Document Information

Date: 1981-04-14
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2288-2289.
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SENATE DEBATES — April 14, 1981

[Page 2288]

THE CONSTITUTION

MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN— REFERENCE TO SUPREME COURT OF CANADA

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, Senator Flynn asked a question on April 9 about references to the Supreme Court of Canada concerning amendment of the Constitution. In particular, he sought clarification on whether the appeals from the judgments of the Manitoba Court of Appeal and the Newfoundland Court of Appeal would be heard together. He also asked whether the decision of the Quebec Court of Appeal, if it is rendered before the hearing of those other appeals, will be taken into consideration at that time, and whether the Government of Canada intends to submit any further questions for consideration as well.

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.

The case before the court is on appeal from decisions in Manitoba and Newfoundland. It is not a federal reference to the Supreme Court. Therefore the Attorney General of Canada is not asking questions of the Supreme Court.

The Attorney General of Canada will file in court the resolution as tabled in the House of Commons on February 13, 1981, as well as any amendments passed by Parliament before April 28.

Of course, information concerning the decision of the Quebec Court of Appeal, which was expected today, will certainly be brought to the Senate immediately.

Senator Donahoe: You got the Quebec decision yesterday.

Senator Perrault: Well, I have not received a copy.

Hon. Jacques Flynn (Leader of the Opposition): The Leader of the Government has said that the resolution, with the amendments that would be voted by both houses of Parliament, would be put before the Supreme Court.

Senator Perrault: Yes.

Senator Flynn: But in what context? Are we asking the court to rule on this resolution? Are we doing anything about this move of putting the text of the resolution before the Supreme Court? It seems to me that if you say we are restricted to the questions put by the Governments of Manitoba and Newfoundland to their respective appeal courts, tabling the resolution, as amended, before the Supreme Court would have no meaning unless we ask the Supreme Court to rule on its validity.

Senator Perrault: Honourable senators, I do not wish to give a legal opinion. I have read the statement by the government. I may say to the honourable senator who commented a moment ago about the decision of the Quebec courts that I have before me a memorandum dated April 14, which is today. It says that in the event the decision of the Quebec Court of Appeal is rendered today, they would inform my office before 8 p.m. I have not as yet received any official communication. On the memorandum there is today’s date.

Senator Flynn: I sec. I would appreciate clarification, if it is possible, on what is the meaning of the presentation to the Court of the resolution, as amended or otherwise, by the two houses of Parliament.

Senator Perrault: Honourable senators, I will take that as notice. I do not want to provide information beyond the information I have received from the Minister of Justice at this time.

Hon. Allister Grosart: Did I understand the Leader of the Government to say that the resolution that would be presented to the Supreme Court was the resolution as passed by the House of Commons, with no reference to the resolution as passed by the Senate?

[Page 2289]

Senator Perrault: it makes reference to Parliament.

Senator Grosart: Would you read it?

Senator Perrault: Yes.

The Attorney General of Canada will file in Court the Resolution as tabled in the House of Commons—

I may say, honourable senators, that this reply obviously was prepared originally for the House of Commons.

Senator Grosart: That is exactly my point.

Senator Perrault: Yes, the words “and the Senate” are here:

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 amendment passed by Parliament before April 28.

Senator Grosart: Do I understand that the Leader of the Government has now added the words “as passed by the Senate” to the official statement that he was reading?

Senator Perrault: It talks in terms of the amendments passed by Parliament, and also in terms of the resolution tabled in the House of Commons on February 13. I think the words “and Senate” should be added to the previous part of the sentence, in view of the fact that it was also tabled in the Senate. It is a valid point.

Hon. G. I. Smith: Honourable senators, while I appreciate the fact that the Leader of the Government docs not wish to answer any legal questions, perhaps he could find out the answer to the following. It arises out of the comment of the Leader of the Opposition. It seems to me, as a lawyer, but not a constitutional lawyer, that if the two appeals, to which the Leader of the Government has referred, comprise the subject matter that is before the Court, then those appeals must be decided on matters as they were when the decisions appealed from were decided; and it is completely irrelevant what the House of Commons or the Senate, or Parliament as a whole, may have said after those decisions were rendered, unless there is some other question being put before the Supreme Court.

Senator Perrrault: Honourable senators, the point is understood on this side. The question will be taken as notice and perhaps a more detailed explanation will be available tomorrow.