Document Information

Date: 1980-06-10
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 435-437.
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SENATE DEBATES — June 10, 1980

[Page 435]

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 composition of the Canadian Senate and alternative constitutional arrangements compatible with true federalism;

That the membership of the committee be increased to thirty members and that rule 67(1)(f) be suspended in relation to membership ofthe committee;

That the committee be empowered to engage the services 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 adjournments of the Senate, and

On the motion in amendment thereto of the Honourable 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 attention 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 Tremblay).

[Translation]

Hon. Arthur Tremblay: Honourable senators, I ask you not to be overly worried if we come so late to the first item on our agenda. My remarks about the amendment proposed by Senator Flynn will be as brief as possible, considering the importance of that matter.

The first question that we should ask ourselves, I think, about the amendment is what it retains of the main motion and what it changes in it. It maintains the reference to the Standing Senate Committee on Legal and Constitutional Affairs of some constitutional questions so that the committee may study them and report to the Senate. Neither the amendment nor the main motion mention a subcommittee or a special committee. So there is no discrepancy there.

What the amendment does change in the main motion is the content ofthe terms of reference ofthe standing committee.

According to the main motion, that committee would only consider:

—constitutional provisions regarding individual and collective rights and . . . the future role and composition of the Canadian Senate and alternative constitutional arrangements compatible with true federalism.

l notice in passing that the expression and alternative constitutional arrangements compatible with true federalism is not perfectly clear. To what does it refer exactly? Does it refer to everything that comes before in the sentence, individual and collective rights and the Senate or only to the Senate? Or has it a wider meaning, as there is a comma in the French text before the expression and alternative constitutional arrangements compatible with true federalism.

Senator Lamontagne will probably give us a further explanation about this. However, according to the explanation he already gave last week, I take for granted that his motion tries in fact to limit the terms of reference of the committee to those two subjects: individual and collective rights and the role and composition of the Senate.

Senator Lamontagne: There are three subjects, not just two.

[Page 436]

Senator Tremblay: The Senate is one subject considered in two aspects. I do not object to counting each aspect as a subject, but as the mandate refers to the Senate I consider it as the main subject.

Senator Asselin: If you accept a third subject, you can also accept a fourth one.

Senator Tremblay: On the contrary, the amendment of Senator Flynn aims, first of all, at extending this mandate to constitutional reform as a whole. He then suggests that, according to the text of his motion, special attention be given to the question of the division of powers between the federal and provincial governments and to constitutional provisions regarding individual and collective rights.

In his intervention last week, Senator Lamontagne explained the procedure which would be followed if his motion were accepted. I have taken special note of the following part of his explanation:

—the Committee on Legal and Constitutional Affairs would form a subcommittee to carry out its mandate described in the motion. The subcommittee, once it would have completed its work, would give its findings to the committee, which would report to the Senate through its chairman, Honourable Senator Goldenberg.

This procedure seems totally acceptable—

Senator Lamontagne continued.

—in view of the restricted nature of the mandate, and now I am speaking of the amendment. This mandate in the motion is viewed as a preliminary step to be followed by a more extensive study of Canadian federalism.

In his view and in his approach to the eventual work of the committee, there is no opposition in principle to enlarging the mandate of the committee so that it may study the constitutional issue as a whole. Therefore, he should have no objection in principle to what the amendment suggests since it aims at such an enlargement of the mandate.

All things considered, I am wondering if, finally, the gap between the ultimate intentions of Senator Lamontagne and What he has in fact written in his resolution would not come from some confusion between the mandate and the work program of the committee, a confusion which effectively transforms mto a mandate part of the complete work program that the senator is considering instead of defining the issue of the work program or rather of the work schedule within the extension of a mandate which would include all phases. This question of the work program is in fact mentioned both in the amendment and in the main motion, but quite differently.

In the main motion, it is to limit the mandate; in the amendment, it is to give the work program its proper place within a comprehensive mandate from which we must set priorities and therefore determine the work schedule.

As for the mandate to be given to the committee, it seems to inc that the text of the resolution that we shall pass must be clear; that it must state categorically the way we see our role in the process of constitutional reform and the aspects of this reform which correspond to this role. It must indicate that we are interested in and are concerned with all aspects and all dimensions of the constitutional issue. It must indicate so now, at the outset, at the very time when we are taking our first institutional action in the new context of the constitutional reform.

This is, I think, a matter of principle that involves not only the objective scope and extent of our work but also how we will be perceived outside these walls.

The problem is not, as the issue was raised a bit the other day, whether we have any particular technical competence to consider given aspects of the reform, and whether we should be sticking to those aspects. It has to do with our institutional competence. In that respect, we have full competence, full and total competence. Those we represent would be the first to blame us, and rightly so, if we limited the exercise of that competence too narrowly.

That is why I think the terms of reference we are giving the Standing Senate Committee on Legal and Constitutional Affairs could be extended to the whole issue of the constitutional reform, as Senator Flynn suggests in his amendment.

As to the working program of the committee and the priorities it could and should set in the consideration of specific issues, it goes without saying that we can give it certain indications in the motion we will be passing. Those indications should not, however, be overly restrictive. I think the committee should have enough latitude in that respect.

Two criteria could be used in determining the order of priorities to be set or suggestions we could make to the committee in the wording of the motion itself. The first criterion is the relative importance that we, the committee, attach to the various themes that make up the constitutional issue; the second criterion, which I think is extremely important, is the context created by those who have the initiative of the operations in the circumstances, the first ministers, who started yesterday the process of constitutional reform and whose work was precisely the subject of several questions that were put during Question Period today in this house.

We undoubtedly can and are free to make our own judgment on what is more important or less important in the reform to be made, and set our priorities on that sole criterion. However, nobody will understand, except ourselves, why we are ignoring the priorities that the first ministers’ conference gave itself, as wcll as the aspects to be dealt with and the work schedule it set out for itself. It seems we have no choice in that.

Presumably the September conference will lead to agreements on a good number, if not all subject matters which appear on the list tabled in the Commons this afternoon by the Right Honourable the Prime Minister. So, we would have to form in our minds relatively clear ideas on all those questions in a very short period of time. We should also make our views known on these matters in some way or other before the die is cast; otherwise, we will be confronted in the performance of our institutional function with the dilemma I was referring to the other day.

[Page 437]

I find that at least six of the themes on the premiers’ list deal with the distribution of powers: ownership of resources, interprovincial trade, offshore resources, fisheries, powers dealing with the economy, communications including broadcasting, family law. Six out of 12. Did I skip fisheries? I said: “Les pêches,” because it is so referred to in the text.

With a view to supplying us with a work schedule and taking part at the right time in the current constitutional reform process, I find the amendment put forward by Senator Flynn to be better suited to current conditions than the main motion.

Honourable senators, such are the considerations that lead me to support Senator F]ynn˜s amendment. Certainly the amendment is not contrary to the true intent of the main motion. but it places things in the perspective that should be ours. that of this house as a component of the Canadian Parliament.

On motion of Senator Frith, debate adjourned

[English]

The Senate adjourned until tomorrow at 2 p.m.