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Date: 1980-10-16
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 885.
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SENATE DEBATES — October 16, 1980

[Page 885]

THE CONSTITUTION DEBATE

LEGALITY OF PROPOSED RESOLUTION

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I have a question for the government leader. Yesterday I asked if it was the intention of the government to submit to the Supreme Court the question of the legality and constitutionality of the resolution it is proposed we send to Westminster, its amending formula, and the Charter of Rights which it contains. Yesterday the Prime Minister dismissed the idea with the argument that this was a political debate.

I would like the government leader to say if it is the view of the government that, when there is a political connotation attached to a legal problem, that legal problem cannot be submitted to the Supreme Court. Can he amplify, explain or interpret what the Prime Minister really intended to say?

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, as I stated yesterday, the government is firmly convinced that it is proceeding in a legal manner. Further, we intend to proceed with the parliamentary schedule which has been established. The motion is under debate in the House of Commons, and I understand it will be a few days more before we can expect the message. The government intends to proceed with the debating schedule established.

As far as the legal implications of the honourable leader’s question are concerned, I am not prepared to offer a legal opinion.

Senator Flynn: And I hope you never will. I did not ask for that. I was asking you to justify the validity of the argument that when there is a political aspect to a question the legal aspect cannot be submitted to a court. That was my question. Believe me, I wasn’t asking you for a legal opinion. What I am trying to establish is whether the Leader of the Government is aware that when he tells me that the government is certain about the legality of its position he simply dismisses the opinion of seven, if not all, of the premiers, and many, many experts in constitutional matters who have not only expressed doubts as to the constitutionality of the resolution, but have also in many cases said it was clearly against the legal way of proceeding in this respect, especially when you bear in mind the decision of the Supreme Court in relation to the reference of the Senate provisions of Bill C-60. I am quite sure that legal experts like Senator Goldenberg, for instance, would have some reservations about that and would not entirely support the position of the government.

Senator Perrault: All I can suggest to the Leader of the Opposition is that he may wish to contact Mr. Yves Pratte, and request of him that the Honourable the Leader of the Opposition be called as an expert witness, or that his talents be employed in some other fashion, when the case comes before the courts.

Senator Flynn: You do not have legal experts appearing before the courts. That is something you should know. You should have spoken with Senator Goldenberg before replying as you just did.