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Date: 1981-04-14
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2280-2283.
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SENATE DEBATES — April 14, 1981

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THE CONSTITUTION

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

Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, April 15, I shall 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.
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 Oppositon 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 of 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

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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.

Honourable senators, the purpose of this motion is to implement in the Senate the all-party agreement that Parliament should not vote on the motion for a Joint Address until the Supreme Court of Canada has ruled on its constitutional acceptability—a condition, honourable senators will remember, that was insisted upon by many honourable senators during the debate in this place. That is the main purpose.

Next, I wish to explain the key elements of the all-party agreement that was reached a couple of weeks ago. The first element is that the Supreme Court should have before it the form of the resolution to be voted upon in its finally amended form after the court’s ruling; and the second is that the time for debate and vote on that resolution, as so amended, be agreed upon and fixed by order.

Next, the procedural corollaries to the purpose, and to those key elements, are as follows: In the House of Commons the foregoing historic agreement found expression in a unanimous house order that meant an end to amendments except omnibus amendments proposed on behalf of each party by the party’s house leader. Each member of the House of Commons, for this exceptional occasion, subordinated his or her individual right to propose amendments to the right of his or her party to do so; so that he or she had to work out his or her individual wishes in the party caucus for eventual expression in the house by the party leadership.

The second procedural corollary to that all-party agreement finds its expression in the Senate, in the motion for a Senate order, notice of which I am giving now, under rule 45(1)(a), (h) and (i).

Honourable senators, the motion is meant to reflect in the Senate the order unanimously accepted in the House of Commons on the recommendation of the leadership of the three parties. The wording of the motion has been discussed over a period of days with the leadership of the opposition in this house, and the government leadership and the opposition leadership have agreed that this is, and should be clearly considered as, a very exceptional order, in order to meet very exceptional circumstances.

Beyond that I do not speak for the opposition leadership, who will speak for themselves tomorrow, along with any other honourable senators who may have discussed it in their caucuses, and who may wish to participate in the debate when the motion is called tomorrow.

The exact wording of the motion will appear in both languages in today’s Debates of the Senate, which we hope to have on honourable senators’ desks in their offices as early as possible tomorrow.

We hope to debate the motion and to have the question put tomorrow afternoon. If it is disposed of then, we propose—and part of this appears in the proposed order in the motion—to honourable senators that we sit as follows: tomorrow, Wednesday, April 15, from 2 p.m. to 6 p.m., in the hope that the question will be put on this motion before adjournment. We would then adjourn at 6 o’clock tomorrow afternoon, or before if we are through with our business, until Thursday, April 23, when we shall sit from 2 p.m. to 6 p.m., and from 8 p.m. to 10 p.m. On Friday, April 24, we shall sit from 10 a.m. until 1 p.m., and the question will be put on any motions in amendment no later than noon on that. day. That will be approximately half a day after the House of Common disposes of their amendment to the resolution, because their house order requires disposition on the Thursday.

It is then proposed, honourable senators, at 1 p.m. on Friday, April 24, to adjourn until Tuesday, May 19, at 8 p.m. That will be one week after the date to which we believe the House of Commons will adjourn. I believe that on Thursday, April 23, the House of Commons will adjourn until Tuesday, May 12. According to my present information, we will not have enough business from them to justify our sitting the three days that week, and, therefore, unless something changes, we will propose to honourable senators that our adjournment on Friday, April 24, will be to Tuesday, May 19, at 8 p.m.

Honourable senators, I shall not read every word of the motion. Essentially, the first paragraph sets aside those two days next week for dealing with the motion. The second paragraph provides that in this chamber, as in the other place, 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.

The third provision is that the question on the amendment to the motion moved by Senator Yuzyk on March 26, 1981, not be put, except as herein provided—and we provide for that; that the order to resume the debate be called at 10 o’clock in the forenoon on Friday and, at that time, the Leader of the Government in the Senate be given an opportunity to propose to the Senate a motion in the wording adopted by the other place on the previous day. We will then proceed to have the

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Leader of the Opposition propose any amendments in an omnibus form. Those amendments may be debated at the same time but without further amendment.

Every question necessary to dispose of any amendments moved by the Leader of the Government or the Leader of the Opposition in the Senate, and the motion by Senator Yuzyk, if it is still before the Senate, will then put in that order no later than noon on Friday, as I explained. The debate will then be adjourned until after the decision of the Supreme Court of Canada, after which the leadership will name a date, following consultation, for the final two days of debate in the Senate.

Honourable senators, that is the background for this notice of motion, and those are the key provisions of the motion. I do not want to delay you further. I certainly did not mean to enter into a debate on the subject, but merely wanted to assure you that the exact wording will be available tomorrow in both languages. There will be an opportunity to caucus on the subject and to debate it tomorrow afternoon, in the hope that we can both debate the question and put it in the form of an order as to how to deal with the motion for a Joint Address.

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I wish to confirm the discussions that have taken place since last week between the leadership of the government and the leadership on this side of the chamber. I confirm that the intention of the government is to have an agreement here that will reflect the agreement made in the House of Commons, but I also wish to confirm that we have not necessarily agreed to what is being proposed in this motion and that we reserve our right to contest the proposal, at least in principle, if not in practice.

I would like to suggest a revision to what the deputy leader said about the resumption of the debate once the Supreme Court of Canada has ruled on the legality of the constitutional package. My understanding is that the Senate will deal with the resolution, if it comes back alive, if it survives the Supreme Court of Canada, only after the House of Commons has dealt with it in accordance with the order passed there-that is, after two days. I draw the attention of the deputy leader to the fact that our order should provide that we have two days after the House of Commons has made a decision on the resolution, not after the Supreme Court has made a decision. I say this because it is provided in the order in the other place that the debate there will be resumed after the decision of the Supreme Court, but here it will be resumed only after the House of Commons has disposed of the resolution. I think that a correction should be made so that we do not commence the debate tomorrow.

I think another small change should be made in the text of paragraph 4, which says that the order to resume the debate on the main motion shall be called at 10 a.m. on Friday, April 24. Since we have already said that we would deal with it on Thursday from 2 o’clock to 6 o’clock in the afternoon and from 6 o’clock ot 10 o’clock in the evening, paragraph 4 should begin: “When the order to resume the debate is called at 10.00 a.m. on Friday. . .”

This having been said, with the proposal duly corrected and placed on the order paper tomorrow, honourable senators will be able to assess exactly what is proposed, the position of the government, and, with the reservations that we have made, the position of the opposition.

Senator Frith: Honourable senators, I think I should put on the record that I agree that, to make sense grammatically, the addition of the word “when”is appropriate.

Senator Flynn: Also the suggestion regarding the House of Commons.

Senator Frith: As to the other question, when I was commenting on the background I pointed out that we were using the wording that was used in the other place—that is, after the Supreme Court decision—but that the naming of the date here would be done after consultation with the opposition. Of course, I would like to put on the record that we have an understanding with Senator Flynn that there will be an allotment of time after the debate in the House of Commons. Therefore, we can either rely on what I am saying on the record, or we can make the correction Senator Flynn is suggesting, and I will discuss that with him.

Senator Flynn: I think my correction would be more logical because it could come at the same time.

Senator Frith: The only reason I put it the other way is that I would like to be free, if it seemed appropriate, to persuade Senator Flynn that we should have two days named, but that we might arrange to do it in such a way that, for example, we only had one day after their day; that is all.

Senator Flynn: You want to be able to announce it two days before the House of Commons has made the decision. Is that it?

Senator Frith: I want to be free, if I have information on when the House of Commons’ two days will take place, to do so.

Senator Flynn: If that is the only problem, we will give you leave, after due explanation.

Senator Frith: It is all on the record.

Hon. David Walker: Honourable senators, I think my friend is somewhat confused. He suggests that after the Supreme Court has rendered its decision, and not until then, the motion for the Joint Address will be put. Is that not what you said?

Senator Frith: Since we are trying to reflect the all-party agreement that has been made, the provision in the order of the House of Commons is that after the Supreme Court has made its decision, the government house leader will name two days for debate. After that, the vote will be taken.

Senator Walker: I thought you said that; I did not misunderstand you. Thank you.

Under the circumstances, if the Supreme Court renders a decision that the whole matter is ultra vires, surely there can be no more debate on it. Why would you then vote on a motion which has already been declared by the Supreme Court of

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Canada to be ultra vires? There is a 90 per cent chance that that will be the decision of the Supreme Court of Canada, with 50 years of precedents behind it.

Senator Frith: Honourable senators, if I may divide the question into two parts, and deal with the second part first, I do not want to lay odds. I suppose everyone is entitled to his own opinion as to whether that chance is 90 per cent or 10 per cent. In any event, to consider the first part of the question, I believe that that is why the party leadership in the other place did not say that the motion would be put on the order paper; that it would be debated and voted on after the decision of the Supreme Court. What was said is that the leadership would have a right to choose the two days.

It is pretty well understood that if the ruling of the Supreme Court of Canada is adverse those days will probably not be named.

Senator Walker: I am glad you cleared that up, because you had said the opposite.

Hon. John M. Godfrey: Honourable senators, I should like to direct a question to the deputy leader. I happen to be one of those who believe that the real work of the Senate is done in committees. If, as I understand, it is the intention that the Senate adjourn until May 19, I have no objection to that, assuming there is nothing for us to do in this chamber. However, there is a lot of work to be done in committees in the meantime. With that in mind, what arrangements will be made with respect to committees? I certainly hope the fact that the Senate will not be sitting will not affect the sitting of committees.

Senator Frith: Honourable senators, in my brief period as deputy leader I have come to realize that the conflict between committee work and chamber work is a constant problem. One must always take into account the work of committees when one considers the adjournment of the Senate. I believe it is an implicit understanding that when the Senate adjourns the committees will not normally sit. I am not sure that should be the rule. In any event, to answer your question directly with respect to the arrangements that will be made to allow for committees to sit during the week of May 11, if the Senate is not sitting then, all the necessary arrangements will be made.