: That is a good question, Senator Forsey.
Professor Lederman: Senator Forsey, you have proven that you know a great deal more about this than I do, and you have confirmed me in my misgivings about this clause. I would just point out one thing. As I read the clause it only guarantees the Governor General the right to refuse the first advice for a dissolution. It is the second, the third and the fourth advice for a dissolution that would be the abuse.
Senator Forsey: It might be the first.
Professor Lederman: It could be the first and he could refuse that, but I do not think he is guaranteed the second, or the third or the fourth time. You can’t tell; it is not clear. But that is just a minor point.
Senator Forsey: That makes it worse.
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Professor Lederman: I have nothing to add to what you have said. I agree with it on clause 53 and the royal reserve power.
With respect to the double majority provision in the House of the Federation, as I have stated, I would much prefer, if that kind of protection is neccssary—and the judgment is that as a matter of legislative procedure it should be necessary to make it a straight numerical two-thirds majority required in the House of the Federation, and if you cannot get it then the legislation fails. I think it would be unfortunate to divide the parliamentarians of the second chamber into francophones and anglophones for purposes of voting. I think some reference is made historically to the period of the old Province of Canada, 1840 to 1867. It is alleged that the double majority requirement was practised a good deal between Lower and Upper Canada in those days. However, I do not think that stands up very well to historical analysis, does it, Senator Forsey? There are many instances of such issues where there was not a double majority requirement. There really is no historical precedent for this in our history.
Senator Forsey: No, but there are several pertinent things that might be said about that. One is that there was a proposal for a double majority, Canada East and Canada West, and that was not simply French and English Canada; there was a large English minority in Canada East. Furthermore, this was simply a pet scheme of Sandfield Macdonald. It was never adopted and it was twice explicitly rejected by the Assembly of the Province of Canada in 1856 and 1858; it was put to a vote and it was defeated, resoundingly defeated, and the journals of the assembly have it there. I can produce the pages and the list of people who voted for and against on those two occasion. The thing is just a fairy tale.
I might just add, as a maritimer in partibus infidelium, of course this concoction never had any validity at all for the Atlantic provinces. People sometimes forget that the Dominion of Canada is not just the Province of Canada writ large, as if we were conquered by the Province of Canada. It has no relevance whatsoever, either, for the western provinces, absolutely none, and the attempt to drag in by the ears something that happened in the deadlocked Province of Canada before Confederation as an excuse for some kind of jiggery-pokery now is really lamentable, and ridiculous as well.
The Chairman: Does that mean we may go on with another question?
Senator Forsey: I got in two questions and a long oration. I am sorry.
Senator Marshall: On a point of order. Professor Lederman said he would like an elected Senate. In that case we would never have had the expertise of Senator Forsey, because he could never get elected.
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Senator Forsey: That wipes me off the map.
Senator Argue: I thought perhaps/they were going to draft you as leader.
The Chairman: It is just that the House of Commons wasn’t worthy of him. If it had been the Senate, he would have been elected.
Senator Forsey: Wait until next year and I am out of the Senate. Perhaps I’ll have another go.
Senator Yuzyk: Yesterday I had suggested in committee that the new Canadian Charter of Rights and Freedoms should include a list of basic duties of the Canadian citizen. I happened to have on hand the new Constitution of the Soviet Union, which has eleven articles dealing with the duties of citizens. A copy was sent to me by the Soviet Embassy, incidentally. The press reported this matter, stating that I shocked my colleagues-which I doubt—by suggesting the Soviet model in this respect. I do not advise copying the Soviet model. I understand that the constitutions of the Federal Republic of Germany, Switzerland and other democracies, and also the Quebec Charter of 1975, I believe, list the duties of citizens as well as the rights. Does Professor Lederman have any opinion regarding the inclusion of the duties of citizens in the new charter?
Professor Lederman: I think the new charter goes far enough. I would not want to carry on with the recitation that you have in mind.
Senator Yuzyk: There is the principle that every right has a corresponding duty or obligation, and that is not borne out in this charter, is it?
Professor Lederman: It is not precluded, and I think you can trust the courts to see that the freedoms and liberties are not carried too far. Some of the rights and duties of citizens are specified. For example, the right of all citizens to vote is specified. Now I suppose one could do what is done in Australia and go further and say that the citizen must vote. Not only has a citizen the right to vote but he must vote and he will be fined if he does not vote. The principal legal and constitutional problem is to protect the citizen from the enormous power of government and from the enormous power of large organizations of one kind or another. As far as rights and duties are concerned, I hope the citizen would construe the rights to participate in the democratic process which are specified here as duties and that he would participate in the democratic process and thereby have some influence on his own fate.
Senator Yuzyk: By and large, that is all that is implied, and if the citizen wanted to participate—and I hope that in the future Canadians will be enthusiastic in trying to read the Constitution—he might want to see if he has any duties too, such as are already incorporated in some other constitutions throughout the world. But I was wondering whether this might not be taken into consideration because in itself it is an educative process.
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Senator Forsey: Forcing them would be a bit of a job, except, of course, the duty to pay taxes. That is quite easy to enforce.
Professor Lederman: Perhaps part of the answer to you, senator, is in clause 25, which says:
25. Nothing in this Charter shall be held to prevent such limitations on the exercise or enjoyment of any of the individual rights and freedoms declared by this Charter as are justifiable in a free and democratic society in the interests of public safety or health, the interests of the peace and security of the public, or the interests of the rights and freedoms of others, whether such limitations are imposed by law or by virtue of the construction or application of any law.
So you are going to find the limitations and the duties of citizens, and you are going to find them in these limitations contemplated by by section 25.
Senator Yuzyk: I doubt if the ordinary citizen would understand the section. Even lawyers might be in the position of having a problem in understanding some aspects of the articles. That is why I had suggested that.
Professor Lederman: But still I think the main constitutional problem is to keep for the individual a reasonable area of personal option and opportunity where the law or the Constitution is not telling him what to do or what not to do and he is free to choose what he wants to do and for his own reasons. This is in spite of governments and statute books and books and regulations which fill shelf after shelf, this is the principal problem.
Senator Connolly (Ottawa West): Mr. Chairman, I would like to come back briefly, if we are not tiring Professor Lederman too much, to the point raised by Senator McIlraith, and it has been raised by other members of the committee, in connection with the trend towards the imposition of the will of the executive upon policy, which has grown so strenuously as the years have developed. We might be able to learn a little from the British experience in that respect, particularly some of the things that happened after the Lords’ powers were curtailed in 1910 and following. I have a question at the end, but I would like to put two short quotations on the record, one from Lord Campion, who had a great experience in the British Parliament at the Table and who subsequently became a member of the House of Lords. He said this, commenting upon the loss of power of the Lords:
The development of party machinery, the growing stringency of party discipline, the replacement of the House of Commons by the electors as the government-choosing agency, have all worked in the same direction to increase the ascendancy—
—and this I emphasize—
to increase the ascendancy of the Executive over Parliament. The Government has also been the chief beneficiary from the restriction of the legislative powers of the House of Lords. There has been a deterioration in the
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position of the House of Commons, as a body, and in the status of individual members.
This has been pointed out this afternoon.
Sir Arthur Salter, writing in 1952, insists that the danger of the French system is instability, the danger of the American system is deadlock, and the danger of the British system is Cabinet tyranny.
He uses that word, “tyranny”.
L. S. Amery writing about the same time—and he was a Right Honourable because he had been a cabinet minister— said:
The ever-growing volume of administrative and legislative business to be dealt with by Parliament adds greatly to the danger of party caucus dictatorship. Some substantial easement could and should be afforded by once more making a reality of the House of Lords.
Now, with that British experience and the concern that was expressed about brakes upon executive power and authority exercised over Parliament, I wonder if Professor Lederman would agree that the proposals for the House of the Federation and the removal of the veto power to the extent that it is proposed in this bill, would in fact further increase the possibility of the executive taking complete control, more complete and more thoroughgoing control over parliamentary affairs?
Professor Lederman: Well, I gather, senator, that you have that fear yourself, and I must say I share it with you. This is precisely why I thought that if we are going to have something like the proposed House of the Federation, then it has to be more substantial powers than sixty days’ delay. There has to be something more substantial in the way of what I think is called in connection with the House of Lords “a suspensive veto”—something much more substantial. I suggested a year, but that is a figure just out of the air. I do not know how meaningful it is in terms of detailed parliamentary procedure. I agree with you, however.
Senator Connolly (Ottawa West): Of course, if you have a suspensive veto for a year, what you contemplate, I suppose, is that a bill which had passed the House of Commons and had not been finally disposed of by the Senate, or had been rejected by the Senate, presumably, upon a simple thing like a resolution of the House of Commons being passed, affirming its previous stand, the bill would be ready for presentation for Royal Assent. That is the consequence of a suspensive veto, is it not?
Professor Lederman: I am not thinking so much of the suspensive veto being used very often. I am thinking rather of the bargaining power it gives in a joint committee, when the houses are trying to arrive at an agreed draft. If the members of the House of Commons know that if they push the senators too far the thing may get stopped entirely for a year, they are more likely to agree to some of the Senate’s propositions than otherwise. I am thinking of improving the bargaining power of the Upper House.
Senator Connolly (Ottawa West): I guess, by the same token, on this bill, the members from the Senate of the joint
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committee, having a complete veto in the Senate, would be in a fairly decent bargaining position.
Professor Lederman: Yes.
Senator Godfrey: My impression of the House of Lords in England is that if they reject a bill the House of Commons has to pass the whole bill again. It is not a question of a simple resolution. The House of Commons then really has to seriously consider the objections of the House of Lords, whereas under the 60-day proposition, a bill never even goes back to our House of Commons for any further consideration at all.
Senator Connolly (Ottawa West): Maybe it does go back. We do not know. This is a gap here.
Senator Godfrey: Well, I have looked at this bill, and it seems to me that the cabinet can send a bill off to the Governor General to be signed after two months.
Professor Lederman: I had missed this point, but I would want the British system of the whole thing having to be re-passed, and then the suspensive veto would be meaningful.
Senator Fournier (de Lanaudière): I suppose you are familiar with the words of Theodore Roosevelt, who said, “Progress is made by people who do things, not by those who tell them to do otherwise.” Considering this bill as it is, changing as it does in a radical fashion as important an institution as the Senate is, does it, in your opinion, constitute progress from what exists today to what would exist tomorrow if the bill were passed?
Professor Lederman: With all of the qualifications that I have expressed this morning and this afternoon, sir, I think that in Canada we should give some kind of an elected chamber a trial. We should try it out. I could not be sure that things would be better if we did so, but basically I have faith in the electoral processes, when the chips are down, and I suppose all of us, as democrats, have that basic faith, in the end. That is the root of the fact that I keep coming back to the point that I think the second chamber would be more influential if its members were selected by some kind of an appropriate electoral process.
Senator Fournier (de Lanaudière): But the bill does not propose election.
Professor Lederman: No; and this is a serious gap in the bill. I am not content with the bill, and unless it went on to provide for an appropriate form of election, I would not be in favour of it.
Senator Fournier (de Lanaudière): I am talking of the bill as it is.
Professor Lederman: The bill as it is is simply incomplete, and before one can have a final opinion about it one would have to see it completed even as a proposal. The government of Canada will have to fill it out more and tell us more about what is intended before we can pronounce a final judgment.
Senator McElman: The witness has referred several times to the disenchantment of certain regions of the country with the federal syseral system as it exists. Does Professor Lederman
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believe that since the current government of Canada appears to have accepted, in its propositions for the second chamber, proportional representation, if this electoral process were accepted for election to the House of Commons, it would have the effect of reducing some of the regional disenchantment that exists, since it would, of course, in British Columbia, in the prairies, in the Atlantic area, in Quebec, and so on, give representation to parties from the regions that are not now represented by those parties in Parliament?
Professor Lederman: I believe Professor Smiley, of York University, made a proposal of this kind with regard to election to the House of Commons, and perhaps this is a fruitful line of inquiry to pursue; but I would not want to see the House of Commons go to a full sort of European system of proportional representation. The single member constituency, and the system of winning constituency by constituency, is the way that the House of Commons has operated, and I would think a long time before changing that. I just have no firm opinion in reply to that at the moment, except to say that the government does not depend for its existence on the Upper House, so that you can have proportional representation there without forever threatening the existence of the government; but proportional representation would give you a large number of parties, and the gathering together of a parliamentary majority in the House of Commons, upon which the government depends, would be much more difficult than it is under the present electoral system, I would have grave doubts about this with regard to the House of Commons, because the cabinet depends for its life on the House of Commons. in the Upper Chamber the multiplicity of views and parties could be a strength.
Senator Connolly (Ottawa West): With a 60-day delaying power, it does not matter, however.
Professor Lederman: Quite right.
Senator Connolly (Ottawa West): The effective power of the Upper House is eliminated.
Professor Lederman: I am assuming we would get another house with some effective power. That is the only kind I want.
Senator McElman: But if certain sections of the electorate in certain regions of the country feel they are not effectively represented, and if that is one of the underlying causes of the malaise in Canada today, would this not be one of the obvious ways of giving voice to that disenchantment of the electors? After all, that is the only thing government is about—the electors.
Professor Lederman: I think, Senator, that Professor Smiley’s proposal—I hope I am recalling it correctly—was to the effect that, let us say you elect 90 members from Ontario; you give Ontario, say 100 members and the to leading opposition candidates who ran second get those 10 seats. That is a very modified form of proportional representation, but I think he was attempting to frame a proposal that would mean that
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when, let us say, the Liberal Party gets 30 per cent of the votes in Alberta, at least they get two, three, or four seats out of it.
Professor Smiley may be on to something, but I think that is about as far as I would go. That, of course, is not full-fledged proportional representation at all, but it does mean that when there is a large block in the popular vote and no seats for a party, there are a small number of seats at large for that province which go to the leading losers, so to speak, in a constituency.
Senator McElman: There are, of course, many formulae for proportional representation. My question was based upon the fact that the government of the day appears to have accepted the principle of proportional representation in its proposal for the second chamber.
Professor Lederman: Yes.
Senator MeElman: My question was on the principle. Would not such a government be almost morally bound to start in the same direction for the House of Commons?
Professor Lederman: There is an important difference. They have set the quotas for each region first and they are disproportionate to population. It is only after you have said that Ontario will have 12 that you then say that those 12 shall be divided in proportions to which the Ontario party got votes in the last provincial election.
Senator McElman: I suggest that although the arithmetic may be different, the principle is the same.
Professor Lederman: In part. Again I would say that what you can do with the second chamber, upon which the life of the government does not depend, is different from what you can do with the House of Commons, on which the life of the government does depend; and the House of Commons is fully proportionate to population in the sense that the constituencies are roughly equal. Single member constituencies are roughly equal in the populations which they contain. That is a very large difference from the upper house, of course.
Senator McElman: A second barrel of my question has to do with the upper chamber itself. I would reflect with some rancor upon a vote of the Senate not a great while ago, when a number of senators felt strongly that one section of a particular bill removed from a minority certain rights. That group of senators endeavoured to protect those rights. Although party lines are very widely separate in the Senate in numbers, I believe those who opposed the section lost by something like 6 in the house such as we have currently. That section of the bill carried only because of the application of the government whip. Would the witness see a different house-in his consideration of serious legislation, particularly with regard to regional, minority or language interests, and so on—if one very simple thing should occur in the second chamber, namely, removal of the whips?
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Professor Lederman: I had not thought of that before, but it sounds like a reasonable thing to do with respect to a second chamber.
Senator McElman: As it now exists.
Professor Lederman: My reaction, my first impression, is that it would be a reasonable thing to do, to remove this element of strict party discipline.
Senator McElman: Mr. Chairman, I would simply end by saying what I said to the Prime Minister. Remove the whips and we will give a regional house in 48 hours.
Senator Argue: Some of us removed the whip long ago!
Senator Lafond: Mr. Chairman, I would like to say how grateful we are to Profesor Lederman for submitting himself to this long ordeal. I hope this will not lead him to try to avoid appearances before further committees of this house or this Parliament.
With respect to Professor Lederman’s suggestion of extending the veto from 60 days to one year—as he states, it would give the second chamber more bargaining power—I should like to put on record that in the 1970-72 committee the discussion started at a veto of 90 days. The argument was made there that in order to be reasonable the second chamber should be given a good opportunity to be able to make its case before public opinion; that 60 or 90 days were probably insufficient to do that; 6 months might do it, and one year surely would. But the time required for the second chamber to make its case before public opinion is also a valid argument in this respect, I believe.
Following on the last intervention of Senator Connolly, would Professor Lederman agree that in the case of a democratically-elected government becoming oppressive, the major, if not the only, protection the electorate has, between that point and the following general election, is the second chamber? Would he agree that, according to Bill C-60 as it is presented now, the government, with a majority in the House of Commons, could wipe out the second chamber within 60 days, more or less? That being the case, would it not be reasonable to expect the second chamber to retain an absolute veto on constitutional matters?
Professor Letterman: I think we do have to accept the implications of democracy in the House of Commons and the parliamentary system. A government that can command the majority in the House of Commons is going to get its way most of the time, but not all the time and not in every way.
As for suddenly abolishing the second chamber, my response would be that my view of the Constitution is that they could not do it with a federal statute. Of course, they cannot do it without the concurrence of the second chamber because there is no statute of Parliament, thinking of today’s Senate—
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Senator Lafond: I agree, but this is not your view as expressed this morning.
Professor Lederman: If they are right in that they can control the very existence of a second chamber as well as its nature by ordinary federal statute, then if the powers of a new second chamber were limited to a 60-day suspension veto, the second chamber itself could be abolished after 60 days. If it were limited to a year, the second chamber itself could be abolished after one year. It could not occur if you take the view I take of the status of the second chamber under the Constitution, namely, that it cannot be abolished without the concurrence of the provinces and, indeed, that its essential nature cannot be changed without the concurrence of the provinces.
Senator Connolly (Ottawa West): The same could apply with respect to the Governor General and the monarchy.
Professor Lederman: I agree with you. This brings out, I respectfully suggest, the merit of the position I am taking on these elements of constitutional amending procedure.
The Chairman: Senator Godfrey.
Senator Godfrey: In all honesty, I was more interested in making a speech and getting Professor Lederman’s reaction to it, so I will waive.
The Chairman: Senator Bosa.
Senator Bosa: I pass.
The Chairman: In that case, it appears as though we have come to the end of our questions. May I, on behalf of the members of the committee, express our sincere thanks for your effort today. You have been on the hot seat all day long. It has, indeed, been hot, both in terms of temperature and in terms of discussion. I think we all agree that is has been a most useful discussion. We thank you for coming on such short notice and at such an early stage of this constitutional debate.
Hon. Senators: Hear, hear.
The Chairman: We will adjourn until tomorrow morning at 10 o’clock.
The committee adjourned.
WITNESS
Dr. W.R. Lederman, Professor of Law, Queen’s University.