Canada, Senate Debates, “Interpretation of Section 51 of Proposed Constitution Act”, 32nd Parl, 1st Sess (14 October 1980)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 840-844.
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SENATE DEBATES — October 14, 1980
THE CONSTITUTION DEBATE
INTERPRETATION OF SECTION 51 OF PROPOSED CONSTITUTION
Hon. Arthur Tremblay: Honourable senators, my question is directed to either the Leader of the Government or the Deputy Leader of the Government. It has to do with section 51 of the proposed resolution. It is intended to get information which
will allow me to make an accurate reading of that section. The section reads:
Class 1 of section 91 and class 1 of section 91 of the Constitution Act, 1867 (formerly—
—I skip the parenthesis—
—referred to in item 21 of Schedule I of this Act and Parts III and IV are repealed.
Parts III of this act establishes constitutional conferences.
If one refers to this pompous and promising title, an institution of a federative nature is apparently going to be established by the proposed resolution. But since that Part III is in fact abolished as soon as the resolution or the Constitution Act of 1980 goes into effect, am I to understand that, in the mind of the government, the constitutional conferences bringing together all the first ministers of Canada is only a transitional operation already doomed to disappear as soon as the resolution, that is the proposed Constitutional Act of 1980, is passed?
Senator Lamontagne: At the very moment our report is tabled.
Senator Asselin: You are saying your report is going to change that? That is a good one!
Hon. Raymond J. Perrault (Leader of thw Government): The honourable senator has asked a rather detailed question with respect to sections 51 and 52. There will be a debate later on the inquiry I initiated, and if possible I would be pleased to speak to that section during the course of the debate.
Does the Leader of the Opposition share the opinion that it may be out of order to have question of this kind advanced during Question Period?
Hon. Jacques Flynn (Leader of the Opposition): Why?
Senator Perrault: A debate is about to commence in the Senate with respect to the documents tabled here one week ago. This is a matter which I think could more properly be discussed at that time.
Senator Flynn: No. A question is not the same thing as a debate.
Senator Perrault: Honourable senators, we have a draft of a bill that is going to be dealt with by the Parliament at Westminster. The bill is not even in this chamber as yet. A motion to refer that bill to a joint committee of the Senate and the House of Commons is now being debated in the other place. The measure is not being debate in detail in any section of Parliament. Now we are asked by an honourable senator to provide a legal opinion with respect to one of the sections. Surely that is an unusual procedure. However, in saying that, may I assure honourable senators that I will be pleased to speak to sections 51 and 52 later this evening.
Senator Flynn: We don’t want a speech; we want a reply.
Senator Tremblay: Not being as familiar as the Leader of the Government with the procedures I do not know whether I am engaging in a debate following what he just said. But my question was one of clarification, and not intended to discuss the merits of section 51.
Is it advisable to create provisionally a federative institution such as the constitutional conference of first ministers, or is it not advisable to do so? That is the essence of the debate. I simply wanted to make sure, so I could engage in the debate later on in as much an enlightened way as possible, if I was reading the section correctly. It is a question of information, it seems to me. Is it out of order to ask it now? I point out again that I am not engaging in the substance of the debate but merely asking a question of information.
Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, on a point of order, I can recall this very sam point being raised previously.
Senator Flynn: By whom?
Senator Frith: The point of order was raised by the leader in his answer when he implied that iwas out of order. In any event, whether or not he or anyone else did, of course, it is in order for me to raise a point of order.
Senator Flynn: You can do that any time.
Senator Frith: I mention that only to put the point in context. I recall that when the Leader of the Opposition and the Deputy Leader of the Opposition were on this side they raised a point of order, which I think is a correct one, and that is that it is not in order to ask for a legal opinion during Question Period. That is my first point of order.
The second is that it is not in order to raise during Question Period something that is on the order paper and will come up later in debate, since the purpose of the Question Period is to elicit information.
Senator Flynn: Would the honourable senator repeat that so that it can be clearly understood? Do we take it that it is not in order to start a debate before another debate comes up?
Senator Olson: That is right; you cannot anticipate.
Senator Flynn: I like that arugment, and I will use it later.
Senator Frith: Are you through for the moment?
Senator Flynn: Yes, sure.
Senator Frith: To reiterate, during Question Period it is not in order to ask for a legal opinion because the purpose of the Question Period is, as you told us last year, to elicit information. If you do not want me to quote the leader, I will quote Beauchesne.
Senator Flynn: You questioned me for over three-quarters of an hour, and I replied to every question you put to me. Most of those questions required me to give a legal opinion, and I provided whatever I thought was the proper reply.
Senator Frith: On that occasion I was asking for information as to what had taken place—if you read the record you will see that—and not for a legal opinion. However, in respect to the particular questions being asked here, first, is a legal opinion being asked for; and, second, is the subject raised during Question Period a subject that is already on the order paper and coming up later for debate? In my respectful submission, honourable senators, the answer to both of those questions is yes.
Senator Tremblay said he was simply asking for an answer to—”La question est si la lecture de la résolution est à point.” In my opinion, that is clearly asking for a legal opinion, and the subject is on the order paper. Therefore, in my respectful submission, the question should not be asked during Question Period.
Senator Flynn: If you don’t know, you just have to say that you don’t know.
Senator Tremblay: Honourable senators, I was asking the question as an ordinary senator or perhaps as an ordinary citizen who would be reading information issued by the government. If reading a government paper requires legal advice, then, as a common citizen, I would have a real problem.
Hon. George I. Smith: Honourable senators, Senator Frith raised two points of order, and I should like just for a moment to reply to them. The first point was that it is not in order to ask questions about the content of something which notice of intention to debate has been given. I say that that cannot possibly be right. Surely if, in order to prepare oneself for the debate, one wishes to know what is meant by something that the government has tabled as an official government document, it is perfectly in order to ask what something in that paper means. If the honourable gentleman does not know the answer or for some reaosn is afraid to give it, then let him say he does not know or he does not want to give the answer. This is an utterly absurd position for the honourable senator to take and one which cannot be allowed to pass unnoticed. The other point was that it is not in order to ask for a legal opinion.
Senator Olson: Right.
Senator Smith: You know all about that. I am sure we would be delighted to hear you expound at some length your views on the legal aspect of this section. We will be glad to hear you. If the honourable gentleman could make a long speech about the legal meaning of this, I am sure the Deputy Leader of the Government and the Leader of the Government can both do the same, but if they are bringing into this house something that they want us to pass and they have not informed themselves as to its legal meaning, then they are even duller and less attentive to the business of the house and their duties than it ever occurred to me they were. After all, what do they expect? They stand there and say they don’t know what it means and ask the rest of us to debate it. That is even more absurd than the first point of view.
Senator Frith: I would certainly not expect as distinguished a lawyer as my learned friend Senator Smith to accept my opinion on any of these questions. Perhaps he will not accept Beauchesne‘s either, but Beauchesne says, at paragraph 359 on page 132, when dealing with the Question Period.
It must be a question, not an expression of opinion.
It must not ask for an opinion. In paragraph 360 he says that it should not
…ask a solution of a legal question such as the intepretation of a statute.
Senator Smith: This is not a statute.
Senator Frith: Senator Smith said he is asking for an opinion or a statement as to what something means. In my respectful submission the question that Senator Smith is talking about are certainly proper in debate, but according to Beauchesne, they should be asking for information, not an interpretation as to what something means.
Senator Flynn: You said a statute, Quote correctly.
Senator Frith: Finally, in paragraph 359(12) on page 132—
Senator Smith: Quote correctly.
Senator Frith: I am—”…such as a statute.” At page 132, in paragraph 359, subparagraph 12, Beauchesne says:
Questions should not anticipate a debate scheduled for the day, but should be reserved for the debate.
Senator Flynn: For the day.
Senator Frith: There is the quotation. It may not be as distinguished a source as either Senator Smith’s or Senator Flynn’s but, it is a source that is generally accepted in parliamentary procedure.
Senator Smith: I accept what it says but I don’t accept what you say it says.
Senator Frith: As I said, don’t take it from mel take it from Beauschesne.
Senator Flynn: You were not giving legal opinion.
Senator Smith: To start with, the quotation refers to a statute. We are not concerned witha statute. We are concerned with something that has not even become a bill yet; it is only a draft that the government wants people to approve.
Senator Olson: It is an order of the day.
Senator Perrault: They don’t want to be confused with the facts.
Senator Flynn: You wouldn’t recognize a fact if it hit you in the face.
Senator Tremblay: I take notice of a splendid lesson that I have just learned. At this stage I understand that I do not need to understand what it means, what is in there.
Senator Lamontagne: Read the rules.
Senator Flynn: You never read them yourself.
Senator Tremblay: I will wait, hoping that at some stage somebody will tell me what it means, but I ask myself whether the people will understand before we understand.
Senator Perrault: I remind honourable senators that last week, in an effort to accord an opportunity for the opposition to state freely and openly their views on this important initiative, it was proposed that we commence an inquiry debate. We wanted a debate to begin so that all senators would have an opporunity to speak. Could we get consent from the opposition? Not at all. They said, “No, no, we can’t give that consent.” Today they act as though somehow they are being deprived of an opportunity to speak. Apparently Senator Smith has undergone a conversion greater than St. Paul’s conversion on the Road to Damascus. Can he cite one instance during his long and distinguished career as Premier of Nova Scotia where he ever made the kind of concession to the opposition that he demands of us now? If he did, let him produce the evidence in this chamber.
Senator Smith: I am not going to make a search over a long period of years to satisfy the honourable senator that he is wrong. I know inherently that he is wrong. I also know that none of the authorities cited by his deputy have anything to do with this. What his citation had to do with was asking about the meaning of a statute. I say again that no one can possibly say this is a statute. It is a piece of paper that may become nothing, which we are asked to discuss. Again I say, if the honourable senator doesn’t know what it means, then he has a great deal of nerve to come here and ask the Senate to accept it.
Senator Bosa: Honourable senators, my questions is for the Minister of State for Economic Development—
Senator Flynn: We are still on a point of order, Senator Perrault—I was going to say “Senator Foghorn,” as he is called on the west coast. I was there last week. There is nothing insulting in that it is just amusing.
Senator Perrault: I am not insulted.
Senator Flynn: Anyway, you just gave us a perfect illustration of why they speak of you that way out there. The Leader of the Government referred to his notice of inquiry which will come later on. Last week I made some observations. I intended to raise a point of order later, when it is called, and I think that is the proper time to do it, not to discuss it in advance, as the Leader of the Government is trying to do.
Senator Perrault: I suspect that the Leader of the Opposition did not want to debate last week because his party is so totally confused on the constitutional question. Are they attempting to rally their forces and obtain a consensus? Furthermore, I presume that the Leader of the Opposition was obviously anxious to find out what the Conservative premiers were going to announce this evening. These are some of the reasons for his failure to debate last week, and he knows it.
Senator Smith: Further to the point of order, the Leader of the Government complains that he did not have the opporunity to bring forth the notice last week. Nobody objected to his giving notice of the inquiry last week. He had every right to give the notice, and if he had given notice then, as he intimated he wanted to do, but which he did not do, we could now be debating it instead of this point of order. He didn’t do it, and I might be bold enough to ask him why he didn’t do it. He didn’t have to ask permission to give notice. I suggest he was not really ready to give notice and he was glad to have the rest of the weekend to get ready.
Senator Perrault: Honourable senators, let’s get this straight. I hope that the Leader of the Opposition meets once in a while with his members. Last week the Leader of Opposition asked that the debate be deferred until this week because he was not prepared to go ahead with the debate. It may help if the Leader of the Opposition met with some of his followers so that they could find out what he has in his mind at any given time.
Senator Smith: That is another occasion when the Leader of the Government displays his complete ignorance. I didn’t say anything about whether or not the debate was to be last week, because there was no suggestion it was to be.
Senator Petten: Yes, there was.
Senator Flynn: He asked leave and leave was refused.
Senator Smith: I know, but what I said, and what the Leader of the Government did not respond to in any way whatsoever, was that he had every opportunity to give notice of the inquiry last week if he wanted to, and it would now come up, in the ordinary course of events, for debate tonight.
I say he did not do that, so how can he stand here and complain that the Leader of the Opposition has in any way delayed the debate? The Leader of the Government himself delayed it. He could have given notice any day last week, including the last day we sat, and he did not bother to do so.
Senator Frith: Question.
Senator Perrault: Honourable senators, the honourable senator’s views are so tediously incorrect that I am not willing to perpetuate the debate and continue this discussion. It is useless, because the honourable senator does not know the facts.
Senator Smith: I know the facts very well, and I know one fact which you cannot deny, that being that you could have given notice of this inquiry on the last day we sat last week and we could now be debating it in the ordinary course of events. You cannot deny that, and that is a fact.
Hon. Reginald James Balfour: Honourable senators, on the same point of order, and without wanting to risk being tedious, might I ask whether the Leader of the Government in the Senate would care to enlarge upon his commitment to expend $4 billion for western Canadian development?
Senator Olson: Now, wasn’t that brilliant.
Senator Perrault: Well, the universe will unfold, and a great deal of western development is going to unfold. I am not prepared to go beyond that statement at the present time. I will say that the Government of Canada as presently constituted is considerably more concerned about western development than was the preceding government.
Senator Balfour: On the same point of order, are you withdrawing from the speech you made in Vancouver with respect to the expenditure of $4 billion on western Canadian development or not?
Senator Perrault: The honourable senator obviously requires a crash course on Beauchesne, because he is completely out of order in asking a question of that kind. I made no such speech in the city of Vancouver.
Senator Smith: Where did you make it, then?