Document Information

Date: 1981-04-15
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2303-2312.
Other formats: Click here to view the original document (PDF).

SENATE DEBATES — April 15, 1981

[Page 2303]

THE CONSTITUTION

MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN—MOTION RESPECTING DISPOSITION

Leave having been given to proceed to Motion No. 2:

Hon. Royce Frith (Deputy Leader of the Government), pursuant to notice of yesterday, April 14, moved:

That the motion of the Honourable Senator Perrault, P.C., for an Address to Her Majesty concerning the Constitution of Canada shall be disposed of as follows:

l. The debate on the said motion and any amendments proposed thereto as herein provided, shall be adjourned to Thursday, April 23, 1981, and may be debated between 2.00 p.m. and 6.00 p.m. and between 8.00 p.m. and 10 p.m., and on Friday, April 24, 1981, between 10.00 a.m. and 12.00 noon.

2. No amendments or sub-amendments may be proposed to the said motion except those moved by the Leader of the Government and the Leader of the Opposition in the Senate on Friday, April 24, 1981, as provided hereinafter.

3. The question on the amendment to the motion, moved on March 26, 1981, by the Honourable Senator Yuzyk shall not be put except as herein provided.

[Page 2304]

4. The Order to resume the debate on the main motion shall be called at 10.00 a.m. on Friday, April 24, 198], and notwithstanding any other motion in amendment thereto, the Leader of the Government in the Senate shall forthwith be given the floor to move any amendments to the said Address adopted by the House of Commons on Thursday, April 23, 1981, pursuant to the Special Order adopted by that House on April 8, 1981; and no amendments may be moved to such amendments, but the Leader of the Opposition may, immediately after the said motion of the Leader of the Government, move any amendment to the said motion for an Address; and both the amendments of the Leader of the Government and the amendment of the Leader of the Opposition may be debated at the same time but without further amendment.

5. Every question necessary to dispose of any amendments moved by the Leader of the Government or by the Leader of the Opposition in the Senate or the motion in amendment by the Honourable Senator Yuzyk, if it is still before the Senate, shall be put, in that order, no later than 12.00 noon on Friday, April 24, 1981.

6. There shall be no debate after April 24, 1981, on the said motion until a day named by the Leader of the Government in the Senate pursuant to the following paragraph of this Order.

7. After the Supreme Court of Canada has rendered a decision on the appeals concerning the opinion of the Manitoba Court of Appeal rendered on February 3, 1981, and on the opinion of the Newfoundland Court of Appeal rendered on March 31, 1981, on the questions put to the said Courts concerning the amendment of the Constitution of Canada, the Leader of the Government may, by rising in his place and informing the Senate thereof, name two days on which the said motion shall be debated by the Senate.

8. At 6.00 p.m. on the second day named by the Leader of the Government pursuant to the preceding paragraph of this Order, the Speaker shall interrupt any proceedings and, without further debate, put every question necessary to dispose of the said motion. No Senator shall rise to speak after this hour, and all such questions as must be decided in order to comply with this Order shall be decided forthwith before the Senate adjourns.

9. The provisions of this Order shall prevail notwithstanding any rule or practice of the Senate to the contrary.

10. Nothing in this Order shall be considered to affect in any manner or to any degree the separation of the legislative and judicial powers, a fundamental principle of our Constitution.

[Translation]

He said: Honourable senators, I have two things to say first. I do not have that many comments to make on the motion because yesterday I gave the reasons why I intended to move the motion today. However, there are two small housekeeping matters that I might be allowed to explain in English, and then I could perhaps make some kind of introductory remarks to the motion.

[English]

Honourable senators may have noticed that during the course of the debate yesterday the Leader of the Opposition and I, in effect, agreed on a change to paragraph 4 in the proposed order, the terms of which are printed in the Minutes ofthe Proceedings of the Senate for yesterday. It was because of a lack of grammatical consistency that, after further discussion, we decided it was better in its original form. If it is satisfactory to honourable senators, I will not go into the details of that. What it means is that with regard to the two items that we were not prepared or able to agree upon fully yesterday—the first being a change in the wording of paragraph 4 and the second being a change in the wording of paragraph 7—we should say regarding paragraph 4, as they say in the editing business, “Stet.” In other words, it remains as it was because of a change in paragraph 1.

With regard to paragraph 7—and it seems to me this requires further explanation—honourable senators will recall that paragraph 7 of the proposed order provides for a method of dealing with the resolution after the decision of the Supreme Court of Canada has been handed down, and the original wording, which honourable senators will find in the Minutes of the Proceedings of the Senate, provided for our dealing with the matter by naming two days after the decision of the Supreme Court of Canada had been rendered. That provision was exactly the same as obtained in the House of Commons. Senator Flynn pointed out that we have already agreed to deal with the matter here, finally, only after the House of Commons has disposed of it. He was quite correct about that, and suggested that we should re-word paragraph 7 to provide that our final two days will be named after the House of Commons has disposed of the matter, rather than after the Supreme Court of Canada has disposed of it.

The somewhat obscure comments I made, that appear on the record, were meant to say that we should leave ourselves a little more flexibility than that, and that we should name our final two days after the House of Commons has named their two days, simply to give ourselves the latitude to go either two days after them, or perhaps one day, or perhaps a day and a half, or whatever we decide is the best way to deal with the matter in the interests of the country and in the interests of the Senate.

As a result, I proposed a re-wording to Senator Flynn, and we have agreed that that is the way we will deal with it.

The sequence will therefore be as follows, as I understand it. The House of Commons will dispose of the amendment stage

[Page 2305]

next week. Please remember that there are three stages: the amendment stage; the Supreme Court of Canada decision stage; and the disposition by Parliament stage. What will happen is that by Thursday of next week the House of Commons will dispose of stage 1—that is, the amendment stage. If this order is adopted, we shall deal with our part of Parliament’s disposition of that stage on Friday, by 12 noon— at least, it will be put no later than 12 noon. Then we come to stage 2, which is the decision of the Supreme Court of Canada. If the result of the decision of the Supreme Court of Canada is that the proposal is illegal, as Senator Walker and I discussed yesterday, the chances are that no days will be named, and a whole new set of circumstances will be before us. If the Supreme Court of Canada decides that the proposal is constitutionally acceptable, then the House of Commons will name its two days. When they have done that, Senator Flynn and Senator Perrault will consult in order to decide, in the particular circumstances, when we should deal with it for our final two days. But all of the above is subject to the fact that we shall not vote on it until after the House of Commons has voted on it, that being consistent with the agreement reached between Senator Perrault and Senator Flynn. Those are the housekeeping elements I referred to.

[Translation]

Honourable senators, if I may now switch over to French, I would like to explain from a technical point of view the substance of this motion. It is meant to implement the agreement ratified in the other place by the three parties and providing that Parliament will not vote on the motion before the Supreme Court has reached a decision on the constitutional acceptability of the motion.

As I mentioned yesterday, that was one of the conditions on which several senators have dwelt during our debate in this chamber.

That is the primary aspect, the main purpose. There are, as I mentioned, three elements in that agreement, which is not necessarily cordial, but which is nevertheless beneficial.

Those elements are, first, that the Supreme Court, if possible, should receive the amended motion in a more or less final format in order that they may reach reasonably a final decision. The second element is that the time devoted to the final stage of the debate be set by Parliament pursuant to the provisions of the agreement reached in the other place.

The procedural corollaries have been stated in a House of Commons order. This House of Commons order has now been deferred to us to the extent that we are now dealing with the agreement. Under that order, and it is a quite important aspect for us, the members of the House of Commons have agreed to refrain from suggesting any amendments in such special circumstances and to try to reach an agreement on one omnibus amending motion for each party.

In the Senate, the corollary is found in the motion now before us Those are the reasons, the background and the basis for the motion now under consideration.

As for the specific wording of the motion now appearing in the Minutes of the Proceedings of the Senate, as I mentioned yesterday, the opposition and the government have agreed on only one principle up to now. Since the circumstances are quite unusual, and since the motion now before us is also quite unusual, for these same reasons we find ourselves in unusual circumstances and the same may be said of the other place.

There is only one other housekeeping aspect to the matter.

[English]

I am indebted to Senator Macquarrie for pointing out to me that the motion as it appears at page vii of yesterday’s Minutes of the Proceedings of the Senate is grammatically in error. Paragraph 10 reads:

Nothing in this Order shall be considered to affect in any manner or to any degree the separation of the legislative and judicial powers, a fundamental principal of our Constitution.

Senator Macquarrie and I reminded ourselves, at his initiative, that “principal” is only a noun in one particular case; otherwise, “principal” is an adjective and “principle” is the noun. I thought that Senator Macquarrie’s way of remembering the one occasion on which the word “principal” is a noun is one that may not be totally consistent with everyone’s personal experience—it is to remember that the principal of the school is your pal.

In any event, after what I am sure honourable senators have found to be a somewhat pedantic digression—one which neither Senator Macquarrie nor I would so describe—I would like to move the motion in its modified form. It contains two corrections, one in order to have the motion conform to the change in paragraph 7 that I have already explained—that is, the paragraph dealing with the two days—and the other to ensure that the new version spells the word “principle” correctly.

Senator Flynn: Did you say “virgin” or “version”?

Senator Frith: It is the second version, and, therefore, it cannot be described as virginal.

Honourable senators, with leave of the Senate and pursuant to rule 23, I move:

That the motion of the Honourable Senator Perrault, P.C., for an Address to Her Majesty concerning the Constitution of Canada shall be disposed of as follows:

1. The debate on the said motion and any amendments proposed thereto as herein provided, shall be adjourned to Thursday, April 23, 1981, and may be debated between 2.00 p.m. and 6.00 p.m. and between 8.00 p.m. and 10.00 p.m., and on Friday, April 24, 1981, between 10.00 a.m. and 12.00 noon.

2. No amendments or sub-amendments may be proposed to the said motion except those moved by the Leader of the Government and the Leader of the Opposition in the Senate on Friday, April 24, 1981, as provided hereinafter.

[Page 2306]

3. The question on the amendment to the motion, moved on March 26, 1981, by the Honourable Senator Yuzyk shall not be put except as herein provided.

4. The Order to resume the debate on the main motion shall be called at 10.00 a.m. on Friday, April 24, 1981, and, notwithstanding any other motion in amendment thereto, the Leader of the Government in the Senate shall forthwith be given the floor to move any amendments to the said Address adopted by the House of Commons on Thursday, April 23, 1981, pursuant to the Special Order adopted by that House on April 8, 1981; and no amendments may be moved to such amendments, but the Leader of the Opposition may, immediately after the said motion of the Leader of the Government, move any amendment to the said motion for an Address; and both the amendments of the Leader of the Government and the amendment of the Leader of the Opposition may be debated at the same time but without further amendment.

5. Every question necessary to dispose of any amendments moved by the Leader of the Government or by the Leader of the Opposition in the Senate or the motion in amendment by the Honourable Senator Yuzyk, if it is still before the Senate, shall be put, in that order, no later than 12.00 noon on Friday, April 24, 1981.

6. There shall be no debate after April 24, 1981, on the said motion until a day named by the Leader of the Government in the Senate pursuant to the following paragraph of this Order.

7. After the Supreme Court of Canada has rendered a decision on the appeals concerning the opinion of the Manitoba Court of Appeal rendered on February 3, 1981, and on the opinion of the Newfoundland Court of Appeal rendered on March 31, 1981, on the questions put to the said Courts concerning the amendment of the Constitution of Canada, and a Minister of the Crown in the House of Commons has designated the final two days for debate in that House pursuant to paragraphs 5 and 6 of the Special Order adopted by that House on April 8, 1981, the Leader of the Government and the Leader of the Opposition in the Senate shall consult and thereafter the Leader of the Government may, by rising in his place and informing the Senate thereof, name two days on which the said motion shall be debated by the Senate pursuant to the understanding that the Senate shall not vote on the motion until after it has been voted upon in the House of Commons.

8. At 6.00 p.m. on the second day named by the Leader of the Government pursuant to the preceding paragraph of this Order, the Speaker shall interrupt any proceedings and, without further debate, put every question necessary to dispose of the said motion. No Senator shall rise to speak after this hour, and all such questions as must be decided in order to comply with this Order shall be decided forthwith before the Senate adjourns.

9. The provisions of this Order shall prevail notwithstanding any rule or practice of the Senate to the contrary.

10. Nothing in this Order shall be considered to affect in any manner or to any degree the separation of the legislative and judicial powers, a fundamental principle of our Constitution.

Hon. David Walker: Honourable senators, may I ask a question with regard to the reply of the deputy leader? If the Supreme Court brings in a judgment dismissing the appeal or making a finding that the whole matter is illegal, why would two days be necessary for discussion? The whole matter is functus.

Senator Frith: Perhaps I did not explain this clearly enough yesterday, honourable senators. When Senator Walker pointed out this problem yesterday, I said it was my understanding that the order in the House of Commons and the order here do not provide for automatic debate for two days, or for any time, after the decision of the Supreme Court. That is the flexibility we are trying to maintain in the order. In other words, once the court has made its decision, the provisions of the order in the other place and the order here are that two days may be named. Of course, if the court decides totally against the proposal, as I said last night, it is very doubtful that those two days will be named.

[Translation]

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I agree with the Deputy Leader of the Government. We are dealing here with quite an exceptional and unusual situation, one which will not recur very often, at least I hope not.

Up until an agreement had been reached in the other place concerning the disposition of the resolution for a Joint Address to Her Majesty the Queen to amend the Constitution of Canada, discussions had been held here between the Leader of the Government and the Leader of the Opposition on the manner in which to deal with this resolution.

We agreed that two things had to be agreed to. First, that the Senate would not come to a decision before the House of Commons; second, the duration of the Senate debate after the Commons’ decision. On that point, we had come to some agreement which was not finalized but which was accepted by both sides.

The recent settlement reached in the Commons has changed our perspective. Now it has been suggested to us in the other place, as we usually call it, that agreement should apply to us as well.

I will not deny that that is the view of the official opposition in the other place. I know for a fact that it is the firm conviction of the government. But I must admit that the Leader of the Opposition in the House told me that we should implicitly comply with the conditions agreed to in the other place to dispose of this resolution.

[Page 2307]

Of course, I must say right away that we on this side of the house had not given any mandate to that effect. Legally we do not consider that we are so bound, but perhaps to a certain extent we consider that we are morally bound.

I wanted to clarify that aspect.

There are two things we find hard to swallow here: the fact that we have bound, if you like, all senators by this agreement whereby only the Leader of the Government and only the Leader of the Opposition may propose changes or amendments to the resolution. In the case of senators who sit here as independent members, Senator Molson, Senator Manning, Senator Lawson and perhaps even Senator Cameron, and we could even add honourable senators who sit in this house as Liberals but who do not agree with the government resolution, I do not believe it is very fair to them that they not be allowed to propose changes or amendments to the resolution.

If they agree it is up to them to say so. But I do not think that we on this side, the official opposition, like you on the government side, can force that silence or that restriction upon those senators. I would even go as far as to say that it cannot be forced upon some honourable senators on this side of the House who have already expressed their views about certain amendments they would like to see made to the resolution, amendments which the parties are not necessarily prepared to move as such. That is the first element.

As to the second element, we had agreed that there would be no obligation, that we would not be bound by the changes or amendments proposed in the House.

I will never agree to say that I, on behalf of the opposition or in any other capacity, cannot propose changes or amendments which differ from those made in the other place. Can you imagine the Senate saying: “We renounce in advance our right to change in any way whatsoever the amendments which come to us from the House of Commons”?

In this respect the Leader of the Government and his deputy had agreed that we would not be bound. In principle we do not agree, but should the house decide that that is the way we must proceed, I do not want that on either side we be bound by texts debated in the other place.

Those are the essential points. There were a few diverging opinions about the text, perhaps Senator Macquarrie did notice them as well, including at the top of page vii the fact that the Leader of the Government may propose “amendments”, but that the Leader of the Opposition may propose “an amendment”. Obviously, this is a grammatical mistake, but I believe that the plural should be used both for the Leader of the Government and for the Leader of the Opposition.

Now, with respect to paragraph 7 as amended by the deputy leader of the government, it provides that the two days designated to deal with the main motion as amended-this will be after the Supreme Court has given its ruling, of course, and only if the Supreme Court rules that it is legal-will be set by the Leader of the Government in consultation with the Leader of the Opposition. I would like the Leader of the Government to confirm at this time that he will not compel the Senate to debate the motion while the House of Commons is debating it, because due to the way the motion is written, it could be debated simultaneously and it could be decided that the House of Commons would vote at 6 o’clock and the Senate would then be required to vote at 8 o’clock.

The motion says:

[English]

—pursuant to the understanding that the Senate shall not vote on the motion until after it has been voted upon in the House of Commons.

Technically, you could set the two days and determine that the two days in the House of Commons would end at 6 o’clock and that the two days in the Senate would end at 10 o’clock on the same date—that is, p.m., for the information of Senator Benidickson.

At this point I should certainly like the Leader of the Government to confirm that those two days will follow the two days in the House of Commons; that they will not be simultaneous. Frankly, I do not see what the government would gain by saving a day or saving a few hours. Depending on the decision of the Supreme Court of Canada, it may be that, after all, we will only need one day.

I would be satisfied if the Leader of the Government told me that he would not insist on setting a day which would be the same as one of the days provided for in the other place. It may be that the Leader of the Government will wish to reply to that later.

Finally, I have a few comments, which I make more or less with tongue in cheek, respecting paragraph 10, to which the Deputy Leader of the Government has just alluded:

Nothing in this Order shall be considered to affect in any manner or to any degree the separation of the legislative and judicial powers, a fundamental principle of our Constitution.

Why have you included that in the text? How, with an order like this one, can we affect the fundamental principle of the separation of the legislative and judicial powers?

I noticed that the Prime Minister was quite amazed in the other place after the decision of the Newfoundland Court of Appeal was handed down. Probably he is in better humour today as a result of the decision of the Quebec Court of Appeal. The score is seven to six, now, in favour of the government.

Senator Perrault: They are in the third period.

Senator Frith: It only takes one goal to win the Stanley Cup.

Senator Flynn: We are not in the third period. The third period will be the Supreme Court of Canada.

Senator Perrault: No, that’s overtime.

Senator Flynn: No, no; there is no overtime there, I can assure you. Indeed, I wonder if we should not call it comment, dit-on, hors concours?

Senator Roblin: How about an exhibition game?

[Page 2308]

Senator Connolly: Maybe that would be the play-offs.

Senator Flynn: Yes.

The Prime Minister, as I say, was a bit amazed last week. This is what he was saying:

Madam Speaker, it is basic to our system that three judges, five judges, or nine judges cannot tell us what is right. We are elected by the people. We are answerable to the people.

Of course. Nobody has ever suggested that a court could issue an injunction against Parliament. That has never been done. It could not be done. The Prime Minister, however, should realize that in a federal state the courts do have the last word concerning the ability of levels of legislature, federal or provincial, to enact certain provisions. The judges of the Supreme Court of Newfoundland did not tell Parliament, “You cannot do it.” They said it was illegal. But Parliament continued to do it. The Prime Minister could have been even more stubborn than he has been up to now. He could have said, “I will not wait for the decision of the Supreme Court of Canada.” It was his decision to make. I think, when he decided that he would wait until after the Supreme Court of Canada had decided whether or not this resolution was legal, he showed that on occasion he can be reasonable.

This is not ordinary legislation. In the normal course of events, when we deal with a particular bill about which there is some doubt as to its legality, Parliament is not necessarily stopped by anyone going to the court and asking to have the legislation declared invalid. In fact, an individual could not ask the courts to make a decision on a bill that had not been passed. However, the provinces are in a different situation, in that they can have a reference to the appeal courts of the provinces and eventually to the Supreme Court of Canada. The same applies to the federal government.

On a previous occasion, at the suggestion of Senator Lamontagne, who was the joint chairman of the joint parliamentary committee dealing with Bill C-60, Prime Minister Trudeau referred to the Supreme Court those provisions of the bill dealing with the abolition of the Senate and its replacement by a House of the Federation. Senator Lamontagne had suggested it would be safe for the government to refer those provisions to the Supreme Court. Mr. Trudeau decided to go to the Supreme Court, and was told by the Supreme Court that it could not abolish the Senate and replace it by a House of the Federation under the provisions of Bill C-60.

I do not see why we should get excited about what is taking place now. In doing what he is doing now, the Prime Minister is simply being prudent. Moreover, he is simply helping Parliament to make a proper decision.

If this matter is ultra vires, then one must consider whether to support or oppose the resolution, to vote “yes” or to vote “no”. I am very happy that we came to the conclusion that a final decision would not be made by the House of Commons or the Senate until the Supreme Court of Canada had ruled on the matter. As far as I am concerned, it is not necessary at all for Parliament, the House of Commons or the Senate, to look into the amendments with which we may be dealing, both in the house and the Senate, next week. There is no amendment that would have any bearing on the constitutionality of the resolution. Of course, it is a device to save face, and all sides were called upon to make certain concessions.

However, by accepting this agreement, we have imposed on this chamber rules of debate which are not normal and which are perhaps unfair. But we must go along with the agreement, and perhaps we on this side have a moral obligation not to call a vote. If it is the wish of the majority, we will let it go on division, but I am very unhappy that the Senate would adopt such an order and that we have agreed to deal with this matter in this way.

My only consolation is, once again, that the Prime Minister has recognized—though he would not admit it publicly and though he tries to cover his position on this resolution in that last silly paragraph—that in a federal state such as Canada the Supreme Court of Canada is the final arbiter between the two levels of government, and that in the Parliament of Canada the House of Commons and the Senate will not be called upon to make a final decision before the Supreme Court of Canada has ruled on the legality of the resolution.

Hon. Senators: Hear, hear.

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, I have listened with great interest to the views of the Leader of the Opposition. He has made reference to the fact that this is an extraordinary situation, and, indeed, it is. The motion before us reflects to a very great extent the rather historic agreement achieved by the national party leaders a few days ago. I wonder whether there have been any other times in the history of our country when such an accord has been achieved.

The Right Honourable the Prime Minister, the Leader of the Official Opposition and the Leader of the New Democratic Party have agreed on a procedure which they have urged upon their followers for the passage of this particular order of the house through Parliament. I say “through Parliament” because the leaders of the parties really gave a commitment, as was confirmed by the Leader of the Opposition in the Senate today, with respect to the type of actions they would expect and hope for from their followers in both the House of Commons and the Senate.

Before the unanimous agreement, the debate in the other place had been a very rancorous one. I must say, honourable senators, that the Senate can take pride in the fact that more than one editorial observer has stated that the quality of the debate in this chamber during this constitutional discussion has been of a high standard—better, some have written, than the debate in the other place. I was particularly interested in the views of one of Canada’s leading columnists who wrote the other day that, while he very much regretted having to write it, the quality of the Senate debate on the Constitution has been outstanding. This is to the credit of all those who have participated in this discussion, whether they sit in opposition or

[Page 2309]

on the government side. Certainly, a great deal of credit goes to the senators who served on the Special Joint Committee of the Senate and the House of Commons on the Constitution because their work was of an excellent quality.

For the past six months this country has debated the proposals on the Constitution. The discussion, which has gone on for considerably longer than six months, has been at times difficult, heated and rancorous. So it was that parliamentarians of both houses and, I suspect, most of the Canadian people, welcomed the agreement which was announced by the three parties a few days ago. The other place has achieved agreement on certain matters. The first one is that no final vote on the resolution will take place until the views of the Supreme Court of Canada are made known. I am sure that honourable senators will agree that that is a good idea. I realize that, in its first stages, it was perhaps advanced by the opposition, which points out the value, once again, of having an opposition in our parliamentary system. It is one of the values which flow from debate which goes forward in this and other chambers.

The parties in the other place have agreed that all amendments will be dealt with in the form of omnibus amendments to be tabled next Tuesday. It is my understanding that the omnibus group of amendments will be presented by the opposition parties by 6 o’clock next Tuesday, and that at 10 o’clock on that day the government amending proposals, if any, will be made known. Also, there has been an unprecedented agreement on the part of our national leaders that a three-day debate will take place in the House of Commons with all questions relating to amendments put on Thursday evening, April 23. The agreement came as a surprise to many who had assumed that we had a parliamentary impasse and that parliamentarians could not get together to work out an accord. Perhaps the agreement demonstrates again one of the strengths of the system. If there is one thing we have discovered, it is that the parliamentary system works best through good will and co-operation.

Senator Frith: And at times it is unwilling co-operation.

Senator Perrault: Of course, there are times when the parties must be accommodating, flexible and patient. We have had a good relationship with the official opposition in the Senate. Despite the contrary views expressed from time to time, we have had an excellent working relationship with opposition senators during the entire debate on the Constitution in this chamber. After six months of debate and discussion in committee, in this chamber, and in the other place, it is obvious that a parliamentary consensus has been developed to make provision for the orderly disposition of the resolution on the Constitution and, perhaps, the Constitution issue itself.

The procedural approach is unique, in that members of the other place—after their leaders had spoken out and had also spoken to us—by a free vote, unanimously endorsed the agreement reached by the leadership of our national parties We are not calling for unanimity in this chamber The Leader of the Opposition has expressed his viewpoint and he has said that perhaps on division, this proposal can proceed.

Because of the key role of the Supreme Court of Canada in this new procedural equation, we recognize that a significant time factor exists. Yesterday in this chamber I made this comment, as it is reported at page 2288 of Debates of the Senate:

On April 7, 1981, pursuant to a hearing before the Chief Justice of Canada, and attended by the lawyers for the Attorney General of Canada, and the Attorneys General of the provinces, concerning administrative arrangements, it was ordered that the appeals from the judgments of the Manitoba and Newfoundland Courts of Appeal be heard together on April 28, 1981. The former appeal was initiated, as honourable senators know, by the Government of Manitoba, and the latter by the Government of Canada.

As the judgment in the matter now before the Quebec Court of Appeal has not been rendered, the question is hypothetical.

Of course, we now know the decision.

Later on I was asked a question by the Leader of the Opposition and by Senator Smith concerning the reference to the Supreme Court of Canada. Honourable senators, the view of the Government of Canada is that the Supreme Court will undoubtedly wish its decision to be relevant to the prevailing circumstances at the time of its hearing of the Manitoba and Newfoundland appeals, and would not want to find itself in the same circumstances as those objected to by the Chief Justice of the Manitoba Court of Appeal, namely, deciding on a hypothetical case. Thus, it is the view of the government that the Supreme Court will want to take into account the developments which the Attorney General of Canada will file before the court, as previously mentioned.

As earlier reported, the Attorney General of Canada will file in court the resolution as tabled in the House of Commons and the Senate on February 13, 1981, as well as any amendments passed by both houses before April 28.

This is the government’s position with respect to the importance of having the Supreme Court apprised of the view of Parliament before the court begins its deliberations on April 28.

I believe that parliamentarians of all parties have come to a recognition of the importance of this date of April 28. We have now achieved agreement on the importance of the views of the court. Parliament’s decision next week will most certainly assist the court in its deliberations.

Honourable senators, our purpose here is to implement an all-party agreement to place the subject matter of the motion for a Joint Address before the Supreme Court, and not to have a final vote on it until the Supreme Court has rendered its decision.

I do not intend to say more. The facts have been set out. There has been a long and productive negotiation with members of the official opposition. They have made a number of suggestions about the improvement of this house order without

[Page 2310]

demanding or receiving any unreasonable condition from the government, and we, for our part, have acted in the same manner. I hope honourable senators will support this house order so that, hopefully, during the coming week, we can move on to the next phase which will be a conscientious consideration of the amendments presented, not only by the opposition but also by the government.

Senator Flynn: Would the leader, if possible, reply to my question concerning the two days after a decision has been rendered by the Supreme Court?

Senator Perrault: I thank Senator Flynn for reminding me. I had intended to answer his question with respect to what might well be a final two-day debate—and it could be less, Senator Walker, if the court rules adversely. I think Senator Walker is quite right in his suggestion. The view is that, perhaps, it would be better to leave that matter as flexible as possible. It would be our intention to work out an agreement with the official opposition on this point. It may be that, in the light of developments, it will require more or less time, but we would want to achieve an accord with the official opposition on this point without engraving on bronze or etching in stone a position now that may be quite inflexible in the light of events.

Hon. Hartland de M. Molson: Honourable senators, I have not the least intention of adding anything to what has been said so well in this chamber, but Senator Flynn did mention my name and that of Senator Manning.

Of course, this reminds me that, as an independent, I have no part of any agreements that have been made between the house leaders here, in the other place or anywhere else. I believe the same situation applies to Senator Manning and, perhaps, others in this chamber. Honourable senators will know that for some time I have been flogging the horse that when, in the course of time, an individual arrives in this august chamber he should forget his party duty to always vote as he is told, and that he should vote only for what is best for Canada, regardless of what whips or house leaders may say. I realize that I am on a losing wicket in that regard because I do not find general agreement.

When we talk about agreements between leaders and agreements between whips to either do things or not, I cannot resist the temptation to say that that does not apply to any senator who, in his own good judgment, chooses to go his own way and say his piece, as he wishes, in dealing with the main motion or the amendments. He should vote in any way he chooses. He is appointed to this chamber not to be the voice of the party, but to be the voice of some part of Canada, and he should vote with that in mind.

At times I have found it very disturbing—and, perhaps, I am not alone-that there is such subservience, and a great sense of gratitude, to the party leader who appointed the lady or the gentleman to this chamber. I view the matter quite differently. When we are appointed to this chamber, we are called upon to do a job and the outlines of that job are made clear to us. While we may feel honoured and pleased that we have been selected for the appointment, I do not think we should go around for the rest of our lives bowing and saying how grateful we are to somebody who was good enough to give us this nice job. If that is what the Senate is, I don’t like it. I do not really want to be part of that. kind of setup. When an issue concerning the whole country comes up, as I said before, the only duty we have here is to vote as we think the whole country would like to see that issue resolved.

With regard to this particular matter of the moment concerning procedure, I should like to mention that, in the many years I have been in the Senate, one of the qualities of the Senate which has always impressed me is the great courtesy exhibited by the leaders, the Speakers and fellow senators to all other members of this chamber. In this case, I must say that the Deputy Leader of the Government was good enough to speak to me yesterday. He told me that he had spoken with Senator Manning and had received his agreement, and he asked me how I felt about this situation. Honourable senators, we all know that he did not have to ask me; it was just plain courtesy, good manners, and a very appropriate way of dealing with a member of this chamber.

I informed him that I felt the proposal was a good one, and that it was the right way to proceed. I also told him that I had, over the last period of time, spoken to the Leader of the Opposition, and that I felt that he wanted to see a rational settlement of the method of handling the matter but that I had, certainly, no impression whatsoever that he wanted to obstruct or delay the rational passage of this measure. I also told him that, under the circumstances, particularly if Senator Manning is of the same frame of mind—since he is the only one I know of who has declared his position—then I would be perfectly happy to go along with it.

I repeat that I appreciate the way in which the Deputy Leader of the Government has acted in this regard, and I appreciate the fact that the Leader of the Opposition has given me a chance—in fact, I think he forced me—to make some remarks.

[Translation]

Hon. Fernand-E. Leblanc: Honourable senators, I would like to obtain further clarification regarding a technical aspect of the motion before us this afternoon. In paragraphs 1 and 5, reference is made to Friday, April 24, 1981 between 10.00 a.m. and 12.00 noon. In paragraph 5 reference is made to—

Senator Frith: Excuse me, which paragraphs are you talking about?

Senator Leblanc: Paragraphs I and 5. Reference is made to the Friday sitting from 10.00 a.m. to 12.00 noon. In paragraph 5 the same reference is made, namely a sitting from 10.00 a.m. to 12.00 noon.

Yet in the explanations provided yesterday by the Deputy Leader of the Government we were told that the Senate would then sit on Friday, April 24, from 10.00 a.m. to 1.00 p.m. And again this afternoon you also said that we would sit until 1.00 p.m., since you were made to specify whether it would be a.m. or p.m. So I would like to know whether it is the text of the

[Page 2311]

motion itself that says up to 12.00 noon or the explanations which say up to 1.00 p.m.

Senator Frith: That is not necessarily so. The idea was to spend the time between 10.00 a.m. and 12.00 noon debating the amendments. And at 12.00 noon we would proceed with the vote, the question being put to the Senate. Reference was only made to 1.00 p.m. specifically to indicate that it is expected that at that time we will be ready to adjourn. this does not necessarily mean that we must keep on sitting here if our work is over with before 1.00 p.m.

Senator Leblanc: Well, it may be clear in your mind but it was not that clear in mine. It actually states in paragraph I of your motion:

The debate on the said motion and any amendments proposed thereto as herein provided, shall be adjourned to Thursday, April 23, 1981, and may be debated—

The debate will then proceed.

—between 2.00 p.m. and 6.00 p.m. and between 8.00 p.m. and 10.00 p.m., and on Friday, April 24, 1981—

The debate will then proceed, as it implied.

—between 10.00 a.m. and 12.00 noon.

So this means that the debate will come to an end but that the Senate will not necessarily adjourn.

Senator Frith: No. The idea is for the debate to proceed. That is to say that the debate will go on between the hours of 2.00 p.m. and 6.00 p.m. and between 8.00 p.m. and 10.00 p.m. Not necessarily from 8.00 p.m. to l0.00 p.m. but between these two hours. And then on Friday, April 24, 1981 between 10.00 p.m. and 12.00 noon. At 12.00 noon the question will be put and it is then expected that we will go on until 1.00 p.m.

I can tell you that the first draft of the motion did not use the words “between” but rather did set specific times. This is why finally we insisted on using the words “between” in order to get some flexibility and be able to carry the debate between the specified hours provided for in the time frame.

Senator Flynn: I think I could explain that we had initially agreed that the Senate would sit Friday morning from 10.00 a.m. to 1.00 p.m., with the questions being put at 12.00 noon. That is what led to the confusion I believe. When we say from 10.00 a.m. to noon, some seem to think that the sitting would adjourn at noon. That is not so and we have to keep on sitting so that the question can be put. I do not know who changed—

Senator Lamontagne: We were just talking about the debate.

Senator Flynn: Yes, I understand. If we had said that the Senate would be sitting from 10.00 a.m. to 1.00 p.m. as agreed, we would not have had all this confusion. It is not serious but this is how it must be understood.

Senator Frith: It should also be mentioned that paragraph 5 provides that every question shall be put no later than noon on Friday, or more specifially:

—shall be put, in that order, no later than 12.00 noon

I understand that if I speak now I will close the debate

Senator Flynn: Not necessarily.

The Hon. the Speaker: You have not yet introduced the motion.

[English]

Senator Frith: I agree it is not necessary for me to speak but, in my view, it is desirable for me to mention three things. The first point touches on the reason for the two days. The understanding that Senator Flynn and I finally reached was that we would leave ourselves flexible to go anywhere from House of Commons—as they would say in NASA—plus two, plus one and a half, plus one or whatever, and we would have certain overlapping if we decided we wanted it.

Secondly, I want to thank Senator Molson for the comments he made. If I may strike a small blow for those of us who do have party affiliation in this chamber, I have never felt I voted with the party out of unending gratitude for the fact that party had appointed me, but, rather, because I declared what party I wanted to have affiliation with.

Senator Walker: You were doing so well.

Senator Frith: I am saying this, not on my own behalf, but I hope that all senators feel, notwithstanding any party affiliation, that in the final analysis they are always free to vote as they choose to, and we have seen evidence of that independence during this debate.

My final point is to make some comments on paragraph 10. I understand—

Senator Flynn: You would not leave it there.

Senator Frith: As Senator Flynn says, I would not leave it there, and I do not want to leave it there because his view is that it is a silly paragraph, and I can understand why, on its surface, it would create that impression. The reason for paragraph 10’s dealing with the assertion that the order is not to be taken as a precedent for suspending the separation-of-powers principle is as follows—and I admit it is not a fully satisfactory way to express it.

First, I accept what Senator Flynn says, that in a federal system, on the question of division of powers, there is no question that the court has the final say. What is unique in this situation is that an essentially political decision has found its way into the courts, and the result has been-and this is probably best expressed in the I7th century, I believe it is the I682 Bill of Rights—that there is an important principle of division of powers—

Senator Roblin: 1688.

Senator Frith: Whatever it is. The principle, in any event, is that there is a separation and an important separation in our system—

Senator Flynn: I have never doubted that.

Senator Frith:—between the executive, legislative and judicial, and that the legislature is not formally, and ought not to be subject to the judicial in the exercise of its legislative

[Page 2312]

functions. It is the result of its legislative functions that are subject to the courts’ decision, of course. That is the whole body of constitutional law.

The reason that was put in is that if this were taken as a precedent in this sense, namely, that apart from the ability of a provincial government to refer its legislation, if it wishes to do so, to its Court of Appeal, or the federal government, if it wishes to do so, to refer its legislation to the Supreme Court of Canada, other governments or, particularly, individuals would be able to prevent Parliament from functioning, and then we could have outrageous and totally undesirable consequences. An individual could stop Parliament—

Senator Flynn: Nobody could stop it.

Senator Roblin: No.

Senator Frith:—from considering, and this is how it would work. I understand the point of view taken on the other side.

Let me explain from my personal experience. Before I came to the Senate, I was retained to attempt to change Parliament’s intention to pass Bill C-58 on Time, Reader’s Digest and border broadcasting. I had some grave doubts and prepared a full brief as to the legal deficiencies of that legislation, in addition to its political deficiencies. Tax legislation was being used to produce other results, and it was not really tax legislation. Under the law, as it stood before Parliament considered the question, my client was operating at considerable profit. I am talking about purely practical consequences. If, in that situation, I had been able to bring an action or apply to 10 courts, because there was an aspect of this that was provincial—

Senator Flynn: You were not.

Senator Frith: Just a minute. If I had had a precedent like this, and if I had been in a position to say to the courts—I may not have succeeded in all of them—that Parliament was in the midst of a political decision which had been taken before the courts and the decision was rendered that Parliament should not continue its debate because a court had pronounced it illegal, my position, as counsel for my client, could have been as follows: I will launch all of those 10 actions, and hope that the opposition will keep the thing alive until out of all of those courts I get one judge who says it is illegal—

Senator Flynn: No.

Senator Frith: Then I provide that ammunition to the opposition, so that the opposition would be in the position of saying, as was said here, “A court has declared this to be illegal, and therefore Parliament should not continue.”

Senator Flynn: No.

Senator Frith: “No” is not the answer.

Senator Flynn: “No” is the answer.

Senator Frith: It is your answer. Let me finish my point. I do not expect it to be agreed to. Those are the reasons why we felt something should be said. The only difference is that I understand the position taken by Senator Flynn, that the court has the final decision in a federal system. He is not able to see any merit in my point, but there it is. That is the reason why, in my view—

Senator Flynn: The difference is that in your case it was an individual, and he could not take action before Parliament had made a decision, whereas here we have the process of reference by a provincial government, which is entirely different. You would not have been able to reach first base with your action. That is why you did not take it.

Senator Frith: Honourable senators, I want to get this on the record. I do not expect it to be agreed to.

Senator Flynn: If I were you, I wouldn’t put it on the record.

Senator Frith: But you are not me, and I shall put it on the record.

Hon. Douglas D. Everett: May I ask the honourable senator a question? I am sorry to intervene, but it was also my understanding that an individual could not make a reference to the court; that it was only a government that could do so, and that, in fact, an action had to be brought on the subject of an act. It is not within the competence of an individual to make a reference to the court.

Senator Frith: That is precisely the point. That is exactly the point, because in this case the provincial legislature referred federal legislation, and the reason why we put in clause 10 was simply to say that we did not want anyone to think that it creates a precedent for anything different from exactly what Sentor Everett has said. That is the reason why it is put there. I am not putting it there in the hope that everyone will stand and cheer and agree with it. I am simply saying that it was not put there totally without purpose.

Senator Perrault: Question.

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Frith, seconded by the Honourable Senator Lamontagne, P.C.—

Hon. Senators: Dispense.

The Hon. the Speaker: Honourable senators, is it your pleasure to adopt the motion?

Senator Flynn: On division.

Motion, as modified, agreed to, on division.