Canada, House of Commons Debates, “Request for Reference to Supreme Court of Canada to Test Legality of Resolution”, 32nd Parl, 1st Sess (14 October 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3629-3631.
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COMMONS DEBATES — October 14, 1981
REQUEST FOR REFERENCE TO SUPREME COURT OF CANADA TO
TEST LEGALITY OF RESOLUTION
Right-Hon. Joe Clark (Leader of the Opposition): Madam Speaker, I have a question for the Prime Minister following the reasoning of the Prime Minister in response to my colleague, the hon. member for St. John’s East. Since the Prime Minister is so sure of the legality of his government’s position on the constitutional resolution now before the House of Commons, I wonder whether the Prime Minister, following the advice he gave through the hon. member for St. John’s East to the government of Newfoundland, would be prepared to make a reference of that matter to the Supreme Court of Canada to see if the Supreme Court of Canada agrees with the Prime Minister that this resolution is entirely within the competence of the Government of Canada, or whether the Supreme Court
of Canada will disagree with the Prime Minister, as it did in the case of Bill C-60?
Some hon. Members: Hear, hear!
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the Leader of the Opposition is not only mixing apples and oranges, he is throwing bananas into it too.
Some hon. Members: Oh, oh!
Some hon. Members: Hear, hear!
Mr. Cossitt: You are throwing baloney.
Mr. Trudeau: The Leader of the Opposition will recall that in the case of Bill C-60 the reference was on section 91 of the constitution, something that is in there now—
Mr. Crosbie: Sour grapes.
Mr. Trudeau:—and the Supreme Court was judging whether or not under section 91 the federal government had certain powers.
Mr. Beatty: They said that you were wrong.
Mr. Trudeau: The courts always say that one party is wrong and the other is right. In the case of the offshore it is the same thing. There is a division of power between the federal and provincial governments it is a matter for the courts to say whether that power lies in the federal government or in the provinces.
Mr. Hnatyshyn: What about patriation?
Mr. Trudeau: The matter of patriation is a matter for the House of Commons. It is before the House of Commons now because there is no provision in the constitution for patriation and there is nothing for the courts to judge upon.
Mr. Clark: Madam Speaker, in the middle of all of the baloney and bananas we have received from the Prime Minister, I did not note a response to my question. My question is: will the Government of Canada agree to a reference as to the constitutionality of the action they are proposing in the resolution that is now before the House of Commons?
Mr. Trudeau: Madam Speaker, I answered the preamble which was baloney and bananas. As to the question itself, I want to sec the House study this matter. Then once it is adopted, of course, any citizen or any province can refer the matter to the courts if it so decides. But it is not the intention of the government to ask the courts to decide upon a matter which Parliament itself has before it.
Mr. Crosbie: You are unreliable.
REQUEST FOR GUARANTEE RESPECTING HERITAGE CULTURE
Mr. Jesse P. Flis (Parkdale-High Park): Madam Speaker, my question is for the Right Hon. Prime Minister. Many ethno-cultural groups in Canada are expressing concern that their heritage language and culture will not be protected by the proposed resolution respecting the Constitution of Canada. This fear was expressed by delegates attending two conventions this weekend, the Ukrainian-Canadian Congress conference in Winnipeg and the delegates/attending the Canadian Polish Congress convention in Ottawa. Because of these concerns, would the Prime Minister please clarify whether section 22 or some other section of the proposed resolution does in fact guarantee these Canadians the preservation and further development of their heritage culture, which of course includes their heritage language?
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the intention was to address that question in the preamble, and I refer the hon. member to the preamble we submitted to the provinces last June. Unfortunately, the provinces have refused to accept that preamble, and since—
An hon. Member: Oh.
Mr. Trudeau: They have preferred to present to me a preamble which was closer to the wording of the Premier of Quebec, who wanted the idea of self-determination to be included, and of course we could not accept that.
Some hon. Members: Hear, hear!
POSSIBLE REFERENCE OF PATRIATION QUESTION TO SUPREME
COURT OF CANADA
Mr. David Kilgour (Edmonton-Strathcona): Madam Speaker, my question is directed to the Prime Minister. I think that it was on May 28, 1946, that the Prime Minister Louis St. Laurent said, and I quote:
There are other matters given by the act to the jurisdiction of the provincial legislatures and the provincial governments; with respect to any of those it is my view that it would not be possible to deal with them without the consent of those to whose jurisdiction they have been confided.
Madam Speaker, I would like to know whether the Prime Minister is prepared to refer to the Supreme Court of Canada the unilateral patriation of the constitution?
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I answered the second question of the hon. member a moment ago when speaking to the Leader of the Official Opposition. As for the first part of the question, it seems to me that the member must be quoting what Mr. St. Laurent said when the first paragraph of section 91 was amended. He was then saying that some matters were outside federal jurisdiction when it wanted to amend its own constitution. The distribution of powers indeed appear in the first paragraph of section 91. I would like to point out that we do not alter the distribution of powers between the federal and provincial governments in the resolution now under consideration. We do not alter what Mr.
St. Laurent said, that is, that the distribution of powers could not be affected by a federal amendment.
Mr. Kilgour: Madam Speaker, I should like to ask a supplementary question.
It is very clear to me that the project aims at reducing the power of the provinces over some matters such as language rights. In my opinion the powers of the provinces will clearly be changed by this resolution. Does the Prime Minister agree? If not, could these matters be referred to the Supreme Court of Canada?
Mr. Trudeau: Madam Speaker, I have just given the Right Hon. Leader of the Opposition a negative answer to the same question.
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