Document Information

Date: 1981-04-01
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2200-2206.
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SENATE DEBATES — April 1, 1981

[Page 2200]

THE CONSTITUTION

EFFECT OF JUDGMENT OF SUPREME COURT OF NEWFOUNDLAND

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I direct my question to the Leader of the Government. I asked him yesterday whether the government has taken a decision in consequence of the judgment rendered by the Supreme Court of Newfoundland. I also asked him

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whether a decision has been made to appeal this judgment to the Supreme Court of Canada, and, if so, in what form? What are the intentions of the government with respect to the continuation of the debate on the resolution in Parliament?

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, the debate in the other place is continuing today. The government’s position is that a decision of the Supreme Court of Newfoundland should in no way dissuade any member of Parliament from continuing to debate the resolution which is before the other place. I stated yesterday that the government believes it unwise to refer a hypothetical resolution to the Supreme Court of Canada. The government believes that the resolution in its final form should be referred to the Supreme Court, and that is the position of the government.

I must say, honourable senators, that the debate in the other place is costing the Canadian taxpayer $300,000 a day.

An Hon. Senator: And it’s well worth it!

Senator Perrault: The members of the opposition in the other place are engaged in what can only be described as a parliamentary hijack. That is what it has become—a hijack of procedures and a hijack of the Canadian people.

Senator Balfour: A constitutional coup d’état.

Senator Perrault: Honourable senators, may I say that in this place we have had a good debate. We have heard excellent speeches from both sides of the chamber, and I hope that we can continue the debate in this place. However, it may be that the Senate will wish to debate the motion which has been proposed by the Leader of the Opposition. I am sure that a number of interesting points will be made at that time. But certainly at present the debate will continue in the other place and, hopefully, in this place as well.

Senator Flynn: The Leader of the Government has replied to the notice of motion that I have given, but not to the questions that I have put to him. I have asked him whether the government has decided to appeal the judgment of the Supreme Court of Newfoundland. He has not given any reply to that question. I have asked what form the intervention of the government would take in the Supreme Court of Canada on April 28 when that court considers the appeal from the judgment of the Supreme Court of Manitoba. Will these two judgments be considered at the same time? Is the government ready to submit to the Supreme Court of Canada all of the questions related to the constitutional package? That is really my question.

With regard to my notice of motion, I think that we can debate it in due course unless, of course, the Leader of the Government wants us to discuss that motion right away. I am prepared.

Senator Perrault: Honourable senators, the question will be taken as notice No decision has been taken as yet with respect to a number of the questions asked by the Leader of the Opposition.

At the present time, the government is considering the statement which was made by Chief Justice Freedman of the Manitoba. Court of Appeal. It is a short paragraph and it may be of some value to quote it.

We therefore face a real likelihood that the amendments sought in the Proposed Resolution may be altered, deleted, or supplanted by other amendments before the Resolution is deemed ready for transmission to Her Majesty. In this situation there is a danger that if we answer Question 1, with the proposed amendments in their present form, we may later find that we have answered matters no longer before us and have not answered matters that emerged in their stead. The Court should not be exposed to the risk of such an adventure in futility.

Senator Flynn: That is why the judgment of the Manitoba court does not mean much in comparison to the judgment of the Supreme Court of Newfoundland.

Hon. Royce Frith (Deputy Leader of the Government): Everyone has his favourites in this race.

Senator Perrault: Honourable senators, somehow there is a double standard in operation here. Perhaps I am the only one who believes that there is a double standard. We have a situation where, quite righteously, the official opposition demands that the debate be halted because the Supreme Court of Newfoundland ruled against the federal government in favour of the provinces.

When the ruling went the other way in Manitoba, there was no inclination on the part of the opposition then to say, “We will end our obstruction. Let’s move ahead. Let’s take a vote on this matter.” In other words, it has been a classic case—not by all of the opposition members in this place, but by the Conservative Party, generally—of telling Parliament and the country, “Heads we win; tails you lose.”

Senator Flynn: Nonsense.

Senator Perrault: May I share some additional thinking with honourable senators? Since Parliament is now dealing with a very important amendment presented by the leader of the constitutional group for the Conservative Party in the other place, and since the New Democratic Party would like to present other amendments in the other place, we believe the Supreme Court would be placed in the same position as the Manitoba court, if Parliament does not complete its work. Surely, the courts should not be expected to make presumptions as to how Parliament might vote on matters before it. That is the question faced by the government, and certainly by all parliamentarians.

In the past, the Supreme Court has frequently objected to receiving references because of their hypothetical nature. I have received some information from the Department of Justice relating to its decision as to the best way to proceed. The following quotation from Mr. Justice Laskin in the Supreme Court of Canada in the Manitoba Egg Marketing Reference in

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1971 may be appropriate. This is what the Chief Justice said at that time:

The utility of the Reference as a vehicle for determining whether actual or proposed legislation is competent under the allocations of power made by the British North America Act is seriously affected in the present case because there is no factual underpinning for the issues that are raised by the Order of Reference.

Clearly, it would be preferable for the Supreme Court to deal with a concrete factual and final resolution. So the government is proceeding with ample precedents as it continues the debate in Parliament and urges that the debate be continued until the resolution is dealt with in its final form.

I feel sure that most honourable senators share the reasoning of the government on this essential point. With respect to the specifics of the other questions asked by the Leader of the Opposition, I will obtain that information as quickly as possible.

Senator Flynn: I would certainly expect the honourable Leader of the Government to share the viewpoint of the government. For him to do otherwise would be rather surprising.

Let me recall what happened in the case of Bill C-60. The precedent deals with a decision of the Supreme Court of Canada in reference to a proposed bill.

If the present government were to go before the Supreme Court and, under the federal legislation, were to ask the court to deal with the proposal as it is before the Parliament of Canada, the Supreme Court, if it adopted the same position as it did with respect to Bill C-60, would rule on all aspects of the legality of the matter. That would be most helpful to the members of both houses of Parliament.

I am simply asking why the government would not take that course at this time. It seems to me that the Leader of the Government is saying that the government will not do that, and I am asking him why the government won’t consider doing that in order to obtain a final decision of the Supreme Court on that very important problem. This would be helpful not only for the members of Parliament—and, of course, it is a most unusual problem for us—but it would be helpful to the Canadian people at large.

Senator Perrault: Honourable senators, I am sure there is an honest difference of opinion on this point. To reply to the Honourable Leader of the Opposition it may be useful to quote from the words of the Right Honourable the Prime Minister yesterday in the other place. He was asked a question on that very point, and said:

I remind the hon. member that Bill C-60 was referred to the Supreme Court, not to know whether the federal government was acting against some constitution or convention; the case was were we acting within the authority of section 91(1) of the British North America Act.

That was a very much narrower kind of reference.

Senator Flynn: That is my point. I don’t want the Supreme Court to be restricted. I want the government to free it and to put the whole question before the Supreme Court of Canada. I would like to see the government come clean on the matter and place the entire question before the Supreme Court of Canada.

I have a supplementary question. I understand that representations have been made by the Chief Justice of Canada to counsel representing the Attorney General with respect to the debate on this resolution continuing when the Supreme Court has agreed to review the matter on the basis of the appeal from the decision of the Supreme Court of Manitoba. As a result of the decision of the Supreme Court of Canada to review the matter, it automatically becomes sub judice. Has Parliament given any consideration to the fact that they may be in contempt of court if they continue to discuss this matter?

Senator Perrault: Honourable senators, I have heard of no such report. Also, if this information came from the Conservative Party research bureau, then perhaps the source should be questioned.

Senator Flynn: I read it somewhere.

Senator Frith: Honourable senators, I rise on a point of order. It is one which has been hinted at already by the Leader of the Opposition. The discussion is coming very close to covering some of the aspects of the notice of motion given by the Leader of the Opposition. Many of the issues which have at least been hinted. at or raised in the exchange between the Leader of the Opposition and the Leader of the Government I hope will be brought forth during the debate on the motion. I refer to such questions, for example, as the analagous effect of the Senate reference, the fact that it was concerned with section 91(1), and whether it makes a difference; the question of whether or not Parliament is in contempt of the Supreme Court of Canada; the ruling by the Speaker in the other place on the sub judice point; the relationship between Parliament and the judiciary on the doctrine of separation of powers; and so on.

The Leader of the Opposition has raised many interesting questions in his notice of motion. Perhaps it would be best if we took the opportunity to research and reflect on the matter, and then to engage these points in the debate on Senator Flynn’s motion.

Senator Flynn: I agree with the point raised by Senator Frith. If the Leader of the Government agrees that we will not discuss this matter until we have resolved the question on the motion which I will move tomorrow, then I would be happy to leave it at that.

Senator Frith: I do not want to leave honourable senators with the impression that, for example, a question respecting whether the government had made a decision on this matter would be inappropriate.

Senator Flynn: No, no.

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Senator Frith: Such questions would be quite appropriate during Question Period. However, in light of Senator Flynn’s motion, perhaps it would be best to deal with the academic and ensuing practical questions during the debate on his motion.

Senator Flynn: I was merely suggesting that we suspend the debate until, let us say, Tuesday, when we could make a decision on the motion which I have just indicated I will move tomorrow.

Hon. John M. Godfrey: Honourable senators, on the same point of order and with regard to the question of sub judice, I looked into the matter very carefully before I gave my speech on the Constitution resolution to determine whether it was proper for me to discuss the judgment of the Supreme Court of Manitoba. I came to the conclusion that it was completely proper, and there are also the precedent and the report of the committee to the Speaker of the House of Commons. At that point, I was satisfied that I was completely in order.

Senator Flynn: Honourable senators, I would point out to Senator Godfrey that when he spoke in the debate on the Constitution resolution the matter was not before the Supreme Court of Canada. According to Mr. Maxwell Cohen, who appeared before the special joint committee, Parliament is not prevented from debating any question which is before a provincial court of appeal simply because it could easily prevent Parliament from acting. However, it is quite a different situation when the matter is before the Supreme Court of Canada.

Senator Frith: Honourable senators, that point was ruled on yesterday by the Speaker of the other place.

Senator Flynn: I do not know anything about a ruling by the Speaker of the other place.

Senator Frith: While that ruling in no way binds the Senate, it is a reference that is available to us during our debate.

Also, I do not want to indicate that we might not have a point of order to raise on whether or not the motion of the Leader of the Opposition is in order. He and I have discussed that and all of those things will be, if I may use the phrase, “in play” when we come to his motion.

Hon. G. I. Smith: Honourable senators, I should like to direct a supplementary question to the Leader of the Government on this point we have been discussing. It relates, particularly, to his expression of the fear—which is a hypothetical one—of the government that it would be unwelcome to the Supreme Court of Canada if it submitted a question, which it may eventually have to consider, that was not full and complete in all aspects.

My question is: In coming to that fear, real or hypothetical, did the government consider the provisions of section 55 of the Supreme Court Act, part of which reads as follows:

(1) Important questions of law or fact concerning . . .
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised—

I emphasize those last words.

—whether or not the particular power in question has been or is proposed to be exercised—

I cannot think of anything more hypothetical than a question which it has not even been proposed to exercise.

Section 55(1) further states:

—may be referred by the Governor in Council to the Supreme Court for hearing and consideration; and any question concerning any of the matters aforesaid, so referred by the Governor in Council, shall be conclusively deemed to be an important question.

(2) Where a reference is made to the Court under subsection (1) it is the duty of the Court to hear and consider it, and to answer each question so referred—

My question is: Has the government considered the effect of this section upon its view of whether or not hypothetical questions may be referred to the court?

Senator Perrault: Honourable senators, the government has considered many options. I have quoted from Mr. Justice Bora Laskin, and I presume the distinguished Chief Justice also knows something about section 55 and a great deal about the operation of the court, the type of references which should be considered by that court, and the form in which those references are most welcomed by the court.

I have great respect for the Chief Justice, as do other honourable senators. I suggest that I have quoted from a very reputable source.

Honourable senators, I think we have to consider—and I know this will be debated more fully in the debate on Senator Flynn’s motion—the rather interesting precedent which would be created were it necessary for Parliament to halt debate on all matters which were before the courts, whether provincial courts or the Supreme Court of Canada. This would create all sorts of interesting, and, perhaps, even dangerous precedents. As a former Minister of Justice, I am sure Senator Flynn is aware of some of the dangers in a process of that kind.

Senator Flynn: I am more aware than the present Minister of Justice.

Senator Smith: I thank the honourable gentleman for his irrelevant dissertation, but I am unable to thank him for giving me an answer to my question, because he did not give one. The question is very simple: Was this section considered by the government in coming to its conclusion as to the desirability of submitting a hypothetical question?

Senator Perrault: I can only say, honourable senators, that the government has acted throughout according to the highest parliamentary and legal standards, and it will continue to do so.

Senator Smith: Obviously, the honourable gentleman is afraid or reluctant to answer the question. I am sure the legal opinion of my honourable friend, the Minister of State for Economic Development, would be of great value to us when we

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debate the motion tomorrow. However, I repeat, it is perfectly clear that the Leader of the Government has not answered my simple question.

Senator Perrault: Honourable senators, the government is aware of the provisions contained in the Supreme Court Act. I am certain that the Chief Justice is aware of those provisions, as are members of that court.

Senator Smith: I am not talking about the Chief Justice.

Senator Frith: He quoted Chief Justice Laskin.

Senator Perrault: I quoted Chief Justice Laskin and Chief Justice Freedman of the Manitoba Court of Appeal. The Chief Justice of Canada and the Chief Justice of the Manitoba Court of Appeal have stated that they want a resolution in exact form, and that they do not want to deal with a hypothetical resolution, an imperfect resolution.

Senator Flynn: I disagree with that.

Senator Perrault: Surely, there is also the danger, if we refer a hypothetical resolution to the court and it is changed later by Parliament, that the opposition will demand that the complete resolution be brought before the courts again. This could be employed as yet another delaying tactic—tactics which really bring little credit to Parliament.

Senator Smith: It has brought as much credit to Parliament as the honourable gentleman’s refusal to answer a simple question brings to him.

Senator Flynn: Honourable senators, I should like to ask the Leader of the Government the following question: In view of the fact that he quotes Chief Justice Laskin in a decision which was rendered about 10 years ago—

Hon. Andrew Thompson: It was rendered in 1971.

Senator Flynn: So, 10 years ago. I should like to ask him whether he can reconcile that opinion with the one expressed in the Senate reference, which was hypothetical also. That dealt with Bill C-60 which was before Parliament. That was a unanimous decision of the Supreme Court. No member of that court signed the judgment. It was a judgment of the court itself. How can he reconcile the contention or opinion he has given me of Chief Justice Laskin with the opinion of the court? That is more important, and was rendered in the Senate reference.

Senator Perrault: Honourable senators, we seem to be well involved in debating the honourable senator’s motion which has been placed on the order paper. We shall answer that matter tomorrow in the course of the debate. The government believes that it is acting properly in this instance—

Senator Tremblay: No.

Senator Perrault:—and a number of decisions have yet to be made with respect to the Supreme Court referral. So, I ask the official opposition to wait as the universe unfolds.

Senator Flynn: Honourable senators, I rise on a point of order arising out of the statement the Leader of the Government made a moment ago to the effect that the opposition would say that the Supreme Court decision in the Manitoba case would not cover the whole ground.

I can inform the Leader of the Government that the Prime Minister just a few moments ago in the other place said that he would like the Supreme Court of Canada to adjudicate on all cases brought before the provincial courts—in other words, on all the questions. The Leader of the Government knows very well that I said last night that I thought it was the duty of the government—despite the grumbling of Senator Guay at the other end of the chamber—to put the whole question before the Supreme Court of Canada, and that the government should not hesitate one moment to do that to clear the air and to help members of Parliament to make a proper decision in the circumstances.

Some Hon. Senators: Hear, hear.

Hon. Joseph-Philippe Guay: Honourable senators, I rise on a question of privilege. I just said, and I will repeat, that the Leader of the Opposition is not quoting the Prime Minister correctly. I have been watching the proceedings on television, and I know that is not what he said.

Senator Flynn: Quote him, then.

Senator Guay: That is not what he said.

Senator Flynn: If you know what he said, tell us.

Senator Guay: You can do as I did, and listen yourself.

Senator Flynn: That is what I did. If I am not correct, then you correct me.

Senator Guay: I said that you can do as I did, and see it yourself, instead of misquoting him.

Senator Flynn: In what way did I misquote him? I rise on a question of privilege. You said that I misquoted him. Prove your point.

Senator Guay: Honourable senators, my point is just as good as the Leader of the Opposition’s. He is always making statements and laughing at his own jokes.

Senator Flynn: I would rather laugh at my jokes than at yours, for sure.

Senator Perrault: Honourable senators, perhaps we need more light and less heat at this particular moment.

Senator Marshall: Bring the television set in here.

Senator Perrault: Honourable senators, I do not believe it would be fair for anyone in this chamber to comment on a statement which has been made this afternoon by the Right Honourable the Prime Minister. Obviously, we will have the complete text tomorrow, and it may be possible then to answer any relevant questions. As well, I hope to bring a statement to the Senate tomorrow afternoon with respect to some of the points raised by Senator Flynn. Surely that is a reasonable proposal.

Senator Smith: Honourable senators, I should like to ask a supplementary question related to this general subject, but

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relating particularly to the decision of the Supreme Court of Newfoundland to the effect that the proposed action in the resolution is unconstitutional. Would the honourable gentleman agree that that is the law in Newfoundland at this time?

Senator Olson: We do not give legal opinions here.

Senator Flynn: Certainly not. Only the Minister of Justice, and he always gives the wrong opinion—that is, the present Minister of Justice.

Senator Perrault: Honourable senators, I will take that question as notice.

Senator Frith: The question is not in order.

Senator Perrault: The question is not in order. It is asking for an opinion.

Senator Frith: A legal opinion.

The Hon. the Speaker: Honourable senators, I do not want to intervene at this stage, but I have before me two or three questions of privilege. I think the debate should take place tomorrow when we will have the text of the Prime Minister’s remarks.

Senator Smith: I am not on a question of privilege. I am not arguing with Your Honour at all. I am only saying that I accept your ruling on the issue dealing with the statement of the Prime Minister. My question had nothing to do with the statement made by the Prime Minister. I was merely asking the Leader of the Government if he agreed that the decision of the Supreme Court of Newfoundland was now the law in Newfoundland.

Senator Frith: Honourable senators, if I may make an observation, it seems to me that there are two problems with the question.

Senator Grosart: The question was directed to the Leader of the Government.

Senator Frith: I have asked the Leader of the Government for his permission to speak to the question.

Senator Grosart: You should ask His Honour the Speaker.

Senatoe Frith: I would be glad to do that, and I will even ask Senator Grosart.

Would you satisfy Senator Grosart, Your Honour, that I am entitled to refer to the question, or make an observation on the question, raised by Senator Smith?

The Hon. the Speaker: Honourable senators, I hope that you are going to keep the Question Period within the limits provided for in our rules.

Senator Perrault: Honourable senators, in essence, my reply stands. The question is out of order. It asks for a legal opinion, and I am not prepared to give that opinion. The question is not in order.

Senator Smith: I think it is not only in order, but a very basic question as to the validity of the decision this government has made and one which we are entitled to know. Further, I would ask the honourable gentleman, if it is the law of Newfoundland, how he can ask, particularly senators from Newfoundland, to vote in a contrary way.

Senator Frith: Honourable senators, it is a very nice legal point as to whether or not that decision is the law of Newfoundland. I say that because I can provide plenty of precedents, particularly for Senator Smith, because the same point was raised in the British Columbia Reference re Ownership of Offshore Mineral Rights that we were talking about a few weeks ago. They were asking whether there was any difference in legal effect between a judgment on a lis between parties and an opinion on a reference.

So, I am not going to take sides now whether it is one or the other. I am saying that the question raised is a very important and rather esoteric legal question as to whether an opinion on a reference has the same validity as a judgment. I know Senator Smith knows that.

That is the reason I think it is unfair during Question Period to ask for a legal opinion. The question not only asks for a legal opinion, but it asks for a legal opinion on a very subtle legal question. The question is not in order.

Senator Smith: There is nothing very esoteric about it, because if it is the law in Newfoundland then, by pressing on with this resolution, the government is asking senators to vote against something which is the law in a province. I believe that would put the senators from Newfoundland in a particularly difficult position, and put all of us in the position of saying we do not care what the law is in the province; we are going ahead anyway.

Senator Perrault: Honourable senators, I am sure the Honourable Senator Smith may wish to participate in the forthcoming debate on this point. At that time he may be able to make a valuable contribution.

But may I quote from Beauchesne’s Parliamentary Rules and Forms with regard to oral questions:

(1) Such questions should:
(a) be asked only in respect of matters of sufficient urgency and importance as to require an immediate answer;

Does it pass that test?

Senator Smith: It sure does.

Senator Perrault: It goes on:

(b) not inquire whether statements made in a newspaper are correct;—

Or on television or the radio.

Senator Flynn: Forget that.

Senator Perrault: The Honourable Leader of the Opposition has just done that.

(c) not require an answer involving a legal opinion;

The Honourable Senator Smith has just asked this:

(d) not be asked in respect of a matter that is sub judice;

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That is, a matter that is before the courts. Perhaps honourable senators have also done that.

Senator Smith: Be careful what you read.

Senator Perrault: It continues:

(e) not be of a nature requiring a lengthy and detailed answer;

(f) not raise a matter of policy—

Senator Flynn: That is for you, too.

Senator Perrault: I think it is worthwhile to remind ourselves of some of the rules:

(f) not raise a matter of policy too large to be dealt with as an answer to a question.

Senator Flynn: That last point is for Senator Argue.