Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 30th Parliament, 3rd Sess, No 10 (6 September 1978)


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Date: 1978-09-06
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 30th Parl, 3rd Sess, No 10 (6 September 1978).
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SENATE
HOUSE OF COMMONS

Issue No. 10

Wednesday, September 6, 1978

Joint Chairmen:
Senator Maurice Lamontagne
Mr. Mark MacGuigan, M.P.


Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution
of Canada


WITNESSES:

(See back cover)

Third Session of the
Thirtieth Parliament, 1977-78


SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Maurice Lamontagne
Mr. Mark MacGuigan, M.P.

Representing the Senate:

Senators:

Beaubien
Bird
Denis
Flynn
Forsey
Fournier (de Lanaudière)
Grosart
Lang
Langlois
McIlraith
Neiman
Petten
Roblin
Smith (Colchester)—(15)

Representing the House of Commons:

Messrs.

Andre
Balfour
Beatty
Breau
Bussières
Caccia
Collenette
Dawson
Dinsdale
Gauthier (Ottawa-Vanier)
Goodale
Guay
Knowles (Winnipeg North Centre)
Lachance
Laprise
Lee
MacDonald (Miss) (Kingston and the Islands)
Stanfield
Whittaker—(20)

(Quorum 18)

G. A. Birch
Patrick Savoie

Joint Clerks of the Committee

Pursuant to an Order of the Senate of June 27, 1978:

On Wednesday, September 6, 1978:

The Honourable Senator Lang replaced the Honourable Senator McDonald. McDonald.

Pursuant to Standing Order 65(4)(b)

On Wednesday, September 6, 1978:

Messrs. Dinsdale, Balfour, Andre (Calgary Centre) and Goodale replaced Messrs. Lawrence, Halliday, McGrath and Watson.


[Page 3]

MINUTES OF PROCEEDINGS

WEDNESDAY, SEPTEMBER 6, 1978
(17)

[Text]

The Special Joint Committee on the Constitution met this day at 9:40 o’clock a.m., the Joint Chairman, the Honourable Senator Lamontagne, presiding.

Members ofthe Committee present:

Representing the Senate: The Honourable Senators Beaubien, Bird, Denis, Flynn, Fournier (de Lanaudière), Lamontagne, Lang, Langlois, McIlraith, Neiman, Petten, Roblin and Smith (Colchester).

Other Senators present: The Honourable Senators Lafond and Molson.

Representing the House of Commons: Messrs. Andre, Balfour, Beatty, Breau, Bussières, Caccia, Collenette, Dawson, Dinsdale, Gauthier (Ottawa-Vanier), Goodale, Knowles (Winnipeg North Centre), Lachance, Laprise, Lee, Miss MacDonald (Kingston and the Islands), Messrs. Stanfield and Whittaker.

Other Member present: Mr. Stewart (Cochrane).

Witnesses: From the Canadian Bar Association: Dr. Gerard V. La Forest, Q.C., Mr. David Matas.

The Committee resumed consideration of its Orders of Reference concerning Constitutional proposals. (See Issue No. 1, Minutes ofProceedings. Tuesday August 15, 1978).

The witnesses made statements and answered questions.

The Committee agreed to print the Memorandum to the Canadian Bar Association Committee on Constitution dated August 18, 1978 submitted by Mr. David Matas as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CC-4”).

At 12:05 o’clock p.m. the Committee adjourned until 2:00 o’clock p.m. this day.

AFTERNOON SITTING
(18)

The Special Joint Committee on the Constitution met this day at 2:05 o’clock p.m., the Joint Chairman, The Honourable Senator Lamontagne, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Beaubien, Bird, Denis, Flynn, Fournier (de Lanaudière), Forsey, Grosart, Lamontagne, Lang, McIlraith, Neiman, Petten, Roblin, and Smith (Colchester).

Other Senators present: The Honourable Senators Molson, Olson and Stanbury.

Representing the House of Commons: Messrs. Andre, Balfour, Beatty Breau, Bussières, Caccia, Collenette, Dawson, Dinsdale, Gauthier (Ottawa- Vanier), Goodale, Guay (Levis), Knowles (Winnipeg North Centre), Lachance, Lee, Miss MacDonald (Kingston and the Islands), Messrs, Stanfield and Whittaker.

[Page 4]

Other Members present: Messrs. Alkenbrack, Duquet, Parent and Richardson.

Witnesses: From the Canadian Bar Association: Dr. Gérard G. La Forest, Q.C. and Mr. David Matas.

The Committee resumed consideration of its Orders of Reference concerning Constitutional proposals. (See Issue No. 1, Minutes of Proceedings, Tuesday August 15, 1978).

The witnesses answered questions.

At 4:15 o’clock p.m. the sitting recessed.

At 4:28 o’clock p.m. the sitting resumed.

Pursuant to the Order of the Committee dated Wednesday August 30, 1978, the Committee resumed debate upon the motion of Miss MacDonald (Kingston and the Islands) which is as follows:

That this committee report to the Senate and the House of Commons that it does not feel justified in continuing its consideration of the provision of Bill C-60 respecting the Senate of Canada and the position of the Crown until the questions of constitutional jurisdiction raised by W. R. Lederman, Queen’s University, have been settled.

That the committee include in its report a recommendation that the Government consider the advisability of referring these provisions to the Supreme Court of Canada for a decision as to whether they are intra vires the federal government acting alone, either through unilateral action by the Parliament of Canada under section 91(1) of the B.N.A. Act, or by means of a joint address from the Parliament of Canada to the Parliament of the United Kingdom without the agreement of substantial compliance of the governments of the provinces, and

That the committee urge the government to consider the advisability of referring its proposals respecting the division of powers to the committee without delay.

After debate thereon, the Honourable Senator Flynn moved,—

That the motion be amended by striking out the first paragraph and substituting the following therefor:

“That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown; and”

and by striking out the third paragraph.

Mr. Breau moved,—

That the Committee do now adjourn.

The question being put on the motion, it was negatived on the following division:

[Page 5]

YEAS—15

From the Senate: The Honourable Senators

Denis
Fournier (de Lanaudière)
Langlois
McIlraith
Petten

From the House of Commons: Messrs.

Breau
Bussières
Caccia
Collenette
Dawson
Gauthier (Ottawa-Vanier)
Goodale
Guay (Lévis)
Lachance
Lee

NAYS—17

From the Senate: The Honourable Senators

Beaubien
Bird
Flynn
Forsey
Grosart
Lang
Neiman
Roblin
Smith (Colchester)

From the House of Commons: Messrs.

Andre
Balfour
Beatty
Dinsdale
Knowles (Winnipeg North Centre)
Macdonald (Mlle) (Kingston and the Islands)
Stanfield
Whittaker

Mr. Gauthier (Ottawa-Vanier) moved,—

That the question he now put.

The Chairman ruled this motion out of order in accordance with Beauchesne 217(5).

Debate resumed upon the amendment by the Honourable Senator Flynn,

That the motion be amended by striking out the first paragraph and substituting the following therefor:

“That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown, and”

and by striking out the third paragraph.

After debate thereon, the question being put on the amendment, it was agreed to on the following division:

YEAS—20

From the Senate: The Honourable Senators

Bird
Denis
Flynn
Forsey
Fournier (de Lanaudière)
Grosart
Lang
Langlois
McIlraith
Neiman
Roblin
Smith (Colchester)

From the House of Commons: Messrs.

Andre
Balfour
Beatty
Dinsdale
Knowles (Winnipeg North Centre)
MacDonald (Mlle) (Kingston and the Islands)
Stanfield
Whittaker

NAYS—12

From the Senate: The Honourable Senators

Beaubien
Petten

From the House of Commons: Messrs.

Breau
Bussières
Caccia
Collenette
Dawson
Gauthier (Ottawa-Vanier)
Goodale
Guay (Lévis)
Lachance
Lee

[Page 6]

The question being put on the motion, as amended, it was, by a show of hands, agreed to: YEAS: 20; NAYES: 12.

At 6:08 o’clock p.m. the Committee adjourned until Thursday, September 7, 1978 at 9:30 o’clock a.m.

G. A. Birch

Joint Clerk of the Committee


[Page 7]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, September 6, 1978

[Text]

The Joint Chairman (Senator Lamontagne): Ladies and gentlemen, we have this morning Dr. La Forest, who is well known to most of you, I am sure, who will speak on the report that his committee has prepared for the Canadian Bar Association and he will also as we proceed want to make some personal remarks, I understand. He is accompanied by Mr. David Matas, who was a member also of the committee which prepared the report; Mr. Matas comes from Manitoba. Would you make an opening statement?

[Translation]

Mr. Gérard La Forest (Canadian Bar Association): Thank you, Mr. Chairman. Honourable Senators, honourable members, I am quite honoured to have this opportunity to come and speak to you.

As the Joint Chairman told you, I am here this morning as Executive Vice-President of the Committee on the Constitution of the Canadian Bar Association. I am accompanied by Mr. Matas who, as you were also told, comes from Manitoba. He knows better than I the government bill and, consequently, will be better equipped than I to answer your questions.

[Text]

Perhaps the first thing I should say to you is precisely what the mandate of the commission, or rather the committee, was. I am used to saying “commission” because I have been in the Law Reform Commission all these years. The mandate was not, as the newspapers tried to describe, to frame a position for the Canadian Bar. I might read some aspects of the mandate to you. We were asked to search for the essential attributes of a Canadian federalism in a resolution that indicated to us to some extent the parameters of what we were to do.

Another provision provides that the constitution be re-written so as better to meet the aspirations and present-day needs of all the people of Canada and to guarantee the preservation of the historical rights of our two founding cultures. That being the case then, this was the framework in which we operated.

The members of the committee were chosen from members of the Canadian Bar in each of the provinces. There were two members from Quebec to make certain that the views of that province were represented.

Now, in doing this, the Canadian Bar thought it would thereby fulfil its obligations in trying to raise the level of debate. We were not out to form a constitution; we were not out, certainly at this time, to put forward the views of the Canadian Bar. I think that if people read the report of the committee, they will find that it is useful not only when they agree with the committee but also when they disagree, The notion is to help focus the debate among the public.

The lawyers have a particular perspective that way and can help focus, in a way, and it is our hope that other disciplines would do the same. We were not purposing to step out of our

[Page 8]

rightful role and try to write the constitution of Canada in any way: we were trying to improve the level of debate among the public.

That being so, then there was no question, when we arrived at the meeting. of the Bar’s taking a stand for or against it. There was an attempt to do that and that did not go. At the moment it is under study and I would not be surprised if the Bar came up with a number of propositions after it has had time to study the paper.

So this was the situation in which the committee found itself with this kind of mandate, and having done that it attempted to try to identify with the issues that we have to face in this country. I think we all know, we do not have to be reminded of the fact, that Quebec, in recent years, has been shaking up the confederation, wondering if it should go in alone or whether it would be better to continue. Obviously that was one of the issues; but as this issue has developed during the constitutional process other strains in the confederation began to be apparent. I think that what I like to call economic rights, and what in this country comes under regional disparities, had to be identified.

We had to look at the question that there is an alienation, or so it seems, from Ottawa, from the central institutions of government, that we thought we should look at to see what, if anything, the constitution could do.

Now, we are as mindful as anybody else that the constitution cannot possibly solve all these problems. In fact, the constitution is only a part of the picture, but it is a part, nonetheless, that has tremendous symbolic importance, and that was our task.

In looking at the problem, we thought that there were, in existing constitution, a number of problems in itself. One of them is that the symbolism is very bad. It is, of course, a British statute, and a country surely deserves a constitution of its own.

Modern constitutions tend to give some picture of what the aspirations of that society are: it fails to do this completely. There are what I might call quasi-symbolic matters. I call them “quasi” because they serve a dual role.

A bill of rights, for example: what are the objects of government? What are its relations to the people? That is partially an enforceable provision. It determines what government can do and what it cannot do as regards individual rights. But it is also highly symbolic, that individuals have before them a document that tells them what their rights are.

The same applies—and in this country, of course, it is extremely important—to the question of linguistic rights.

Then we looked, as I gather this Committee is not doing, at the division of powers and we came to the conclusion as we went along that there were certain things that could be done.

Here I think we followed to some extent what the Joint Committee on the Constitution a few years ago did but we tried to identify what fell within or should fall within provincial powers and what should fall within federal powers.

[Page 9]

We came to the conclusion that there was not a great deal of drastic changes that could be effected. There were some changes, some important changes. So this focused more and more attention on federal institutions and in particular the Supreme Court and the Upper House. We did not deal with the House of Commons as a federal institution, though I think it merits a great deal of attention. I do not think we would have had the research resources for the kind of study that is needed on that because it would take you into electoral systems and many other things if you wanted to do an adequate job, I think, on the House of Commons. So we focused on those.

In doing this I might say that we felt a great deal more assurance in dealing with the Supreme Court and the courts generally. I had the impression sometimes as we dealt with the Upper House that it was like trying to square out a circle. It is an extremely difficult job, I think—and I think that is the first thing that anyone who has looked at an Upper House seriously does—it is an extremely difficult job to arrive at an Upper House that serves all the functions that it ought to serve.

I think if there is a lesson to be learned from our work on this it is that one, that this is by no means an easy question, and there should be some patience as people try out some new or different devices. Certainly there were almost as many opinions when we walked in the room as there were people there, as to what kind of Upper House we should have.

I might brielly speak about those two institutions. I will be ready to reply to any questions but I do not want to prolong this initial discussion. And Mr. Matas may have a few words to say about the broad differences between our proposals and those before you now.

We came to a number of conclusions about the courts. The first one, and on this we agree with the bill, is that the court should be entrenched in the constitution. It is a major constitutional institution and should be set up there in the constitution so that everybody knows what the Supreme Court is and what it is for.

We dealt with its composition. We came to the conclusion that, of course, the court must be large enough to represent the various regions of the country. It must be large enough and able to handle both systems of law in this country; and this in effect means that you have to have a fairly large court. If we could have a small court, I think every member of the committee would have favoured that.

We came to the conclusion that a nine-man court was probably best, not because there is any magic in it but because nine reaches out to the outer limits of an efficient operation of a court; otherwise you have two or three courts, if you break it up into panels, you have indecision and vagueness: with the growing numbers that is what you get. The function of a Supreme Court is to give guidance to lower courts and as you raise the number this guidance becomes less and less clear.

[Page 10]

We, of course, gave a great deal of attention to the question of the civil law, to the claim that has been made some time that there is a distortion in civil law. But I do not think we would be prepared to admit this. Certainly different commentators have taken different points of view. We think, however, that if one eyes the statistics of how many cases go, the numbers are few. Now that the Supreme Court of Canada has the right to choose its own cases, it will not be choosing cases that are of purely local significance. They choose them because they have a national dimension, and because they have a national dimension they should be heard by the Supreme Court. I understand and we approve of the practice of the Supreme Court in working with a smaller panel of five to ensure a majority to the civil law judges when there is a civil law case, or predominantly a civil law case because, as you know, these cases do not arise in a vacuum. It is partially civil law, partially common law, partially federal law. It is really impossible to break up the question in that way. Therefore by and large we have, I think, opted for the status quo, which we think is probably the best solution we can find in Canada. On the committee I detect a lack of patience for those who felt that in some way it should be a representative point, that it should represent regions directly. In fact, it seems rather strange in the conception of a court that it should be a court of arbitration in this way.

As to the Upper House, I am sure that it will come up directly in any event, and I feel I have spoken rather long now.

The Joint Chairman (Senator Lamontagne): I think you should go on making your general remarks.

Mr. La Forest: As to the Upper House, I think we detected that there are three clear choices for Canada. One is to go on with an appointed House. There are advantages and disadvantages to the appointed House. The difficulties we found with the existing House was not so much in the performance of its legislative functions. I think there have been complaints, as there always are complaints, and some of them I am sure you know as well as I do. But the simple fact is that on the legislative side we had no serious complaints as to the work done by the Senate.

Our fault with the existing Senate is that it does not perform what we thought was the most important function of an Upper House and that is to represent the regions. They are appointed, as you know, by the Prime Minister and I think that is for life or 75 years now, or whatever. We do not have the feeling that it represents the regions and that it is seen as representing the regions, which is equally important. It is, of course, chosen on a geographic basis. If the Senate were retained in the form in which it exists now, more or less—we have favoured most of the proposals that were made by the Joint Committee a few years ago—if that were the desire, and it was the desire of some members—as I say, there was a view of every kind, although the method of appointment preferred by the commit-

[Page 11]

tee, and again there were dissenting views, was the one that had been recommended by the federal government a few years ago, in other words half named, as I recall it, by the federal government for a six-year period and another half named by the provinces for a six-year period. That was clearly the majority view, although again there were dissenting reasons on that. But that could not command the majority in the committee onyway, an appointed one. We felt that fundamentally this did not respond to the major reasons to have an Upper House at all. We felt that if the legislative function were the only function then, and there were a significant number of members who simply favoured abolition, the House of Commons would have, however, to change its procedures drastically to do the work that is now being done by the Senate.

We then discussed the notion of an elected House, and here we had two difficulties. I think people looked south of the border at the Senate there, and we happen to think that is a very unfair comparison; unfair because the two Senates are entirely different. You have an elected Senate in the United States. Not only do you have an elected Senate, you have legislative power which, in fact as opposed to form, is highly centralized. Ultimately there will be a deal and you will get legislation passed. If you incapacitated the federal government here, what you would do is have even stronger provincial governments, And there comes a time when the provincial governments are strong enough. That is one of the problems we detected.

Another problem since the Committee opted for the systems of responsible government was I think we felt that an elected Senate would not work well. It would do one of two things. I would either be strong, in which case it would block the House of Commons, which was equally elected and which, under a system of responsible government, is supposed to be running the country, and it would therefore block and have the same effect as I mentioned before; or it would be weak. And if it were weak and aped the actions, as has happened in some other federations, of the Lower House, then why have it at all? So some Members favoured and elected House, but on balance they came to the conclusion that we should not have one.

The predominant view of the Committee, therefore—and I any “predominant” advisedly, as the report does, because I do not know that one could detect a clear majority on anything—the view, however, that rallied the most people once you eliminated the other alternatives, from abolition to an elected to an appointed Senate, was the one that has received a lot of attention in recent years. l do not know how much deep attention, which is another thing, and I think we tried to give it quite a bit of attention within the time frame we had, but certainly it would require more study. We thought of an Upper House that directly represented the provinces.

Now, here, of course—you would have to in this country-we used two precedents. We looked at the precedent of the German Upper House, which, of course, is in a very different

[Page 12]

country. We also looked at our federal-provincial conferences and tried in some way to find a way to achieve an Upper House that would respond to the demands for local input federal legislation. We considered quite a number of alternatives. Certainly you could not in this country have, as in Germany, the provincial cabinets being immediately members of the Upper House. That works very well in Germany, but the fact is that in Germany the Laender are very much weaker governments than our are.

Secondly, despite aeroplanes, there is the business of distance.

So what we are proposing in that the members of the Upper House, in effect, he delegates of the provincial governments. Now, we know a similar idea has been raised by the Ontario Advisory Committee on Confederation. Our problem with that was that it made the Upper House far too strong. We came to the conclusion that it is well for the provinces to have a national forum for bringing forth the views of the region. This has a twofold effect. Not only does it give the provinces a voice; it gives them a voice that may be somewhat more responsible than talking to the people back home. So that we perceived a possibility that people speaking on the national scene and in the national context might react very differently, and that there might be co-operation at the beginning of the legislative process rather than later, as our federal-provincial conferences have seen.

We further saw in the upper House a possibility—and whether our proposal is accepted or not, I do not think that possibility should be tossed out of hand—the possibility of creating an instrument under which both levels of government should be able to act in certain circumstances. We experiment- ed in the trade and commerce area.

Now, under our existing constitution, largely, the control of interprovincial trade is done by the federal government but control of intraprovincial trade is done by the provincial governments. And yet, to adequately control interprovincial and international trade sometimes, you really should have some power to deal with intraprovincial trade.

Now, to do that, however, endangers the federation, and we have some instruments to do it in the existing constitution. For example, the declaratory power is of that type. But if you recall for a moment how difficult it is to use the declaratory power, even when you ought to use it, you will realize that we seem to need an instrument—and I do not mean informal deals; the people have a right to know when a law is being passed and they have a right to have it in a formal kind of way. So that is the kind of upper House we had tried to achieve.

No one is more conscious of the fact than I am that it is simply tracing out the outlines.

[Page 13]

The people who know how an Upper House functions could develop it. They can also destroy it because they probably know more.

I invite sympathetic attention to the idea and if, of course, after giving it that sympathetic attention it will not work, well it will not work. But I do say that if that does not work, we have to begin to think very seriously in this country of developing some mechanism for getting common decisions on certain problems that are very difficult to divide, because if you gave it to the federal goverment, it endangers the existence of the federation.

So that is the kind of thinking we have done, and I think that if you read it, I will certainly be prepared to defend it. I think there is quite a lot of truth in it, whatever the ultimate decision may be. But I, as I say, invite your very serious attention to this idea because we need to find a focus.

This brings me to another idea and then I will cease.

Another thing that we thought about was—and I think almost everybody who has thought seriously of the constitution has been thinking about this—that we need far more formal, permanent methods of consultations and mechanisms. We have one, for example, that we have set out in the external affairs power and issues. There has been bickering on that issue for such a long time that, in my view, could have been avoided.

Anyway, ladies and gentlemen, that is about all I would like to say for an opening statement; but I wonder if Mr. Matas might wish to comment on the differences in the bill. Then, in questions, I am sure that I can get far closer to the government bill even though I do not know it as well.

The Joint Chairman (Senator Lamontagne): Mr. Matas.

Mr. David Matas (Canadian Bar Association): Yes, there are a couple of things I would like to say.

I have prepared and had distributed a memorandum which tries to set out the differences. I do not propose to read to you memorandum but I wanted to mention a couple of things.

Following the order that Dr. La Forest used, going to the Supreme Court first, I wanted to emphasize the fact that the committee does not propose that the Quebec judges or the civil law judges be the sole judges of questions of law relating to civil laws of Quebec. We do anticipate that when a civil law question arises there would be a panel where the civil law judges would be in the majority, but we have no formal requirement that the questions of law relating to civil law be referred to such a panel.

Setting up such a formal structure would have, in our minds, created a number of problems. For one thing, there is a question, if you would have such a structure for civil law why do you not have a similar structure for common law? Why are the civil law judges given power to decide civil law questions

[Page 14]

but the common law judge is not given power to decide common law questions?

Another problem that arises is, who is going to decide whether or not a question of civil law arises? If it is going to be the full court, then suppose the common law judges think there is a question of civil law and the civil law judges think there is no question of civil law. Does the case go undecided? Suppose there is such a division of opinion and the civil law judges decide the question all the same. That would mean in effect that the civil law judges would be writing dissents to their own opinions.

Suppose on the other hand that it is the civil law judges that decide that there is a question of civil law involved. In that case you would be getting a minority of four deciding a case for the whole court, and you would have the majority being in dissent and the minority deciding the case.

Another problem may arise in such a system. Suppose there is a panel of no civil law judges and a civil law question arises. Normally when a case gets to the Supreme Court one knows what questions will arise but counsel is always free to raise new issues should he want to do so. And if he does raise a civil law question, does that mean the case would have to be reheard?

Another point that has to be made is that ordinarily judges at first instance are called upon to decide questions a good deal more remote from their own knowledge than questions of civil law. At first instant judges are called upon to decide a question where there is a conflict between expert witnesses. They may appoint their own expert but their own expert is only to give them advice on the meaning of the terms, not to decide the question for them. So to have civil law judges decide questions of civil law would in effect be taking away from the judge the power to assess all the arguments in a case before him, and it would in effect be removing the case from him. That was the point I wanted to emphasize in terms of the Supreme Court.

In terms of the Upper House, one difference that we did have with Bill C-60 was the double linguistic majority. The government bill proposes that there be a double linguistic majority for questions of special linguistic significance. Again, the committee has no such proposal. As you can see from reading our report, it is something that we considered and debated at length, but again there are problems with that. First of all, we felt it was unnecessary because there is an entrenched bill of rights, and also many of the questions of linguistic significance are questions that are within provincial jurisdiction anyway and would not come before Parliament.

A double linguistic majority can prevent the enhancement of rights as well as preventing the lessening of rights. Also we felt that it offends against the notion that a legislator should either represent his constituency or represent the public interest. In this situation, the legislator is representing the group into which he is born. It is as if we had a double racial majority, a double sexual majority, or a double religious majority. So that is a second difference.

[Page 15]

In terms of the Bill of Rights, we proposed some additional rights that Bill C-60 did not propose. We proposed an entrenchment of a right to reasonable access to all public information. The right to information is something that the Bar has proposed on other occasions by another committee, and we propose constitutionalizing of that right, as well as a correlative right to the protection of privacy.

The bill proposes limitation on entrenched rights that are justifiable. The committee did not have an over-all limitation like that. It proposed only that the Bill of Rights would be suspended in case of real war, invasion or insurrection. This suspension would not occur in the case of apprehended war, invasion or insurrection.

Again, the committee proposes a guarantee of access to the courts to enforce the Bill of Rights and to exercise judicial review. From my reading of the bill, there is no such proposal in the bill.

In terms of language rights, there are a couple of points in relation to the courts that might be of interest to this committee. Our committee proposed that either English or French may be used in any pleading or process in civil cases throughout Canada and the government bill proposes that sort of right in only three provinces: Ontario, Quebec and New Brunswick.

Our committee proposes that a person whose ordinary language is English or French has a right to be tried in a criminal case in that language whereas the bill proposes only a translation service; in effect, that individuals giving evidence in criminal cases have a right to be heard in either English or French.

A right in relation to the schools is not mentioned in this little memorandum that I want to bring to your attention. Our committee proposed a freedom of choice for parents for the language of instruction of their children. And that was a general freedom-of-choice provision.

The government bill has a freedom-of-choice provision but it denies freedom of choice to two groups of parents: one of them is landed immigrants and the other is members of the majority official language in a province, so French parents would not have a constitutional right in Quebec to send their children to the English school system and English parents would not have the constitutional right in the English-speaking provinces to send their children to the French schools.

Those are the differences I wanted to mention by way of introduction.

The Joint Chairman (Senator Lamontagne): Thank you very much. Senator Bird, then Senator Roblin and Mr, Breau.

Senator Bird: Thank you, Mr. Chairman.

Mr. Goodale: On a point of order.

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The Joint Chairman (Senator Lamontagne): Yes.

Mr. Goodale: I was just wondering in our normal procedures if Mr. Matas’ memorandum will be appended to our Minutes today so that we could have the full text of it as part of the record.

The Joint Chairman (Senator Lamontagne): Is it agreed?

Some hon. Members: Agreed.

Senator Bird: I am concerned about your attitude toward economic rights and social rights which you have outlined on page 16 of the main volume that I have here. And you say:

Not all fundamental rights can be wholly, or sometimes even partially, protected by a constitutionally enshrined Bill of Rights. Thus most economic rights, such as the right to a basic standard of living or the right to work, can best be protected by positive action by legislatures.

Under our present constitution many social rights have been taken over by the federal government with the agreement of the provinces. I am thinking of old age security, family allowances, unemployment insurance.

And you go on to say:

. . . the Bill is intended to limit the powers of government, not to increase it.

If you were going to give back these very fundamental rights to the provinces, are you not going to make your entire bill really a travesty?

You go on to say that you are thinking of a preamble drawing attention to these matters. Well, you know, a preamble does not mean anything; you have to have it written in and spelled out surely.

Mr. La Forest: Let me pick that up at several points. I seem to get the notion that somehow we are proposing a transfer of rights to the provinces from the federal government. I think the Bill of Rights applies to both levels of government so that there is no question of transferring from one level of government to another any further rights.

In other words, the division of power is then subject to the Bill of Rights and we do say, though we do not think it is necessary, that if it is felt that it is advisable to do it expressly as was done in the Victoria Charter, for example, by all means do it. But we do not think this is necessary.

As to preambles and so on, I do not share your pessimism about what preambles mean. It seems to me that the United States and other countries have fed future social policy by a statement of purpose in the basic instrument. I fully agree that there are certain rights as, for example, the ordinary fundamental rights that we have listed here, that can be protected by courts and so on. I am by no means sure that this is the major protection they afford to those rights. They are a lesson every day to everyone in the country about what the rights of the government should be as regards the people.

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As to economic rights, I know of no more unfortunate experience in the confrontation between courts and the elected members of the people than occurred in the United States when the Supreme Court took it upon itself to read economic rithts into the constitution, economic rights that no longer fitted the society.

Nonetheless, the clear statement of purpose I think is very important. It gives a sort of platform for people to discuss. Certainly if you go to the Maritimes, they know that you cannot spell out economic rights in any specific way. But they do want the platform, they want to be able to say, this is what this country is about. And it does not hurt my feelings that other people are able to say that: the fact that we say about the Indians, for example, that we accord them a special place and do make provision as much as we can.

A constitution cannot do everything. A constitution is a framework. Occasionally it can directly protect. So often, though, what it should do is tell people what the country is about, in clear and lucid language. And that at least was our position.

Mr. Matas: My understanding was that you were concerned that we were proposing the transfer ofjurisdiction over old age pensions, family allowance. unemployment insurance, to the provinces.

Senator Bird: No, I am really trying to say that we already have this as part of our federal system, and since we are doing so much now to weaken the federal government we had better have in a Bill of Rights something which every citizen in the country has a right to. It should not be left to the provincial legislatures to decide about the right to work or about a guaranteed annual income or some of the other things we have been discussing at the moment.

Mr. Matas: Well, in any case, I did want to point out that we are proposing to leave unemployment insurance with Ottawa and that as far as family allowances and old age security are concerned, we are proposing concurrency, and we are proposing the constitutionalization of some protection in relation to those demographic graphs because the concurrency we provide is for a variation in the grants among provinces subject to a minimum standard and within limits of the constitutional formula. So there would be that protection.

Senator Bird: There would be a certain repugnance, I think, in these two statements.

The other question is on the second page of the summary of the recommendations, and it is 4.11. You talk about the Bill of Rights for protection against discrimination, et cetera. Why did you not include marital status as well as sex in that? The reason why I ask that is I think it is very important because in time many women, for example, earn larger incomes than their husbands, and if someone says to the husband, well, we are not going to give you a job because you are married and your wife is earning more, this is certainly discriminating against this husband. And I just wondered why you had not included it.

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Mr. La Forest: Possibly because there was not a woman on the Committee.

Senator Bird: Well, I am thinking of men, of course, and I think we must protect men as well as women, Mr. La Forest.

Mr. La Forest: Women think of that. I do not think we addressed it. I think perhaps this gives me an opportunity to say how we proceeded, by and large. You will realize the time frame we had. And by and large we did not purport to be original. What we purported to do was to assess many proposals made over the years, particularly in public documents and particularly in constitutional public documents. We simply did not come across that particular one in the Bill of rights proposed by the government or the . . .

Senator Bird: One final very brief question. Why was there not a woman? Are there no qualified women lawyers in Canada?

Mr. La Forest: Well, here, you know, you might have asked me why there was nobody six foot tall, because I had no choice in the. . . . What was done was that it was done locally. Certainly the national office did not impose the members.

It was not an attempt to be representative. A person was picked in each province. I would have thought many of the experienced people at a certain age are probably men anyway. Beyond that, I cannot say—beyond the fact that they were simply not there.

Senator Bird: I see, Mr. Chairman. Thank you, Mr. La Forest.

The Joint Chairman (Senator Lamontagne): Senator Roblin.

Senator Roblin: Mr. Chairman, I found this work on the part of the Canadian Bar Association very stimulating and it certainly helped me to crystallize some of my ideas. I find some things I do not agree with but there are many good points which I find of great interest, so I would like to express my appreciation to start with.

My concern this morning is related to two aspects: one is the Senate, and the other is the division of powers. I will ask a few questions about the Senate first. I notice that the principal function of the Senate is described as review of federal legislation having significant regional impact. I agree that that is the area in which people seem to be concentrating today, but I think that perhaps insufficient attention has been given to the other function of the Senate—at least it sems to me to be the other function of the Senate—namely a house of sober second thought. In the machinery that you have elaborated here, you go to great pains, and I think very intelligently, to decide what the Senate might do with respect to regional matters, but you do not say much about how it is going to continue to carry out

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its function in respect of these sober second thoughts, which in my opinion is a very valuable function and one that should be continued. How do you relate the sober second thought function on non-regional matters with the fact that your new Senate would be composed entirely of provincial appointees? Do you see any problem there?

Mr. La Forest: At first sight, there is no doubt that that was not our principal concern. I think that we looked at it and questioned the priority and viewed regional concern first, and I think that in doing that we may have given it insufficient attention. At the same time, we were not unmindful of it because, for example, if you read the proposition about the abolition which was favoured by quite a number of the mem- bers of the committee, it was pretty clearly underlined that some procedure, possibly through the Commons, would have to be devised to do this and we thought the Commons could fix its procedures to do this. This is a matter, of course, about which you will be far more familiar than we are. We thought that could be done. The provinces, for example, have gotten rid of second houses where they existed and somehow they managed to review the legislation, possibly not as adequately.

Again, I think that there was a feeling that people appointed by the provinces could perform that function as well. There is nothing at all that prevents them from doing so. One of the problems is that they do not stay as long as the existing Senate and therefore do not get the expertise, but a lot of the expertise is picked outside. I would have thought, for example, that very useful work could be done by a provincial representative on a subject like bankruptcy because that impinges on property law, and many other things, so we did see a role being performed by that second house that way but we did not spell it out very strongly. That is clear.

Senator Roblin: I take it, then, that you see no problem of legitimacy in this new second house of yours performing this non-regional function.

Going on to the points that you list on page 5 of the summary, you indicate various legislative matters for which a two-thirds vote of the Upper House would be required, and I take it that what you really mean to say is that that two-thirds vote does constitute a blocking veto and presumably that could go on forever no matter how often the House of Commons introduced the matter. Okay, then. Going back to the items which are excluded from this two-thirds blocking veto, you say that the new senate would have power to amend or reject, subject to the overriding power. so I presume that is a suspensive veto of some kind. What suspensive period had you in mind?

Mr. La Forest: We did not think of any particular period. I have the feeling that if you have a body representing the provinces directly in this way, making a stand on an issue, the federal government would listen or, if it did not listen, it would not listen at its peril. In other words, we have not devised a particular enforcement function beyond the statement in clear form by an Upper House representing the provinces, that we

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do not agree with this for such and such a reason. We have not thought of the necessity of any particular period. In a word, we think the federal government and the House of Commons elected to perform the public business of the federation should be able to perform it; informed, however, and of course affected and influenced by a statement of an Upper House and in which you have the necessity to consult.

Senator Roblin: I get your opinion then of some kind of suspensive veto but you have no particular specifics as to how it would work.

I then would like to move on to the question of how we get the second House. I note that you would have it appointed by the provinces and that you have rejected the possibility of election. It has always seemed to me that one of the problems of the second House as it is today is the question of legitimacy when it comes to contradicting the House of Commons, because it is an appointed body; and even though it has the full powers of the House of Commons to deal with legislation, except in respect of certain money matters, it very seldom ventures to exercise its muscle because of that justified feeling that it has not the same legitimacy as the House of Commons that naturally represents the people.

I just wonder then what are the reasons why we could not look to an elective setup, particularly if we wanted it elected directly, particularly if we wanted it to have this two-thirds blocking veto over the House of Commons which is the popularly chosen federal body, It seems to me that if you limit the powers of an elected Senate on matters of conflict, for example, insist that it continue to have a suspensive veto only on general matters even though it is elected but the two-thirds blocking veto with respect to provincial matters, reasonable matters which you outlined here, if you do that I think if you could contemplate an elected Senate rather than an appointed one it would then have the legitimacy that it lacks and will continue to lack in dealing with the House of Commons. It would be limited to a suspensive veto on general matters, so it cannot really force the House of Commons, but it will have justification for its two-thirds blocking veto that you recommend here. So I fail to see why an elected Senate might not be a possibility.

Mr. La Forest: We did consider the elected Senate and rejected it. So far an elected Senate will of course have legitimacy. It will have as much legitimacy, however, as the Lower House because it is directly elected. If you have that situation you have one of two things. It will either ape—which has been the case for a good long period in Australia—what is going on in the Commons or it will block it, again, with not very satisfactory results as we can gather from Australia. So it is one or the other. And you begin to wonder if they are elected, well, you know, there are people in the House of Commons who are elected; you might go into a system of proportional representation which they have in Australia but that has not significantly changed the picture. Again, we are concerned that serious blocking of the federal government

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would make the provinces too strong because the provinces are not faced with that kind of block.

Take the question of legitimacy and the House one step further. We have no problems with legitimacy so long as they nre named by the existing government of the province because that government among its powers is elected to represent the regional interests and it appoints delegations to do so in Ottawa, and in most cases it merely voices the opinion of the provinces.

In the other cases that we have lined up there, howevew, we are dealing with very particular powers. Many of them are extended powers to move into the provincial domain and they could have more legitimacy than representatives of the provinces to speak on this. Or, again, for example the declaratory power, the emergency power in peacetime uses and so on, who has more legitimacy to say whether the normal rules of the constitution should not be overpassed than representatives of the provinces? That is the kind of picture we have tried to get. There are powers in the middle that under our existing constitution are very difficult to do, that do not merit the whole difficulty of getting a constitutional amendment, and indeed it may be too particular, but by getting both levels of government through some instrument to do something in a formal way and not by deals where people misunderstand what the deal was and you get a continuation of difficulty.

We have here a picture, rightly or wrongly, of a House where knowledge would be exchanged. Sometimes at the federal level people act without knowledge of what is going on in the provincial government machine and vice versa. And this would be a constant way to feed that knowledge, to bring back in a formal way what could in simpler times be done in an informal sense.

I believe Mr. Matas has a few things to add.

Mr. Matas: I would just like to emphasize the positive aspect of our proposal rather than just criticizing a motion of an elected Senate. Right now in Canada we have, in effect, instead of two levels of government three levels of government. We have the federation, we have the provinces, and we have the federal-provincial conference. The federal-provincial conference is a level of government that functions erratically, secretly, after the fact. Our proposal in a sense is to bring the federal-provincial conference out into the open. It is not creating a new institution. It is taking an institution that exists but trying to make it function in a way that it serves the democratic needs of this country more effectively. I think our proposal has to be looked at from that perspective.

Senator Roblin: Just one final comment, Mr. Chairman, and that is that one of my problems with this suggestion—and I appreciate the point that was made, that we have to examine this question sympathetically because it is so complicated—is

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that these people will not be the wise men sitting around the table. They are going to be delegates of provincial government, they will speak to a provincial government brief, and they will vote the way the provinces want them to, because they are only there at pleasure. That seems to me to bring something new into our Parliamentary procedure, and I must say that I am uncertain as to how to approach it. I am not very keen about it and I am fearful of it, that this process of delegation, being delegates rather than independent men, is what I foresee will happen, if we have this kind of an appointment. And I assure you, in fact I am positive that you are not going to be able to get between the premiers and the provincial conferences. I think your aim is perhaps laudible but the problems of achieving it are enormous.

Mr. La Forest: I think we recognize that. I think though you may underestimate the role of the people appointed here on a pretty permanent basis, because governments do change and you get the same government, and their knowledge will help to inform the provincial governments. But we are conscious of the difficulties.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Breau.

Mr. Breau: Thank you, Mr. Chairman.

Concerning amendments to the Constitution, Chapter 26, you say in recommendation number four that it should be possible, as it is now the case, to make amendments to the executive power of the Government of Canada. And you quote a list of exceptions from A to J. Would you say that they are basically the same exceptions as those existing at the present time in section 91?

Mr. La Forest: Not necessarily; we took most of these exceptions from the Fulton-Favreau Formula and the Victoria Charter. We did not look at the present provisions. For example, you know as well as I do that Section 91(1) of the Constitution provides for the amendment of the Constitution in respect of the federal executive. There are exceptions, but not all those which we have listed.

Mr. Breau: Could you briefly indicate to us what is the difference between the present situation and your proposals?

Mr. La Forest: I cannot tell you exactly what the differences are but I can certainly tell you where the present act could possibly allow an amendment. For example, as far as the Upper House is concerned, if my memory serves me right, there is no exception made in Section 91.1.

Mr. Breau: Do you think that the process which the government has embarked upon, that is Phase 1, even if both phases are being carried out at the same time, is a legitimate one under Section 91.1?

Mr. La Forest: I would not like to give you a legal opinion since I have not personally examined the question or the bill in depth. It is a difficult question and all I can say is that the government’s intention is very clear.

Mr. Breau: You can give us your opinion without being bound. I should imagine it would be rather easy for a lawyer to answer, especially a former law professor.

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Mr. La Forest: When I give my legal opinion, it is always binding.

Mr. Breau: You should be able to tell us, without committing yourself, whether the Federal Parliament would have for example the right to unilaterally pass laws changing the role of the Senate without necessarily changing a number of representatives of each provinces in the Senate and whether the Federal Parliament would be entitled to make amendments to the position of the head of state, that is the Sovereign of Canada.

Do you think that the Federal Government has the right to do this at the present time without the consent of the provinces?

Mr. La Forest: We would have to look at Section 91.1. I do not see any exception concerning the Upper House.

Mr. Breau: In your opinion, would it be a good idea for the government at the present time to stick to the letter of Section 91.1? Witnesses before this Committee have told us that customs, conventions and precedents constitute the actual law and that we should really ask the Supreme Court for a ruling on this point. Do you think that it is normal for a Parliamentary Committee, for Parliament and for elected politicians to be obliged to make such a political judgment or would it be better to stick to the letter of Section 91.1?

Mr. La Forest: That is really a political question you are asking. If, for example, the Federal Government were acting for the first time without consulting the provinces, there would be no problem and I would have no difficulty in answering the question. But in this case, it is really a political tactic since for years now it has been impossible to reach a political agreement. So you as a politician are in a better position to answer the question you have asked.

Mr. Breau: In other words, you think that it is up to us as parliamentarians to make a decision on that matter?

Mr. La Forest: It is a political question.

Mr. Breau: Thank you. Turning to the matter of language rights, I was struck by something Mr. Matas said and I would like a clarification. If I understood you correctly, you said that language rights were mainly a provincial responsibility.

[Text]

Mr. Matas: The right to a trial in the language of your choise is in all the provinces. Yes, that is right.

[Translation]

Mr. Breau: Yes, that is true for the courts, but i hope you would agree with me in recognizing that the question of language rights has a much larger dimension than the courts alone or education and that this is a federal dimension. Take, for instance, emancipation of minority groups. For me as a politician, language rights have always been linked to the emancipation and development of minority groups, both anglophones in Quebec and francophones elsewhere. In such a context, they are certainly a very important federal dimension. Radio and television broadcasting is a good example—this is an area of great importance for the development of minority groups. Would you not agree then that the Federal Govern-

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ment has a very important role to play in the field of language rights?

[Text]

Mr. Matas: I could just say in answer to that that I agree with your remarks. When I said there was a right in all the provinces to a trial in either language in the courts, I did not mean that was the only linguistic issue involved. I thought that would be of particular interest to the Committee because we are lawyers.

Mr. Breau: Oh, yes.

Mr. Matas: But you may want to say something.

Mr. La Forest: I think the statement, and it appears in the text in a way, really boils down to this: we think there are certain linguistic rights so important that they should be protected by all levels of government, not only in their own right because they are important, but because they are an important symbol of what this country is about. [Translation] Excuse me, I should have answered in French. In fact, the fact is that the provinces are closer to the people for many reasons. . .

Mr. Breau: I agree, especially in the field of education. This is the most important one. I just wanted to make the point that there was also a federal dimension.

Mr. La Forest: Yes.

Mr. Breau: This will be my last question, Mr. Chairman.

You said that you were not in agreement with the concept or notion of a double majority. I must say that I have reservations myself about the designation of English and French-speaking members and I am not necessarily in agreement with the mechanism proposed in Bill C-60. However, I cannot go along with you when you say there is no political appeal in the House of Parliament or that there are no mechanisms which would allow for certain guarantees as you are suggesting in the case of legislation having a regional impact. Even if one does not accept the mechanism provided in Bill C-60, namely that of a double majority on a language basis, do you not think that it would be advisable to ensure that changes to matters to a special guarantee as you propose for matters of regional impact? I agree with Mr. Matas when he says that normally a legislator is not designated as a francophone or an anglophone but as a person representing the interests of his constituents.

[Text]

Mr. Matas: I think there is a distinction to be made here. As I understand your point, your point is that we have got regional protection in the Senate but not linguistic protection, and why do we not have both? The reason is that we do not have entrenched regional economic rights; we felt that it was impossible to put in entrenched regional economic rights because it would involve the courts in saying that the federal government has got to pay so much in equalization and it

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would involve the courts in imposing economic decisions on the government, something we feel that the courts could not do.

But on the other hand we do have entrenched linguistic rights, so that there is not the same institutional need of protection within the Upper House for linguistic rights as there is for institutional need of protection at regional rights within the Upper House. So I would say that the entrenched language rights are sufficient protection for the language rights that need protecting.

Mr. Breau: Yes, but just in conclusion, Mr. Chairman, if I may, I think there is a difference in our notion of what linguistic rights are. I do not think that linguistic rights really should be defined narrowly as being legal rights. I could see, for example, a government or House of Commons wanting to diminish the role of Radio-Canada in the country and I include in that that term of linguistic rights, that sort of thing. That is why I think there should be a political protection, not only the courts, because by reducing appropriations an insensitive House of Commons in this field could really, in my view, diminish the rights of linguistic minorities.

Mr. La Forest: I might comment on that.

[Translation]

I have been reminded that you speak French. I would not say that we are against the proposal as such. We are rather doubtful about its importance in actual act. As for the possibility of having such rights in the Constitution . . . It is a matter of putting names on certain things, I realize why such a proposal might be made in the case of some specific legislation and why some amendments are important.

The Constitution is mainly symbolic. I go along with you completely when you say that linguistic protection is important from the point of view of French culture and so forth. I do not disagree with you on this point. But we wonder whether the inclusion of this in the Constitution is not more of a symbolic nature. What we are protecting are certain rights that must be protected, since these rights would hinder nothing you would find in the Constitution, we hope.

So, when you speak about telecommunications, it is very difficult to imagine how we could easily impinge on Radio-Canada, since it is clearly indicated in the Constitution that the francophone community would have equal rights.

For example, it is difficult to define culture; it is even difficult to define what is a French Canadian, as has been done in the Bill, That is difficult.

Mr. Breau: Personally, I do not approve of these mechanisms.

Mr. La Forest: Yes, and you are right. That is the kind of technical difficulties we should not find in the Constitution. If I had one general comment to make about the Bill, I would say

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that it is too complicated; it introduces all kinds of things that are very difficult to understand. The Constitution should be very clear. I think this document has not been drafted in the way a constitution should be drafter. I do not criticize, since I have not studied this document as a Bill, as an Act. A constitution should speak out loud and clear. When one has too much difficulty, he should forget about it all, because the constitution speaks, it establishes a mood.

Mr. Breau: Would you put me down for the second round, please.

[Text]

The Joint Chairman (Senator Lamontagne): Mr. Beatty, Mr. Caccia and Miss MacDonald.

Mr. Beatty: Thank you very much, Mr. Chairman.

I think the presentation that has been made by the Canadian Bar Association is an excellent one. It is clear that a great deal of thought has gone into many of the recommendations that are here. I think the task which faced the Committee of the Bar Association though is very different from that facing us, and I think they would recognize that, that they were able to look at the question of constitutional reform as if we were in a state of nature at the present time without having to give the same consideration of social, political, cultural, historic and legal difficulties in which we find ourselves today and that we are forced to look at. The best example, I think, of their ability to do that is in the recommendation with regard to the head of state in Canada, in that were we operating from a state of nature the force and worth of their argument with regard to the head of state, that we had no history in Canada, would be more self-evident, I think. I think I will withstand the temptation to get into the debate on the question of the head of state, as I understand it was touched on briefly in Halifax and I think perhaps we should leave it at that. But I want to return to a point that was raised at the end of Senator Roblin’s questioning with regard to the House of the Provinces concept.

I am intrigued that we hear again today a justification for the House of the Provinces theory which is very similar to that proposed by Mr. Atkey last night, and I think it is a very interesting one, that of providing a means of encouraging provincial governments to take a much more national approach to issues which impact upon the rest of the country. And I think that in itself is probably the most powerful argument that can be made in favour of the I-louse of the Provinces concept, that it may require provincial administrations, which now can view concerns from a strictly parochial perspective at the present time, to get involved and take a much more national perspective as to the implications of positions they take. But I want to try to draw the witnesses into the problem that faces us, a question of practicality and legality and politics here. I would like to ask what makes you think the provincial premiers would ever agree to the proposal that you make for precisely that reason, that the proposal that you make would inhibit their freedom, would restrict their manoeuvring room and would undercut their position, their bargaining position, as spokesmen for a province, and would in essence co-opt them into the process and limit their ability afterwards to say that their provincial interests were being

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systematically ignored. They become painted simply by participation in a process.

Mr. La Forest: Of course, we were in a state of nature in a sense and we recognized that and we felt it would say something that needed to be said that a political body would find it very difficult to say at times. I do not think we focussed on any particular government. I would be surprised if your assessment of what some premiers think were not right. I think you are perfectly right in your assessment. I by no means know whether all provincial premiers, however, would look at it that way.

We did not address ourselves so much at a provincial government or at the federal government either. We did address ourselves largely to the people, and if the idea is right—I am not saying it is. But let us assume that this idea is right. There will be political pressure on the premiers as well as on governments to do the right thing. Not only that, but I rather expect that in spite of pressures the other way, premiers and prime ministers do think about the good of the country and if they become convinced with sufficient popular opinion behind us of the rightness of it, they will do it despite the fact that they may have less power because next year or the year after they may not be there.

I would be rather surprised if people who reach that height in politics are thinking only of their personal power right now. I must say that I have a different View of human nature. Sure, that impinges on one, but one also has larger aims. That is why one goes into politics, I suspect. One loses the sheen over time, but ultimately you have a calling as other people have. And I think that premiers, if this is right, will be influenced by that idea as well as the immediate gain.

Mr. Beatty: We are engaged here in a process with a time limit on it where we are trying to revamp the Constitution substantially. One of the arguments that has been made about Bill C-60 that is before us is that it may be ultra vires for the federal government to act alone. The argument made in defence of the federal governments position was that the ability of provincial legislatures to appoint members of a revamped Senate is optional. They are given the option of “Like it or lump it; if you do not do it we will do it for you.” However, the proposal that you are making is not optional. It is something which imposes an obligation on the provinces and the only way it could function is if the provinces in fact are required to send delegates to Ottawa to participate in your revamped Senate.

The obvious example is Quebec. What makes you think that Premier Levesque would touch it with a ten-foot pole? And I would think that there would be many other premiers as well, and it is not simply limited to Quebec, where they would not consider for a second doing something that would restrict their

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flexibility and their manoeuvering room and co-opt them into the process. And is it not the case that the proposal that you make for a sort of House of the Provinces idea is as dead as a doornail unless you can secure the prior agreement of the provinces to go along because it would be unconstitutional for the federal government to impose it upon the provinces under our present regime?

Mr. La Forest: Of course, we were not interested in the political things. We assumed here a constitution that said this thing. Our job was not timing; it was analysis. Assuming now that it is validly in a constitution, there is a constitutional duty then on a premier to appoint people. If he does not do that, he is not performing his job and the people will listen. Moreover, there are very clear dangers in this kind of House of not appointing people. There are all kinds of things that can be done with two-thirds majorities. Russia tried to stay away from the United Nations, as you know, and the Korea resolution was passed while they were absent. They have never been absent since.

This is a real functioning House. Ultimately, of course, so many things in the Constitution cannot be enforced. People simply follow the Constitution because it is the fundamental law of the land and because the country could not run without it. There are all sorts of constitutional conventions regarding responsible government. There is no enforcement procedure and so on, but they function because obviously you have to assume that people who are elected to high office will do it. Mind you, a Rene Levesque might stay away, but he might not stay away indefinitely. And I doubt if people who are not in the process of trying to destroy the country, or have two countries, would want to take that kind of step.

Mr. Beatty: No. There are three problems here surely. The first is that you have assumed that it is desirable from the point of view of the country and I will accept that premise for the sake of argument. The second is the question of politics. Are you going to get a situation where people like Premier Levesque feel that the mandate that they have from their provincial voters would allow them to participate in this in the first place? I think a very good argument could be made by a number of provincial administrations: it would be contrary to the mandate which they have received from their electors to do anything which detracts from their ability to make a strictly sectional appeal to be advocates of the interests of the people in their province itself.

But the third one is one of legality; that is in constitutionality and that is the most significant one here. Assuming that you cannot find the political consensus among the current provincial premiers that there are today, because this is what we are talking about—and I say to you that I see no prospect of that happening—surely it would be ultra vires for the federal government to impose the constitutional obligation on the provinces of appointing delegates, and you use the word

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“delegate”, to a revamped House of Provinces. There is no question that this imposes an obligation on them. It is not a question of it being optional. What you are talking about is an obligation. And clearly the federal government could not act unilaterally in doing that. It would be unconstitutional relative to our present constitution.

Mr. Matas: I should point out that in our proposal we do not have a Phase I and Phase II and what the federal government can do alone and what the federal government can do with the provinces. We propose in our report that everything be done at once with concurrence of all the provinces. That is the mechanism we contemplated. We really did not get into these issues about the timing and who has to agree. Although perhaps as lawyers we would be able to give an opinion on these issues after having looked at them and done some research, these are not issues on which we would come to you now with an already-prepared opinion on.

Mr. Beatty: May ljust ask a last question, Mr. Chairman? I will try to be brief. With regard to the amending formula that you have proposed here, one of the provisions that you have is that there should be a veto. It says in Section 262(a):

(a) all provinces that at any time have had, or may in the future have, 25% of the population of Canada . . .

that the approval of all of those provinces would be required for any amendment to the constitution. I just want to ask you for the rationale—we see now a tremendous growth in population and we see the economic power base in Canada shifting towards Western Canada—that if my Province of Ontario falls behind in our growth and if we decline to less than one quarter of the country’s population, why should we have a permanent veto on any change of the constitution based on history? What basis is there for that?

Mr. La Forest: Let me try to answer that question. I think basically we share the view that 25 per cent of the population in a particular region cannot be ignored. There then are two problems. One is, of course, Quebec. I think the feeling on the committee was that even though Quebec would diminish in size, as it is the principal home of French Canada that should not be touched.

As for Ontario, I think we simply assume from population projections, and recently of course that may be changing, the population of Ontario would grow in proportion to the others rather than diminish. That certainly was my notion of the population projections and I may be wrong. That was really the ultimate reason. But if you ask me in the abstract if a province falls below a plateau, saving Quebec for the moment, then I would agree with you. But looking at the factual situation we did not anticipate that that would happen with Ontario.

Mr. Beatty: Thank you very much.

The Joint Chairman (Senator Lamontagne): Mr. Caccia.

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Mr. Caccia: Thank you, Mr. Chairman. At the outset I would like to express my thanks to the Association and its representative here today. Their brief is not only readable and comprehensive but it also stimulates thought and valuable discussion.

In your analysis of what the role of the Upper House should be you seem to have shifted even further than the bill in favour of provincial appointments and actually of provincial government presence. Having done so, when one looks at what you are proposing for the Supreme Court, you remove the recommendation of the provincial Attorney General as one of the steps for the approval of appointments. Why have you done that?

Mr. La Forest: There are a number of reasons. As I understand the bill, it is largely a rehash with more complications of the Victoria Charter though the time limits, I believe, are very considerably shortened. I think this does put the Court in an immediately political situation and also it involves a tremendously long procedure. What we did was to move directly to the Upper House that represents the province. It names people to look into the background, a judiciary committee, and that is where the provincial input is. It is a brief procedure. So that is why we went into it. We simply think the Victoria Charter formula is extremely complex, has a political taint to it that we would like to avoid. I think that in a general way is the kind of feeling about this.

Mr. Matas: If I may, there is something I would like to add to that. As I understand your question, you draw a contrast between our Senate recommendations and our Supreme Court recommendations and you ask why we have provincial representation in the Senate but not in the Supreme Court.

Mr. Caccia: In the approval process.

Mr. Matas: In the approval process, yes. I think the point we are trying to make is that the Supreme Court is a representative body, representative of others than itself, so the Senate is that sort of body. We wanted the Senate to represent the regions but with the Supreme Court we did not see it as representative either in its members or in the manner of its appointment.

The Supreme Court is not supposed to arbitrate between federal and provincial interests. It is supposed to represent the law and we felt that having the provinces involved in the appointment of Supreme Court judges gives credence to the notion that somehow Supreme Court judges are representatives of the provinces or areas from which they come, which we believe they are not. Not only do we not have the provinces involved in the appointments, we do not have, as the government bill has, that the judges have to come from a particular area. We could have our six commonlaw judges all come from Prince Edward Island, for instance. There is nothing to prohibit that because to our mind all those judges represented was the system of law from which they came.

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Mr. Caccia: Fine. That is fair enough. Some experts have expressed the view that the quality of the Supreme Court would be lessened by a procedure of the kind that is proposed in the bill or even of the kind that you are proposing. Do you think it will be lessened in your opinion?

Mr. La Forest: I think I can answer that. There was a general feeling in the committee of satisfaction with the present kind of naming so far as quality was concerned. At the name time we are very conscious of the fact that there have been complaints about the functioning of the Supreme Court in a very high level. After all, the Court is the final arbiter of the constitution so that not only must they be qualified, they must deem to be qualified to the parties most involved in constitutional disputes. That is why ultimately we move for some kind of provincial participation because it is simply necessary for the credibility of the Court. But you will notice that we felt that despite the general feelings of the time and despite the general attitude towards freedom of information, we felt that this kind of function could be done quietly rather than bring it out in public. There are arguments for having a public debate on it, but there are very strong arguments against. The committee was convinced that we would lose a lot of first-rate appointees.

Mr. Caccia: So are you saying that you were divided on the question as to whether or not a judiciary committee of the Upper House that would have to be the final stamp of approval to appointments would lessen the quality of future appointments to the Supreme Court? Is that a fair statement?

Mr. La Forest: Let me take that again. I would rather answer it in my own words.

We viewed two separate considerations. I do not think that the committee felt that the appointment system is bad in the sense that we have not had good appointments or that we would improve the quality of appointments.

The opposite consideration, though, is that you would not normally touch it, would you, if it works well, as we think it does, in getting the quality. But we are aware of the lack of credibility the court has gotten from high-level discussions. That being so, you then have to come up with a formula that makes the court credible, because it must be credible to those who argue the provincial position as well as argue the federal position. So justice not only must be done. It must seem to be done and in that context . . .

Mr. Caccia: Fine. Then how do you make it credible to those who argue the federal position if you have an Upper House, as you recommended, consisting solely of provincial appointments? You see, the bill recommends a mix of the two in order to achieve exactly the same. Now, how do you equate that?

Mr. La Forest: The Minister of Justice would present people, and he does now. That is the federal government. They must advise and consent. They do not choose the occupant; the

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federal government does, but it is sieved through a judiciary committee of a provincial body, so that each has a say.

Mr. Matas: There is another consideration I would like to bring to bear here. When we talked about the appointments to superior courts, we talked about a separation of the power of appointment from the power of administration. The power of appointment is in the federal government, but the power of administration is in the provincial governments. This has created and will continue to create the so-called Section 96 problem, but we are in favour of the continuation of this problem because this separation of powers meant a continuation or a guarantee of the independence of the courts.

When it comes to the Supreme Court of Canada, the administration, for obvious reasons, would be in the federal government. So having a Senate judiciary committee involved in the appointment would be something equivalent to the separation of powers that we have at the Superior Court level, so it would be a means by which the independence of the court would be enhanced.

Mr. Caccia: Mr. Chairman, there is an intriguing thought in the brief in relation to the Upper House whereby appointees could change from meeting to meeting, Why did yo come to that proposal?

Mr. La Forest: What we are doing effectively is to give the province the full right to name whom it will. At times I suspect it will rise to the level of a federal-provincial conference in the normal way. They could name, for example, ministers to the Upper House. There are times when over a protracted period you might get an expert in a particular field to be there when this was useful. On the whole we would like to see-we did not spell out with precision just how this would work—but we would like to see and we would assume that there would be people who would be appointed for a considerable time because you have to know how the House functions. The report was on the basis that a lot of them would be named on a full-time basis. I would view them rather as representing delegates for long periods.

Occasionally there might come up a bill that you could send that kind of person, or it may be that some issues would be sufficiently important that you say the Upper House people are the ministers, for example, some of them are the ministers of Justice and their staff, depending on the subject matter. But on the whole, we would see a continuation.

Mr. Caccia: If my time is up, Mr. Chairman, would you put me on a second round?

The Joint Chairman (Senator Lamontagne): Yes. Miss MacDonald.

Miss MacDonald: Thank you, Mr. Chairman. Gentlemen, I would like to take the opportunity to say that I think this presentation to the Committee on the Constitution by the Canadian Bar Association is one of the best documents that I think has been produced on this whole subject of constitutional

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reform during the current debate, and there are many areas in it that I find myself inclined to look upon with great sympathy, particularly your presentation that you have given this morning and in this book with regard to a revised second chamber and the goal and the direction of that second chamber.

I may say that I think the people you had to do the news releases at the time that you released your document should be fired forthwith because the initial reaction that many of us had its a result of those news releases was quite a negative one. It was only when we had the benefit of the full document and could analyse the work and look at the analysis that had gone into it that we were able to assess the contribution that you have made.

Having said that, I do not particularly want to nit-pick at the outset; I want to get on to certain other matters. Could you tell me why on page 40 of your document, when you are referring to the judicial power, you said in the last sentence of the first column and in the first paragraph of the second column:

It was thereby hoped that the two levels of government would vie with each other in choosing the best men.

And furthermore you went on to say:

The best men might not be attracted to a six-year appointment of this kind.

Is there some reason for a group that is abdicating a charter of human rights that would include no discrimination on the grounds of sex to write into your own brief that there would only be. . .

Mr. La Forest: I think to that I would say touche. There are cases where I do not say “touche”. Really there I think we should have gone on to say—I may say that I drafted this particular part—”men and women”. It is simply that one writes on the perspectives of one’s own sex. But I say “touché”; you are quite right.

Oh yes, I do not disagree. I think it is simply an oversight and something to do with the haste with which it was written too, you can appreciate. Where I find it offensive is that sometimes I hate to ruin the English language by repetitiously saying “his or her”, But there I say, yes we should have said either “she” or “men and women”.

Miss MacDonald: Thank you. As you can appreciate, it is events such as this that tend to reinforce some of the opinions that are often too widely held by the general public when mistakes that like occur. So I am delighted to hear the explanation.

Mr. La Forest: Being the father of five girls, I agree with you.

Miss MacDonald: I want to come back to a matter that you have been discussing on several occasions—it has been raised in several cases this morning and has been raised before this Committee—and that is the legality of the procedures that we are involved in here as a Committee and your opinion of them.

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On page 144, under your recommendation 4, you set out as you had stated certain exceptions to the federal power to act unilaterally, and these include changes to the status of the head of state and changes to the powers and numbers of the Upper House.

And then on page 146 you state about the exceptions under resolution 4:

These exceptions relate to matters that are clearly of interest to all the provinces and accordingly should call for amendment under the general formula.

Now, I presume that sentence is in there because you consider changes relating to these institutions or these parts of our system as being fundamental changes.

Mr. La Forest: First of all, I do not want to go into the question of legality. For one thing, I am not really prepared for the question. I have some ideas off the cuff, but that is what they would be.

The other one is to bring you to our particular perspective. We did not want to deal with the question of implementation at all. We felt, look, let us do this. Implementation is another thing.

The third question involved here is another one: whether we thought the change of the Upper House—certainly as constituted in this document, we would think this could not be changed. And in fact, what we did there was largely to follow, as I say, the Victoria Charter and the Fulton-Favreau formula, which considered these things fundamental enough to put in the exceptions. And certainly for the Upper House we have here we would consider that essential.

Miss MacDonald: But the reason I raise the question of legality again is I understood you to say earlier that you dismissed the idea of any legal argument being made in the context of our discussions. We have had two arguments placed before us, two quite conflicting positions, which have been based on legal arguments—arguments presented by the Department of Justice and other arguments presented by constitutional experts, both of which have been grounded in legal constitutional points. So you are not dismissing that there is a question of legality here?

Mr. La Forest: Well, lawyers being what they are, they always present political issues in legal terms. That is the nature of the game. When you go to argue a case before the Supreme Court on a constitutional question or even a property question, you are ultimately making a political decision. So there is something to be said for both sides. If I were asked to defend that as the Department of Justice is, I could easily defend the legality of it. You see, I do not know the parameters of the problem. I would have thought fom a quick look, at least at clause 91.1, the federal Parliament could easily deal with the Upper House. With some of the other problems, for example the Crown, I would have to begin to think of just how

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those impinge on provincial constitutions. I would again have problems with the preamble. My problem with answering your question is that I really have not given it sufficient thought to know whether it impinges on the exceptions in clause 91.1. I think that is the nature of the game. That is where the case is.

Miss MacDonald: There is no question.

Mr. La Forest: Ours makes that clear, you see.

Miss MacDonald: I recognize the difference in yours. I am looking for some guidance in the question we are seized with at the present time. In effect you have resolved it for me by saying that many of the cases taken to the Supreme Court are taken there by lawyers who use legal arguments to put forward political positions. In other words, the question for us is whether or not we feel there is sufficient disagreement or sufficent conflict on this question to merit a reference by the government to the Supreme Court of Canada. As long as there is a question of legality at all, it seems to me that is the body that should decide it. A political decision is something quite different; and that I am not backing away from as a decision that should be made by the political body.

Mr. La Forest: Well, of course, I think that you can always have a legal point on anything, is what I am telling you. I have not sufficiently studied the question to know whether I think it is sufficiently serious, I had simply thought about the Upper House; I thought that could be done. But I really do not know the bill sufficiently to be able to give you any kind of informed opinion on whether it is a serious enough thing to put to the Supreme Court.

I have no apologies for that because I was not focusing on that issue at all. However, Mr. Matas may have something to say about it.

Mr. Matas: Again, this is just looking at the matter very superficially, but Section 91.1 gives the power to amend the constitution of Canada to Parliament and Section 92.1 gives to the provinces the power to amend the constitution of the province with certain exceptions.

I know that within our province there is an amendment to the equivalent of Section 133 in the Manitoba Act by the Manitoba legislature and a question revolved around whether or not that particular provision was part of the constitution of the province or not: and I suppose the question that would have to be decided here is whether or not provisions about the Senate or the Monarchy are part of the constitution of Canada or not, or whether they are also part of the constitution of the provinces.

Miss MacDonald: That is right.

Mr. Matas: That is the lead question.

Now in terms of whether or not somebody wants to refer to the court for an answer is a question of whether or not they feel that it is a serious enough question to be referred, whether

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it is a plausible enough position to be referred, and that is something that you would have to decide yourselves.

Miss MacDonald: Well, then, I would like to move to another section. . .

The Joint Chairman (Senator Lamontagne): Your last question, Miss MacDonald, please.

Miss MacDonald: . . . the section which you have dealt with so extensively and which I think is such an important contribution: that is, the one on the division of powers—and, really, I think yours is the first body to tackle this in a way that it should be.

I would like to just ask you—and perhaps I can come back later—if you would perhaps give me some idea from the way in which you have studied this as to the impact of moving towards greater concurrency which you recommend in preference to delegation, at least as I read your brief; where you would find areas of jurisdiction that are not clearly defined for one level of government or the other. You would prefer, I gather, to use concurrency rather than to have a much broader power of delegation introduced. And I am really trying to grasp this from the point of view of the impact on our federal system.

Mr. La Forest: Perhaps I might comment, and I know Mr. Matas, who has done a lot of work on concurrency, will want to add to this.

I think that our first approach was not to give more concurrency. Our first approach was, as much as possible, to give one level of government power rather than another.

There were some cases, though, where we felt, in effect, compelled to give concurrency because we thought that there was, if I might put it this way, an indivisible kind of interestindivisible in the abstract. I might mention, for example, the field of communication: just how do you balance the interests over time?

As to delegation, you either make a decision that a thing is properly federal or properly provincial, or you do not. Where you do make a decision, then you should not delegate unless it comes within the power of the other level of government in some way or other.

Now, in the existing constitution a great deal of interdelegation can be made at the administrative level—I call it the administrative level. What you do is that you give one level of government a bill that it considers and it knows exactly the form of delegation, so that in effect it is delegated to a body that happens to be run by the province; but the parliament or the legislature that has responsibility know what it is doing. It may not know all the details of administration or care, but it does focus on a particular thing. If you have legislative jurisdiction. what you are doing is undermining the fundamental basis of the constitution. The Nova Scotia Delegation Bill is the classic example, and you can find one in the United States and you can find one in other countries. What you are doing by permitting the legislatures to do that is to rewrite the constitution unilaterally and thereby break up the barriers. So

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we have said, when we thought there should be concurrency, let there be concurrency, and for heaven’s sake exercise that concurrency in accordance with the spirit of the constitution. In immigration, for example, there was concurrency for years but the federal government was really the only one in it. Now we think there is a role for the provinces there. But this can only be achieved on reasonable basis by a meeting of minds between the federal and provincial governments. So that is the reason, because ultimately, among other things, you could have a special status that way, when it is abundantly clear from what we propose that there should not be a special status. So we approve of delegation to another government when it already has some legislative authority.

Mr. Matas: I could just add a few words to that. We never really looked at the question from a point of view of deciding between concurrency and delegation. To our minds those were not real alternatives. We were looking at the alternatives between concurrency and exclusivity and we opted as much as possible in favour of exclusivity. But in respect of delegation we looked at it from the alternative of whether to have delegation or not to have delegation, whether it is in a concurrent field or an exclusive field, and we decided in both fields that we should not have delegation because of what Dr. La Forest said about the possibility of the whole structure of the Federation being undermined afterwards by particular deals between provinces and by the creation of special status which we decided against. Basically we were against it because it gave a tool to the parliament of the individual legislatures to make constitutional changes of far-reaching significance without constitutional amendments procedure.

Miss MacDonald: Thank you very much.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Guay, Senator Neiman and Mr. Dawson.

Mr. Guay: Thank you, Mr. Chairman.

Mr. La Forest, I would first of all like to congratulate you on behalf of the Committee for the work you have done. All members of the Committee agree that the Canadian Bar Association made quite an effort to present recommendations to the government and they are welcome. I am not saying that they are all agreed to, but they are warmly welcomed by the members of the Committee.

But following the Halifax congress, I have a question: what is to become of your report and what is your present main priority in the process you have just begun? If I look at your first recommendations in the preliminary part, I see that you find that a new Canadian Constitution is a necessity:

The new Canadian Constitution should be implemented through strictly Canadian mechanisms.

You insist on that. I cannot but agree with you.

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So what will come out of the Halifax congress and what will your main priority or your first steps be following that congress?

Mr. La Forest: I will make some comments first and then I will let Mr. Matas speak to you about this because he is much more involved than I with the Canadian Bar Association.

As a non-political organization without any special viewpoint which knows law, structures and so forth, our first objective was to inform the citizens and that was our contribution to the discussion. So if we do nothing further we will have done our job, as an organization, by giving people food for thought. Our work was done to help people think about the Constitution.

I am happy to hear that you agree in general, that is, that it would be helpful. Because when the federal government does something, one asks oneself: “is it doing so for political reasons?” The same applies in the case of a provincial government. Our Association therefore created a committee to study these issues in depth. If we were to stop now, we would have done our share of the work. We would have reached our objectives. However, at the Halifax Convention, it was decided that all lawyers could participate in the debate.

My work will end next week, but Mr. Matas may be able to tell you in more details what will be done now.

[Text]

Mr. Matas: I could say first of all as the constitutional law subsection Chairman from Manitoba, as I am, that I intend to have these proposals brought back to our subsection for consideration and I anticipate that the same thing would happen in the other provinces, that each provincial constitutional law subsection would look at this report.

Secondly, I am also a member of the national constitutional law subsection and I intend to propose to the national subsection that at the next convention the subsection meeting look at this report at the national level and make decisions on it and recommendations on it.

I do not know definitely yet what the agenda is going to be for the next annual convention, but that is what I hope would happen.

[Translation]

Mr. Guay: You have not answered my second question which is the following: “What next step will the Canadian Bar Association take to accelerate the work it has already begun?”

Are you saying that following the studies planned, you shall table your report before the Canadian Bar? Do you expect to obtain a certain consensus which will allow you eventually to say to this Committee: here are the firm recommendations of the Bar? Certainly, you cannot say today that these are the recommendations of the Bar, if I understood correctly?

[Text]

Mr. Matas: What I would hope would happen is that at the next annual convention, after having had the provincial subsections look at it, the national subsection would decide upon it and then present their decisions to the planner for approval or disapproval. I think that there is a possibility after the next convention for the Bar as a whole to take a stand on at least

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some of the issues that are raised in this report. That is the mechanism I would foresee. I do not anticipate any possibility of the Bar as a whole taking a stand on this issue or this report before the next convention.

[Translation]

Mr. Guay: Mr. La Forest, with respect to repatriation of the Constitution, I would like to know what is the position of the Canadian Bar or your personal opinion?

In your first recommendation, you state that we must have a Canadian Constitution. The Minister responsible for Federal-Provincial Affairs, Mr. Marc Lalonde, will always be seeking the agreement of the provinces. But if the provinces will not agree, however shall we one day have our Canadian Constitution? Would you agree that the central government, the Canadian government could repatriate the Constitution unilaterally?

Mr. La Forest: Well I might answer: unilaterally in two ways. That was the first question studied by the Committee, since there are two possible procedures.

There is one procedure which does not even require our going to London, which requires therefore no legislation. A nation can certainly decide for itself. When I speak of a nation, we must establish what is a nation. But that is another issue; but Canada as a whole can certainly be considered a nation on the international level, because it is constituted as a country. So there is no problem at the international level. At the national level, on the other hand, other countries have repatriated their constitution unilaterally.

Now, under the Committee’s proposals, all provinces would have to agree. I did feel, however, that some members of the Committee considered that should a few smaller provinces not agree, we might go forward anyway. But nevertheless we do recommend that all provinces must agree. In such a way you would include all governments who represent any legislative power in Canada, without exception. If one should abstain, the whole procedure would lack legitimacy. So it is possible to proceed in that way.

Let us go on to the second question. By tradition, the Parliament of Westminster generally asks the provinces. I say by tradition, not by convention, because I am not at all sure that there is such a convention. So, legally, if the British Government should agree to pass a law, it would be law; under our existing legal system, it is the Parliament with the consent of Canada. They have the consent of Canada, through the Houses. Realistically, it would be most dangerous to proceed in such a way, unless we had the consent of a large majority of the provinces.

From a strict legal point of view, as it has been said, we could go directly to Westminster. But we recommend rather that we should proclaim our own Constitution with the approval of all the provinces.

Mr. Guay: This will be my last question, Mr. Chairman, and I would like to be included in the second round.

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Mr. La Forest, if we did not have the consent of all the provinces, do you think that it would be possible to go directly to the people through a referendum? You know that the Minister of Justice has spoken of going to the people through a regional referendum, or perhaps even a national referendum. Do you not feel that we should ask the people of Canada this question first? Do we want a Canadian Constitution? Do the Canadian people want a Canadian Constitution which is its own and which it could amend within the limits of its own jurisdiction?

Mr. La Forest: The referendum issue is not a legal issue, it is a political one. I can, however, put forward some problems. If, for example, some provinces did not agree, although the government might agree, there could be problems. There are of course problems as well with the Province of Quebec. What sort of majority would be required? In such a case, it would be important that francophones be well represented, since it is a very special situation. So, we would have to establish whether the referendum is truly representative, and this could bring up some problems. There is also the question of political legitimacy vis-a-vis small minority. In the final analysis, it would be a plebiscite, do you not think? It could not be a referendum, because it would have not legal basis, it would be in the end a political issue.

[Text]

The Joint Chairman (Senator Lamontagne): Senator Neiman.

Senator Neiman: Thank you, Mr. Chairman. I too am grateful for this very excellent report that has been afforded to this committee. I have not had an opportunity to study it in depth but I am sure it is going to be very helpful, not only to this committee at the moment but in future when we are considering possibly the more important questions of divisions of power.

I might say that I am almost in complete agreement with the recommendations you have made with respect to the Supreme Court and the bill of Rights. As far as the Bill of Rights is concerned, I believe this bill that we are studying at the moment has serious deficiencies in that it does not entrench certain of the rights that we are proposing and I do think those protections should be built into the bill.

As far as the Supreme Court is concerned, I also agree with the comments you made as to the deficiencies as you foresee them and as I have perceived them in the bill at which we are looking at the moment. I am not clear in so far as the appointment ofjudges is concerned, whether you discussed this at any length at your full convention of the Bar Association and whether, in fact, you came to any general consensus that you just would approve the present method of appointment of judges.

For instance, Professor Lederman came here and gave us an alternative way of appointing the judges that rather appealed to me, perhaps more so than our present system. But he also suggested that if his proposal were implemented, it would be unnecessary to have any affirmation by the Upper House.

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That also appealed to me because I feel that that type of affirmation might bring an unnecessary political atmosphere to the appointment of the judges, particularly in view of your proposal of the composition of the Upper House. Did you consider Professor Lederman’s proposal, or something like it?

Mr. La Forest: Do you mean about having what he calls a “blue ribbon” committee?

Senator Neiman: Yes.

Mr. La Forest: I do not really know which one he discussed. I certainly had contact with Professor Lederman, but whether it is the one he presented here, I have not had a chance. We did consider a number of other alternatives. Part of the problem with a blue ribbon committee, and I think Professor Lederman may have thought further into this field, was that what you do is to move politics from where it should be ultimately with elected members of the people to a group of people who are not necessarily that.

At the moment, as I am sure you know, there is a great deal of consultation under the existing system about who is going to go on courts. There is consultation with the Canadian Bar and I am sure with the provincial bars. There is a great deal of informal consultation, and particularly it was so in recent years. Whether one wants to formalize that in the constitution is another thing.

Certainly the committee did consider that and came to the conclusion that, no, this is not the best way to do it. We want the provinces to be represented in the appointing procedure because that is where the problem of credibility has arisen with the Supreme Court. It is the provinces saying, these are federal appointments. What we propose with the Upper House, and indeed what was done at Victoria, is to provide a procedure under which the federal government names, but does not name people that the provinces do not want at all.

Mr. Matas: I could add something to that. These blue ribbon committees consist very often of judges of other courts or representatives of lawyers’ associations. People sometimes criticize the federal government for appointing judges because they are litigants before the courts—provincial governments appointing judges because they are litigants before the courts. But the judges and lawyers are a good deal more involved in the court process. If you have judges and lawyers involved in appointments, you will have judges appointing their superiors, judges appointing people who will be hearing appeals from them. You will have lawyers appointing judges before whom they will be appearing. So we felt that was one reason why we did not want to have a blue ribbon committee of this sort.

Senator Neiman: I would agree with that. I do not particularly approve of that type of selection committee myself. I must admit that I believe generally the system we now have works extremely well, and I still feel it would be unnecessary to have an Upper House inject itself into the affirmation process. I must say that I think somewhere—and again I do

[Page 42]

not think this should be entrenched in a constitution, but perhaps in the Supreme Court Act—we could have some process built in for the removal of senior judges or any other senior officials, and the removal of people from the Upper House in another such act as well for certain things having to do with physical ill health and things like that. I think these removal procedures are not at all clear and have caused some awkward moments to arise and some difficulties.

Mr. La Forest: I think the committee did consider that and it considered that only Superior Court judges should be subject to that procedure. We do think there probably should be procedures underlying the constitution to remove judges. But at the end of the day the independence of the judiciary is so important that we think there should be a procedure, as now exists, that symbolically gives a very powerful message in that you can only remove a Superior Court judge—constitutionally, that is—by a joint meeting.

At the same time I am fully in agreement that below that there should be subsume things for which people can be nudged into resigning.

But the independence ofa single judge is so important, and this is the thing. A judge sometimes has to tell even the federal Cabinet, “You were wrong. You acted against the laws and against fundamental justices put into the Supreme Court.” So that was the principle. But we would not extend the principle. There was pressure on us, for example, to extend it to County Court judges and so on and we said, no. The symbolic and the factual protection of the Superior Court..judges that rule over the legality of government action is so great that we still want both Houses to have a say on that.

Senator Neiman: In the area of language rights I note that your committee proposes that the statutes of all provinces should be published in both English and French. Did you consider the publication of our federal law reports? I know Chief Justice Holland of Ontario has spoken about this and it seems to me it is an extremely important area.

I do not know how we can have an exchange of information on decided cases between the anglophone and the francophone communities without that.

Mr. Matas: My recollection is that the law reports right now are not by statute compulsorily reporting even in English, even in one language. The Queens Printer prints the Supreme Court reports and the Federal Court reports, but when it comes to the Superior Court reports my understanding is that they are published by private publishers and just sold on a commercial basis. So it would be a whole-scale change even to require the publication of reports in any language, let alone to require their publication in both languages.

When we talked about publication of statutes in both languages across the country our discussion revolved around the question of whether or not it should be in all provinces. We

[Page 43]

were concerned about the expense involved. I think if we had talked about first of all making publication of reports compulsory and, secondly, making them compulsory in both languages, I think we would have been even more concerned about the expense.

Senator Neiman: One more?

The Joint Chairman (Senator Lamontagne): Yes, a final one.

Senator Neiman: I wanted to deal with the proposals that you have made for the second House but I think Senator Roblin and Mr, Beatty have canvassed many of the questions I had in my mind with regard to it. I would just like to say at this moment that I feel that a major omission from our bill and also from your brief is the fact that we have not really dealt with Parliament as a whole and, if you are considering the problemsof the country and how this constitution can be changed to deal with those problems, I think it is impossible not to consider the House of Commons. And the emphasis that is constantly being placed on what this marvellous second chamber is going to do and how it is going to cure all the problems is just, to me, perhaps an impossible dream.

Mr. Matas: I can see that although we do not have a chapter on the House of Commons, we did look at this question. We received a representation on it from John Lamont in Winnipeg; it was very well reasoned and it was circulated to the committee. But we were faced with the problem of time and resources. This is a question that the Joint Committee did not look at; it was not dealt with in the Victoria Charter. And it has not received the kind of research, the canvassing, the hearing of witnesses that allowed us who were dealing basically with resource material to deal with it in the amount of time that we had.

In our opinion, because we did not deal with it, I do not think we need to say it is not a question nor it should not be looked at. On the contrary, because there has been so little work done in this area up to now, I for one would encourage this Committee and any other group that has the time and resources and is listening to witnesses to get more deeply into this issue because we know that it is a concern.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Dawson.

Mr. Dawson: On page 76 of your document, you reject the possibility of a special status for Quebec. Almost at the end of the same sentence, however, you say:

. . . Quebec can continue to favour the flowering of French Canadian life.

I would like to know how the government can protect language rights through what Mr. Gauthier, Mr. Breau and perhaps several others of my colleagues reject as perhaps a formula . . . I cannot see that I would identify myself linguistically with the English speakers or the French speakers. I can see that many senators might have the same trouble.

[Page 44]

I would like to know how else you can realize this other than through the double majority system, especially since you say Quebec can continue to favour the flowering of French Canadian life. Basically, you are giving them a power which will reflect on other provinces. I wonder what you mean by this expression, especially since you have rejected the status.

Mr. La Forest: Well, the Committee rejected a special status for reasons which you know very well, but I think if you look at the powers in each of the provinces, not only those in Quebec, you see that the provinces are strong. The provinces are strong and Quebec is strong. They are given powers which regulate a major part of the cultural domain; an attempt was made to give as many powers as possible regarding culture.

So they have this protection, they have the protection of a strong province and it is somewhat the kind of protection wanted. There is no question today of rural French Canada. Today’s French Canada is sophisticated, strong, with a government which knows how to protect itself. And these are agreements made to satisfy the needs of French speakers.

This process has already begun in Quebec. There are, for example, the arrangements regarding immigration and all the opting out programs. All of this gives Quebec the desired powers which other provinces willingly accept, This is the sort of thing available.

The Constitution for its part, protects and provides a very strong symbol, not only in the preamble but also in the area of language rights, and it seems to me that that is where protection can be found.

It has also been specified elsewhere that there should be concurrence in everything touching on culture. For example, it has been said there should be concurrence in telecommunications. And we expect that arrangements with Quebec will not necessarily be the same arrangements as those made with other provinces. One of the reasons why it is necessary that telecommunications fall into federal jurisdiction is that it is necessary, to a certain extent, to protect Canada from American culture. As for Quebec, it is certainly capable of protecting itself without the federal government’s help. I think that with these special arrangements, with the opting-out possibilities, we can manage to provide all power necessary to protect French Canadian life and to establish a strong government in Quebec.

[Text]

Mr. Matas: There is one other comment I would like to make. We do have the division of powers, which is a protection; we do have the entrenched Bill of Rights, which is a protection. But beyond that I do not think we can structure society in such a way that every minority would have a veto over every question that would affect it. lf we did that, society would just disintegrate. There are some questions where one has to rely on the majority’s being concerned with a minority’s interest. There are some questions, to us the most sensitive and significant, where we have the entrenchment, where we have the division of powers, but for others, to put up a universal

[Page 45]

minority veto for the French or for other groups on every question would just prevent Canada or any country from functioning.

[Translation]

Mr. Dawson: You say that there is a symbolic protection of that type in the Charter, in the Bill of Rights, but how is that reflected in the case of the power of the Province of Quebec as a political power in Canada? How do you think it happened that, in Canada, language laws were voted, laws which were not necessarily well accepted by the House of Commons, and which could be rejected in five or ten years because some other government came into power or because of the reactionary attitude of the provinces? In what way other than symbolic and through Quebec’s power, a power which after all may diminish numerically, do you expect to be able to protect the status of the French speaker in Canada, not only in Quebec, but also in minority areas such as Ontario and New Brunswick?

[Text]

Mr. La Forest: Yes.

Mr. Matas: The entrenched rights in the Constitution are more than just a symbol. We can go to court to enforce them. And if, for instance, the Official Languages Act were repealed down the road, but someone wanted nonetheless to communicate with the federal government in a minority official language, and there was this provision entrenched in the Constitution that we proposed, then that person who wanted that communication in that language could go to court to enforce it. He would not have to rely on parliamentary legislation to do it; he could rely on the Constitution.

Mr. Dawson: But in the government’s Bill C-60 the procedure is for an opting in on the charter of human rights. Ifsome provinces do not opt in, how will the francophones in those provinces be protected, since you do not have any provisions in your bill for those cases?

Mr. Matas: We do not have an opting in . . . Our proposal is that the entrenched rights would apply to the provinces immediately at the time this Constitution comes into effect in all the provinces.

Mr. Dawson: Just one last question. Does the Bar Association intent studying more particularly Bill C-60 and certain provisions if, as you said, you do not like the fact that there is a double majority—and I think a lot of people share your opinion on that? Do you intent studying counter-proposals to that effect, saying perhaps it could be changed to something else?

Mr. Matas: When the Bar looks at this report, it will look at Bill C-60 as well. I cannot anticipate what the Bar is going to propose in addition to what the Committee has already proposed.

Mr. Dawson: But they will be studying it?

Mr. Matas: Yes.

Mr. La Forest: I would like to follow up on your question about symbolism, because when I speak of symbolism I some-

[Page 46]

times include constitutional protection. But the symbolic meaning of the protection of language rights extends well beyond the particular enforcement here. It tells you something about what we think this country is about. We sought to have French and English protected in all the provinces where the numbers and subjects warrant. This tells you something about what we think. If you create one country that way, you need worry less about particular status for a particular part. If the French and English communities are accepted throughout the country, you then have to worry somewhat less about particular rights if only a certain number of provinces accept the two communities.

Mr. Dawson: Thank you.

The Joint Chairman (Senator Lamontagne): I suggest that we continue with our two witnesses for a while this afternoon because I still have four names on the first round: Mr. Gauthier, Senator Smith, Mr. Bussières and Senator Fournier. Then I have four other names for the second round already: Mr. Breau, Senator Roblin, Mr. Caccia and Mr. Guay.

The meeting is adjourned until 2 o’clock.

AFTERNOON SITTING

The Joint Chairman (Senator Lamontagne): The sitting is resumed.

[Translation]

Mr. Gauthier, Member for Ottawa-Vanier.

Mr. Gauthier (Ottawa-Vanier): Thank you, Mr. Chairman.

First I would like to join with all my colleagues in this Committee to congratulate the witnesses on having presented a very useful document which adopts a new and broader perspective. Their brief gave me a much clearer understanding of the problems being studied by the Committee.

I would like to discuss with Mr. La Forest the question of the federal government’s right of disallowance. if I understood you correctly, you said this morning that different arrangements could be made with certain provinces in certain concurrent areas or in certain specific areas. You also said that Quebec could protect her language rights because of the large French-speaking population in that province. I am now speaking as a member of the French-speaking minority who identifies more strongly with the federal government and who would like the federal government to give continued strong support to minority rights. You do not seem to follow the same route as Bill C-60, which allows the provinces to opt into the federation Charter. Such a measure would imply the federal government abandonning its right of disallowance. Do you retain the right of disallowance in your broader recommendation, under which all provinces would include in their Constitutions a respect for the two official languages?

[Page 47]

Mr. La Forest: No. We did discuss the right of disallow» ance. We feel that the member states, if I may use the term, are independent or sovereign in their own field. Hence, the right of disallowance does not exist. We could have said that. History shows that there was at one time a power of disallowance regarding the right to an education. We never used this power and this caused problems. But we believe in democracy. We believe that everything will work out in the long run if language rights are protected. To use these powers would mean adopting a parternalistic attitude towards the provinces, and I believe that the time for parternalism is past.

Mr. Gauthier: So, if my understanding of your brief or study is correct, you ask that the provinces adopt a charter of rights and freedoms as well as a charter of language rights. Now I have a political question for you.

Do you not find that your proposal is very political in nature, since the provinces still have, under the present constitution, the right to do as you suggest? The present situation is very complicated. Since both our major cultures and language groups have become polarized.

Mr. La Forest: Of course, in one sense this is a political question, but we are not limiting ourselves to immediate solutions. It seemed obvious to the members of our Committee that both communities would have to be considered if we did not want to create two Canadas. This does not mean that everything will be wonderful. You cannot go to Chicoutimi and to other small towns and expect the people there to speak English, or go out West and expect all services to be available in French.

We felt there was a logical choice. You can claim that Quebec is French and that the language rights of English speakers there are irrelevant, or that there is some language protection everywhere in Canada, wherever there are enough French speakers to justify it.

Elsewhere in the report we touched on the question of the Monarchy. I am not going to bring it up now because I do not want to spend the afternoon on it. However, it is clear that Quebec is not entirely in favour of the Monarchy. Should we perhaps abolish the Monarchy in Quebec and not in the other provinces? Are we going to create two countries or are we united? If we want a unified Canada, we must make a choice. Quebec could become entirely French and New Brunswick could perhaps become bilingual. From the practical point of view, as far as the protection of rights is concerned, we have two countries. We want there to be one Canada.

[Page 48]

Mr. Gauthier: If my memory serves me correctly, you also want to give the provinces the right to choose their official languages. Is that correct?

Mr. La Forest: That is correct.

Mr. Gauthier: Each province will be able to choose the official language it prefers.

Mr. La Forest: With certain exceptions regarding language rights guaranteed by the Constitution.

Mr. Gauthier: Then guaranteed language rights will be more important than provincial constitutional arrangements. In other words, a province cannot bypass federal laws and refuse to recognize French as an official language. Have I understood you correctly?

Mr. La Forest: First of all, the rights protected by the Constitution take precedence.

Mr. Gauthier: Yes.

Mr. La Forest: Secondly, the federal government decides upon language policy in its own jurisdiction.

Mr. Gauthier: Yes.

Mr. La Forest: The provinces cannot interfere with that. But as far as provincial affairs are concerned, the provinces can choose the language they wish, but they must respect the Constitution and the rights guaranteed by the Constitution.

Mr. Gauthier: One last question, Mr. Chairman. Let us move on to the question of concurrent powers which you discussed in your report. Let us take culture as an example. The&ed first recommendation in chapter 11, of your brief reads as follows:

The Constitution should give to the provinces the legislative powers they need in order for them to be supreme in cultural matters.

Further on in the report, you make the following statement:

Finally, when powers are concurrent or overlapping, we would normally, as is presently the case, grant precedence to the federal Parliament, since the general rule is that national interests must predominate in the exercise of concurrent powers.

I find all of this somewhat contradictory. You said that culture must first and foremost be a provincial, jurisdiction but that when there are concurrent powers, the federal government can take precedence. Have I misunderstood you?

Mr. La Forest: First, if we give . . .

Mr. Gauthier: I am still talking as a member of a minority.

Mr. La Forest: We meant to suggest a general orientation rather than a clearly defined division of powers, and hence discuss property rights and civil law. But if we were writing a Constitution, we would give the provinces authority in cultural matters, with the exception of telecommunications which are of national importance and therefore clearly a federal responsibility. With respect to concurrent powers, we give precedence

[Page 49]

to one side or the other, according to the circumstances, and, where overlapping occurs, we give precedence to the federal government. But I think we should speak of orientations rather than policies in cultural matters. It is really extremely difficult to define culture at the legislative level.

Mr. Gauthier: This is my last question. In the area of education, have you examined the definition of the word “education” in the 1978 context, as opposed to the definition given in 1867? Have you considered broadening that definition to include what is known as continuing education?

Mr. La Forest: We did not try to define education. Generally speaking, we feel that education should continue to be a provincial responsibility. However, that does not mean that the federal government, in using its spending power, cannot intervene in the national interest. But spending power can only be exercised if the provinces do not prevent the federal government from doing so. Legislation is one thing, but spending power is something else. But just try to define it… this is where the Constitution comes in. The people must be able to live within the framework of a Constitution. Some overlapping will be inevitable. A Constitution consists of a very important but definable symbolic message which is never perfect and complete.

[Text]

Mr. Matas: I wonder if I might add that in terms of the choice of the provinces, the power of the provinces to choose their official language, as we would propose, the entrenched language power would remain, regardless of the choice. For instance, if Quebec should choose that its official language would be French, French alone, nonetheless the constitutional requirement would survive. Statutes would have to be published in both languages; there would be a right of the English minority to communicate with the government in English, there would be a right to trial in both languages and there would be freedom of choice in education and that in spite of the fact that Quebec chose only French as its official language.

Mr. Gauthier (Ottawa-Vanier): I see, thank you.

The Joint Chairman (Senator Lamontagne): Senator Smith.

Senator Smith: Thank you, Mr. Chairman. This morning there was some reference to this report at the annual meeting of the Canadian Bar Association at Halifax last week, I wonder if, after the discussions there was some sort of resolution passed by the annual meeting dealing with the report and, if so, what was the gist of that resolution?

Mr. La Forest: Well, let me go back again to something I explained this morning. The report was never intended to voice the views of the association as such. There was, as you know, or as you may not know, a series of resolutions, some reaffirming allegiance in the monarchy. There were five or six and they were united together indicating that the report, in a preamble, was not the position of the Canadian Bar Association, that it

[Page 50]

would be studied further, and a separate resolution congratulated the members of the Committee on the fine work they had done. This was the gist of it. It is now going to be studied by the branches and from this I would think a series of resolutions are likely to come about but of course all we intended was for study and to assist in the debates that is now about us.

Senator Smith: Thank you. Mr. Chairman, I wonder if I might ask two other questions on some of the contents of the report and of the discussion this morning. With reference to the veto of a province with 25 per cent of the population of Canada, I wonder if the committee gave some thought to the possibility that this would pretty well leave things as they are now in a practical way because the two central provinces of Canada have, in fact, a veto over the legislation which goes through Parliament; if they gave any thought to the further consideration that perhaps this fact is one of the main sources of regional discontent, and if they did, whether they came to the conclusion that they would be very likely to find agreement in, let us say, the Atlantic provinces that such a veto should be written into the law. I would say I am familiar with what is in the Fulton-Favreau formula so-called and the Victoria Charter.

Mr. Matas: I would say, first of all, that I would think the source of regional discontent right now is focused on the structure of the constitutional amendment formula. I think it is wider and broader than that. Our report did try to deal with it only by that. We dealt with regional concerns in some ways by the amendment formula although we could not deal with it only by that. We dealt with regional concerns in other ways by the statements of principle that we were opposed to regional disparities and committed to having them overcome and more particularly by the constitution of the Senate, the Upper House which would have representatives from the Maritimes, the Maritime provincial governments. So it was solely by the use of the amendment formula that we attempted to deal with regional concerns but with statements of principle and with the structure of the Senate.

Senator Smith: I am afraid, Mr. Chairman, I did not make my question very clear. I will put it in the form first of an explanation if I may. I believe that regional discontent arises mainly from the fact that the regions do not have very much effect or sufficient effect upon the legislation which is passed by Parliament. It would seem to me that having written into the law a veto by one of the larger provinces of Canada would be unlikely to appeal very much to those provinces wherein the discontent exists. Therefore, my question is: was any thought given to the difficulty which would arise in having those discontented provinces agree to the constitution containing such a formed veto?

Mr. La Forest: I think that we did consider the question of regional equality in its own right. We considered more regional balance in the Upper House by having a larger number from the Maritimes and the West than the central provinces. Therefore, in so far as the per cent amendment formula rightly or

[Page 51]

wrongly we came to the conclusion that Quebec should have a veto. We feel, and it is indicated, that it may be there are certain areas where you could have a specific amendment formula but by and large that Quebec should have. So far as Ontario is concerned, so far as we could tell from population projections it would be getting a larger part of the population rather than less and that you could not in something as basic as the constitutional amendment ignore one quarter of the people of Canada who are located in a particular region. So that was the general kind of thinking.

Senator Smith: I wonder if it occurred to the Committee that perhaps the source of regional discontent is the fact that the outlying regions which we have mentioned are in fact very frequently ignored.

Mr. La Forest: Well, of course, and we try to meet that in two ways. We tried to meet it in connection with the commitment towards the redress of regional disparities which was one of the causes of discontent. We did also in trying to come up with some solution as to what could be solved by rearrangement of political parties if, for example, the West could feel that it is represented on the government side as it sometimes does not. So we tried to do some work with the upper House. But so far as the ultimate change of a constitution once it is settled, this seemed to us to be about as flexible a formula as a nation would likely accept.

Senator Smith: I see, thank you. Another question. I am wondering whether sufficient weight was given to the fact that so far in the past it has been apparent, and seems perhaps likely to continue, that provincial governments are not likely to allow any obstacle to intervene in their right of direct discussion government to government between themselves and the federal government. Having given thought to that problem, is it considered that they are likely to allow their delegate in the proposed second House to present their views to whoever might be the object thereof? In fact, I think what I am doing I suppose is questioning the practicality of expecting provincial governments and their people to be very much satisfied with some palliative which requires the intervention of another body between them and the federal government.

Mr. Matas: You make a distinction between government dealings and delegate dealings in the upper House, but it is a distinction that we did not intend to make. Our proposal was that the upper House would be government-to-government dealings, it would not be an intermediary. It would take the present government-to-government dealings and put them into the framework of an upper House rather than impose a layer of intermediaries in between the dealings that go on now.

Senator Smith: I see. Thank you.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Bussières, followed by Senator Fournier and Senator Lang.

Mr. Bussières: Thank you, Mr. Chairman.

First, Mr. Chairman, I would like to add my words of praise to those expressed by other members of the Committee concer-

[Page 52]

ning our witnesses and the members of the Canadian Bar Association Committee who has produced this most interesting document. I am convinced that the document will bear witness to their very constructive contribution to the whole process of constitutional review.

My first question, Mr. Chairman, concern a point raised by Mr. Breau and a few other members concerning the required double majority vote in linguage matters. I also share your doubts with respect to that particular provision of Bill C-60. To be more exact, I am wondering if you would not agree to the type of vote which was proposed for the Second House in certain areas. Could not the two-thirds vote which you propose be applied equally to language issues?

Also concerning the two-thirds vote, mention is made of apprehended insurrectives in paragraph 25.2(b), where the explicit powers of the federal Parliament in case of emergency situations are referred to. This brings to mind memories of certain events which are no doubt fresh in your mind. Rather than a simple majority in the Upper House, could one not ask for a two-thirds majority in cases of apprehended insurrection? Today, even should a provincial gouvernment, as has been done in the past, request the Federal Government to take special steps in order to quell an insurrection, the decision-making process remains rather obscure and information is not always available to the public at large. A debate in the second House requiring a two-thirds majority vote would better inform the public, or at least reassure the Canadian people with respect to the processes used to come to such a decision. That is my first question covering those two points, Mr. Chairman.

[Text]

Mr. Matas: I would say that either of those options are viable options, but in many of these cases where we recommended two-thirds, or a half, the alternative is equally possible and you will find in reading the report that in many of these cases there were dissents that are reported in the report where some members of the Committee thought that maybe it should have been two-thirds or maybe it should have been a half. That is in terms of the indication of the emergency power.

In terms of measures that are of special linguistic significance, we did not require a two-thirds vote, or a particular vote on that. The matter would have to go to the Upper House and there would be representation obviously, from both linguistic groups in it to have an opportunity to discuss there the legislation, but we felt that with the division of powers, with the entrenched language rights, and with the representation of both language groups that would normally exist in both

[Page 53]

Houses there was sufficient protection for matters of language, as it stood.

[Translation]

Mr. Bussières: Mr. Chairman, my second question deals with the specific case of the Supreme Court ruling on questions of civil law in the Province of Quebec. Mr. Chairman, do the witnesses have any specific remarks to make concerning this provision of Bill C-60, either officially on behalf of the Quebec Bar Association or on behalf of the two members of the Quebec Bar, I believe, sat on the committee? Are they aware of certain criticisms made by Quebeckers with respect to the credibility of Supreme Court rulings concerning to constitutional matters, especially in civil law matters? Have there been official representations from the Quebec Bar? Were there any special representations made by the two members of the Quebec Bar who sat on the committee? Is the committee aware that such criticisms are current in certain Quebec circles?

Mr. La Forest: The proposal was passed unanimously by the committee. There was no criticism on this point. We have had no formal discussions with the Quebec Bar, although we have had some contact with people from Quebec. Some agreed, others did not.

I am very much aware of this question of credibility, but very few civil law cases come up before the Supreme Court. Last year, there were six, and they were no cases dealing with Quebec legislation. So why should the Supreme Court of Canada hear a civil law case, unless it is of national interest? Then, why not let Quebec deal with such cases? A commercial case might involve civil law, but the same sort of problems would arise in a common law case. And the very large firms, do operate right across the country.

We are told that the Supreme Court of Canada, since it now has the choice to do so, will not interfere in civil law.

Mr. Bussières: Very well. My third question deals with a problem raised here this morning and concerns the agreements between provinces on the procedure to be followed, I would think it would be to the general advantages for changes in political institutions and the constitution to be settled by plebiscites. I believe that Canadians have never had the occasion to vote on a plebiscite concerning their political institutions or the provisions of their Constitution. Do you believe that it would be a good thing for the Government of Canada, in view of the lengthy discussions involved, to make this new Constitution the subject ofa plebiscite?

[Page 54]

Mr. La Forest: Well, we discussed this point in regard to amendments to the Constitution, and we studied the possibility of holding a referendum. We studied the situation in Australia, which is similar to the situation in the United States, where a national majority is required as well as a majority of the member states.

We found that the proportional voting formula would give too many votes to some provinces. For example, in the case of Prince Edward Island, what would the voice vote mean? Also, in regard to the particular situation of the Province of Quebec, we doubt that French Canada would be well represented if it had more votes.

We studied many different formulas, but we did not succeed, as the report says, to come to an acceptable solution, So we rejected that particular option.

Mr. Bussières: May I ask a last question, Mr. Chairman?

Mr. Matas made certain comments concerning Bill C-60. In your summary of recommendations, in the second part, which deals with constitutional objectives, I see no reference to the objectives set forth in the preamble to the Constitution or to certain provisions of Bill C-60 which do in fact act as a preamble. Is it because you feel that everything you want is already contained in Bill C-60, that you do not compare the bill and the more important objectives which you present in paragraphs 3.1 and 3.2 of the summary of recommendations?

[Text]

Mr. Matas: No. I would sooner have a section on preamble, not because I felt that there was no difference, it was just the one topic that I did not cover. The government bill deals with all areas of the Constitution as does ours, The government bill, of course, carries forward a lot of provisions that exist now. So what I have tried to do is concentrate on the areas of most significant change from the present situation that the government bill introduces. The areas that I have picked up here to my mind represented the areas where the government has introduced the most significant change.

[Translation]

Mr. Bussières: Thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Senator Fournier.

Senator Fournier: With respect to the repatriation of the Constitution, since the subject has been discussed for a great many years and has become a cause of unease, interminable discussions, debates, studies, and complications of all kinds, would it not be possible to settle the issue in an entirely different way? Rather than letting the Canadian Government repatriate the Constitution, could not the British Government take the initiative in the matter? There is no doubt that the government in London is perfectly aware of the difficulties we are having with this matter, and their constitutional experts will no doubt be advised of the discussions we are now having.

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If the government in London took the initiative and stated that the Canadian Constitution, which is now a British law, adopted by the British Parliament, would henceforth be considered a Canadian document belonging solely to the Canadian people, the whole discussion would then be settled. The British Government would be making a magnificent gesture and would have taken another step forward in our march toward fuil national sovereighty.

What do you think of such an idea, Mr. La Forest?

Mr. La Forest: The proposal raises two problems. There is a legal one and a political one. Politically, I very much doubt that the British Government could act in such a way, since it would be interfering in issues which are strictly Canadian. Our present constitution requires that we address the British Government in order for it to enact a law concerning us.

Moreover, legally, it is very doubtful that the British Government could do what you propose, because according to the Statute of Westminster, the British Parliament may only act with the consent of Canada.

So if it is not a legal issue, which I believe it is, it is certainly a political one. Also, the Canadian Government and the Canadian people must work out some way of dealing with their own problems. We can ask neither the British Parliament nor the British people to solve our problems for us. We must work the whole thing out for ourselves.

[Text]

Mr. Matas: There is one further problem with that suggestion, that it would leave us without an amendment formula. Our own Committee recommended against repatriation without an amendment formula and if we had some form of repatriation initiated in England simply denying responsibility in the future for the British North America Act, that would leave us with a Constitution which really leaves nobody the power to amend it.

The Joint Chairman (Senator Lamontagne): Thank you. Senator Lang.

Senator Lang: Thank you, Mr. Chairman. I would like to refer to page 65 of the book. At the top of the page in the first column, it says:

Already Canada is one of the most decentralized federations. In some respects, in fact, the powers of the provinces to interfere with the Canadian national market are greater than that of the constituent states of the European Economic Community. In any event, there is danger that Canadians would cease to identify with a weak central government.

Now based on that premise, I would like to make some observations about the recommendations contained in this document. First of all, Mr. Chairman, the upper House, of course, would be exclusively appointed by the provinces. The

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Lieutenant-Governors would be appointed by the provinces. Appointments to the Supreme Court would be subject to approval by a judicial committee of the upper House which, of course, is appointed by the provinces. As far as the divisions of power are concerned, provincial paramountcy would be in cultural matters. With regard to taxing powers, the provinces would obtain the right to tax indirectly. The federal spending power under that heading, national shared-cost programs, could only be implemented with two-thirds majority carring in the upper House, of course again appointed by the provinces. The provinces would establish the right to opt out a shared-cost program and be compensated for the moneys thereby lost. In the field of social security, the provincial government have exclusive authority with certain exceptions. The provinces have concurrent powers regarding family allowances, old age pensions, but with provincial paramountcy.

Under the heading, Regulation of Trade, the harmonization of interprovincial trade would be subject again to a two-thirds majority of an upper House appointed by the provinces.

Second the general economic objectives that could be implemented by the federal government would be subject to a two-thirds majority again in that upper House appointed by the provinces. In connection with resources, the provinces would have their jurisdiction extended to the three-mile limit and if there were adjoining provinces they could have that limit extended to the Continental Shelf. Sable Island would be declared to be part of Nova Scotia and agriculture becomes exclusively a provincial concern.

Even note under the head works and undertakings declaration as to the general advantage of Canada is again subject to a two-thirds vote in the Upper House and the provinces would have exclusive power over other works whether or not they extended beyond provincial boundaries.

In the field of telecommunications, we would have concurrent dominion and provincial jurisdiction. In international matters, the federal government would be strapped by a necessary ratification by the upper House if a matter fell within provincial competence. Similarly, multilateral trade agreements would require a majority in the provincially appointed Upper House.

Now, Mr. Chairman, in concluding this recital I would like to draw the attention of the Committee to the sections dealing with residuary power, where the whole concept under the BNA Act is turned upside down. The residuary power is now transferred exclusively to the provinces with certain minor qualifications and even within the recommendations is, I suppose, to be incorporated in a constitution the abolition of the national dimensions doctrine.

Now, Mr. Chairman, my question is: how can I make consistent the first quotation that I read and the actual

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factural recommendations contained in this report? I would like to ask the representatives here today what sort of a federal government you think we would have left if this document became constitutional law?

Dr. La Forest: The problem with your question, of course, is that it is a speech and I can take it seriatim. One of this first things to remember is what kind of federal government we have now. What kind of federation have we got new? And I say to you that much of the things that are being said explicitly here is what is going on in fact, has been going in fact. I am not going to take every one of your powers, but you mentioned the residuary power. Now, what have we done that is so terrible there? We have removed property and civil rights and put expressly into a residuary power what is now a residuary power. The first residuary power that any court looks to under the constitution now is property and civil rights or conceivable local or private matters. It was only under exceptional circumstances that they looked at others.

Now I do not want to go on and on about this but the last time the Supreme Court raised the question about the national dimensions doctrine, they did not rely on it. Rather, they relied on the emergency power in relation to the anti-inflation bill. So what we are doing is preventing a kind of loose kind of peace, order and good governent clause that nobody quite knows what it means and about which there have been excessive worries in Quebec. We are simply saying if you are going to have an emergency power, you ought to say so. If you are going to have a residuary power that is primarily provincial, you ought to say so, and ultimately we do have one. I am only taking one of them because it would take me a speech to respond to each one of these things but I might mention about the economic powers and you are asking me since when has the Parliament of Canada made any harmonization of provincial laws. I ask you the question because the only thing I know about is the incorporation of companies. Most of the powers that we ask for two-thirds majority are either new or the kind that the Parliament of Canada has not been able to use in recent years because they know the opposition is too strong and the opposition is strong because of the danger that it affords to a real federation.

So when you add up these things there are areas there now. Mr. Matas has made a list of these things but I must say that when I look at each one of these things that you mention, I am afraid thatvat times we have gone for more provincial power. At times we have gone for more federal powers so that really we did not take the total picture and you may well be correct, you know, on the totality, but I would like Mr. Matas to speak to that because he has made a kind of list of these things.

Mr. Matas: Well, I think there are three things you have to look at. One of them is the increase in provincial powers which you have given a very complete list of. The other is the

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increase in federal powers and we have proposed several increases in federal powers and the other is the decreases in powers of both levels of governments which is in fact what that quote that you originally read out referred to. Now, in terms of the increases in federal powers, I want to draw your attention to the fact that our committee recommended that the central institutions, Parliament, would have power to harmonize intraprovincial trade regulations, and that is a power that does not exist in Parliament now; that Parliament would have power to establish general economic objectives binding on the provinces but it is a power that does not exist in Parliament now. Parliament would have exclusive power to regulate competition; right now parliament is restricted to its jurisdiction over criminal law in regulating competition. Parliament would have concurrent and paramount power respecting intra-provincial telephone services; now the telephone services of the Prairie and Atlantic provinces are within exclusive provincial jurisdiction. Parliament would have exclusive legislative power respecting interprovincial telephones; right now the Prairie and Atlantic provinces rule on long distance rates as they apply to telephone companies within their jurisdiction. We recommend that no provincial international agreement would be valid if it did not conform to Canada’s foreign policy; right now there is no invalidity on that basis. Parliament would have power expressly to spend for national purposes in a general welfare; there is no constitutionally expressed power of spending. Parliament would have concurrent and paramount power over closed circuit cable television system; now these powers, it appears, are exclusively provincial. So there is not just a change of power to the provinces, there is a change of power to the federal government as well.

Now in particular, the quote you first made about comparison with the economic community—the point that we wanted to make is that there are no entrenched economic rights to prevent the creation of interprovincial trade barriers in the way that there are in the European economic community. Section 121 of the British North America Act allows for free admission of articles of gross produce and manufacture but is quite limited and we propose that it be extended to services, that it be extended to capital, that it be extended to quantative restrictions, non-tariff barriers, as well as duties. We also proposed freedom of movement of manpower.

So in order to get an over-all impression of the type of division of powers that we propose, one would have to look not only at the shift to the provinces but the shift to the federal government, the decreases in both levels because of entrenched economic price. And I would say as a generalization the intent of the Committee was to keep more or less the balance we have now, although we had dislocations in one direction or another, depending on the particular power. We were not

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trying to centralize or decentralize in general, but we were trying to maintain the present balance.

[Translation]

The Joint Chairman (Senator Lamontagne): Senator Denis has the floor.

Senator Denis: Thank you, Mr. Chairman. Along with several of my colleagues, I take it for granted that the proposed changes of the Upper House aim at assuring better regional representation. Do you not think that the different parts of Canada are already well enough represented by the present federal and provincial governments and oppositions? To carry the argument even further, do you not think that the regions are not already represented as well by municipal governments and oppositions?

This is why I questioned the need of a new Upper House, the members of which would be appointed by the provincial government. That would mean that 10 different party heads would be recommending candidates for the new House. If you want a vote-based representation, 40 political leaders at the various levels will be sending Senators to Ottawa in order to assure sufficient regional representation. If that is not Tower of Babel, I would like to know what it is. How would such a Senate work and what would be its responsibility?

You are most generous in wanting to give the provinces the right to appoint members to the new Upper House, but your fifth recommendation would not leave the new Senate much power. It would be able to amend or refuse a bill, but if the government of the clay is not pleased, it can present the same piece of legislation once again and get it adopted within one week. This would mean that the Upper House would not have any veto power.

You give with one hand and take away with the other. Picture what would happen in a shared-cost program. You would have representatives from 10 different governments, 3 appointed by the Creditistes, 2 appointed by the separatists, I appointed by the Liberals and another one as well. How do you expect all these parties to agree on how to best serve the needs of the regions throughout the country? How would they ever agree on shared-cost programs? This does not leave the provinces much responsibility since they will not be in a position to decide whether or not they will take part in shared-cost programs. The recommendation you make will see to that. And how would the provincial premiers appoint members to the new House? You say there should be ethnic representation in the new Senate, but we already have good ethnic representation. When the Prime Minister, be it Conservative or Liberal, decides to appoint someone to the Senate, he always tries to see that the ethnic groups are represented as fairly as possible. Almost all the ethnic groups are represented in the Senate. They are Indians, a Eskimo, a Ukrainian, a Jew and French Canadians as well. So I think minorities are well enough represented in the present Senate. Would this be true of the kind of Upper House you would like to create? I would like you to prove to me that the new Senate would more efficiently represent the regions and do not forget that you are taking away from us our present right to sponsor bills. This

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lightens the load of the House of Commons so that it can deal with problems which have greater interest to the elected representative of the people.

[Text]

Mr. Matas: The Senate in its present form is representative of the whole variety of Canada and its regions and its peoples but the Senate in its present form does not speak for the provinces. The Senators from the provinces do not always in every debate take the point of View of the provincial governments in the provinces from which they come.

Senator Forsey: Why should they?

Mr. Matas: Well, I am trying to point out our proposals. Now the second point is that even if they wanted to do that, they do not bind the provincial governments. They are not restricted, they cannot impose an obligation on the provincial governments by the positions that they take. That is the sort of representation that we have in mind in our own proposal and that is the sort of representation that the present Senate cannot perform.

Now, as far as why should they, the reason we proposed this particular form of representation, and this is something that we said before, is that we feel that we have right now this situation, this level of government of federal-provincial conference that needs a democratization and institutionalization, an opening up and a formalization.

Senator Denis: Do you not think the provinces themselves represent the province? Do you not think it is their job, that the provincial governments can look after the provinces? Is that not their job? And it is not their job to look after federal matters? Would you think it should be a good thing for the federal government to be represented in every province? Why should we not have a house in every province representing the interests of the federal government?

[Translation]

Mr. La Forest: There are several aspects to this particular problem. First of all, federal policy is decided upon before the provinces fully understand what is being done. There are administrative mechanisms at both levels of government and overlapping legislation as well. The provinces are sometimes slow in becoming aware of specific problems, by which I do not mean to say that they do not represent provincial interests as best they can. There is an overlapping of administrations and often as not. provincial-federal agreements are not all that clearly understood. We point this out in our brief and also suggest a remedy. I am not saying that Senators are completely cut off from the provinces, but it is a fact that they do not always defend provincial interests.

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[Text]

Mr. Matas: If I may add just one thing to that, there is a question asked, why not have a House like this in every province to deal with matters where the province overlaps on federal matters. Well, we propose in this upper House, we suggest that in fact not only federal legislation could be discussed there but in fact federal legislation could be discussed there as well.

An hon. Member: Provincial.

Mr. Matas: Sorry, provincial legislation could be discussed there as well.

Senator Denis: But if there is a distribution of power, a clear-cut distribution of power, the federal will have the right to do those kinds of things then and the provincial legislation the same. If the powers are divided adequately there will be no need of a new chambre haute.

Mr. La Forest: The simple fact is, you know, that in 1867 a great attempt was made at dividing powers so that they did not overlap. They do overlap. I am sure that if we tried in this year they would overlap next year. In fact, the world is not so simple that you can divide it on highly abstract principles. There will be overlap, there is overlap, and it will continue.

The Joint Chairman (Senator Lamontagne): Mr. Goodale.

Mr. Goodale: Thank you very much, Mr. Chairman.

I would like to go back to some comments made this morning by our witnesses, particularly with respect to the Supreme Court. In doing so, may I echo the comments that have been made by many members around this table today to the effect that the presentation we have received from the Canadian Bar Association is obviously going to be of great assistance to us as we carry on with our deliberations on the Constitution, and I think we all are very grateful for the kind of careful attention which the Bar Association has given to this very important topic.

Particularly with reference to the Supreme Court, this morning at least indirectly I gathered from our two witnesses that they really did not think very much of the comments that we hear from time to time in the country criticizing the Supreme Court apparently for the judges reflecting their regional or provincial biases rather than deciding cases specifically on legal issues. I think all of us around the table would agree with you most enthusiastically that when that criticism has been offered in the past it has been totally out of place and completely invalid in the kind of comment that it has directed toward the Court. I think recently, for example, of the CIGOL decision affecting the Province of Saskatchewan and the kinds of criticism that came forward following that case from some Very senior people in the Government of Saskatchewan who, quite frankly, should have known better in the kinds of criticism that they were directing toward the Court.

I think in the proposals contained in Bill C-60 you see an effort on the part of the Government of Canada to try to finesse that kind of argument, simply to make it an impossible

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argument in the future because the process of appointment would be different and provincial governments simply would not have it open to them to raise that kind of criticism as in the past. I take your point that you feel that is perhaps unnecessary because the criticism itself in the past has been invalid. But I wonder how you would see us in the future of this country dealing with that kind of complaint from the provinces which is likely to come forward again if we do not direct our attention to the process of appointments and in some way remove at least the apparent basis for the criticism that some of the provinces have offered in the past? How do we deal with that problem if we do not deal with it in the way that it is described in Bill C-60?

Mr. Matas: I would say that in all every disappointed litigate seems to blame the judge, and that is as true of provinces as it is for everybody else. Frankly, I think the people who are familiar with the judicial process and respecting of the rules of law should just ignore those comments rather than attempt to cater to them, because even though the present system does not, cannot justifiably receive the sort of criticism that it is getting, if we institutionalize a form of regional representation in the courts that sort of criticism might become valid when it was not before. So I do not think we can get around this sort of criticism of the judges as somehow being representative when they are not except to make clear as often as we can, and as loudly as we can that judges are not there as arbitrators, but are there to enforce the rule of law.

Dr. La Forest: On the other question, I think the Committee believed very strongly that the present system of appointment has produced a very good level ofjudges in the Supreme Court of Canada. At the same time there has been this credibility gap that has existed for some time, whether voiced or not voiced, by people in high public office and as a result in order to get the appearance of justice, because we have no doubt about the courts functioning properly, but we thought that there should be some procedure to give the provinces a voice in it and we chose the technique through the general proposition we made of a judiciary committee in the upper House. That technique or another does not matter but it did seem to us that weighing everything, while we had no criticism with the quality of people who are being chosen, in order to kill that kind of insidious criticism, there should be a voice to the provinces.

Mr. Goodale: That certainly was the issue to which I am sure the government was directing itself when they discussed the whole appointment process in the present legislation and perhaps the kind of mechanism that you have described in your report, probably not as dramatically as it is set out in Bill C-60, but nonetheless it seems to have approached the same problems to try to finesse that basis for the criticism. As I think we all agree around this table although the criticism has not been justified it has tended to detract from the reputation of a court which certainly does not deserve that kind of attack and I suppose for the future we would just hope that provincial

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governments would not resort to that kind of tactic in expressing their disappointment or disagreement with the particular judgment, but they certainly in the past, at least in some instances, have resorted to that criticism and it is an issue that one way or the other, whether in the mechanism described in Bill C-60 or in the approach that you have just outlined, I think we are going to have to cope with.

Mr. Chairman, I would like to deal with one, other area specifically flowing from the remarks this morning and that is the general problem of somehow addressing economic issues or economic concerns in a constitutional document which I think we all agree is a very difficult thing to do. As a Westerner, of course, that is something that touches pretty close to home with me because it seems to me in most of the expressions of that old malaise that we call western alienation, many times the roots of that problem are related to economics or to transportation concerns particularly and those things simply are not easy to deal with in the context of the Constitution whereas some of the questions of rights or privileges are more easily addressed and I wonder in specific terms if you have given some attention to the question which has been raised in this Committee by Mr. Collenette and others about the process of appointments to quasi-judicial or advisory federal boards and tribunals which have a very direct bearing upon regional concerns, such as the CTC, for example, or the CRTC as another example. Presently in Bill C-60 the suggestion is made that the chairmen of those boards and tribunals should be subject to review and approval in the upper House which would probably give that regional check on the process but in terms of the decision-making process of those boards, all of the members are important, not just the chairmen’ What would you think of the advisability of having all of the members of boards and tribunals that have decisions to make that bear upon regional concerns subject to review and approval in a second chamber to try to provide that very delicate regional balance which is so important from appearance terms as well as from the point of view of substance?

Dr. La Forest: Let me give the answer of the committee on that. I think the committee did consider an upper House as looking at the kind of legislation that would be set up and like any house of Parliament looking generally at the administration of law, when you are discussing law and so on, but the committee did not think that the appointment should be governed by the Upper House. Certainly at the constitutional level it would be extremely difficult to do that. One can import into the constitution the CRTC and so on, so it would have to be in a general fluid kind of way if you were going to do that. One member of the committee did think that there should be this kind of thing of consultation at the subconstitutional level.

I think, too, as in other cases, as in the case of the Supreme Court, the committee was mindful of the fact that the more difficult it is to appoint a person, the more difficult it is to get it very good person who will not want to go through those procedures and we are not unmindful of the fact that the

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government, and I think that has been true of all governments, has made a clear attempt to bring in people from the various provinces. The problem is that very often if you ove from the Maritimes and you are up here, you cease to be a Maritimer, that is a little harder, but sometimes it certainly happens in the West and that is part of the problem. I think if you went around these boards you would probably find that there has been a very clear attempt to put in people from the various provinces.

Mr. Goodale: I think it is probably fair to say—Mr. Chairman, do I take it from your signal that my time has just about expired?

The Joint Chairman (Senator Lamontagne): Yes, just about.

Mr. Goodale: Can I just have one further question then? In practical terms, could we hear again from our witnesses any other comment or any other practical suggestion they might care to offer at this stage about how these economic concerns, apart from the general expressions which we see in the section on regional disparity and so on. apart from that in a practical way is it possible for a constitutional document to address those things that lie at the basis of western alienation, or is that something that has to be addressed by other policies?

Dr. La Forest: Well we tried to do that and it may not be the method, but somehow or other one of the reasons for western alienation is that for many years somehow the westerners are on the wrong side of the house from their perspective and do not have a direct voice.

Mr. Goodale: We are changing that.

Dr. La Forest: We tried to change that and it is true of a certain type of Quebeckers, if I may say so, that these people are not represented and that is why we tried the upper House. Now the technique may be wrong, but somehow I think that is the kind of thing that you give a direct voice.

In addition, I think that the West as a new region was obviously controlled from here and this has left a residue of where we are being controlled and this has been focused in terms of resources, as you know. It does make clear what is not as clear in the document that the resources are for the provinces to handle. This, of course, is a very important local economic factor. It is only when it moves into the regulation of interprovincial trade that the federal Parliament can come in. So it was an attempt to reach out for a solution to that kind of problem.

Mr. Goodale: I certainly appreciate the complexity of it.

Mr. Matas: There is one point I wanted to raise in relation to the government bill. I note that the government bill provides for some sort of locking in of a statute that provides for payment of money to the provinces so that an equalization statute, once passed by Parliament, could not be repealed by Parliament, that it would become, in effect, constitutionally entrenched. We make no such proposal. But in this area we

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felt that we should not have the courts in effect forcing the federal government to pay out money.

The Joint Chairman (Senator Lamontagne): Well this ends the first round of questioning and if I am not mistaken, up to now four members of the Committee have asked to participate in the second round, The names I have are those of Mr. Breau, Senator Roblin, if I am not mistaken, Mr. Caccia and Mr. Guay [Translation] and Mr. Guay. . .Pardon me, Mr. Dawson?

Mr. Dawson: Mr, Chairman, you said last night that Mr. La Forest had a second presentation to make or he wanted to make a second personal intervention.

The Joint Chairman (Sen. Lamontagne): No, I do not think that it is the case now since I think Mr. La Forest has given us his personal opinions as we went along. But let us ask him.

[Text]

Mr. Dawson: Okay.

[Translation]

The Joint Chairman (Sen. Lamontagne): Mr. Breau.

Mr. Breau: Thank you, Mr. Chairman.

First of all, I will get back to this question of language rights once more even after the explanations given by Mr. Matas and Mr. La Forest earlier because I really find that your committee’s position on that is rather weak.

Now, concerning one of the questions raised by Mr. Matas this morning when he said that it was impossible to protect all minorities with a constitution, I would like to remind him that the francophone minority is not just another minority amongst others. A goodly number of us believe that the francophone minority outside Quebec belongs to one of the two founding groups of the country. I simply wanted to make that point.

As for that last question of mine which Mr. La Forest answered this morning, when he said that it would not be wise to put too much detail in the Constitution and that it should remain a “legal structure” or framework—those are the words he used—I quite agree with him. However, that is not what Bill C-60 suggests in the language area. And that is where I find your committee’s position a bit weak. Like you, for generally symbolic reasons and for questions of a regional importance, I believe it would be best, for questions of linguistic import, that these be set out as generally as possible and that not too many details be settled beforehand. As Mr. La Forest was saying this morning, that could be dangerous. I quite agree. However, groups of citizens should not be led to believe that, were their linguistic rights to be infringed upon by the House of Commons, they would only have to go before the courts. After all, that is a procedure that will take time and which requires money and other resources . . . It seems to me that political checks and balances in a second house would be much more efficient and that this would go further towards reassuring not only the minority francophone groups outside of Quebec but also those inside of Quebec.

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You do not like the so-called majority mechanism, and I agree with you on that point, since I do not like it either. But I would like you to study very attentively at least the principle which says that there should be political checks and balances, not something to be left to the courts, but something which gives a power of political checks and balances to the second house in the matter of language rights.

[Text]

Mr. Matas: If I may give an answer to that, the remark I made earlier did not simply say all minorities but it also said all rights. The point I wanted to make there is that with the system we propose, there are some minority language rights that are protected where we do not expect the constitution to rely on simply the will of the majority.

Mr. Breau: Yes. I agree with you as long as you define linguistic rights narrowly and just from the legal standpoint. Maybe the word “rights” is not the right one. Maybe we should talk about development of the French language in the case of the French language, but in that political effort that Bill C-60 represents, there is more than the strict legal sense to the words “linguistic rights”. It includes, in my view, for example, cultural infrastrutures like radio and television, which seem to be a prerequisite to the survival of the French language in some areas. So in the strict legal sense you are right that the entrenchment of the Bill of Rights should be enough, but there are a series of things that an insensitive House of Commons and an insensitive government could do that would not impair the legal rights but would really impair the development of the French language, and it is in that sense that I think there should be a political check in the second chamber.

Mr. Matas: All we can do is to present to you our own option which, of course, you are free to reject if you wish, but . . .

Mr. Breau: I am appealing to you to accept mine.

Mr. Matas: But our protections were twofold. One of them was the entrenched specific legal right and the other was the division of powers.

Mr. Breau: Okay. I was waiting for you to say that. The division of powers in terms of the French language protects Quebec. It does not protect those of us who are not in Quebec. It is quite the contrary. It may hurt us. For those of us who are of the French language outside Quebec, giving more powers to the provinces will not necessarily guarantee that we will have our rights more protected. I think, traditionally, we have always wanted a strong federal government to be able to do that. So, the division of powers revealed as giving assurances to Quebec does not give me any assurances because Quebec will not necessarily want to protect me.

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[Translation]

Mr. La Forest: Generally speaking, we understand what you mean when you talk about founding races. We did not use those words because we are conscious of the fact that in many parts of Canada the people who are sometimes Ukrainian, German, claim to be. . . but in the Constitution, in a symbolic way, we did say that the two linguistic groups are equal in Canada.

We are saying what the Constitution should do. Second, we want to protect certain rights which seem absolutely necessary to us from a government point of view. As for the other question, we looked at it taking especially into account the possibility of an Upper House which would represent both linguistic groups and we rejected that notion. I do not know how far we finally went on that.

As you say, you do not like the mechanism.

Mr. Breau: But I do like the principle.

Mr. La Forest: An adequate mechanism must be found.

Mr. Breau: You have found one. You suggested one for questions of regional importance. You asked for two thirds of the vote in the Upper House. It could also be two thirds when language rights are to be protected.

Mr. La Forest: But at that point you also have to get into the question of definitions. You will also have to bring up all kinds of legal problems every time. And I can see all kinds of technical problems there. On the other hand, I do not know if our Committee discussed that problem as such. First of all, we discussed whether we should have an organization representing the linguistic group . . .

Mr. Breau: The courts should be able to take care of the strictly legal areas. However, in my view, this question of the development of minority groups and of the protection of their language goes far beyond the legal question. The legal question is important and perhaps, even, the first one that should be dealt with. But there are all kinds of other things that are important and that is why it might be best to apply to language questions the principle that the Second House be given certain special, particular powers as you have suggested for questions of regional importance. I do not necessarily disagree with you on that. I repeat, this is not only on a strictly legal level.

Say the House of Commons wanted to decrease the services offered by Radio Canada to francophone communities outside Quebec. For the sake of argument, let us say that. Now, if I were a Member of the Second House, I could interpret that, politically, as being contrary to the respect of francophone language rights. Therefore, I could oppose the measure. Then there is the question of interpretation. Is it or is it not a question of language? This would be a political interpretation.

Mr. La Forest: From time to time, you have put political questions to me; now I will put one to you. Do you believe that in today’s Canada, now that the federal Parliament has enac-

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ted legislation to protect or give certain services to francophones, without forgetting the power of French Canadians in this country, including Quebec—because Quebec, whatever else, is still taking interest in minorities outside its borders. . .

Mr. Breau: Yes, they have shown some interest over the last few months.

Mr. La Forest: . . . do you then believe it possible that those rights might be unreasonably taken away from francophones?

Mr. Breau: Let us be realistic. First of all, Quebec has been taking interest in francophone minorities outside Quebec for the last few months only, in my opinion. That is regrettable. But I hope that Canada will never, politically, wish to take rights away from the people. If we could always be that optimistic, we would not need any Constitution at all. We could say: everybody is always going to be nice in the future. I do not think that a Constitution will protect everything. It is like a marriage contract. The contract is worthless when the partners do not wish to stay together. I agree with your definition of a Constitution. For symbolic reasons, you would like to respect the questions of regional significance. I also think it is important that the country make a political statement on certain linguistic questions and give special guarantees. There is the possibility that one day, in Canada, we might have a government or a House of Commons with a strong majority which would be insensitive to those questions. I hope that will never happen but it might.

[Text]

Mr. Matas: There are a couple of things that I would like to say to that. First of all, it may well be that the divisions of power is not an answer in our proposal but it is not an answer in the proposal of having, let us say, a two-thirds vote on linguistic questions anyway. Because if it is a matter of jurisdiction then it would not go to the House of Commons.

Mr. Breau: Right.

Mr. Matas: Secondly, I suppose our committee made a judgment that the French minority was strong enough in the House of Commons and would be strong enough in the reconstituted Upper House in the way that we propose to reconstitute it that there would not need to be additional protections to have questions of linguistic significance properly debated, and those rights in a larger sense become adequately protected. That was our own judgment.

If this Committee should feel that the political structure of the House of Commons is such that it is possible for the francophone group not to have significant influence at all in the future, there needs to be legal protections because there are not in-built political ones and the Committee might come to a different opinion than our committee did.

the Joint Chairman (Senator Lamontagne): Senator Roblin.

Senator Roblin: Mr. Chairman, the response that Mr. Breau has made on language has been bothering me, too, to some

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extent, because in the Bill of Rights that we have here, as I understand it, its guarantees of educational rights are limited. Furthermore, even that does not come into effect until the provinces opt in. So we are in the danger of adopting as a constitution a device that will permit one set of Canadians to have certain legal rights and another set of Canadians not to have certain legal rights, and that seems to be a defect of the legislation.

I think your definition of rights in the educational matter is much better than the one we have in the bill and I hope we can improve the one in the bill.

I would like to know whether I really understand, though, what you are driving at with the second chamber. As I have listened to the argument develop, it seems to me that the way you seem to be approaching this is that you would like the second chamber to be something like an institutionalized dominion-provincial conference. The provinces could nominate their men, which might include the premiers, and presumably they could change them around; they might put the premier up, if it is an important matter. And the federal government can also be represented there in terms of speaking though not in terms of voting. Would I be going too far in saying that the essence of your suggestion is that we institutionalize the federal-provincial conference in terms of this Upper House?

Mr. La Forest: It is very close to that. Somehow or other we do have to get the provinces and the federal government closer together for quite a large number of decisions. We have chosen this method. If we do not have that one we had better go about thinking of another one that is better that the federal-provincial conferences, which often come too late in the game, and where decisions are not made in a formal fashion; and sometimes bccausc they are made behind closed doors you do not know what the decision is.

When you have laws, one of the great functions of parliament apart from getting parties is that at some stage of the game a particular procedure is followed. The procedure is terribly important to the sanctity of law. There is no procedure for the deals between the federal and provincial governments now made through these conferences and then brought back to the House. And we do not know quite what the considerations are. That somehow has to be formalized. The method we have chosen may be found by people, who are working in the context of Parliament, who will know this is not practical. Well, I exhort you, if this is not practical somehow or other we have got to come up with one. So it is very close to that.

Secondly, it is close to that in several respects. The regions here ar heard at a very early stage in legislation. The spokesmen are informed about what goes on at the provincial level because the way laws intermesh now is such that information should be made available immediately. Then again like the federal-provincial conference, it permits the two bodies to do together what each cannot do alone.

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Senator Roblin: It has certainly this significant feature, that as things stand at present the federal-provincial conferences may resolve nothing in the sense of reconciling the two parties, whereas in your procedure ifyou institutionalize it in this way, there wil be a two-thirds vote for or against. I would suggest to you that it may slow down the operations of federal machines considerably. I leave it as an open question whether that is a good or a bad thing.

I would like to ask a question or two about the division of powers. I was particularly interested in the point raised by Senator Lang in respect of the residual powers under the constitution, and I confess that gives me a little problem here. Your explanation clarified the matter considerably because I gather you are saying that most of these residual matters are property and civil rights anyway, so what is the problem. But it seems to me that if you look over history, the reason why we have to change the BNA Act at all, or one of the main reasons why we are worried about the division of powers, is changing social views on the nature and role of government, and secondly the advent of new technology which presents us with things we never had before.

It seems to me that this is a very broad clause you modify it only by the words “unless it is clearly beyond provincial interest”. I know this is not a legal document, but you are going to have quite a time defining that in a legal document in such a way as not to leave within the provincial arena all these matters respecting changing social views on the nature and role of government and the changing technology of our times. How can you help us resolve that problem?

Mr. La Forest: I think a great deal of the federal activity about new concerns, for example in social security and so on, has been met by the power of spending rather than the power of legislation in the narrow sense, because of course the power to spend is a legislative power. We would enshrine it expressly in the constitution so that nobody can question the power of the federal government to spend. There are some constitutional safeguards in relation to shared cost programs, and here we came to very much the same decision as the Joint Committee of a few years ago. But I think that is where the new things have come in.

When you say clearly beyond the interests of a province, I think words of this kind are almost invariably used in those cases where the peace, order and good government clause has been used to give federal powers. For example, if you look at the radio case, if you look at offshore resources, in great measure this is clarification, doing away with what has concerned people.

I am very familiar with at least the academic community in Quebec, and they are fearful in the extreme of the national dimensions doctrine. They are fearful at all times that this will be used to transfer something that is now within provincial

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power into the federal one. So really it is a question of defining what is there now, and not let it seep around the edges.

I think that was the general attitude we had, and I rather think these words go close to doing that.

Senator Roblin: Would you also perhaps say that the question of using the national spending power is restricted by the two-thirds majority in your standing Dominion-provincial conference, so that if it could be approached that way, also it might be subject to a provincial block?

I have the same kind of problem really with some other items in this distribution of powers. On 12 (4) in the summary we have here, the province has no power to impose a tax that has a tendency to be automatically passed on by the taxpayer to a person outside the province. I am at a loss to know whether you could really limit, very much, provincial taxation power in that way, because it might be argued that what tax is not passed on to somebody ultimately the consumer pays one way or another. It may involve the question of royalties and so on. We have been all through that recently. So I am not really too sure whether that limitation on provincial taxing powers, if it is a desirable thing, which apparently you think, is going to be easy to handle. Do you have any thoughts about that?

Mr. La Forest: Let me say that under the existing division of power the problem is by no means easy. I have spent a lot of time personally delving into the arcane problem of what is a direct and what is an indirect tax. The only justification I can find for that distinction as left by the courts is that in fact it does those two things: it prevents barriers and also custom duties, between the provinces and in addition, it prevents that kind of tax which is imposed on one person and you know immediately it is going to go.

The clearest example I can come up with is a sales tax at the manufacturers level. If you permit the provinces to do that, it would mean that for everything manufactured in Ontario the people of New Brunswick would automatically pay it. That is really the kind of thing we have in mind, you see: to prevent that sort of thing while permitting the provinces to levy that kind of tax within the province which they cannot do now because it is an indirect tax. The indirect tax thing is really a matter of form and it does not really concern itself primarily.

So what we tried to dig out was that part we think is sound: that the Government of Ontario should not be able to tax New Brunswick residents. I use two provinces, being a Maritimer; those are the ones, you know. So that is the kind of thing we are afraid of. And there are a number of these. Effectively, that is what the indirect tax does. But it brings along with it a whole residue of problems of a highly technical nature that we would do well to avoid.

Perhaps in drafting a final constitution that might be better done. My guess is the courts would get the message, because

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that is what they have been trying to do all these years with the definitions of direct and indirect taxation.

Senator Roblin: I thank you. I predict a lot of problems with that one. Am I through?

The Joint Chairman (Senator Lamontagne): Yes. Mr. Caccia.

Mr. Caccia: Thank you, Mr. Chairman. On the subject of patriation: to those of us who believe in the theology that a certain procedure in Canada is to be followed to bring about patriation, to Westminster to bring about patriation, to use an ecclesiastic term, your proposal that action can and should be entirely taken in Canada sounds almost iconoclastic. So can you explain how you have come to that conclusion?

Mr. La Forest: Obviously there are two ways in which states have traditionally become independent or declared their constitution, if you will, because obviously we are independent. One of them is by action taken in the country, saying to the rest of the world: this is our thing, we are doing it ourselves. And that is recognized. I do not think if you have the political will to do that in Canada you would get external problems of a high degree. The advantage to doing that is the surge of nationality which goes with it. Or you can use the other method, that is to say, you go through the legal motions, but you try as much as possible to Canadianize it.

The Committee opted for the first. Clearly it is a difficult thing and you will see that the Committee split on that one; there is a minority view. The majority of the Committee was of the view that it is important for Canada to stand on its own feet, to be seen by Canadians to be standing on its own feet. But I think it hedged its bets a little bit by getting all the provinces and the federal government to agree—you would then have every government that exercises ultimate legislatlive power in Canada. The Committee felt that this kind of self-assertion would help the strong national identity that it was seeking.

Mr. Caccia: But in pure technical terms, you are saying that this route, namely of taking action entirely in Canada, is constitutionally possible?

Mr. La Forest: Well, it has been done in other countries. It does mean that you are breaking the existing legal order. . .

Mr. Caccia: Well, what do you mean by “breaking the existing legal order”?

Mr. La Forest: By saying you are establishing a new legal order in this way.

Mr. Caccia: But is it a legal action?

Mr. La Forest: Pardon me? In a sense, if you wish, when you get to that high political sphere, the only language that you can really speak is politics—it is legal politics at that stage.

Now, we are not the first to recommend this for Canada. I believe I saw something by no less a constitutional lawyer than Frank Scott some years ago recommending that very approach. So it is possible: it has been done in a number of places; but it does mean that you are making a breach with the

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established legal order. But legal order at that level is largely a political question; it is a political legal question: Do the people accept it? And I have no doubt that if you had that kind of backing by all the governments of Canada that it would be accepted, and then you can do what has been done in other countries, take precautions by new swearing-in of judges because they are the people who administer the constitution.

Mr. Caccia: Going back for a moment to the Supreme Court, in the text of your recommendation it is not quite clear whether you are recommending an age limit of 70. If you are recommending an age limit of 70, the question is: why?

Mr. La Forest: I think we are recommending the age of 70. This was done, for example, as well during the Victoria Charter, and I think the story is that there was some talk a while ago of how difficult it is to remove judges, and I argued that it should be extremely difficult to remove Superior Court judges constitutionally. There was mention of the infirmities of age. This is one way to avoid that problem and to bring in this very difficult constitutional process.

In a way it is sad because I do know of judges who have functioned far better at an advanced age than they did when they were younger, simply because of increased wisdom . . .

Mr. Caccia: Not only judges.

Mr. La Forest: . . . but you do have to balance somewhere. You might have argued, why 75?

Senator Forsey: Yes. What about Sir Lyman Duff?

Mr. La Forest: I agree with that. I fully agree with that, at the same time with a very significant number of people. I will mention another very able judge, and I was disappointed that he had to retire at 75, and it was Mr. Justice Rand, whom I greatly admired. His opinion was that it is right to do it that way. He had no doubt about it, even after he was retired.

Senator Forsey: What would he have said of 70?

Mr. La Forest: I do not know.

But you do have to have a balance. We tended to follow the one here that was given at Victoria.

Mr. Caccia: This is your only bench-mark, is it: Victoria?

Mr. La Forest: It was the only bench-mark that we had. Clearly, of course, infinitely better than 65, which seems to me to be violating human rights very easily, to almost everybody.

Senator Forsey: Oh? How so? Why not 65?

Mr. La Forest: Why not 50?

Senator Forsey: Right.

Mr. Caccia: Mr. Chairman, one final question, since the time is moving along.

In the section of your brief that deals with language rights you seem to be proposing an approach that goes right beyond the one in the bill: namely, you look at the whole of Canada rather than a few provinces on the question of pleading or processing civil cases as well as the trial for criminal offences and so on, and this is most desirable. Now, some of us are told

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that there is a lack of language skills amongst judges across the nation to achieve this goal. Now, if that is correct, what role, if any, would your association want to play in order to correct this lack of skills?

Mr. La Forest: This question, of course, was very seriously raised at the committee level, whether there were language skills, and the committee came to the conclusion that there were. I would add one other thing. So long as it is not required there will be less language skills. But when it becomes the rule that you can be heard in French in a criminal case, for example, you will get judges, and I think most of the provinces have judges, and if this cannot seriously be done that way then the rights of the individual to have a criminal case heard in his own language may demand that you even go outside the province. But we did not go that far, We were of the view that the language skills are really there. It is not an easy problem, it is also an expensive problem, but very cheap in terms of what it buys.

Mr. Caccia: Thank you.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Guay

Mr. Guay: Thank you, Mr. Chairman. I believe I am one of the last members of the Committee to be asking questions. In the light of what has been said since 9.30 this morning in the presence of the two witnesses from the Canadian Bar Association and in view of the report and recommendations of their Committee, I would like to try and draw some conclusions since we will also have to draw up an interim or preliminary report for October 10. I would like to know if I am correct in some of my assumptions. When you say that you reject separatism as absurd and you are against a particular status for a province… , when you also reject the status quo and sovereignty-association, and when I read the preliminary section of your report and Recommendations 1 to 6, I realize that our positions are very close. I would like the two witnesses to tell us on which point of Bill C-60 we are, not in disagreement but, rather, in agreement. Is the introduction to Bill C-60 acceptable? In the introduction to the Committee’s report, it is said:

A new Canadian Constitution is necessary… a new Constitution should be Canadian… amended and implemented through truly Canadian mechanisms . . .

When we draw up the report, would it be possible for us, and this is a question I am asking, to indicate on which points we agree the most in respect of Bill C-60.

Mr. La Forest: I could not really say; it is rather difficult for me since I have not examined Bilél C-60, as I have already told you. Mr. Matas has looked into it more. We certainly agree with the fact that there should be a new Constitution and that it should be truly Canadian. We also agree with the need for a preamble. However, I found that the present litany is a bit long; in my opinion, the objectives and preamble should

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be presented in a shorter fashion more in keeping with that of a Constitution. I think that on that score we are of the same opinion. As far as human rights are concerned, we added the right to privacy and information. In the matter of language rights, we include the entire country. We believe that this is important, not only from the point of view of protection, where action was likely to be taken in the long run anyway, but also very important on a symbolic level to make clear to French speakers that they are equal to other citizens throughout the country. Therefore, on this particular point, we made this distinction. I believe that Bill C-60 also deals with regional disparity. Also the courts, we have them entrenched in the Constitution. With respect to the Supreme Court of Canada, some important differences should be noted; we find that nine judges is already a large number when it comes to making rulings. In our opinion, it is not necessary to establish special procedure for civil law since such cases would come before the Supreme Court only when there is a national dimension involved.

As for the matter of selection, the Victoria formula already strikes us as very complicated and this one is even more so. We attempted to find another solution. I should point out that everyone wants to find a formula ensuring provincial representation but finding a good one is another matter altogether. It is very difficult.

What else then, in addition to the points I have mentioned? Considering a second House, it would be an appointed House but our proposal would be truly representative. We have an entirely different concept. The Committee is not at all in agreement with the Bill on that point.

Turning to the division of power, Bill C-60 does not deal with this matter, which is to be postponed until the second phase. But I think that on the whole, it is in favour of exclusive power, as we are, rather than a particular status. Our positions are similar.

Since Mr. Matas is more familiar with the Bill than I, it would be interesting to hear his comments.

[Text]

Mr. Matas: Yes. I have a couple of words I can add. I would say that although there are many differences, as we pointed out here today, there are, of course, many similarities as well, and it is perhaps worthwhile emphasizing these similarities as well as similarities to several other projects of constitutional reform that have come out recently. My own perception of the history of constitutional reform in Canada is that the better has become the enemy of the good; that everybody, in trying to propose a system that is a better form of reform, has prevented the agreement that has allowed any reform to take place at all and we have been left with the status quo as a result. I think that although each of the various groups from our own perspective may suggest particular changes that are different and that we have particular proposals that vary from institution to institution, the substance of the matter is that a new constitution is better than the present constitution; that this Committee proposes constitutional change and we must not let the

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divisions about what that constitutional change should be prevent the coming into effect of a new constitution.

[Translation]

Mr. Guay: One last question which might be addressed to Mr. Matas. Do you believe that Bill C-60 is a step ahead in the right direction towards an improvement of the present constitution?

[Text]

Mr. Matas: Well, subject to the reservations I have expressed before.

The Joint Chairman (Senator Lamontagne): Mr. Lee.

Mr. Lee: Thank you very much, Mr. Chairman. This is the first opportunity I have had to question the members from the Canadian Bar Association. I have had an opportunity to read through most of their ccmmittee’s report and I find it very interesting and very stimulating. I want to congratulate them. Also as a member of the Canadian Bar I find that the work they have done has been very interesting.

The question I would like to direct to them is more with respect to language rights but somewhat in a different vein. I think that we pretty well agree that the two official languages in this country be French and English. Yet the committee has gone on at great length to talk about multiculturalism and to talk about the provincial governments having the ability in effect I suppose to designate certain regional languages. We have had briefs so far from the Native Brotherhood, Metis people, who were talking about languages in the Northwest Territories, and I am sure those representatives may have had an opportunity to visit their Territorial Councils where they carry on their languages in say, Inuit or some of the local languages more common in those particular areas, and I find that very gratifying. I find that, as you say, there should be much more explicit recognition at the present time, and I note in the memorandum that was prepared for the Committee by Mr. Matas that he did not really comment about Bill C-60. I am wondering if you could give me some background as to what led you to this particular conclusion that there should be much more recognition because I agree with it. I was just curious as to what was the rationale or the background on behalf of the Canadian Bar Association. Secondly, how you feel about the proposals on multiculturalism and other languages other than French and English as proposed in Bill C-60?

Mr. La Forest: I will answer the first question; I think Mr. Matas can probably deal with the second one.

What we are thinking about when we are looking at language rights are human rights. How can the human person best function as a useful individual in society, given the background and surroundings around him? If you are dealing with French, you are dealing with roughly one third of the population of this country, you are dealing with one of the great world languages and accordingly you can do so much more to foster the individual and thereby foster society, I may say, by giving these language rights which are minimal really. What you are looking at is the right of a human person.

When you come to other ethnic groups their rights, of course, as human persons are as great. At the same time one

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has to look at the physical surroundings. You cannot entrench Japanese, Chinese, Ukrainian; what you can do is give assistance to the human person to function as best he can in the milieu and the milieu will of course include the fact that there will have to be some common official language in which people must function, but never forgetting that those people have every bit as much right and at the same time rights are always relative to the circumstances. It was really a continuation of the same thought in terms of practicalities.

Mr. Matas: If I might add to the second part of that question. I suppose that our own feeling about the multicultural provisions in Bill C-60 is that by and large we were in agreement with them. We had similar provisions in our own report. On language rights we have said that the constitution should explicitly recognize the right of federal and provincial legislatures to assist ethnic or linguistic groups in promoting the languages and cultures.

What we meant by that is even though we are constitutionally entrenching minority language rights only for English and French, it would be open to the Parliament or the legislatures by means of statute to provide similar sorts of protection so that the inclusion of English and French is not to be read as an exclusion of the others. So we were concerned about that as well.

Mr. Lee: I see but from my reading here you are even much more explicit than Bill C-60. In your discussion on language rights you go into a much more critical analysis. You talk about what the Victoria Charter proposed as somewhat sort of negative in its approach, more than an affirmation response.

Mr. Matas: Yes. Yes, I think that is so as well.

Mr. Lee: The other area I would like to question you on is on the residuary power and the use of the emergency power. If I understand your position correctly, in instances other than war, invasion and insurrection that would require approval by the Upper Chamber as you proposed. An example that you talked about was sort of the Anti-Inflation Program, the AIB Program.

When the emergency power is used in war, invasion or insurrection, you talk about the concept of suspending the Bill of Rights as in the United States, for example. You make reference to the fact that they in their constitution can suspend the question of habeas corpus. I find this an improvement over the general wording in Bill C-60. In Bill C-60 you can limit the Bill of Rights in a much broader sense. where you are just talking about suspension. But I am wondering why you felt you could not go one step further. I can see the need, obviously, for the declaration, the instances of war, insurrection or invasion, without having to go through approval. But, if you are talking about the suspension of those rights, why did you feel you could not go one step further and say an affirmation to suspend those rights by a majority, say, two thirds of both Houses?

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Mr. La Forest: I will try to answer that, and Mr. Matas may, as well. I think we are conscious of the fact that there may be an emergency of a kind in this dealing with war and so on and that government must act. In fact, if you look at the British Constitution, that exists inherently under the term of material law.

At the same time I think it is right to say that we had an earlier inclination to make it stronger and then we gave thought to this. I would like to have had this study a little more in depth if we had had time. I recall at the meeting ofthe Bar someone raised the possibility that it is all right for the government to act. But in respect of a person who has been harmed by an improper thing, you cannot really question the government of the day after the event in these things because it must act. But perhaps there could be some way under which a court could at a later time determine compensation because there has been, both in this country and in the United States, some incalculable harm done to people. I would like to have a little more time personally to consider that. But we have at least narrowed it down.

Mr. Lee: I see.

Mr. Matas: I could say a couple of things about that. First of all, there would not be a suspension of the Bill of rights in economic emergencies, and there would not be a suspension of the Bill of Rights in apprehended war, invasion or insurrection. There would only be a suspension in case of real war, invasion or insurrection, and whether or not the war was real would be a question of fact that could be determined by the courts. We did not propose that there would be a two-thirds majority in both Houses of Parliament for such asuspension because the nature of these events is such that Parliament may not be in session and it may simply be impossible to get it into session to pass that sort of vote before the government has to act. So we said that it could happen by Order in Council. But there is of course these concerns that were raised at our meeting that Dr. La Forest referred to.

Mr. Lee: I can see your issue about timing, that Parliament may be adjourned at that point in time, and the question of deferring this or leaving it up to a legal interpretation at a later date by the judiciary, but often this sort of declaration that you are talking about is a question of fact, which to a large extent might be more of a political nature. This is why I raised the issue. I personally really have not clearly thought this out.

Mr. Matas: I suppose when it comes to an apprehended insurrection the situation right now is that as long as it was apprehended the question of whether or not there was cause for apprehension does not arise. Our proposal is not that it would simply be a political statement that there is a war and that would be enough. Our own proposal is that there would really have to be a war.

Mr. Lee: I see. Thank you, Mr. Chairman.

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The Joint Chairman (Senator Lamontagne): Mr. Goodale is the last name I have on my list and I understand that he has just a couple of questions to raise.

Mr. Goodale: Yes, Mr. Chairman, I simply wanted to pick up where I left off in my earlier questioning with Dr. La Forest and Mr. Matas. As so often happens, the last question for the purpose of clarity simply runs out of time, so I would like just to confirm a couple of points.

I was dealing with the issue of Western alienation and how that was addressed either in Bill C-60 or in your proposal. I take it from what you were saying at the end of my questioning earlier that your response in terms of dealing with that malaise or that uneasiness within confederation is essentially through the mechanism of the second chamber or the Upper House. In fact a similar response was given to that same question earlier in these proceedings by the Minister of Justice who saw the second chamber in Bill C-60 as a mechanism for addressing those Western concerns. Do I take it then from what you say that there is not another mechanism or an additional mechanism either in your proposals or as you read the legislation in Bill C-60 to really get at that question? Does the total answer lie within the structure of the second chamber, or are there other mechanisms that we should be considering here in making our recommendations to the two Houses?

Mr. Matas: There is of course the mechanism, which we rejected, of having the Upper House involved in appointment of the quasi-judicial administrative bodies. There is possibly a reallocation of the division of powers, a more tight control even than we propose of the spending power, There are certainly other possible ways of dealing with the matter. There is a possibility of restructuring the Upper House so that every province is represented by the same number of Senators.

The report itself in its discussion of alternatives discusses a number of these possibilities. But we decided that if we are not going to have a very large restriction of the federal government, if we are not going to cut down its spending power totally to prevent it from spending beyond regulatory jurisdiction, if we are going to try to maintain the present balance of power between the two institutions, the way to remove the regional alienation, the western alienation, is to make the central institutions through the Upper House more responsive to those concerns. The other main alternative which I suppose we rejected is a dismemberment of federal institutions so that the western regions could just control their own fate.

Mr. Goodale: In terms of the structure of that second chamber, either with your proposal or with Bill C-60, there is clearly going to be an incentive for the federal government to be more careful about provincial concerns because the upper chamber is there and under certain circumstances is in a position to deal with their concerns. I wonder where the quid pro quo is in that, looking at it from the other way around.

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Either in your proposal or in the mechanism described in Bill C-60, where is the incentive for the provinces to take more into account the national interests?

I see articles appearing in the paper recently by Professor Lower and others, by Mr. Spicer, for example, where they really deal with that question and wonder aloud at what the premiers were really doing in Regina a couple of weeks ago and are pretty critical of that, Bearing in mind the criticism from people of the calibre of Mr.Spicer and Professor Lower where really is the incentive for the provinces under your proposal or the Bill C-60 proposal to bear in mind what is really crucial in forming a constitution, and that is the national interest?

Mr. La Forest: I think the kind of Upper House we are suggesting would expose a lot of talk that goes on in the background. It is all very well for people, for example, to speak of the lower Canadian dollars when they are running abroad. You know, somebody is going to ask that particular premier through his delegate, what about you?

Similarly in any policy that you can think of where they are criticizing the federal government but provincial policies impinge, I think it would help prevent talking from all sides of the mouth at once. It would -focus the kind of discussion so that there would be, I think, some limitations, And I think as a result the provinces might find it a little more difficult to do that sort of thing. In other words, once you are saddled with a task with responsibility, you begin to act in a very different way. That at least is the idea in which we thought it would bring these concerns closer.

Mr. Goodale: I suppose in another respect too, if a position being taken by a province on a particular issue is an extremely parochial one, and one that in the national interest a province ought not to take, sometimes criticism coming from a sister province would be a more effective kind of criticism than if that criticism was expressed by a federal spokesman. That federal spokesman might in some sense be suspect for advancing the criticism where another province could advance the criticism with greater credibility.

That is fine, Mr, Chairman, Thank you.

[Translation]

The Joint Chairman (Senator Lamontagne): In the name of all the members of the Committee I would like to thank Mr. La Forest and Mr. Matas, not only for their magnificent piece of work, but also for having agreed so generously to spend a major part of the day with us.

[Text]

Now I think if there is no objection we should perhaps take a break of about five minutes.

Some hon. Members: Agreed.

The Joint Chairman (Senator Lamontagne): Order, please.

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Ladies and gentlemen, pursuant to the order of the Committee dated Wednesday, August 30, we will now proceed to the final debate on the motion of Miss MacDonald.

Senator Flynn.

Senator Flynn: Mr. Chairman, after listening to the debate we had last week on this motion I have prepared an amendment which I think would meet the most serious objections that we have heard against the motion. Without changing the operative part of Miss MacDonald’s motion, which is the recommendations that the government consider the advisability of referring to the Supreme Court of Canada for a decision whether the provisions relating to the Crown and to the Senate could be dealt with unilaterally, I would therefore move that the motion be amended by deleting the first paragraph and substituting therefor the following:

That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown, and

and by deleting the third paragraph. The third paragraph, you will remember, was asking the government to bring forward its proposal relating to the division of powers. I think Miss MacDonald has put this paragraph in to assure the Committee that there would be still something to do, that the Committee would not be interrupted. With my amendment I think this is not necessary at this time and it would become another matter, it would become extraneous. So, the motion as amended would read again:

That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown, and

and

That the Committee include in its report a recommendation the Government consider the advisability of referring these provisions to the Supreme Court of Canada for a decision as to whether they are intra vires the federal government acting alone, either through unilateral action by the Parliament of Canada under section 91(1) of the B.N.A. Act, or by means of a joint address from the Parliament of Canada to the Parliament of the United Kingdom without the agreement or substantial compliance of the governments of the provinces.

I may say just as a matter of wording that in the text that I distributed, I repeated the mistake that we have in the motion as was, as is recited on the Order Paper. We forgot to say that we want the government to recommend the consideration of “these provisions” and the words “these provisions” are inserted after “the advisability of referring”, we put “these provisions to the Supreme Court”. That is my motion and I think it

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meets the objection that the Committee would be hampered to continue to hear evidence on the Senate and on the subject of the Crown, first of all, and it would merely say that we want this question because of the concern that we expressed to be referred to the Supreme Court of Canada by the government. Of course, the government may do so or may not but this is the essence of my amendment and I think it could shorten the debate, I would hope.

The Joint Chairman (Senator Lamontagne): The debate is open now. This amendment will now be discussed and I recognize Mr. Breau.

Mr. Breau: Thank you, Mr. Chairman. I thank Senator Flynn for giving us a copy of his amendment even if it has been changed a little bit in its presentation. What I find difficult to accept and I find is not normal in the amendment of Senator Flynn—that is the reason why I cannot support it is why the Committee at this time, having heard some witnesses express some doubt about a part of our work as a committee, as a joint committee, should decide now on a position that we would take in the drafting of our report.

It seems to me that normally when a committee of the House, and I was on a joint committee of the Senate and the House of Commons before, I have never seen this procedure followed. Normally the Committee listens to points of view, the Committee debates the different points of view, sometimes it asks witnesses to come who are of a different point of view, and then when you sit down to draft the report you make a decision, in the same way that the motion by Miss MacDonald seemed to me to be a little out of place, that the Committee at this time not only would pronounce itself on these questions but would not hear more evidence on it and not continue its consideration of some provisions of Bill C-60. For the same reason I find that the amendment of my colleague, Senator Flynn, would not be acceptable to me.

It is true that there have been some doubts raised by these witnesses. They should be considered. Some people have expressed a different point of view. I know that some members of the Committee have spoken in the Committee, and it seems that they are in agreement with this point. But there are other members of the Committee who may not agree, and I am wondering why we would not continue our consideration, hear the other witnesses. For example, I know that at one time Professor Scott was supposed to come here. Why ask Professor Scott or other witnesses to come here and then say, well, we are sorry, we are going to listen to you, but we have already made up our minds. It does not seem to me to make much sense. I would rather have an amendment that would say that the first paragraph of the motion would be deleted, but that the second and third paragraphs would be replaced by something like the following:

That, although some members of the Committee have expressed concern with the doubts raised by expert witnesses heard so far as to the constitutionality of implementing certain provisions of Bill C-60 by a mere Act of Parliament, consideration of that question be deferred

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until such time as more evidence has been heard and the Committee drafts its interim report.

That would mean, Mr. Chairman, in my wording I would admit that some members are concerned. I give some validity to that concern. I give some validity to the doubts that have been expressed. But I say that the Committee should continue its consideration and make up its mind once we have listened to everyone, because I have never been in a committee, either a joint committee or a committee of the House, where you hear someone one day and you make a report; you hear someone the next day and you make another report. It seems to me you wait for all these points and you draft one report to the House, or in this case to both Houses. So I would urge the Committee to vote against the amendment of Senator Flynn, but rather to accept the wording I would be ready to propose after, which would say we would listen to other points of view, continue our consideration, and settle that question when you draft a report.

Miss MacDonald: On a point of order, Mr. Chairman, it seems to me that that proposed amendment changes the substantive clause in the motion I have presented and that it is indeed a new motion.

The Joint Chairman (Senator Lamontagne): I do not interpret this suggestion at the moment as being an amendment. I understand, though, that eventually perhaps Mr. Breau may want to move a formal amendment.

Mr. Breau: Mr. Chairman, if you accept my amendment now, I would move it. Normally you cannot deal with two motions. But I have not really made a motion at this point.

On the point of order, it does not change the motion more than Senator Flynn’s amendment changes it.

Senator Flynn: That is not so at all.

The Joint Chairman (Senator Lamontagne): In any case, I do not think this other amendment is before us at the moment. Senator Grosart.

Senator Grosart: Mr. Chairman, I think the point put forward by Mr. Breau is understandable, that he would suggest the kind of amendment that might follow. But I would suggest that we are not very far apart, really. Surely the problem here is whether we proceed immediately with some thing that may not really be before us. The question that has been raised by some witnessesmand I agree, only by some-is whether the federal government can in Phase I proceed unilaterally, and whether indeed, as the motion indicates, it can proceed unilaterally even in Phase II. So the question is, can the government do what it has asked us to consider, not should the government, which is a matter of policy, a policy decision, and a decision on which the Committee will eventually, of course, make a decision; that is, whether If the government can, it later on should.

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Therefore, I suggest that the motion, as amended, is quite proper because we are merely saying, “Let us ask the government to find out as soon as possible whether we are wasting our time.” Because if the government cannot move constitutionally, unilaterally, then we are wasting our time discussing it.

Can they move? is Bill C-60 constitutional? Can it even be considered by this Commitee? That is surely the question.

I do not think Senator Flynn and Mr. Breau are very far apart, but I would suggest that there is an urgency in this Committee report to the government that these doubts have been raised and that it would be helpful to the work of the Committee if the government referred this as soon as possible and in whatever way might be most appropriate to the Supreme Court so that at least we would know that the Supreme Court has this matter under consideration and, having some appreciation of the urgency, might consider it in time to save this Committee a great deal of useless effort.

For that reason I would suggest that Mr. Breau might even agree that there is no harm done if we make this suggestion to the government; and that is all we are doing: the motion merely says that we suggest the government could consider—that is all this motion asks—that the government should consider this immediately in view of the evidence we have had here referring this important matter to the Supreme Court.

Perhaps Mr. Breau would agree with that, that no harm can be done, that there would be no embarrassment to anybody. We just want to find out as soon as possible if the matter that is before us is one which could constitutionally be made effective by legislation.

The Joint Chairman (Senator Lamontagne): If I can intervene at this moment on a point of clarification, Senator Grosart kept saying that we would report to the government. This is not what the motion says and I do not think, technically speaking, that we can report to the government; we have to report to the two Houses.

Senator Grosart: Mr. Chairman, you are quite right. Of course, I was skipping the intermediary stage. Obviously, we have to report to the Senate and the House of Commons, but I was assuming that if that motion was carried, the government would hear about it.

the Chairman (Senator Lamontagne): Senator Neiman . . .

Senator Neiman: Mr. Chairman. . .

The Joint Chairman (Senator Lamontagne): Just a minute. Can I mention other names, please.

Senator Neiman: Yes.

The Joint Chairman (Senator Lamontagne): Senator Neiman, then Mr. Goodale, and then Mr. Caccia.

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Senator Neiman: Mr. Chairman, just to pick up on the observations made by Mr. Breau and Senator Grossart, I must confess that l have been, myself made much more concerned about the constitutionality of some of the provisions of this bill because of the remarks of Professor Lederman and my own feeling of very sparse knowledge of constitutional law. But apart from that, I must also say that we have had, l think, a rather spirited defence presented by the Minister last week of the government’s position, which is the opposite. So we have had the benefit, certainly, of arguments on both sides.

I think all we are trying to do here is really demonstrate, if other people are as concerned about it as I am, the concern of this Committee. It depends upon the way the vote goes. It may turn out that not sufficient people are concerned enough to pass this resolution in one form or another today, so that is fine, too. But if it is passed, it seems to me that it is only as Senator Grosart has said, giving the government some indication at this piont of the feelings of this Committee as a whole; and I think that that can be very helpful, particularly in view of the fact that we know that the government is planning the First Minister’s conference in the near future and they have to keep in mind that we, at this point, feel that it is very likely that many of the questions that will be raised at that conference about the propriety of this bill and the subsequent bills probably should be referred, or may necessarily be referred, to the Supreme Court of Canada. So I feel that, although it could be considered premature to pass such a resolution at this point and not wait until we make a report on October 10 or prior to October 10, at the same time I think it can serve a very useful function.

The Joint Chairman (Senator Lamontagne): Mr. Goodale.

Mr. Goodale: Thank you, Mr. Chairman.

I think, in dealing with the concerns which have been expressed by some members around the table about this matter, that the notions expressed by Mr. Breau are very well taken, and I really see them as being underlined and not contradicted by the contribution made by Senator Grosart.

We have a decision of the Committee already to present a report to the House of Commons and the Senate on October 10. On the first day of our hearings we considered at least some ideas at that stage, several weeks ago, about what might be in that report and specifically took a decision at that stage, on the very first day of our hearings, to avoid prejudging the evidence and avoid prewriting the report; and it seems to me that now that we are only part way through hearing all of the witnesses that we have agreed to hear, that we are very much in the same positions as we were on Day One.

We have had some opinions and some evidence but we have by no means had it all. I think your point, Mr. Chairman, about who we would be reporting to and to whom we would be making recommendations, is very well taken. Senator Grosart suggested we should adopt the motion today to make our expression of concern. if there be concern, right away so that the government could get busy with this reference. Well, as a matter of fact, we will not be making a report, or we are

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physically not able to make a report, until both Houses of Parliament are back in session, and therefore the government would not be in a position to receive any report and the Houses would not be in a position to receive any report until they are, in fact, back sitting again, and the scheduled date for that is October 10, So I do not see what would be gained by taking a decision today that it would be impossible to report for more than a month.

We are not going to accelerate the process one iota; what we are going to do is prejudge the conslusion, and that may be the intention of some but I think it is certainly counter productive for the work of this particular Committee. The basic question is why take a decision today that it is practically impossible to draw any effect from for more than a month from now; and I think that is a very practical consideration, and I certainly underscore your references, Mr. Chairman, when you drew that very relevant consideration to the attention of the Committee.

I would refer to another matter in this connection, back to the report that we were discussing today presented by the Canadian Bar Association. In, I think, the second chapter of that report, the Bar discusses ways by which we, as Canadians, could proceed to amend our constitution, and I am paraphrasing them now and probably doing them some injustice, but they suggest that perhaps the most appropriate way to proceed would be not through any action through the parliament at Westminster but rather by means ofa proclamation.

Now some around this table may question the constitutional validity of proceeding by way of proclamation but that is one proposal that has been presented to us by one group of witnesses, and if it is valid for us at this stage, part way through our hearings, to take one proposal from Professor Lederman and suggest that that deserves a reference to the Supreme Court, I suggest to you it is equally valid for us to insist that we take these two or three paragraphs out of the submission of the Canadian Bar Association and insist on a reference on those matters as well because they have proposed another avenue.

There may be some who think the proclamation approach is the best approach; there may be others who doubt the constitutional validity of that; but in any event, it, I suggest to you, is just as valid as the argument that we are now considering with reference t the evidence presented by Professor Lederman.

Mr. Chairman, I thoroughly agree with Mr. Breau that at this stag consideration of this question, in effect prewriting a portion of our report, prejudging our conclusions by more than a month, prejudging them in a way that will have no practical effect because we cannot present a report for more than a month, amply demonstrates that the consideration of this matter is premature and the suggestion made by Mr, Breau that we consider this when we actually get to the point of debating the evidence and writing our report makes eminent good sense and is far superior to the motion or the amendment to the motion that is now on the floor.

Some hon. Members: Hear, hear!

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The Joint Chairman (Senator Lamontagne): Mr. Caccia and then Mr. Beatty.

Mr. Caccia: Thank you, Mr. Chairman. The net effect of the motion before us, it seems to me, would be that this Committee would be saying something like this: having heard a few constitutional experts like Professor Lederman, we have decided that the government should do certain things as proposed in the motion and we would then say to other constitutional experts whom we hope to have before this Committee, like Professor Scott, that we are sorry but we have made up ur minds already and we have already registered a signal on this very important area by having through a motion that we passed some few days or a few weeks ago.

If the word “absurd” which I used last week when we were debating this matter seems to be too hard, the least that it strikes me, this kind of approach is one of being unfair, unfair to the witnesses from which we still have to hear and unfair also to the Committee itself; Somehow it precludes, it decides that we have already made up our minds.

Some hon. Members: No, no!

Mr. Caccia: It does. We have already made up our minds to the effect that there are certain provisions about which the government has to seek an opinion, and this after having heard a few experts and not having heard from other experts. And that is not fair, to say the least.

Therefore, it seems to me that there is an element of undue rush attachedrto this sudden desire on the part of a ew members of this Committee, strangely enough of the Conservative party, to seek an action on the part of this Committee in this Case. It is certainly not the question that Senator Grosart put to us that the two approaches, namely the one by Senator Flynn and Mr. Breau, are far apart. There is a world of difference because Mr. Breau’s approach, which to me appears to be eminently sensible, says, “Look, we have not made up our minds but we recognize that some members of the Committee have a certain concern and we will take that into consideration at a time when we start drafting.”

The other question that comes to mind, Mr. Chairman, is this: can we report to the House of Commons and to the Senate before October 10? We know that we cannot so that by passing a resolution of the kind that Senator Flynn is proposing, really we are reporting to ourselves today. We are certainly not reporting to the bodies to which we are supposed to report. Are we? So evidently we cannot report before October 10.

Senator Flynn: We express that . . .

Mr. Caccia: Of course, and we will do that at a time when we start drafting a proposal or a set of recommendations or views in the total body of the report for October 10. But, as others have already said, I have never been part of a committee when, halfway through hearing witnesses, all of a sudden a motion was put forward that somehow expresses an opinion before having heard the whole number of witnesses before us.

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Mr. Chairman, it seems to me that rather than beginning what seems to be a piecemeal drafting—because this is the extent of the motion put forward by Senator Flynn: It is piecemeal drafting—without our having heard all the witnesses, without our having heard all the experts, without our having heard also many experts tell us that it is perfectly legal on the part of the government to do so, we have only heard one side of the bill. Well, why do we not hear all the witnesses? And this is the extent, the purpose of the motion put before us by Mr. Breau, which to me seems to be eminently sensible.

The Joint Chairman (Senator Lamontagne): Mr. Beatty.

Mr. Beatty: Thank you, Mr. Chairman. The first observation I might make is that I think it might be useful for us to get an indication from Miss MacDonald whether she feels that the substance of Senator Flynn’s amendment is acceptable to her and whether or not she would be prepared to have it incorporated within her own motion.

Miss MacDonald: Yes, I would indeed, and I will subsequently speak to it.

Mr. Beatty: Mr. Chairman, then I wonder whether I could address myself to the substance of the motion, which I would hope would be amended. I get the feeling that the members of the government who have spoken so far prepared their speech notes for Miss MacDonald’s motion and not for Senator Flynn’s amendment. It is quite true that Miss MacDonald’s original motion would in some way have restricted the ability of the Committee to inquiry further into this area, as to the propriety or the constitutionality of the governments actions. And that was precisely why Senator Flynn felt it was necessary to make an amendment: so that it in no way tied the hands of the Committee and in no way prevented witnesses coming before the Committee in subsequent hearings from discussing any matter that was of concern to them.

But I think we should deal expressly, too, with this red herring that has been dragged before us, that somehow we are tying our hands, somehow we are locking ourselves into a conclusion which is unwarranted at this stage. What the Committee is not saying—and let us make sure there is no confusion over this—what the committee is not saying is that we have taken the position that the government’s actions are ultra vires. Some of us, myself included, are convinced of that. But this motion which has been proposed by Senator Flynn in no way states that. Instead, what it states is that there are conflicting views on it and that the only way this can be settled, ultimately, is by sending it to the only arbiter in the country who can make the final judgment as to the constitutionality of the proposals. That is the Supreme Court of Canada.

So the suggestion that in some way we are locking ourselves in or we are making a judgment now that we are not qualified to make simply does not hold water. We are eminently well qualified today on the basis of the evidence before us already to see that the constitutionality of the government’s actions is in dispute, and it has to be judged by the final arbiters of such an action.

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The other point that has been raised by the spokesmen for the governments side is this question about—and again I just cannot see the validity of it—the question about which we cannot make a formal report until October 10 when Parliament comes back and so we should do nothing until then. Well, surely Mr. Chairman that might be valid if our hearings were being held in camera. That might be valid if there was no way members of the Cabinet, and particularly the Minister of Justice, who is somewhat connected to some of the members of the Committee, would be made aware of the concern of the Committee. But the fact is the press is here. It is open to the public. The government members are here and see members of the Cabinet on a regular basis; and indeed Mr. Lang himself will be back before the Committee, quite possibly before the House sits. And while it is true that the formal report cannot be presented to either House until October 10, there is not question that the substance of our concern can be made available to the government before that time, and should be.

I would argue further that there is very good reason for doing that. For one reason, the Minister of State for Federal-Provincial Relations argued very forcefully before this Committee, Mr. Chairman, that it was essential that we try to keep to a deadline of July 1, 1979 for the implementation of Phase 1. That is not my argument. That was the government’s argument. And surely anything that can be done to expedite, to remove the roadblocks in the way of doing that, should be welcomed by the government and not objected to by them. Surely they should be that much more concerned about a process whereby we get further down the road and they discover then that their constitutional package becomes derailed because it has to be adjudicated by the Supreme Court at a later stage. Surely we should put the machinery in motion right now.

Finally, I would argue, Mr. Chairman, that it is of great use to the government, prior to the federal-provincial conference that is coming up, for it to be made clear that the government is not intransigent, that it does not intend simply to bull ahead over the objections of the provinces and that it will make every possible effort to ensure that its actions are both legal and proper and do not offend the spirit of federalism.

For those reasons, Mr. Chairman, I would hope that the members of the Committee would strongly support the amendment to Miss MacDonald’s motion because I think it makes eminent good sense and the time for making such a decision is right now.

The Joint Chairman (Senator Lamontagne): I will hear Senator Smith.

Senator Smith: Thank you, Mr. Chairman. The points I was going to make on Phase I have already been made, so I shall be very brief indeed.

There was one speaker who likened the problem we are dealing with, namely whether or not the bill put forward by the Government of Canada to a suggestion made by a couple of witnesses before us presenting a very fine report, and, of course, there is no similarity whatever. One is to judge a

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serious proposition put forward by the Government of Canada for consideration of Parliament, which is what we are dealing with. The other is a suggestion of a method of procedure by a witness before the Committee. It seems to me that there are no similarities of importance and it ought not to be considered in any way as having any bearing on this question.

The Joint Chairman (Senator Lamontagne): Ladies and gentlemen, I see that it is already 5 o’clock so unless the Committee decides otherwise, I have no other choice but to adjourn this sitting and to propose that this discussion go on as the first item of business tomorrow.

Mr. Knowles: Mr. Chairman, on a point of order. This matter was set for today.

The Joint Chairman (Senator Lamontagne): Pardon me?

Mr. Knowles: I know it was not ordered that it be concluded today but this was, I think, an understanding. Some of us made our arrangements to be here today and, speaking for myself, we cannot be here tomorrow. I would rather see the question put.

Mr. Breau: Mr. Chairman, you indicated that you were adjourning the meeting. If you are adjourning the meeting, we cannot entertain a new discussion once you have adjourned the meeting.

The Joint Chairman (Senator Lamontagne): No, I said that . . .

Mr. Breau: I am asking the Chairman a question. Have you adjourned the meeting?

The Joint Chairman (Senator Lamontagne): I said that I would have no other choice than to adjourn the meeting unless the Committee decides otherwise.

Mr. Breau: I move that we adjourn, Mr. Chairman.

Senator Flynn: On a point of order, Mr. Chairman.

Mr. Breau: I move that we adjourn.

Senator Flynn: On a point of order. The motion made by Senator McIlraith last week was that the vote would be taken today.

An hon. Member: There is no reference to a vote in the motion.

Senator Flynn: Yes, yes indeed.

Senator McIlraith: I do not recall . . .

Senator Flynn: You mentioned a vote today.

An hon. Member: No, he did not.

Senator Flynn: Yes, indeed.

The Joint Chairman (Senator Lamontagne): As I have the motion before me here, I do not know if it is the exact wording which was used last Wednesday—unfortunately, as you know, I was not here—but the wording I have here is that:

The final debate on this motion be deferred until Wednesday afternoon, September 6.

Senator Flynn: Final debate.

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The Joint Chairman (Senator Lamontagne): Yes, but “be deferred until”. The motion does not say that the debate should be terminated.

Senator Flynn: Then it asks that final debate should be deferred.

The Joint Chairman (Senator Lamontagne): No, it does not.

Senator Flynn: The final debate should be deferred. It was not the essence of the motion.

Mr. Breau: Mr. Chairman, you have a motion on the floor that we adjourn. And that motion, Mr. Chairman, according to our rules is not debatable.

Senator McIlraith: I see . . .

The Joint Chairman (Senator Lamontagne): Just a minute, please. Order. Miss MacDonald, are you raising a point of order?

Miss MacDonald: Yes, Mr. Chairman. We have at other times in other committees extended the sitting hours of committees past the hour of adjournment. And I think if that were the wish of the majority of people, we could proceed in that fashion.

The Joint Chairman (Senator Lamontagne): Yes, I quite agree with this but we have a motion and if the motion is defeated. of course, we will continue. But, if the motion is adopted, we will have to postpone this debate.

Miss Macdonald: Extend the hours.

Mr. Breau: Mr. Chairman, with regard to the point that was raised by Mr. Knowles on a point of order, I am agreeable to defer the debate at a time that would be agreeable to all members because I agree that they may have to travel.

Mr. Chairman, I would like to urge upon you to consider my motion that we adjourn.

The Joint Chairman (Senator Lamontagne): I have to put this motion now. It is proposed by Mr. Breau that the Committee do now adjourn.

Motion negatived.

Mr. Lachance: Mr. Chairman, on a point of order . . .

The Joint Chairman (Senator Lamontagne): There were 17 nays and 14 yeas.

Mr. Breau: Were there any abstentions? I think there are more than 31 members here.

Senator Grosart: On a point of order, why do you not let . . .

Mr. Breau: Mr. Chairman, could we have a roll call, please?

Senator Grosart: The result has been declared and it is official.

The Joint Chairman (Senator Lamontagne): Before we have this roll call, I will hear Mr. Lachance on a point of order.

Mr. Lachance: Mr. Chairman, if you intend to take a roll call I will yield because my point was only to ask the Chair-

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man, since there are a lot of new faces here, to check if everyone is an inscribed member of the Committee. That is all.

The Joint Chairman (Senator Lamontagne): When the recorded vote is demanded, the Clerk of the Committee calls out the name of the member of the Committee, who responds with a yea or a nay as he may so decide. I understand that oui et non would also be acceptable.

Motion negatived: yeas 15; nays 17.

The Joint Chairman (Senator Lamontagne): So that means we will continue our sittings.

An hon. Member: Mr. Chairman, may I ask a question?

The Joint Chairman (Senator Lamontagne): Well, I have still four names on the first round and one name for the second round. I am, again, entirely in the hands of the Committee. But, as far as I am concerned, I have to recognize those who want to participate in this debate.

Mr. Gauthier (Ottawa-Vanier): Mr. Chairman, I move the question he put.

Senator Beaubien: I will second that, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): I am told that this motion is out of order.

Senator Beaubien: Oh, for heaven’s sake!

Mr. Gauthier (Ottawa-Vanier): May I ask why?

The Joint Chairman (Senator Lamontagne): Does anybody want to participate in the discussion on this motion?

An hon. Member: On the motion or the main question?

Senator Grosart: Mr. Chairman, did I understand you to rule that a motion that the question be now put was out of order? Did you make such a ruling? I am asking.

The Joint Chairman (Senator Lamontagne): I did that under advice and I would certainly recognize Senator Grosart as the friend of the Chair, if he wants to contribute to my education in parliamentary procedures.

Senator Grosart: I merely suggest, Mr. Chairman, that the motion is in order. It is always in order.

The Joint Chairman (Senator Lamontagne): Is there any contrary advice?

Mr. Lachance: Mr. Chairman, on the first point of argument, you have made a ruling that this motion is out of order. Now, of course, you can reverse this ruling, but as long as you have not reversed this ruling I abide by the ruling.

My second point is that normally you cannot entertain two procedural motions, one after the other, and we have not had any substantial debate on the two. So it is my opinion that you will have to recognize first one speaker, if there is one left on your list, and then a motion can be put that the debate be concluded.

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An hon. Member: No, that is not correct.

The Joint Chairman (Senator Lamontagne): I will read to you from Beauchesne, Rule 217(5):

(5) A motion for the previous question is not admitted in a Committee of the Whole or any Select Committee of the House.

Senator Grosart: With respect, I do not think the motion was for a previous question. There is a difference between the two Houses in the motion that the question be now put and that the question be not now put.

The Joint Chairman (Senator Lamontagne): Well, again I can read from Beauchesne. This is a precedent, as far as I am concerned, in my parliamentary life, but Rule 218 states:

218. The previous question must not be phrased in explanatory terms giving reasons for its introduction. It is moved in the following words: “That the question be now put”.

Mr. Beatty: That is exactly what has happened.

The Joint Chairman (Senator Lamontagne): That is the previous question.

I have four names on the second round: Senator Bird, Miss MacDonald, who I understand wants to speak, Mr. Lee, Mr. Collenette, and now, Mr. Lachance.

Senator Bird: I will certainly be brief, because I think we ought to have the question as soon as possible.

The argument brought up that we could not make a report now is ridiculous, because it says under our terms of reference, which I have just got hold of:

That the Committee have power to examine and enquire into such matters as may be referred to it by the Senate, to report from time to time. . .

So we can make our report any time we wish. We can make any number of reports we wish and then we can give them to Parliament when it comes in.

I also would like to go on record as saying that I am quite sure the government is acting in good faith on the advice of the law officers of the Crown. But I do not think either the law officers of the Crown or any member of this Committee, including Senator Forsey, are really the people to decide on a question of this kind. The Supreme Court is there to make judgments about the constitutionality of the bill, and that is where it should be referred.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Miss MacDonald.

Miss MacDonald: Thank you, Mr. Chairman.

[Page 94]

I just want to address the question as to whether or not we are in any way cutting off future witnesses or future hearings before this Committee on any aspect of either the constitutionality of the bill or of the substantive measures within the bill. What is being sought in this motion is a way out of a dilemma in which we find ourselves. We find ourselves in a dilemma on the legality of certain provisions which have been put before us with regard to the bill.

Now, we have had it argued by the Minister of Justice on the advice of the law officers of the Crown that in fact it is perfectly constitutional for the federal government to act unilaterally, either through Section 91.1 or through conventions based on previous amendment procedures, with all phases of Bill C-60. That is the legal position that the Minister of Justice argues.

Another conflicting legal opinion was presented by two witnesses before us. And there are only two sides to this question. Either the provisions are constitutional or they are not constitutional, in the legal sense. The legal aspect, surely, has to be resolved or should be resolved by the senior court of appeal in this country, the Supreme Court of Canada. And that is what we are asking for from the position of legality of these provisions. Whether or not the government has a moral position or is morally correct in moving unilaterally is surely a political decision to be decided by, among others, this Committee, by our respective Houses, and by other bodies that want to advise the government. But that political decision as to the moral propriety in proceeding unilaterally should not be confused with the legal arguments that were raised both by the Minister and by other constitutional experts.

For that reason, the decision we take now is one as to whether or not we, as a Committee, feel there is any doubt about this question of legality or constitutionality, and whether it, in the long run, has to be referred to the Supreme Court to resolve that dilemma. That is the question that we are asking, and I think we should serve notice of our concern about that as quickly as possible, particularly in light of the fact that when the House resumes on October 10 our sitting in that period may well end after one day and a new session of Parliament introduced, and this Committee would have no opportunity to hear the response of the government if we waited until that final day to make a recommendation and tell the government what was in our mind. In this way we can in fact signal our concern to the government before that.

The Joint Chairman (Senator Lamontagne): Mr. Lee.

Mr. Lee: Thank you, very much, Mr. Chairman. I listened with great interest to my colleague’s argument, Mr. Beatty, saying that we were in effect prejudging the situation on the proposed amendment by Senator Flynn. As I read the motion, as I understand it, he deletes the first paragraph and that is in effect where we would suspend hearing evidence on the constitutionality of the governments basis upon which they are moving, which is Section 91(1); he would replace that by just

[Page 95]

in effect expressing his concern. But I know in there that we are including the full second paragraph, if I understand the amendment, and the full second paragraph says:

That the committee include in its report a recommendation the Government consider the advisability of referring to the Supreme Court of Canada for a decision as to whether they are intra vires the federal government acting alone, either through unilateral action by the Parliament of Canada under section 91(1) of the B.N.A. Act, or by means ofa joint address . . .

That in effect is really the more operative besides expressing concern and in effect this Committee would be very much so prejudging the whole matter. I must sort of agree with him about whether or not it is formally done. I am sure you know he argued that the media here. . . and he talked about us having, you know, close rapport with some of the ministers,

I would suggest that maybe in some instances they might have a closer rapport with some of the government ministers and even some of the government supporters or backbenchers. But that to me is really a rather specious argument.

The point is that when it really comes down to it, we are really in effect prejudging. We have had a very capable argument by Professor Lederman and last day when we first entertained this motion he himself concluded in his opening remarks that he presented to this Committee that the whole matter is really very inconclusive. The Minister of the Crown, Marc Lalonde, said that it is not a matter that he could or he would not—because the Bill was just tabled for discussion purposes and the Bill at this point in time is not necessarily going to be acted upon.

I am not sure. Maybe we should question that. If the government has very clearly stated that they are not going to in effect proceed with the Bill as it now stands, there may be substantial amendments, maybe we as a Committee are expressing our opinion on something that may not even in effect be put to the House for enactment.

The other argument that I indicated we would close on is really that I just do not understand how we in effect can prejudge. We have had the argument of the Minister of Justice, There may well be other people who will argue on the other side and there may well be more people who will argue along the same lines as Professor Lederman. But to base our arguments and our recommendations of this Committee just on the basis of one expert witness, I find rather interesting and really in effect cutting off other testimony that we may hear. And I find this a travesty of this Committee.

I served on the Special Joint Committee on Immigration and we certainly did not make any conclusions until the matter was finally over. I served on the Subcommittee on Penitentiaries and we certainly did not reach any sort of interim conclusions or interim reports about the substantive measures we were discussing until all the evidence was in. I find it a real travesty that this Committee is committing that kind of act.

[Page 96]

The Joint Chairman (Senator Lamontagne): Mr. Collenette, Mr. Guay, Mr. Lachance.

Mr. Collenette: Mr. Chairman, I do not want to prolong this matter any longer because it has been debated at length but I feel that those of us who are very much concerned with this motion should at least get their personal views on the record.

I noted what Mr. Beatty said. He implied that those of us on the government side were really addressing ourselves to Miss MacDonald’s motion, which, incidentally, I happen to find really just a blatant political manoeuvre on the part of the Official Opposition. We are not at all; we are concerned with the propriety of proceeding in this particular way. It has been pointed out by other speakers that it is most irregular. It is very premature to hear one set of witnesses and not to hear others. It is discourteous. It is discourteous to some very notable Canadians. Professor Scott’s name has been mentioned. We have two provincial premiers who may also want to get their views known on this particular matter. To my best knowledge, I do not believe Mr. Bennett or Mr. Hatfield has actually expressed that the government cannot proceed in this matter with Bill C-60. I find it very inconsistent that the Official Opposition, who parade in this Committee and in the House of Commons and throughout the country as the staunch defenders of provincial rights and prerogatives, would want to preempt, preclude the participation of two very eminent gentlemen who head provincial governments in this country. Therefore I believe it is discourteous, as well as premature.

But there is the whole question of saving time, of saying that, well, if these matters are found unconstitutional we will save time. Even if part of this bill or the whole bill is found unconstitutional, I do not feel I am wasting my time here. Perhaps members of the Official Opposition do. I feel that I and my colleagues around this table are contributing to the political process. We are engaged in an historic venture to seek a consensus throughout our country as to a new constitution. And I take great umbrage at the implications that, really, we are not interested in trying to listen to all of the witnesses, in hearing all of the arguments on the new constitution. There is a question, I think, of precedents, a question of bills becoming law. I may be corrected on this, but I believe many acts of Parliament, or of legislatures, subsequently have been declared unconstitutional, or at least their constitutionality has been challenged after proclamation. I stand to be corrected, but I will give two examples. One is the anti-inflation legislation which was passed in this Parliament and which I believe was referred to the Supreme Court after proclamation. Secondly, we have the question of Bill I01 of the Province of Quebec. It is now the law of that Province, but at least one section of that act has been declared unconstitutional by an appeal court and I believe is going to the Supreme Court. These are all challenges after the fact.

Just because parts of this bill, or this bill, may be unconstitutional at a later date—and certainly a division of opinion has been expressed on this by members of the Committee—does

[Page 97]

not mean to say we should shelve consideration of this bill. I think we should proceed and I think we should follow normal parliamentary procedures and debate any recommendation to our Houses to pass on to the government at the appropriate time.

I may also state in conclusion that these objections, to my knowledge, were never really made by, certainly, the Leader of the Official Opposition when this bill was introduced into the House of Commons. In fact, the Leader of the Opposition acknowledged to some degree the legitimacy of this bill by nominating those gentlemen and ladies around the table from their party. And to come along at this particular stage, when you hear a couple of witnesses who support the point of view you believe in, I think is certainly inconsistent.

I have made my point of view well known. Thank you.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Guay.

Mr. Guay: Thank you, Mr. Chairman.

When I look at this motion before us, I wonder whether there is any real desire to continue the work of the Committee which, from the very outset, I considered to be of the utmost importance for the future and unity of our country. I also have a legal question to ask. The Chairman and the Clerks migt be able to provide an answer. Could we really refer a part of this Bill to the Supreme Court and then decently continue our examination in Committee of this same Bill? This motion attacks the whole structure, the matter of the Senate and the Crown. When I look at the motion presented by Senator Flynn and Miss MacDonald, it is obvious to me that the Conservative Party’s initial intention was to carry on discussions until the matters of constitutional jurisdiction raised by Professor Lederman from Queen’s University were settled. We know that there are a good many questions which not only apply to the Senate and the Queen and her powers. In the light of Mr. Lederman’s report and that made by yesterday’s witness, Mr. Atkey, who came just to back up Mr. Lederman’s opinion, I wonder whether the intention of the movers of this motion is not simply to bring the Committee’s deliberations to a stop and whether it would be legal, having referred such an important part or parts ofa Bill to the Supreme Court, for us to continue. Before a vote is held on this, Mr. Chairman, I would like to have a legal opinion.

There is also another matter. We know full well, Mr. Chairman, . . . I was going to be impolite to Senator Flynn but I will restrain myself.

A federal-provincial conference is scheduled for October. What would happen if the government decided to take a stand by then and had referred this whold matter to the Supreme Court of Canada? Certain premiers would be able to use the following excuse at the federal-provincial conference: “We canot discuss Bill C-60 because it is sub judice.” Is this not the ultimate aim of the motion? This is what I wonder, without

[Page 98]

attempting to prejudge the intention of the mover of the motion which was amended by Senator Flynn. In any case, I have some doubts about the legality of the motion. I repeat that I am not at all convinced of the need to refer these matters or the entire Bill to the Supreme Court at the present time. As several previous speakers have mentioned, would it not be insulting to the witnesses we have called if we were to tell them: Mr. Lederman came to the Committee, Mr. Atkey backed up his position and the Committee decided that it had enough. We do not need you anymore.

A steering committee was held, Mr. Chairman. On the first day we sat, we accepted a work schedule for the Committee. We even made several amendments to the motion concerning the Committee’s work. We decided that it would not be a final, but rather an interim or temporary report. We agreed that a temporary report would, if possible, be submitted. In spite of this, we find ourselves here today talking about a report which would not even be a preliminary one.

Here is the conclusion I draw from this amendment. Some would like to say: we have heard witnesses this afternoon from the Canadian Bar Association and I think that their contribution was positive and constructive. We have received some enlightenment from our witnesses today and now we find ourselves faced with an attempt to have the Committee’s work brought to a halt! I shall certainly vote against this motion because we have lots of work left and a good many witnesses to hear who may provide contradictory evidence to that which we have already received. Perhaps there is a fear that some lawyers may be contradicted; just consider the Bar Convention in Halifax where no final agreement was reached. “The report was referred for further study.” I am very apprehensive about such references. This has been the practice for too long . . . The intention may be simply to keep the status quo so that one can say: “Throughout his whole mandate Trudeau was not able to do anything to amend the Constitution and give the provinces the rights they were demanding.”

The Joint Chairman (Senator Lamontagne): To answer your question on procedure, I must restrict myself to the motion’s admissibility or lack thereof and this also holds for the amendment. I should remind you that the Joint Chairman, Mr. MacGuigan, declared that this motion was in order last week.

Mr. Lachance.

[Text]

Mr. Lachance: Mr. Chairman, over and above the structural and procedural defects of the motion as amended, I see also a very important substantive problem with it that I will deal with later. First of all, about the structural problem. We have been told that this motion was not prejudging the issue by the mover and by the person, Miss MacDonald, who first tabled

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the original motion on the floor. In reading the amendment proposed by Senator Flynn which reads:

That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, . . .

If this is not prejudging, Mr. Chairman, nothing is. This is the first structural problem that I see, if we decide now that we are concerned about the government acting unilaterally, then, of course, for our future debate we will have more or less our hands tied.

The second problem I see is a procedural one in the sense that the reporting technique proposed in the amendment is defective in so far as the House is not sitting now. Of course, there have been thoughts that we can do it because the press is here. Mr. Chairman, if committees start doing things because the press is present I guess that our whole work is going to be tainted by emotion and partisanship. I do not think because the press is present we should accept or not accept a motion. What I say is that what would be very odd . . . Mr. Beatty, if I may proceed, I did not interrupt you.

Mr. Beatty: I would be grateful if you would.

Mr. Lachance: Thank you very much. The problem I see which is very odd is that when the House will be sitting again we will have first our interim report as discussed at the beginning of our deliberations, and at the same time we will have another report that will be tabled which will be the one that we will have if we accept this motion. It will be very odd indeed if at the same time we present to the House an interim report and pre-interim report. But the most important defect I see and the one that disturbs me most is the reference to the Supreme Court of the question itself.

The process of constitutional reform is not only a legal one as the members will realize but also and paramountly a political one. To put the Supreme Court into the position of entering a political arena and a political debate like this would be extremely destructive, Mr. Chairman, at this point because the Supreme Court would be put in a position that it will have to decide on issues that are at the moment and will be until at least the federal-provincial conference into the political domain.

Of course, it is also a legal problem and I do not deny that there could be difficulties; I have not made up my mind yet. I personally feel that the government is right constitutionally in doing what it is but I do understand and I do accept the fact that other members do not feel the same way. I accept that totally. But by referring this whole question to the Supreme Court right now would be to put the court itself into a position I am sure it does not want to be put in, that is to say, to decide on legal points but when the points in question are in the political arena. This will be extremely dangerous for an institution and extremely dangerous for the Supreme Court itself. Thank you, Mr. Chairman.

[Page 100]

[Translation]

The Joint Chairman (Senator Lamontagne): I believe, Mr. Lachance, that the points which you raised do not concern the amendment’s admissibility or lack thereof but, rather, deal with whether it is desirable or not. I do not think this is really a question of procedure. According to its own rule, the Committee can report when it sees fit but by October 10 at the latest. I cannot agree with you, that the amendment is out of order.

Mr. Breau.

[Text]

Mr. Breau: Thank you, Mr. Chairman.

First of all I would like to deal with a point that Senator Grosart raised following my intervention a while ago. The statement he made was that he thought we could not continue with the consideration of Bill C-60 because he thought that it was illegal. I believe I am paraphrasing what he said, but that was his position.

I would like to remind him that our order of reference is not an order of reference that comes to us after consideration of the bill, after second reading. What we have is an order of reference that says, and I quote from it:

That the Committee have power to examine and enquire into such matters as may be referred to them by the House and report from time to time . . .

and except when the House otherwise order and so on. The paragraph before that says that there be appointed:

…a Special Joint Committee of the Senate and of the House of Commons be appointed to examine and report upon proposals that have been and in the future are from time to time made public by the Government of Canada, on subjects related to the Constitution of Canada.

I would like to remind Senator Grosart that irrespective of Bill C-60, and certainly irrespective of the process that is implied in Bill C-60, that does not preclude us from dealing with substantive issues and to say that on certain matters that have to do with the constitution of Canada we cannot pronounce ourselves even if we disagree with the process.

So I wish to respond to Senator Grosart’s argument that we cannot proceed because Bill C-60 seems to be illegal. Even if it is, we can still deal with the substantive issues having to do with the constitution of Canada, one of which is Bill C-60, but it does not commit us in any way to the process that is implied in Bill C-60.

We can deal with a series of issues that are before us, that are being brought forward by witnesses or that have been referred to us by the government without necessarily agreeing with the process that is implied in Bill C-60.

Senator Grosart: Because I may have been misunderstand or, I am afraid, misquoted, it is not my recollection that I said that the Committee could not proceed because of certain concern about the possible constitutional legality of certain parts of Bill C-60 as it is before us.

What I did say, or certainly what I meant to say is that we would be wasting our time discussing those aspects of the bill

[Page 101]

which involved unilateral action by one of the partners in confederation. I merely said we would be wasting our time discussing that. I am quite sure I did not suggest that the Committee could not proceed unless this matter was referred to the Supreme Court, or unless we recommended it.

Mr. Breau: Mr. Chairman, I thank Senator Grosart for that clarification of his position. I was responding to the statement he made that Bill C-60 was illegal and therefore that we had to say this right away.

I disagree with him that we are wasting our time discussing other substantive issues with regard to the constitution of Canada for the simple reason that we are a parliamentary body.

Senator Grosart: I did not say that.

Mr. Breau: Yes. You said that we were wasting our time discussing other substantive issues having to do with the constitution.

Senator Grosart: I only meant . . . Please. Please.

The Joint Chairman (Senator Lamontagne): Order.

Senator Grosart: Just for the record, I am sure I did not say that. I said we would be wasting our time discussing those aspects of the bill that require unilateral action by one of the partners in confederation. That is all Isaid.

Mr. Breau: All right. Mr. Chairman, we all know about the Federal-Provincial Conference dealing with the constitution that has been called for October. Surely it is not a waste of time for us as a parliamentary body to have a political expression on things having to do with the constitution; at least we could consider it. The Minister of State for Federal-Provicial Relations when he was before us said that it is quite possible that in the end Phase II and Phase I would come about together, because it could very well be that because of changing of the political context in the country you would have agreement on the whole thing, as we just about had with the Victoria Charter. So I do not think, with all due respect, that we would be wasting our time discussing these substantive issues.

Mr. Chairman, the real point that brings me to say that I am even more against the amendment of Senator Flynn after having listened to the debate is that really it would be offensive to those witnesses that we have invited whom we know are going to deal with the question of the constitutionality of the process. Are we going to tell these people: “Talk to us, but we have already made up our minds”. Because we would have made up our minds that we want to ask the government to refer a bill to the Supreme Court of Canada. I would like to point out here that we are not talking about a law, we are not talking about a bill that was passed at Second Reading; we are talking about a bill that the government has said would be presented in another form.

Our colleague, Mr. Knowles, has been presenting a bill to the House for the last 25 years or so asking for the abolition of

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the Senate and nobody has ever raised any question and asked that that be referred to the Supreme Court. What we are doing in this bill is that we are changing the Senate and we are giving more rights to provinces, to legislatures; we are not taking anything away from them. So it is funny that all of a sudden Parliament would start saying that just because there is a bill with a question about its constitutionality we are going to refer the bill.

Why not debate it and not say to ourselves that we are impotent politically and that we cannot make up our minds without having the Supreme Court of Canada resolve political questions for us. If some members of the Committee really cannot make up their minds by themselves, I suggest that they resign from the Committee and be replaced. I can make up my mind politicaly that we can proceed with a certain bill or not and if once Parliament has passed that bill someone feels aggrieved that the government is convinced by some group in the country or some provincial government wants to question the validity of the bill, of the law once it is passed, they can refer it to the Supreme Court.

I would like to make one more point to those of our colleagues who are from the Senate: not only would this bill not be presented in this form as we have been told by the government, but a revised bill under a new form would have to be passed not only by the House of Commons but would have to be passed by the Senate. Surely they can discuss and debate all these issues at that time.

I really do not see why there is any necessity in making up our minds now and even more doing what Miss MacDonald was proposing in her motion, which was to ask the government to refer this to the Supreme Court of Canada.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Bussières.

Mr. Bussières: Mr. Chairman, I would like to say briefly that I would consider accepting what has just been proposed or even Senator Flynn’s amendment tantamount to starting to work on the Committee’s report. I frankly do not see why the Committee should begin to write its first report on one aspect of the discussion when there are numerous other aspects of Bill C-60 on which I, for one, would like to see the Committee take a position: The Bill of Rights, the language question which has been discussed, the make-up of the new Senate, et cetera. I think that we Parliamentarians have already made up our minds on these matters and that we should be able to express ourselves in an orderly way and examine each aspect of the bill so that we might write our report.

If we do not refer to other provisions, I cannot see why we should in this case, We have agreed to a date on which we intend to present an interim report. I fail to see the serious or basic reasons for which we would want to accept either Senator Flynn’s amendment or the motion to start with what I at least would consider as beginning to write out our interim report.

[Page 103]

The second point which leads to reach at the motion, Mr. Chairman, is the procedure itself. I would rather see the government come up with a new Constitution and submit it to the citizens by way of plebiscite because I see the Constitution of the country being more the property of the citizens than of the premiers of the provinces, That is my personal opinion. The proclamation of course would come after the plebiscite as was suggested by the Bar’s Committee this afternoon. That is the second reason, Mr. Chairman, which would make me vote against the amendment and the main motion. Thank you.

[Text]

The Joint Chairman (Senator Lamontagne): I would like to suggest very strongly to those who are still on my list that they should try to shorten their remarks for I certainly do not want, at this stage, to infringe upon their rights.

Mr. Caccia.

Senator Neiman: May we know how many speakers you still have on your list?

The Joint Chairman (Senator Lamontagne): Three, including you.

Senator Neiman: Could I make a motion at this point that we have the vote at six o’clock?

The Joint Chairman (Senator Lamontagne): I am sorry but Mr. Caccia and Mr. Gauthier are before you on my list.

Mr. Caccia: Mr, Chairman, very briefly: in this attempt of climbing Mount Everest, I would only have this other observation to put forward for your consideration.

If you look up the minutes of our first meeting of August 15, you will find there a sentence that was approved upon the proposal, I believe, of Senator Grosart at that time which reads to the extent that this Committee endeavour to attempt to present a report on October 10. To endeavour to attempt to present a report cannot be described as a very bold intention of speedy action. Not even the best friends of Senator Grosart could claim that, could they?

Now, having decided to endeavour to attempt to present a report-and I am quoting from the minutes—having decided that, today, on September 6, we decide that we should report a month and six days before the date on which this Committee had decided to report. There is an element here of sudden decision—making, half the way through the hearings of witnesses which, I would submit to honourable senators and my colleagues on this Committee, is a bit of an undue rush.

Why? Why so suddenly do we have to register this signal without having heard all the experts? Surely if, on August 15, this Committee unanimously decided to support Senator Grosart, in his wording, “to endeavour to attempt to present a report on October 10,” surely there is still some work to be done before expressing a signal to a Senate and to a House which are not even going to be sitting until one month and one week from now.

Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Gauthier.

[Page 104]

Mr. Gauthier (Ottawa-Vanier): Mr. Chairman, I simply want to register my personal disapproval of this motion and this amendment. I cannot accept and I strongly object to the idea of a second report of this Committee being presented at this time.

[Text]I cannot, and I must admit that I am profane in these matters of constitutional or legal questions, but I cannot at this time accept that we would pretempt any report of this Committee. I feel personally that I want to continue to year evidence on all matters without prejudice to our collective judgment and I want to hear and I want to ponder and weigh the evidence before me as a Parliamentarian, as a political animal, if I may call it that, but not as any legalistic or constitutional expert.

I have heard evidence submitted to me by Professor Lederman, I have had evidence from the bar association, I have heard the Minister of Justice, and I am in no position at this time to make any decision and I would object to any report at this time. I think it is strictly a political ploy and I object to politics being injected in this Committee in this form. I do strongly object to this kind of procedure. It is strictly a political ploy, and that is all it is, to embarrass. It is maybe not embarrassing to some people, it is not embarrassing to me, but I am just telling you that honestly I feel at this time nobody in this Committee can tell me, unless he is a lawyer or a constitutional expert, and we have some, that their views on this matter are settled. Clause 91(1), as far as I am concerned, is still open for discussion and for evidence.

Mr. Chairman, I will vote against this motion.

The Joint Chairman (Senator Lamontagne): I know what Senator Neiman had in mind and I have nobody else on my list, so unless he insists on speaking I will now put the question on the amendment.

Amendment agreed to.

Mr. Breau: Mr, Chairman, could the Clerk please read now the amendment motion, the total motion?

The Joint Chairman (Senator Lamontagne): We are on the motion as amended.

Mr. Caccia: On a point of order, Mr. Chairman, I am asking that this be a recorded vote.

Some hon. Members: Agreed.

The Clerk: The motion of Miss MacDonald amended by Senator Flynn is as follows: “That this Committee report to the Senate and the House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown; and”

That the Committee include in its report a recommendation that the Government consider the advisability of referring these provisions to the Supreme Court of Canada for a decision as to whether they are intra vires the federal government

[Page 105]

acting alone, either through unilateral action by the Parliament of Canada under Section 91(1) of the B.N.A. Act, or by means of a joint address from the Parliament of Canada to the Parliament of the United Kingdom without the agreement or substantial compliance of the governments of the provinces . . .

The Joint Chairman (Senator Lamontagne): All those in favour of the motion?

Mr. Breau: I would like to speak to the motion please.

The Joint Chairman (Senator Lamontagne): As I understand it now, we are on the main motion, as amended, and the motion as amended is debatable.

Senator Beaubien: Wait a minute. We had a vote. We took the motion and it was carried.

The Joint Chairman (Senator Lamontagne): I am sorry. We voted on the amendment and the amendment carried. Now I have to put the question on the main motion, as amended.

Some hon. Members: Right.

The Joint Chairman (Senator Lamontagne): Mr. Breau.

Mr. Breau: I would like to speak on the motion.

Mr. Caccia: I would like a recorded vote.

The Joint Chairman (Senator Lamontagne): Was your request for a recorded vote on the amendment, or . . .

Mr. Caccia: On the vote that just took place on the amendment, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Are you ready for the vote?

Some hon. Members: Agreed.

Amendment agreed to.

Senator Flynn: How can you discuss anything else but what is in the amendment? The rest has disappeared. You cannot come back with the first paragraph; it has disappeared. You cannot come back to the last paragraph; it has disappeared. You are going to have a repetition. The amendment replaces the main motion here.

The Joint Chairman (Senator Lamontagne): I am very sorry, Senator Flynn, you have moved an amendment to the motion.

Senator Flynn: Yes, it has been carried instead of the main motion.

An hon. Member: The motion as amended.

Mr. Breau: Mr. Chairman, on a point of order . , .

The Joint Chairman (Senator Lamontagne): My ruling is that we have voted on the amendment, and now we will consider the motion as amended.

All those in favour of. . .

[Translation]

Mr. Dawson: I am sorry, Mr. Chairman, but there seems to be some confusion. After hearing some of Senator Flynn’s remarks concerning his amendment, I would like the resolution

[Page 106]

to be read once more because Mr. Flynn seems to be saying that the second paragraph has disappeared. Is there is an addition to the second paragraph?

Senator Flynn: No, no, no that is not what I said. I said that the main motion was defeated at the same time as the amendment.

An hon. Member: No.

Senator Flynn: Yes, yes, the debate was on both at the same time since you discussed the second paragraph. You discussed it yourself, as well as everybody else, and that is the main thing. So everything is fine from the technical point of view. I concede to you that you can start the debate all over again, it is for you decide whether you want to repeat 10 more times what you have already repeated 10 times over. Go on.

[Text]

The Joint Chairman (Senator Lamontagne): All those in favour of the motion . . .

[Translation]

Mr. Dawson: I am sorry, Mr. Chairman, but I asked you to have the solution read once more.

[Text]

Miss MacDonald: He just read it.

Mr. Dawson: He read the amendment—as amended?

The Joint Chairman (Senator Lamontagne): Order, please. All those in favour of the motion as amended? All those against the motion as amended?

Motion as amended agreed to.

Mr. Goodale: Mr. Chairman, on a point of order.

The Joint Chairman (Senator Lamontagne): Mr. Goodale.

Mr. Goodale: On a point of order, I take it that the ruling of the Chair was, before the taking of that vote, that there was in fact then no room for debate on the main motion before the final vote was taken. Mr. Breau was clearly seeking the floor and he was not recognized, and if that in fact happened, I think that might well create grounds for an appeal of that particular procedure to the House.

I will want to consider the record very carefully on this point because I think there has been a procedural defect. As I pointed out earlier today, there is lots of time between now and October 10 to write our report and to correct it, but I would reserve now the opportunity, after we have had a chance to look at the records of this Committee and consider what has transpired, I would reserve now the opportunity to question the procedure here because I do not think that it was in accordance with our rules.

The Joint Chairman (Senator Lamontagne): The sitting is adjourned until 9.30 tomorrow morning.

[Translation]

Mr. Guay: Mr. Chairman, on a point of order, please. I would like to know who is appearing tomorrow. I also have another very important question to ask at this time. Will we be allowed to speak about the Senate and about the Queen? Because I am wondering what questions. . . I did not even know that we had to vote twice.

[Text]

The Joint Chairman (Senator Lamontagne): Order, please. A question has been asked.

As I indicated yesterday, tomorrow at 9.30 we will hear Mr. Gordon Fairweather and Mr. Yalden.


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“APPENDIX CC-4”

MEMORANDUM

August 18, 1978

TO: The Committee on Constitution
FROM: David Matas

Re: The Government of Canada Constitutional Amendment Bill

The purpose of this memorandum is to set out points of difference between the Committee study and the Government Bill.

The Monarchy

The Committee proposes that a Canadian should be head of state, r.7.2. The Government Bill proposes that the sovereign would function as head of state while in Canada, s.48(2).

The Bill proposes that the tenure of the office of Governor General shall be at the pleasure of the Queen on the advice of the Council of State for Canada, s.45(2). The Committee proposes that the head of the state should be chosen for a fixed term, 4.7.4.

The Second House

The Committee proposes appointment of all members of the Upper House by the provinces, r.8.2. The Bill proposes that only half the members be appointed by the provinces, s.69(1) (b).

The Committee proposes that all appointees from the province be appointees of the government of the province, r.8.2. The Bill proposes that the appointees of the province be from each provincial party in proportion to its vote in the last provincial general election, s.64(2)(b).

The Committee proposes that the Federal Government would have the power to name spokesman to the Upper House, but that these spokesmen would have no vote, r.8.4. The Bill proposes that one-half the members of the House of Federation would be selected by the House of Commons, s.63(1)(a).

The Committee proposes that the Federal Spokesman would be named by the Federal Government alone, r.8.4. The Bill proposes that the House of Commons appointees would be selected from each federal political party in proportion to the votes it received at the last election, s.64(2)(a).

The Committee proposes that appointees of a province serve at the pleasure of the appointing province, r.8,2. The appointees could change from meeting to meeting. The Bill proposes that appointees of a province would serve until the next provincial general election, s.63(5).

The Bill proposes that no provincial appointee could be a member of the Legislative Assembly of the province. s.64(1) (a). The Committee has no such restriction. The Committee would allow a province to appoint its own premier, ministers,

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or legislators to attend and discuss certain issues raised in the Upper House.

The Committee proposes that the Upper House would review only some House of Commons legislation. The Upper House would review legislation having significant regional impact, r.8.5. The Bill proposes that the House of Federation would review, with one exception, all House of Commons legislation. Legislation not having significant provincial impact and not having special linguistic significance could be presented directly to the Governor General for assent without approval of the House of Federation, where enactment of the legislation is urgent, s.68.

The Bill proposes that the House of Commons may re-enact legislation amended or rejected by the House of Federation only after sixty days have passed since the amendment or rejection, s.67. The Committee proposes that the House of Commons may re-enact legislation amended or rejected by the Upper House immediately after the amendment or rejection, r.8.5(a).

The Bill proposes a double majority in the House of Federation for legislation with special linguistic significance, s.69(2). The Committee has no such proposal.

The Bill proposes that the House of Federation would have power to affirm or veto senior appointments to certain federal institutions, s.70(1). The Committee has no such proposal.

The Committee proposes that the consent of the Upper House would be required for the ratification of treaties respecting matters predominantly within provincial legislative authority and multilateral trade treaties, 4.8.5(h). The Bill has no such proposal.

The Supreme Court

The Committee proposes that the Supreme Court Judges should be nine in number, 4.10.4. The Bill proposes that there be eleven judges, s. 102.

The Committee proposes that the judges be appointed by the Federal Government with the consent of a judiciary committee of the Upper House, r. 10.3. The Bill proposes that no appointment is to be made unless either a nominating council recommends or the Attorney-General from the province from which the appointment is to be made agrees to the appointment, s. 106(3).

The Bill proposes that the judges from Quebec must be the sole judges of questions of law relating to the Civil Laws of Quebec, s. 111(2). The Committee has no such proposal.

The Bill proposes formal regionalization of common law appointments, s. 104. The Committee has no such proposal.

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Bill of Rights

The Committee proposes entrenchment of a right to reasonable access to all public information, r. 4.7, as well as protection of privacy from unreasonable interference, r. 4.10. The Bill has no such proposals.

The Bill proposes such limitations on the entrenched rights and freedoms as are justifiable, s. 25. The Committee proposes only that the Bill of Rights would be suspended in the case of war, invasion or insurrection, r. 25.2(c).

The Committee proposes that the constitution should guarantee access to the courts to enforce the Bill of Rights and to exercisejudicial review, r. 9.3. The Bill has no such proposal.

Language Rights

The Bill proposes that either English or French may be used in any pleading or process in any Court of only Ontario, Quebec or New Brunswick, s. 16(2). The Committee proposes that either English or French may be used in any pleading or process in civil cases in any Court in Canada, r. 5.4(b).

The Committee proposes that a person whose ordinary language is English or French has a right to be tried for a criminal offence in that language, r. 5.4(2). The Bill proposes only that individuals giving evidence in criminal cases have a right to be heard in either English or French, 5. 16(3).

The Bill proposes that the statutes, records and journals of only Ontario, Quebec and New Brunswick shall be published in both English and French, s. 15(2). The Committee proposes that the statutes of all provinces shall be published in both English and French, r. 5.3(c).

Patriation

The Government of Canada proposes patriation of the constituton in “A Time for Action”, at p. 24. Patriation is part of Phase II. The proposed patriation procedure is not set out in the Bill. “A Time for Action” does say that patriation will be the result of action by the Parliament of Great Britain. The Committee proposes that the future constitution should come into effect by action taken entirely in Canada, r. 2.1.

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