Document Information

Date: 1980-06-12
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 462-467.
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462
SENATE DEBATES June 12, 1980
LEGAL AND CONSTITUTIONAL AFFAIRS
MOTION TO AUTHORIZE COMMITTEE TO STUDY CERTAIN
ASPECTS OF THE CONSTITUTION-DEBATE CONTINUED
On the Order:
Resuming the debate on the motion of the Honourable
Senator Lamontagne, P.C., seconded by the Honourable
Senator Frith:
That the Standing Senate Committee on Legal and
Constitutional Affairs be authorized to consider and
report upon constitutional provisions regarding individual
and collective rights and upon the future role and compo-
sition of the Canadian Senate and alternative constitu-
tional arrangements compatible with true federalism;
That the membership of the committee be increased to
thirty members and that Rule 67(l)(j) be suspended in
relation to membership of the committee;
That the committee be empowered to engage the ser-
vices of such counsel and technical, clerical and other
personnel as may be necessary for the purposes of its
examination and consideration of such legislation and
other matters as may be referred to it; and
That the committee have power to sit during adjourn-
ments of the Senate, and
On the motion in amendment thereto of the Honour-
able Senator Flynn, P.C., seconded by the Honourable
Senator Tremblay, that the first paragraph of the motion
be amended by striking out all of the words after the word
“upon” in the second line and substituting the following
therefor:–
“the matter of constitutional reform with special atten-
tion being given to the question of the division of
powers between the federal and provincial governments
and to constitutional provisions regarding individual
and collective rights”-(Honourable Senator Trem-
blay).
[Translation]
Hon. Maurice Lamontagne: Honourable senators, I rise on
a point of order. First of all, I would seek leave to make a few
comments, which will last about 12 minutes and which I was
unable to make last Wednesday during my first intervention.
They will provide clearer explanations on the third element of
my motion which concerns the following:
–alternative constitutional arrangements compatible
with true federalism;
I consider this third part of the motion to be probably the
most important, and I believe that it extends the terms of this
motion much further than the reform of the Senate. In my
opinion, honourable senatorseare entitled to know the full
significance of this third element before voting not only on the
motion but also on the amendment. In fact, I have another
reason for seeking leave at this time, and it is that I shall not
be able to be present in this house next Tuesday and
Wednesday.
[Senator Petten.]

Senator Flynn: Well, if I understand the honourable senator,
what he is saying is that he has forgotten to tell us about the
most important part of his proposal. Why did he not do so? I
do not know. However, I find this a bit strange. In any case, if
he has now realized that he failed the first time, perhaps he
wants another chance. Does Senator Frith intend to speak
after him?
Senator Frith: Yes.
Senator Flynn: You will therefore explain the speech of
Senator Lamontagne!
Senator Frith: This might be.
Senator Lamontagne: Do I have consent?
[English]
The Hon. the Speaker: It is moved by the Honourable
Senator Lamontagne-
[Translation]
Senator Flynn: Senator Lamontagne has asked permission
to speak a second time on the amendment to provide some
explanations.
Senator Denis: He has already done so.
Senator Flynn: No, he said he would speak for 12 minutes.
He has not spoken for 12 minutes. At least, it did not seem
that long to me. Permission granted.
[English]
The Hon. the Speaker: It is agreed?
Senator Lamontagne: Honourable senators, I certainly do
not want to start another quarrel with my great friend, Sena-
tor Flynn.
Senator Flynn: What quarrel? I give you leave.
Senator Lamontagne: Yes, of course. I wish to thank hon-
ourable senators for giving me leave to explain that part of my
motion which refers, and I quote, to
alternative constitutional arrangements compatible with
true federalism.
To me, renewed federalism-quite apart from other things,
including a new division of jurisdiction—also means the de-
velopment of a truly federal system within which the two
orders of government will be legally and really sovereign. This
last aspect of constitutional reform may be seen as being as
important as the division of jurisdiction. Indeed, over the
years–and I am sure that Senator Roblin would agree with
me–and at least until recently, provincial governments have
been complaining not so much about their lack of legislative
powers as about federal intrusion into their areas of jurisdic-
tion. Moreover, this problem arises in Canada irrespective of
the division of powers or the division of jurisdictions, and it
must be solved as a separate issue.
In 1867, for reasons that I still believe were justified at that
time, the Canadian Constitution put the provinces under a
system which I describe as federal tutorship or domination. In
other words, we had a quasi-unitary state. That system was

June 12, 1980 SENATE
DEBATES 463
expressed by several extraordinary powers conferred upon the
federal government, including the power of disallowance and a
practically unlimited spending power. It enabled the central
government to intervene in various arbitrary ways into areas of
provincial jurisdiction. According to a great number of
Canadians, such a system of federal tutorship is no longer
desirable, and in the future it should evolve toward a regime of
true federalism within which the two orders of government
would be sovereign within their respective jurisdictions.
This basic federal principle of constitutional reform has
been proposed by the white paper entitled “Time for Action”
issued by the Canadian government in I978, by the Pepin-
Robarts Task Force, by the beige paper of the Quebec Liberal
Party and by most other federalist groups.
In some respects, however, the application of that principle
raises difficulties. For instance, all the groups I have just
mentioned agree that the central government should keep the
spending and the declaratory powers it now has in order to
maintain some flexibility within the whole political system.
But then the question arises, is it possible to devise a new
constitutional arrangement that would preserve those federal
powers and, at the same time, respect the principle of sover-
eignty of both orders of government? Such an arrangement, in
my view, would have to meet two basic requirements. First, it
would have to enable provincial governments to control the
exercise of the federal extraordinary powers in their areas of
jurisdiction. This is what I call the provincial requirement.
Secondly, this arrangement would also have to be compatible
with true federalism, and respect the integrity and sovereignty
of the federal order of government. This is what I call the
federal requirement.
Q (1450)
It is obvious that the Senate, as presently constituted,
cannot meet what I have just described as the provincial
requirement. This chamber cannot claim to be a credible
spokesman for provincial governments.
Senator Asselin: Why not?
Senator Lamontagne: It was not designed originally to fulfil
that function, and it was never expected to do so, although, as
Senator Tremblay reminded us the other day, it was expected
to reflect broad regional interests and aspirations, which is
quite a different thing. That inability of the present Senate to
meet the provincial requirement, which I described a moment
ago, led various groups, more particularly in the last two or
three years, to look for a more suitable constitutional arrange-
ment. The House of the Federation proposed in Bill C-60
proved, for various reasons, to be an unacceptable alternative.
Basically, as in the case of the present Senate, it could not
satisfy the provincial requirement. It would represent political
parties, not provincial governments, and it would still be
dominated by federal forces. Thus, alternative arrangements
have been put forward.
The Pepin-Robarts Task Force, the British Columbia gov-
ernment and other groups have proposed that the Senate be
replaced by a new second chamber of the Canadian Parlia-
ment, to be called the House of the Provinces or the Council of
the Federation, and composed exclusively of representatives of
provincial governments. I made a detailed criticism of the
Pepin-Robarts proposal in a speech in this chamber on Janu-
ary 30, I979. Senators Connolly and Lang have more recently
presented their own forceful arguments against it.
In my view, that proposal and other similar projects, while
they could, in a rather clumsy way, satisfy the provincial
requirement, do not meet the federal requirement. They are
not compatible with federalism. They would replace federal
tutorship by provincial tutorship. They would introduce a
confederal chamber into a federal Parliament. They would
introduce into a legislative body, the Canadian Parliament, a
second chamber composed exclusively of representatives of the
executive branch of another sphere of government. Perhaps we
would have to accept such a hybrid and monstrous body to
satisfy a most serious provincial grievance, if there were no
other and better alternatives available to us.
However, the beige paper contains such an alternative, as
Senator Godfrey so rightly pointed out in this chamber recent-
ly. Indeed, the federal council proposed by this document
would meet the provincial requirement, because it would
enable provincial governments to control the exercise of feder-
al powers in their areas ofjurisdiction. But it would also, in its
basic features, satisfy and meet the federal requirement.
It is important to note that the council proposed in the beige
paper would not be a legislative body, and it would not be part
of the Canadian Parliament. It would be a special inter-gov-
ernmental institution whose intervention would take place
before the beginning of the formal federal legislative process.
In this way, the sovereignty of the Canadian Parliament and
its integrity as a federal institution would be preserved. In
other words, such an arrangement would put an end to what I
call federal tutorship without replacing it by provincial tutor-
ship. My main objection to it is that it would add another
highly complex institution to an already cumbersome political
system.
Is this really necessary? I do not believe so. Canadian
federalism has already developed a unique kind of mechanism
called federal-provincial conferences. In spite of the criticisms
that have been made against this typical Canadian institution,
it is true to say that it has accomplished a most useful role in
the past. The beige paper, the Pepin-Robarts report and other
similar documents agree that this mechanism be preserved and
improved as an essential feature of our federalism. Bill C-60
contained constitutional provisions to institutionalize it. Why
not, then, assign to that institution, in addition to its other
traditional functions, the constitutional role that the federal
council would be expected to play? This mechanism, federal-
provincial conferences, could even be identified from now on in
our Constitution as the federal council. Such an approach
would represent an important evolution, but not a revolution.
Senator Flynn: Would you get rid of tutorship, anyway?
Senator Lamontagne: Indeed, it has been the general prac-
tice for many years to submit federal proposals related to joint

464 SENATE
DEBATES June 12, 1980
or shared-cost programs to federal-provincial conferences prior
to their presentation to Parliament as legislative measures. The
proposed arrangement would merely extend that practice and
make it compulsory and more effective, in terms of provincial
control, by inserting it into a new Constitution. That is why I
describe this proposal as evolutionary rather than revolution-
ary.
I understand from press reports that Premier Lougheed has
expressed his preference for this alternative arrangement over
the creation of a separate federal council. According to the
same sources, Mr. Ryan is prepared to look favourably at this
new proposal. It is also possible to conclude, in the light of
recent federal-provincial meetings, that most premiers would
favour that approach, which is so uniquely Canadian. I sug-
gest, therefore, that the Senate subcommittee, if it is created,
should consider this alternative very seriously and very
carefully.
I believe very strongly that, if we can find a practical and
acceptable way that is compatible with true federalism to end
the federal tutorship that has existed in our Constitution since
I867, we will have accomplished a major step toward a
renewed federalism, better adjusted to the political realities of
today and tomorrow. For this reason alone, although there are
others, I feel that the mandate proposed in my motion is
extremely important and is sufficiently broad, at least for the
time being. It is also very urgent. Indeed, if we want to have an
impact on agreements that might be reached in September at
the inter-governmental level, we should be in a position to
submit concrete proposals on this alternative arrangement not
later than early in August.
As the subcommittee develops a new constitutional mech-
anism to end federal tutorship, in the spirit of true federalism,
it should also, as the motion mentions, examine the future role
and composition of the Senate, not as a confederal body but as
a genuine federal institution. More particularly, it should
consider how this chamber could play a specific role in the
areas of the official languages and regional interests and
aspirations. We have talked about Senate reform for many
years. Now, in my view, is the time for action. We should not
be ashamed of presenting concrete proposals for Senate
reform; after all, many other groups have done so, although I
feel they are much less knowledgeable than we are in this
chamber. What is wrong with an institution that looks at itself
and seeks to improve its role and usefulness?
0 (I500)
Once this new scenario becomes available, it will be up to
the Canadian people, the provincial governments and the
Canadian Parliament to decide whether they still want such a
reformed Senate as a federal parliamentary institution.
In conclusion, I submit that it would be unrealistic to expect
the committee to do more from now until the first part of
August than to produce a report with concrete recommenda-
tions on the three important topics mentioned in my motion. In
the meantime, if we want to tackle the other subjects on the
agenda of the First Ministers Conference that will be held in
September, the only practical way of doing it is to organize a
[Senator Lamontagne]

special debate in this chamber at the appropriate time, as the
Leader of the Government has already suggested.
Finally, I suggest that we should review the whole situation
after the September meeting and decide then, in light of the
results of that conference, what further initiative we as the
Senate should take. If we then consider that it would still be
desirable for us to launch an inquiry into the other aspects of
renewed federalism, including the division of jurisdictions, we
may come to the conclusion that it would be preferable to
assign that task to a special committee rather than to the
Standing Senate Committee on Legal and Constitutional
Affairs.
For all those reasons, I must state again that unfortunately I
cannot accept Senator Flynn’s amendment. I plead: Stop
quibbling and move on to the urgent, important and practical
job that lies immediately ahead of us and which is contained in
my motion.
Hon. Senators: Hear, hear.
[Translation]
Hon. Jean-Paul Deschatelets: Would Senator Lamontagne
allow me a question?
He insisted on the importance of the committee’s being in a
position by August to examine the whole issue of the composi-
tion and role of the Senate in the Constitution. I think Senator
Lamontagne spent several minutes stressing the priority of
that question, is that not right?
Am I to understand that the first duty of that committee,
according to the remarks Senator Lamontagne has just made,
would be to consider the question of the Upper House? Am I
to understand that?
Senator Lamontagne: First of all, as the motion says, and as
I tried to explain-indeed, the motion is very clear on the first
two points, I think–the committee would consider and report
upon individual and collective rights.
Secondly-
Hon. Martial Asselin: You dropped that.
Senator Lamontagne: Pardon?
Senator Asselin: You dropped that?
Senator Lamontagne: No, no.
Senator Asselin: You gave priority to–
Senator Lamontagne: No, no.
Senator Asselin: You did not explain that.
Hon. Jacques Flynn (Leader of the Opposition): He cannot
explain it.
Senator Lamontagne: That is in the motion.
Senator Asselin: But are you not dropping individual and
collective rights?
Senator Lamontagne: No.
Senator Asselin: And are you concentrating your consider-
ation only on the renewal of the Upper House?

June 12, 1980 SENATE
DEBATES 465
Senator Lamontagne: First of all, the terms of reference of
the committee would be to consider-in light of the documents
that already exist, and there are already several of them–
individual and collective rights.
Second, the future role and composition of the Senate as a
federal chamber, not a confederal chamber.
Third, to develop a new mechanism which henceforth would
allow provincial governments to have control over the exercise
of the extraordinary powers the federal government has in
their fields of jurisdiction which is another matter, I think,
apart from the reform of the Senate as a purely federal
institution.
So I say that this motion has three different and very
important elements, and the committee should consider those
three elements concurrently.
Senator Asselin: And report by August I?
Senator Deschatelets: Your remarks today, Senator Lamon-
tagne, if I understand correctly, do not change in any way the
order of priorities you set in your motion?
Senator Flynn: Honourable senators, I would like to rise on
a question of privilege.
I believe that the speech Senator Lamontagne has just made
has enabled him to gain the floor under a pretence that is, in
my opinion, very doubtful.
He could have mentioned that during the debate on the
main motion, or on the amendment. However, if every time we
are not satisfied with the reaction we get we have a right to
speak twice, well, honourable senators, I submit everyone in
this house will have the right to speak two or three times. The
tactic of Senator Lamontagne is simply to rally his troops.
I therefore submit that this discipline of the party in power
is the best argument of the opponents of the Senate. You are
totally lacking in flexibility and you are unable to accept that
the opposition could be right.
Senator Lamontagne: Honourable senators, I firmly object
to the comments of Senator Flynn. I would simply like to
explain that there is absolutely no tactic–
Senator Flynn: Is this another speech?
Senator Lamontagne: No, I am simply replying to your
question of privilege. Are we not a democratic assembly?
Senator Flynn: No, unfortunately.
Senator Lamontagne: Because of you! I was saying that I
did not make a speech on the main motion because at that
time I was convinced, because of our discussions and consulta-
tions, that there would be no objection to the main motion. I
therefore did not make a speech at that time.
Senator Flynn: You knew quite well what would happen.
Senator Lamontagne: In the second place, after my honour-
able friend moved his amendment, when I tried to elaborate on
my comments and to say precisely what I stated this afternoon,
it was Senator Flynn who objected.
(1510)
Senator Flynn: Not at all. You are raising an issue which is
irrelevant to the one I raised, because when I rose following
introduction of the motion, I invited you to explain your
motion if you wanted to, and I gave you notice that I wanted
to move an amendment. I did so. Afterwards, you had the
opportunity to make your comments, but you did so badly.
You then decided that you wanted another chance today,
especially since there was some hesitation on your side of the
house and you are now trying to rally your forces.
Senator Asselin: I have a question for Senator Lamontagne.
In his speech today, he mentioned a new work method. He said
that what was most important was to suggest a renewed
formula for the Upper Chamber and that this should be done
before August 1. I want to ask a very simple question, and I
could also ask it of the Deputy Leader of the Government.
Last session, a special committee was formed with Senator
Stanbury as chairman. This committee worked for many
weeks before proposing exactly what Senator Lamontagne
wants to propose. Instead of wasting our time considering the
motion moved by Senator Lamontagne, would it not be more
reasonable, first of all, to re-establish the committee chaired
by Senator Stanbury, and to ask it to table its conclusions,
because a number of senators worked hard during the last
session on this special Senate committee to find a new formula
for an Upper Chamber, such as suggested by Senator Lamon-
tagne. He says no because this is not his idea.
Senator Lamontagne: That is not what I suggested.
Senator Asselin: Honourable senators, in order to expedite
our work, would it not be more practical that Senator Stan-
bury’s committee be re-established and the conclusion of its
report tabled? Time and money have been invested by the
Senate to establish that committee, and we could then consider
what Senator Lamontagne has in mind. Apparently there is a
desire to put aside that committee’s report. We did not re-
establish that committee, yet Senator Lamontagne would like
us to start anew. Is that what you want, or not?
Senator Lamontagne: Honourable senators, I do not think I
am a complete idiot.
Senator Asselin: We shall see.
Senator Lamontagne: I included in the motion the consider-
ation of individual and collective rights. But that was Senator
Tremblay’s suggestion. There is no intention to start over
again the work already undertaken in that area. There now
exists a unanimous report by a joint committee of the Senate
and the House of Commons that was published in the fall of
I978, and it includes very specific recommendations in that
area.
So there would be no question of that group starting from
scratch, but it would simply be a matter of taking note of that
committee’s recommendations and determining whether they
still apply under the current conditions.
When it comes to considering the future role and make-up
of the Senate, clearly the group will not start over again all the
studies that have been made. It will take note of them, as well
as the proceedings and public hearings of that special commit-

466 SENATE DEBATES June 12, 1980
tee, in addition to the reports already prepared and published.
The aim is not at all to re-invent the wheel. However, I feel
that we could put some emphasis on the third part of my
proposal. It involves something that is new, in my view. I
would further remind Senator Asselin that the third part is not
aimed at creating a second chamber within our Canadian
Parliament, but quite the opposite, preventing what in my view
would be a serious mistake, and trying to ensure that from now
on–
Senator Flynn: We heard that point before.
Senator Lamontagne: As I said, in considering that third
part we would attempt to ensure that from now on the
monitoring by provincial governments would proceed at the
intergovernmental level rather than within Parliament.
Senator Asselin: I would like to ask a question of Senator
Frith, the deputy government leader. What happens to that
special committee that was chaired by Senator Stanbury? Is it
still-born? Will it report to the Senate? What are the contents
of the studies made by that committee for weeks on end? Were
taxpayers’ money and the energy of senators spent so that we
can never know the conclusions? In these circumstances,
maybe the report could answer all the questions asked by
Senator Lamontagne, and that will be asked anew by that
sub-committee on legal and constitutional affairs. Could he
answer my question as to what happens with that special
committee that was not re-established?
Senator F rith: Honourable senators, I would like to make a
few comments on the amendment, and I would therefore
address that question within the context of my remarks.
Senator Asselin: No answer. As far as I am concerned, I
would like to look more closely at what was said this afternoon
by Senator Lamontagne, since he served us terms out of the
ordinary, especially when he spoke of trusteeship federalism.
Senator Flynn: Hear, hear!
Senator Asselin: S0 I would like to know where that stems
from. As far as I am concerned, I move the adjournment of the
debate, quite simply.
[English]
Senator Smith (Colchester): Honourable senators, I rise on
a question of privilege. I was one of those who happily agreed
to allow Senator Lamontagne to intervene in the way he has,
thinking, of course, that what he was going to deal with was
some relatively small and incidental matter that somehow he
had overlooked in his main speech. Now I find that really what
he has been saying–or it seems so to me–is the main subject
matter of what he meant to say in his speech.
My point of privilege is this. I spoke on this amendment, and
therefore, by the ordinary rules, just like Senator Lamontagne,
I would not have the right to speak in reply to the comments
he has made today. I am not prepared to speak to them today,
but at some future date it seems to me that the same privilege
should be accorded to those of us on this side, and on the other
side, too, who spoke on the amendment, of speaking again in
reference to the remarks of Senator Lamontagne.
[Senator Lamontagne]

The Hon. the Speaker: If you will allow me, honourable
senators, I should like to say that when Senator Lamontagne
rose to speak I tried to intervene because Senator Lamontagne
was supposed to speak instead of Senator Frith. I wanted to
have the agreement of honourable senators but you did not
give me a chance. You all said, “We agree,” and he spoke. I
did what I could. I have no power to do more than that, unless
you find something different in the rules. Perhaps you are
right when you say that you thought he was only going to
make a few remarks, but there was no indication of any kind
that would lead one to believe that it would be so. I did not
know it would be a speech, but I think I made the effort at the
beginning. I know it is not the custom for the Speaker to stop
the discussion and say, “Wait a minute. I have something to
tell you,” and indeed, you would not have accepted that; but I
made the effort to say, “This is not according to the rules.” I
wanted to have your agreement, and you gave your agreement,
even before I asked you. This is what happened. Senator Flynn
agreed and even you, Senator Smith, agreed. If you agreed
then, you cannot now disagree.

Senator Flynn: That is not the point.
Senator Smith (Colchester): Mr. Speaker, if I may address
my comments to what you have just said, I must say that I was
not in the slightest way aiming any criticism at your honour-
able self. I had agreed, and I was not trying to withdraw that
agreement, or to disagree. All I am saying is that having
agreed, and having received something greater than I expect-
ed, it would not be unreasonable if I requested the same
privilege, and if honourable senators were to agree to give it to
me. I do not have the slightest criticism of your honour in any
way.

Senator Lamontagne: In answer to this question of privilege
I must remind my honourable colleague that I was very clear
and very honest when I asked for leave to make my remarks. I
said that I would limit my comments to this aspect of the
motion.
Senator Flynn: Yes, that was the point.
Senator Lamontagne: I said also that unfortunately I would
not be in the Senate next Tuesday night and next Wednesday,
so that I would not even have the chance to speak on the main
motion, though it would have been my right to do so.
I think I was very straightforward and very honest with
colleagues. Leave was given and I expressed gratitude for
fact that it was given. I do not see why you should be
again, or regret having given leave after the fact.

The other day, when Senator Tremblay intervened,
pletely out of order, after the debate had been closed on
the third reading of a bill, we gave him consent to speak.
There was no problem.
Senator Asselin: Out of order, you say? Will you explain
that?
Senator Smith (Colchester): Honourable senators, I
that what was intended to be simply a request that I be
granted the same privilege as was granted to the honourable

June 12, 1980 SENATE DEBATES 467

senator, has sparked some misunderstanding. I say again that I
agreed willingly, and I would agree if the same question were
put to me again. I do not regret that I agreed. I do not try to
withdraw my agreement. I only say that having agreed, and
having heard what was said as a result of the agreement of all
senators, I wish only to claim the same sort of privilege for
myself.
Q (I520)
Hon. Royce Frith (Deputy Leader of the Government):
Honourable senators, if we have covered this particular point
sufficiently, I might suggest that the comments indicate that
more was said by Senator Lamontagne than was perhaps
anticipated. I am sure that there is no intention on the other
side to suggest any trickery, but merely some disappointment
that more was said than was expected. I know that honourable
senators realize that it is proper to speak on the motion as well
as on the amendment, when speaking on the amendment, but I
want to make it clear that if I misled my learned friend, the
Leader of the Opposition, in any way by warning him that
Senator Lamontagne was going to ask for leave, and that he
would not speak fully on both the motion and the amendment,
then-
Senator Asselin: But he did.
Senator Frith: I knew that he was going to do so. If I misled
the other side by suggesting that he would be saying less than
that, I apologize for having done so. If it turns out that
someone on the other side wishes, in the course of this debate
or any other, to speak on an amendment and asks for leave to
speak a second time, then I am sure that not only will it be
received, I hope generously, but the comments of Senator
Smith (Colchester) and other senators on the other side will be
noted for that purpose.
Unless I have misunderstood the status of the matter, I
believe that Senator Asselin has proposed the adjournment of
the debate–which in itself is not a debatable motion. I draw
that fact to the attention of honourable senators and would
suggest that we are now in a position to move on to the next
order of business.
On motion of Senator Asselin, debate adjourned.