Document Information

Date: 1981-03-31
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8785-8790.
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COMMONS DEBATES — March 31, 1981

[Page 8785]

THE CONSTITUTION

RULING BY SUPREME COURT OF NEWFOUNDLAND ON CONSTITUTIONAL RESOLUTION—GOVERNMENT POSITION

Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, my question is for the Prime Minister, who will know that the Newfoundland Supreme Court today ruled unanimously that the federal government—and I wish to quote from the ruling—”has . . . no authority to request an amendment that would directly alter provisions of the British North America Act affecting federal-provincial relations or the powers, rights or privileges secured by the Constitution of Canada to the provinces without first obtaining provincial consent.” Those are words from the unanimous ruling of the Supreme Court of Newfoundland this morning. So the Newfoundland Supreme Court has declared the Prime Minister’s constitutional resolution illegal.

Does the Prime Minister intend to continue to force through this Parliament of Canada a resolution which the Supreme Court of Newfoundland has declared illegal?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, naturally, we are somewhat disappointed by the judgment of the Supreme Court of Newfoundland, but it is certainly a very important one. The Right Hon. Leader of the Opposition suggests we should not act because the court decided we were acting illegally. I remind the Right Hon. Leader of the Opposition that he did not reach the contrary decision when the Manitoba Court of Appeal decided we were acting legally. He did not then agree to pass the resolution which is before the House.

These two decisions which are in conflict, and the fact that the Supreme Court of Canada has now decided that it would hear the appeal from Manitoba, and presumably any other appeals which are brought before it on this subject, before the end of April, leads me to remind the House of what some of the judges in the Manitoba case said, including the Chief Justice. They said that as long as the resolution was not out of the House the first question put to the court was hypothetical, indicating that it would prefer to judge not on a hypothetical bill but on a real bill. As a result of that, I wonder if we could not agree to pass the resolution and make sure the Supreme Court of Canada is acting, not on a hypothetical case, but on a real case, and agree to respect the decision of the Supreme Court.

Some hon. Members: Hear, hear!

REQUEST FOR DECISION BY SUPREME COURT BEFORE RESOLUTION SENT TO BRITAIN

Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, the Prime Minister will recall that the decision of the Manitoba Court of Appeal was three to two. The decision of the Newfoundland Supreme Court was a unanimous decision against the federal government. The Prime Minister will also recall his own Kirby memorandum in which there was cited a judicial opinion by the Department of Justice to the effect that a law passed by the U.K. Parliament to patriate the Constitution with an amending formula and other changes could not be successfully attacked in the Canadian courts. In other words, the legal opinion that the Government of Canada has, which it will not make available to Parliament, is that if it can get this question out of Canada, then the Supreme Court of Canada cannot act on any decision that the British Parliament might take. That is why he is trying to get this question out of the House.

Some hon. Members: Hear, hear!

Mr. Clark: I would like to ask the Prime Minister if the Government of Canada intends to appeal this unanimous decision of the Newfoundland Supreme Court. If so, will the Government of Canada await the decision of the Supreme Court of Canada on its own appeal before it forces this resolution through Canada and tries to export this question, this Canadian question, from our country to another parliament?

Some hon. Members: Hear, hear!

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I just indicated that we have had one appeal court render in favour of the resolution. There is still a decision to be rendered by the Appeal Court of Quebec. That is why I am taking this matter very seriously.

I repeat the suggestion to the Right Hon. Leader of the Opposition and to other hon. members of this House, keeping in mind the statement of the Chief Justice of Manitoba and other justices statements that they did not want to rule on a hypothetical case, that we give to them—

An hon. Member: Yeah, refer it to the Supreme Court.

Mr. Trudeau:—a resolution which will obviously be taken into account by the Supreme Court of Canada, not as a hypothetical thing but as a real thing.

The Leader of the Opposition suggests that this party is trying to hasten the resolution over to Britain so that the Supreme Court of Canada will not have a chance to judge on it.

An hon. Member: That’s right.

Mr. Trudeau: Well, hon. members over there say, “that’s right”, and so on. I am prepared to suggest that if we can

[Page 8786]

agree on some form of time allocation which would not only get the resolution improved, with the amendment dealing with women’s rights—which I believe has been pressed from various sides of the House—and an amendment which has been discussed on aboriginal rights—

Some hon. Members: Property!

An hon. Member: Too much of this is tongue in cheek!

Mr. Trudeau: If the hon. members opposite do not want to improve the resolution another way, my offer will still stand; that we get a resolution to the Supreme Court of Canada in return for which the government would certainly undertake not to press the United Kingdom to pass the resolution until it has seen the judgment of the Supreme Court of Canada, and if the—

Some hon. Members: Hear, hear!

Mr. Trudeau: An hon. member says that I have come a long way. Indeed, we were quite certain that the courts would render in our favour, as indeed—

An hon. Member: Can we believe it?

Mr. Trudeau:—one of the appeal courts has done. I am taking cognizance of this new situation, and I am making a very serious offer to the various hon. members of this House that, if the House leaders of three parties can agree on some way in which we can get this resolution out of the House— improved, if possible—get it before the Supreme Court of Canada before Easter, or any time before the Supreme Court of Canada is going to look at the factums, then we will undertake not to press its passage in the United Kingdom until after the Supreme Court of Canada has judged.

If the Supreme Court renders in favour of the resolution, I take it that would settle the matter and we could put an end to this debate which has been going on for several months. Of course, if it renders against us, the government would have to admit that it cannot proceed in the United Kingdom with the resolution in this form.

Some hon. Members: Hear, hear!

DIRECT REFERRAL TO SUPREME COURT

Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, that is a very interesting proposal put forward by the Prime Minister, which we would be prepared to consider. I assume that that would meanthe withdrawal of the notice of motion that stands now in the name of the President of the Privy Council. I would like that confirmed.

However, my question to the Prime Minister is: since the Prime Minister is now concerned about the legality of the position which he is putting forward, would he consider applying precisely the same standard to this situation which he applied to the situation in respect of the Senate, in the former Bill C-60, when a proposal he made was considered to be unconstitutional, and he then undertook a direct reference to the Supreme Court of Canada to determine the constitutionality of that position before this Parliament acted? We would like to know that what we are doing is legal before we do it.

Some hon. Members: Hear, hear!

Mr. Clark: If the Prime Minister was prepared to do that with respect to the Senate provisions of Bill C-60, will he apply his own standard in this case so that Parliament can be assured, before we act, that what we are doing in this House of Commons and in the other place is legal?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the hon. Leader of the Opposition asks for the assurance that the notice of motion before the House would be withdrawn. Of course we can withdraw that motion, providing the House leaders can agree on some other form of time allocation or agreement to pass the resolution so that it gets to the Supreme Court in time. It does not have to be the motion standing in the name of the House leader of the government, but there would have to be some agreement between members of this House that debate progress and come to a conclusion.

The reason I repeat that, and the reason why I think I should point out to the Leader of the Opposition that it is not the situation with Bill C-60 where debate had not progressed, is that—we are now in the situation where debate has been going on for six months, where the resolution has already in its present form been referred to two courts of appeal, one rendering in favour and one against, and where we have the opinion of the Chief Justice of Manitoba and other judges to the effect that they cannot judge a hypothetical situation. If that is the case—this is not a referral, I would remind hon. members of the House, not a referral by the federal government—it is a case taken by six provinces.

Some hon. Members: Oh, oh!

Mr. Trudeau: I understand that hon. members do not want to let their leader study this proposition, but I know him to be interested in it. I ask that he do study it, that we look at the possibility of getting the bill out since we have invested more than six months in it, that we get the bill out, that it pass both Houses of Parliament in good time for the Supreme Court to consider it.

I repeat, if the Supreme Court should judge against it, we will, of course, not press the United Kingdom to pass it in all stages. The point which has been so laboriously fought for by the Leader of the Opposition will have been proven to be legally right and founded. But if the contrary happens and the Supreme Court, which we all want to see adjudicate on this, decides in favour of the bill, then we will not have to begin this debate ad nauseam again but will merely ask the United Kingdom to continue its passage.

[Page 8787]

GOVERNMENTS INTENTION TO PROCEED WITH CONSTITUTIONAL RESOLUTION

Hon. Jake Epp (Provencher): Madam Speaker, my question is for the Right Hon. Prime Minister. In view of the statements he has made today in question period, and in view of the statement that was made by the Minister of Justice today, namely, “That the federal government intends to push ahead with its constitutional package despite a Newfoundland court of appeal decision backing the provinces that oppose it”, is the Prime Minister saying now that that position that was put forward by the chief spokesman of the government on the Constitution, namely, that the decision did not change anything in terms of the government’s action, has now been repudiated and that the Prime Minister is looking at a new manner in which to proceed?

Right Hon. P. E. Trudeau (Prime Minister): Not at all, Madam Speaker, I think the Minister of Justice was speaking much as I did when I answered the Leader of the Opposition. When we had an appeal court decide in our favour, that did not mean that the opposition threw up its hands and said, “All is finished; we will pass the resolution.” They said, “We will continue blocking it.” Now that an appeal court has decided against us, we are taking the same attitude as the opposition. We are pursuing our course, except that I just made a serious offer, to the Progressive Conservative Party and the New Democratic Party, to ensure that we can end this debate and then have what hon. members opposite have been asking for, for so long—we can have an adjudication by the Supreme Court of this land. Then we will be able to know whether or not our actions are legal and whether or not it is justified to present this precise measure, not some hypothetical measure as the Manitoba court said, but this precise measure, in the United Kingdom.

EFFECT OF RULING BY SUPREME COURT OF NEWFOUNDLAND

Hon. Jake Epp (Provencher): Madam Speaker, I should like to direct my question to the Minister of Justice. Up to this point in time there has been an argument and debate in this House and across the country on whether the proposition before Parliament had a moral basis. An argument has been made about its legitimacy, whether or not it was legitimate. Now the position has been taken by the Supreme Court of Newfoundland that in fact the proposition, the joint address, is illegal. Therefore I would like to ask the Minister of Justice, not only as the Minister of Justice but also as the Attorney General of Canada, the chief law officer of the Crown, why he persists in his actions to want to move ahead, in view of the fact that an appeal court has now decided that it is illegal? Why does he not fulfil his responsibilities and maintain the rule of law?

Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development): Madam Speaker, the Prime Minister replied to that question and I gave that answer yesterday. It is a very clear one. We said that the Parliament of Canada and this House are called upon to pass legislation.

When legislation is passed it is up to the court to adjudicate and, of course, Parliament and the different Houses in the provinces accept the rule of law. If we are to take the view that, every time there is a problem that is debated in the courts, we cannot operate our legislatures, we are running the risk of mixing the legislature and the judiciary. The proposition of the Prime Minister is a very simple one: let us finish our work here in which we have invested six months of effort and after that there will be a decision of the Supreme Court.

Of course, the Prime Minister said, and it is the position of the government, that we respect the decision of the courts. But we will finish our duty as Members of Parliament to finish the work that we started in the fall and, of course, we will wait for the decision of the Supreme Court before deciding to press the matter in England—yes or no.

* * *

THE CONSTITUTION

DEADLINE TO MEET SUPREME COURT HEARING

Hon. Stanley Knowles (Winnipeg North Centre): Madam Speaker, in view of the concession that the Prime Minister has made in making the statement that the resolution would not be pressed upon the Parliament of the United Kingdom until there has been a ruling of the Supreme Court, can he indicate by what date a factum would have to be presented to the Supreme Court on behalf of the Government of Canada? Also, can he say whether an early meeting of House leaders might be arranged to see if we could come to some agreement on time, bearing in mind the question I have already put to him?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, on the second part of the question I can assure the hon. member that our House leader would be prepared to meet from three o’clock onwards with the opposite House leaders to try to solve this question of timing.

I cannot say when the Supreme Court would require the factums and the resolution in its final form. Just looking at the calendar I realize that Easter is less than three weeks away and that it is at the end of Easter week that the Supreme Court, the Monday after Easter week, that the Supreme Court will be hearing the pleadings. I would suppose that the latest we could effectively get this measure out of the House would

[Page 8788]

be on Holy Monday, or Tuesday, at the very latest, that is to say, less than two weeks from now.

TRANSMISSION OF RESOLUTION TO UNITED KINGDOM PARLIAMENT

Hon. Stanley Knowles (Winnipeg North Centre): I wonder if the Prime Minister could be a little more precise about what he means when he says that this matter would not be pressed on the parliament of the United Kingdom. Does that mean it would be sent over there but put on the backburner, or that it would not be sent until the Supreme Court had made its ruling?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I would be happy to empower our House leader to negotiate such things. What I had in mind would be that we would send it over in a very informal and low-key way—

Some hon. Members: Oh, oh!

Mr. Crosbie: Not likely.

An hon. Member: By bicycle.

An hon. Member: By mail.

Mr. Trudeau:—or send it over with fanfare, if this would please leaders of the opposition. Whether they gave it first reading or not seems rather secondary. What I am saying on behalf of the government is that we would not press for its passage. Whatever way the combined opposition wants to interpret these words, I will accept that interpretation.

Mr. Clark: Would you resist its passage?

SUBJECT MATTERS FOR DISCUSSION BY HOUSE LEADERS

Hon. Stanley Knowles (Winnipeg North Centre): Madam Speaker, my further supplementary question has to do with what we can discuss at a House leaders’ meeting. I wonder if it could be understood that we could discuss the point which the Prime Minister has just now made concerning when the resolution is sent to Britain, whether it is sent over and left aside or whether it is kept here until after a Supreme Court ruling has been made.

Will we also be able to discuss at a House leaders’ meeting arrangements for a further debate that will include the guaranteed right of further amendments, such as amendments entrenching aboriginal rights and improving the position with respect to women?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, as far as our party is concerned, I could give an unequivocal answer yes to both of those questions. The first question is that it could be decided at what state, if any, the resolution would be reaching Britain.

The second would be that we would see it as very important to improve that resolution, at least with those amendments upon which all parties seem to be agreed, namely, the one concerning equality of men and women, and the other providing for an improvement, perhaps, on the amending formula with regard to aboriginal rights. I am not sure whether there is agreement on that. I think there is on a text between the New Democratic Party and our party. I am not sure where the Conservative Party stands on that.

My answer is yes, for a very simple reason, that all parties in this House believe we should have our Constitution, that it should have an amending formula, and all parties believe that our Constitution should have a charter of rights. The hon. member for Provencher has made that quite clear on behalf of his party. The leader of the New Democratic Party has said that he thought it was the best charter in the world. But we want this content. We did not know, we did not agree, if we could proceed legally the way we are. What I am proposing is that we obtain a judgment from the highest court in the land as to whether we are or whether we are not proceeding legally. If we are, then I suggest that settles the matter and the United Kingdom will act expeditiously.

That is the proposal I am making to the Leader of the Opposition and to the Leader of the New Democratic Party.

Some hon. Members: Hear, hear!

REQUEST FOR WITHDRAWAL OF CONSTITUTIONAL RESOLUTION AND REFERRAL TO SUPREME COURT

Hon. James A. McGrath (St. John’s East): Madam Speaker, I would like to direct a supplementary question to the Right Hon. Prime Minister. In so doing, I cannot help but make the comment how sad it is to see the Dean of the House, the hon. member for Winnipeg North Centre, having to stand up on behalf of his party and swallow himself whole.

Some hon. Members: Oh, oh!

Some hon. Members: Hear, hear!

Some hon. Members: Shame!

Mr. Clark: Cosgrove is awake.

Madam Speaker: Order, please.

Mr. McGrath: If there is any shame, it is on that side of the House.

Some hon. Members: Hear, hear!

Mr. McGrath: In view of the fact that the Prime Minister cites part of the judgment of the Chief Justice of Manitoba in stating that iie had only a hypothetical question in front of him, and the Prime Minister takes that as an enjoinder to us to get on and pass the resolution so it can get to the court—but I say to the Prime Minister, surely if he wants to eliminate the hypothesis—

Mr. Lalonde: Ask the question.

[Page 8789]

Mr. McGrath:—from this question, why does the Right Hon. Prime Minister not do the honourable thing and withdraw the resolution from the House and refer it to the Supreme Court of Canada?

Some hon. Members: Hear, hear!

Right Hon. P. E. Trudeau (Prime Minister): For the very simple reason, Madam Speaker, that I am trying to get before the Supreme Court of Canada a resolution which would be improved in the way that the House leader of the New Democratic Party has suggested; that I believe the lady from Kingston—

Mr. Clark: The hon. member from Kingston.

Mr. Trudeau:—has suggested, and that we have suggested, namely, that we put these things in the resolution. Then we will have before the Supreme Court of Canada the kind of charter which everybody says is a very good one. All that will have to be determined then is the legality of it. As the Minister of Justice has said many times, this is the way the House always proceeds.

Mr. Clark: Except on Bill C-60.

Mr. Trudeau: It adopts bills. The hon. member constantly refers to Bill C-60. There was a disagreement on Bill C-60.

Some hon. Members: Oh, oh!

Mr. Trudeau: Members of the opposition did not agree with the substance of Bill C-60. But they have told us repeatedly—

Miss MacDonald: The committee report on C-60 was unanimous.

Mr. Trudeau:—and I wonder whether they were giving us the truth or not—that the people of Canada wanted a charter, that the people of Canada wanted their Constitution.

Mr. Clark: What about the amending formula?

Mr. Trudeau: That was not the position on Bill C-60. They never took that position that I can remember. That is why we are saying—

An hon. Member: What about the referendum?

Mr. Trudeau: The hon. member is talking about the referendum. I am beginning to wonder if they think the courts should impose an amending formula on us or not.

Mr. Baker (Nepean-Carleton): They could not do it anyway.

Mr. Trudeau: If that is not their position, Madam Speaker, surely all they are asking the courts to do is to do what the court of Manitoba and the court of Newfoundland have done, and that is decide whether this particular resolution is intra vires or ultra vires. That is what has to be decided.

Some hon. Members: Oh, oh!

Mr. Trudeau: I can understand that some hon. members do not like this kind of a suggestion. They have been arguing for days and weeks that the Supreme Court should decide. I am putting a proposal before them that will permit the Supreme Court to decide. If the Supreme Court decides against us, then obviously the resolution will not be sent to Great Britain. Isn’t that what the Leader of the Opposition has been looking for?

Some hon. Members: Hear, hear!

Mr. McGrath: Madam Speaker, the Prime Minister seems to be changing his position with each answer.

Some hon. Members: Hear, hear!

Mr. McGrath: Consequently, we will have to examine very carefully what in fact he has said. I want to remind the Prime Minister, in putting this supplementary question to him, that when the government took its responsibility and referred Bill C-60 to the Supreme Court of Canada, the Supreme Court stated that the process was ultra vires, that the federal government could not unilaterally change the Senate.

Now the Supreme Court of Newfoundland is saying the same thing, that the process involved in the resolution before the House is illegal and ultra vires because it changes the federation—

Some hon. Members: Hear, hear!

Mr. McGrath: By refusing to refer it to the courts, the Prime Minister is asking me and the members of this House to be—

Some hon. Members: Oh, oh!

Some hon. Members: Hear, hear!

Madam Speaker: Order, please. The hon. member has the floor only to ask a question.

Mr. McGrath: Madam Speaker, I want to ask the Prime Minister whether he will reconsider what he has said because he is asking the House, in the face of the unanimous decision by the Supreme Court of Newfoundland, to pass something which is, in fact, illegal. That is the point.

Some hon. Members: Hear, hear!

Mr. McGrath: Therefore, I ask the Prime Minister if he will do on this—

An hon. Member: Who are you?

An hon. Member: The Supreme Court of Newfoundland said it.

An hon. Member: Oh, oh!

Mr. McGrath:—I am not saying it, it is the Supreme Court—

[Page 8790]

Madam Speaker: Order, please. If the hon. member does not go directly to his question, I will have to recognize another questioner.

Mr. McGrath: Madam Speaker, I merely want to ask the Right Hon. Prime Minister why does he have this double standard. Why does he not do on this resolution what he did on Bill C-60, namely, withdraw the resolution from Parliament and refer it to the Supreme Court of Canada? That is simply what he has to do.

Some hon. Members: Hear, hear!

Mr. Trudeau: Madam Speaker, the opposition seems to have only one fallback position, and it is Bill C-60. I remind the hon. member that Bill C-60 was referred to the Supreme Court, not to know whether the federal government was acting against some constitution or convention; the case was were we acting within the authority of Section 91(1) of the British North America Act.

An hon. Member: That is the Constitution.

Mr. McGrath: It is the same process.

Mr. Trudeau: We have a section of our present Constitution—

Mr. McGrath: You have gone outside Section 91 on this.

Mr. Trudeau: Does the hon. member want an answer?

Some hon. Members: Oh, oh!

Mr. Trudeau: We were asking the courts whether, within our present Constitution, Section 91(1), the federal government could do certain things. Now there is no section of the Constitution, as hon. members know, and no written document, which says how the Constitution of Canada can be amended. It is a different situation from that in respect of Bill C-60. The hon. member keeps repeating that what we are doing is illegal. I repeat to him: why did he not conclude it was legal when Manitoba rendered in our favour, and what will he do if Quebec renders in our favour? Will it suddenly become legal, or will it still remain illegal because—

An hon. Member: Send it to the Supreme Court.

Mr. Trudeau: That is precisely the offer we are putting before this House.

Some hon. Members: Oh, oh!

Mr. Trudeau: The hon. member says we should withdraw and send it to the court. I ask hon. members whether they are interested in determining the legality of this action, or in delay? If they want more delay, then they are certainly taking the right course. If they want a decision on legality, then the course I am suggesting is the only one for sure.

Some hon. Members: Hear, hear!