Canada, House of Commons Debates, “Request for Publication of Department of Justice Legal Opinion”, 32nd Parl, 1st Sess (2 April 1981)

Document Information

Date: 1981-04-02
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8877-8881.
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COMMONS DEBATES — April 2, 1981



[Page 8877]


Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, my question is directed to the Prime Minister and it relates to the so-called Kirby document, the strategy document that was set out by the government in the summer of last year, which indicated the way it could get its constitutional package through. I wonder if the Prime Minister could tell the House whether the government has an opinion from the Department of Justice that:

—a law passed by the U.K. parliament to patriate the Constitution, with an amendment formula and other changes, could not be successfully attacked in the Canadian courts.

I would also like to ask the Prime Minister, in light of the unusual interest in a situation where action by the British parliament could not be challenged by the Canadian courts, whether the Prime Minister would take the unusual step, in these unusual circumstances, of publishing that legal opinion of the Department of Justice.

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I indicated to this House before that I have seen the so-called Kirby document but I had not read it. I therefore cannot answer the question as to whether there is any legal opinion to that effect. However, it seems to me that if the Leader of the Opposition had any fears in that regard, they would have been dissipated by the proposal I made earlier this week to the effect that we would not, in fact, go to Great Britain, if the Supreme Court of Canada ruled against the constitutionality of the motion now before the House.

Some hon. Members: Hear, hear!

[Page 8878]


Right Hon. Joe Clark (Leader of the Opposition): I would feel considerably more comfortable about that matter if the Minister of the Environment, speaking for the government, had not indicated that the government intended to file any resolution which passed this Parliament for first reading in Great Britain before any decision was taken by the court. I would like to request the Prime Minister to inform himself on the question of the Department of Justice judgment and decision, and then, after he has informed himself, to consider whether he might publish that document so that the country and the public would know about it.

On March 27, in answer to questions which I had been putting to him regarding the possibility of a meeting with first ministers, the Prime Minister said:

—I will initiate discussions with them—

He was referring to the other first ministers.

—as soon as Canada has its own Constitution and as soon as Canadians have given themselves the means to improve that Constitution.

Did the Prime Minister intend, by that answer, to preclude meetings with the premiers before the constitutional resolution goes to Britain?

Right Hon. P. E. Trudeau (Prime Minister): The Leader of the Opposition says he would feel more comfortable if the Minister of the Environment did not say certain things. I would like the Leader of the Opposition to feel comfortable. I would tell him that it is quite clear from my exchange with the House leader of the New Democratic Party that that aspect of it was negotiable. My first offer was to ensure that we would not press the British Parliament to pass the measure until the : Supreme Court ruled. However, in answer to a specific question from the hon. member for Winnipeg North Centre, I said that it is quite acceptable to us—if that is what the House prefers that it would not be sent there at all.

So now that the Leader of the Opposition feels comfortable, perhaps he will consider this very real offer of having the legality of the matter settled by the courts. I thought that was the whole purpose of the Tory obstruction, that they assumed we were doing something illegal. I am offering to let the courts determine whether it is legal or not before the British parliament acts on this matter.

In so far as the legal document which the Leader of the Opposition alleges might exist is concerned, I put to him once again that his fear, based on something that might have been said in a leaked document, is that once the British parliament has acted, then the Supreme Court of Canada would be powerless. I have made an offer to this House which would guarantee against that fear, that the British Parliament would not act until the Supreme Court had Judged. Therefore there ts no ground on which to concern oneself about a legal document saying that once Britain had acted the Supreme Court could not act. The whole intent of my offer is to put the Supreme Court first and the British parliament after, if indeed the Supreme Court decides the motion is legal.

Mr. Clark: Madam Speaker, I am pleased that the Prime Minister is prepared to put the Supreme Court decision first in relation to the British Parliament and trust that he will be prepared to put the Supreme Court decision first in relation to the Canadian Parliament so that we will know that we are dealing with legal matters here.

Some hon. Members: Hear, hear!

Mr. Clark: My question had to do with another important element of the constitutional resolution now before us, and that is the willingness of the Prime Minister to meet with the first ministers of the provinces prior to this resolution’s leaving this country and going to Great Britain. I would like to know whether the Prime Minister’s answer of the other day to me was designed to preclude any meeting with first ministers on constitutional matters or to discuss this resolution precisely prior to this resolution going to Britain.

Second, while I am on my feet, I wonder if the Prime Minister could tell us whether there are any elements of the proposal he now has before the House of Commons that he would not be prepared to have discussed at a meeting of first ministers.

Mr. Trudeau: Madam Speaker, the Leader of the Opposition seems to make something in the fact that I am putting the Supreme Court first before the British Parliament but not before the Canadian Parliament. Surely that ts the way he has been asking that things proceed. He wants to make sure that our action here, before it is sent to Britain, is judged to be within a law, and legal. Surely he is not asking that we should put the Supreme Court before Parliament on any matter it is legislating. Surely the Leader of the Opposition should remember that the whole basis of our system is that the Supreme Court judges upon laws which are made by this Parliament and the legislatures of the land.

Some hon. Members: Hear, hear!

Mr. Trudeau: I suggest that it is our. duty in this House to pass laws as best we see them, relying on the people to judge them politically, and relying on the courts to Judge them legally. It is the division of powers. which is the essence of our system, that we do our job as legislators—that is what I am asking we do—and then we let the Supreme Court do its job as judges.

Mr. Clark: Madam Speaker, the Supreme Court judges upon legality, and we in this House of Commons want to know that what we are being asked to approve is legal. That is very clear.

Some hon. Members: Hear, hear!

Some hon. Members: Oh, oh!

Mr. Chretien: Go back to school, Joe.

[Page 8879]

Mr. Clark: If the shouting on the Liberal side will subside, let me bring the attention of the Prime Minister back to the first ministers. Twice now I have asked, and now for a third time I ask the Prime Minister about the possibility of a meeting between himself and the first ministers to discuss the best means of resolving the constitutional problems the country faces, and particularly the constitutional resolution before the House.

First, did the Prime Minister intend his answer to me the other day to preclude a meeting with first ministers before the constitutional resolution goes to Britain?

Second, is there any element of that constitutional package which he would not be prepared to have discussed in a meeting of first ministers?

Mr. Trudeau: Madam Speaker, the Leader of the Opposition says this House of Commons has the right to know if what it is doing is legal before it does it.

Mr. Andre: The Newfoundland court says it is illegal.

Some hon. Members: Answer the question.

Mr. Trudeau: Hon. members opposite keep saying, “Answer the question”.

An hon. Member: You don’t do it.

Mr. Trudeau: I do not do it because you do not let me do it.

Some hon. Members: Oh, oh!

Mr. Stevens: Poor Pierre.

Mr. Trudeau: I think we are well accustomed in this House to the practice of every member of the opposition making statements in preface to a question which, in my view, can be discussed and answered, then a question is added to the preamble. In past days, when I have been answering the sometimes very long preambles to questions, I got shouts from the opposition that I should be answering the questions. I am first answering the preamble, which the opposition has been allowed to make, and then I deal with the question. If you allow the preamble, Madam Speaker, I take it you will allow the answer to the preamble.

Mr. Clark: Now the question.

Mr. Trudeau: Not now the question. First the preamble, my friend.

Some hon. Members: Hear, hear!

Some hon. Members: Oh, oh!

Mr. Trudeau: The Leader of the Opposition, in preface to his question, says the House wants to know before it does it if we are doing something legal. This would be the way to ensure the paralysis of Parliament.

Some hon. Members: Oh, oh!

Mr. Trudeau: If every time a measure is introduced into this House, somebody, whether it be a province, a private individual, or some other litigant challenged the legality and put the matter before the courts—

Mr. Andre: But what you are doing is illegal.

Mr. Trudeau:—then this House would sit back and say let the courts decide. I suggest to hon. Members opposite that they are failing to accept the division between the judicial responsibilities and the legislative responsibilities.

Some hon. Members: Hear, hear!

Mr. Crosbie: Like Bill C-60.

Mr. Trudeau: The Leader of the Opposition talks about a first ministers’ conference. He will remember that in the resolution before the House there is a provision for first ministers’ conferences over the next two years. At this first ministers’ conference we can discuss any item they want to put on the agenda. We can even discuss changing the resolution which would be adopted by this House, in a way which would be changed by the amending formula provided for in the resolution. That is why I said it can be negotiated. It can even be changed. The Leader of the Opposition can conduct his next campaign, if he is still around, on a mandate—

An hon. Member: You are getting desperate.

Some hon. Members: Oh, oh!

Mr. Trudeau:—to withdraw the charter of rights from the Constitution, if that is what he desires. But I think I explained at some length, a couple of weeks ago, that after some 54 years of waiting for federal-provincial conferences to obtain—

Some hon. Members: Oh, oh!

Mr. Crosbie: Waiting for what?

Mr. Trudeau: Waiting for what? The hon. member for St. John’s West does not know what we have been waiting for.

Some hon. Members: Oh, oh!

Madam Speaker: Order, please.


Hon. Jake Epp (Provencher): Madam Speaker, I direct my question to the Minister of the Environment. In his appearance on “Canada AM” yesterday, the Minister of the Environment said that the Canadian government would insist that the Canadian resolution be placed on the Order Paper of the British Parliament, in effect giving that resolution first reading in Britain before the Supreme Court of Canada could rule on the legality of the proposal.

Has the Minister of the Environment had any communication with the British government on that matter. Can he tell us whether the British government has given him any indication

[Page 8880]

of its willingness to place the resolution on the British Parliament’s order paper before the Supreme Court of Canada has ruled? Could he confirm he had that information?

Madam Speaker: Order, please. I am afraid that question would be more properly addressed to another minister. I understand the Minister of the Environment was sent as an emissary. But this is not his ministerial responsibility and the hon. member’s question would be better addressed to another minister.

Some hon. Members: Oh, oh!

Mr. Crosbie: Why did he get his nose stuck in it then?

Mr. Epp: Madam Speaker, you have given me an admonition that I cannot ask that question of the minister, yet the Secretary of State for External Affairs and the Minister of the Environment were emissaries, on behalf of the Prime Minister, to Britain to present that constitutional proposal earlier in the summer. On that basis, I wonder whether they were not speaking on behalf of the government. Definitely the minister of the Environment was speaking on television as a minister of the Crown. But if you keep that restriction on me, Madam Speaker, I would like permission to ask the question of the Secretary of State for External Affairs.

Could the Secretary of State of External Affairs indicate whether or not the Minister of the Environment had had communications or whether he had had communications in which the British said they would be willing to place this matter on the Order Paper prior to the Supreme Court of Canada having made a judgment on it?

Hon. Mark MacGuigan (Secretary of State for External Affairs): Madam Speaker, we have not asked any such hypothetical questions of the British government. We have not sought any such answers, so we have not received any.

Mr. Epp: Madam Speaker, obviously the Secretary of State for External Affairs has now totally repudiated the word of the Minister of the Environment. He has not been able to confirm it. The Minister of the Environment very clearly stated that was the position of the government. The minister says they have not asked for any such communication and therefore have not received any. I refer him to the meeting with St. John Stevas on November 10 as well as the meeting with the Right Hon. Mr. Pym on December 19. At the meeting with Mr. Pym, the Secretary of State for External Affairs was pushing the case that there should be a decision on the part of the British before the court decision in Canada. In other words, he was advocating that the British do an end run around the Supreme Court as well as the Canadian Parliament. Has the minister had further communication from any British minister along the lines of December 19 that the British would not be willing to do the end run which he advocated on December 19?

Mr. MacGuigan: Madam Speaker, the hon. member is trying to create a false opposition between myself and my colleague. My colleague was speaking about the Canadian government, and the hon. member is asking about the British government. We have not discussed in any serious fashion, with the British government, questions of the kind he is raising.


Mr. Edward Broadbent (Oshawa): Madam Speaker, following on the point of order raised by the Leader of the Opposition yesterday, I made a proposal which I thought would achieve some consensus with regard to the concern expressed by all the parties in this House to get us out of this constitutional impasse. Before asking my question I would like to make’ it clear that this party believes in the general proposition that in the federal state it is our responsibility to legislate and the Supreme Court’s function to pass final decision on the legislation.

Given the particular circumstances of dealing with a constitutional resolution that has been challenged in one court at the provincial level, negated in fact, although it has been affirmed in another, I would like to ask the Prime Minister a question. Following the meeting of the House leaders which took place today, is the government prepared to accept a proposal which would limit time on the remaining stages of the debate to cover at least two amendments, the one before the House by the Conservative party, the important one on native rights and achieving greater equality for women which we in this party plan to move, to be followed by a decision on that final package by the Supreme Court of Canada and then, prior to sending the package over to Britain, have the final vote on the package, as adjudicated upon by the Supreme Court, here in the House of Commons?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I think that the suggestion of the Leader of the New Democratic Party derogates somewhat from the statement of principles that he made in introducing his question. If it is our duty to legislate and the duty of the courts to adjudicate, then it would seem that the proposition we made, of legislating and then having the courts adjudicate, would be the proper procedure.

I am ready to look for some way to get out of the stalemate. If it could be made clear, if that course is accepted by other parties and ourselves in the House, that we do not consider this as a precedent but merely an exceptional procedure invoked because we are doing something that has no precedent because, I repeat, we have been failing for 54 years by following precedents, and second, if we could make sure that we agree with what the Leader of the New Democratic Party describes as his party’s proposals on native or aboriginal rights and women’s rights, that could easily be done because, in happier days when we were hoping to make some progress, there had been some exchange of texts as to what would be acceptable regarding women’s rights and Indian rights.

[Page 8881]

from the Leader of the New Democratic Party that he would not entertain, after the Supreme Court ruling, assuming that it is favourable, another long debate on other long amendments which would change the nature of the subject matter referred to the Supreme Court, I would say on behalf of our party that we would be prepared to accept a House ruling stating those very things, if we could get agreement from all parties in this House.

Some hon. Members: Hear, hear!


Mr. Edward Broadbent (Oshawa): Madam Speaker, on behalf of my colleagues, and I would hope all members on this side of the House, we see that as a genuine concession by the Prime Minister in the direction of consensus building.

Some hon. Members: Oh, oh!

Mr. Broadbent: My Conservative colleagues—some, not all—are laughing. Yesterday the Leader of the Opposition said:

Of course, we will be bound by what the courts decide and if they upheld Mr. Trudeau, we would be able to act pretty quickly in Parliament.

Given that fact, and the fact that today the Prime Minister has indicated the government’s willingness to accept this kind of proposal which would enable us to terminate this serious debate and get on with other matters, I would ask the government House leader, and I have to put this question to him because of the rules of the House, whether, following the discussions this morning, there has been any report back from the official opposition as to whether they will accept these conditions.


Hon. Yvon Pinard (President of the Privy Council): Madam Speaker. I would point out to the hon. member that we are not in the habit of making public the nature of discussions held during meetings of parliamentary House leaders. However, since the question is being raised by the leader of a party and since no one would be harmed if I were to reveal what was discussed, I can say that this morning’s meeting was held to clear up a few points and no one has made a decision yet.

I believe it is still possible that we will meet again later today to find out the reactions to a much more definite and much clearer proposition than the one made yesterday, including that suggested and proposed by the Progressive Conservative Party. For the time being I am unable to say whether that party accepts or rejects the proposition made by the New Democratic Party. In any event it is not up to me to answer for them, they can do that, but if they would prefer to hold more talks I am at their disposal and at the disposal of the New Democratic Party House leader; another meeting might be called later today to hold discussions and further negotiations in an attempt to reach agreement.


Mr. Broadbent: Madam Speaker, since the Conservative party has proved itself quite adept at raising points of order, perhaps at the appropriate time today the Leader of the Opposition will use that opportunity to outline his party’s position.

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