Canada, Senate Debates, “Motion for Delay of Debate on Resolution for an Address to Her Majesty the Queen Negatived”, 32nd Parl, 1st Sess (18 February 1981)

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Date: 1981-02-18
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1758-1767.
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SENATE DEBATES — February 18, 1981

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The Senate resumed from yesterday the debate on the motion of Senator Flynn that the Senate do not consider approval of the report of the Special Joint Committee on the Constitution, or the resolution based on that report, before the House of Commons has disposed of them.

Hon. G. I. Smith: Honourable senators, I should thank my friends opposite for the very warm welcome with which they greeted me when I rose. I trust they will be in as good humour when I finish. I expect to be gentle and persuasive, as usual; therefore, I look forward to their continuing warmth and support.

I rise to support the motion which my leader so ably moved and discussed yesterday. To me, it simply makes good sense and is in line with the long-standing custom and practice of the Senate.

At this point I should like to turn for a moment to the speech Senator Manning made last night. In his usual very sensible way, he suggested a compromise. As I understood him, the compromise he put forward is that this chamber should give the debate in the other place a lead time of two or three weeks before we begin here. Perhaps I will have a little more to say about that point before I finish. Senator Manning made the suggestion, as I understood him, because it seemed

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to him that the government had already made a decision in favour of concurrent debate and they might not be easily persuaded to change it. Senator Manning has had more experience than I have had with the Leader of the Government and his colleagues, and it may therefore be that he is justified in his somewhat pessimistic view of the degree to which they are receptive to sound argument and good reason. However, as I have heard the Leader of the Government say about himself so often, I am an optimist. I would therefore like to give the Leader of the Government and his colleagues an opportunity to yield to good sense and accept my leader’s motion. With your forbearance, honourable senators, I will now offer that opportunity.

As to the precedents relative to this particular matter, Senator Flynn and Senator Asselin put them on the record very clearly yesterday, and there is no need for me to repeat them. Those precedents, I submit, show without exception that constitutional addresses have been debated in the other place first and in the Senate only after debate in the other place has finished. This is and has been the practice so far as I can recall, which is only a few years, of course; and I find, by looking at the authorities, that it has been the practice with all matters except those first introduced in the Senate. ln the latter case, of course, the other place does not take such matters into consideration unless and until the Senate has completed its debate and has sent a message saying so and praying for concurrence.

I submit, honourable senators, that the practice as between the two houses has always been sequential debate and not concurrent debate. The reason for this practice, this custom, this usage is, I believe, simple and sensible, for until one house has finished its consideration the other house does not know what it is being asked to deal with, or, indeed, whether there is anything to deal with at all. The house in which the motion is first discussed may pass it without amendment or with some amendment, great or small, or may not pass it at all. If the motion is not passed at all, there is nothing for the other house to debate, and any time spent in concurrent debate is simply wasted. If the motion is passed with amendment, the amendment may be such as to do away with or improve the subject of debate in the other house, and again time spent in debating that matter will have been wasted.

Assuming, as in this constitutional matter, that the motion or legislation is the proposal by the government, the second house—which, in this case, is the Senate—will not know what the government is prepared to accept until the first house—in this case, the Commons—has finished with the matter. I note that the Leader of the Government did not dispute the precedents named by my leader and by Senator Asselin; he did not cite any precedents to the contrary, so far as I can note. I think, then, that we are all entitled, indeed, bound to accept that the precedents mentioned by my leader and Senator Asselin show clearly what this chamber has considered the proper custom and usage to be followed.

The weight which should be given to such customs and usages is clearly set out in the first rule of the Rules of the Senate of Canada, which I am sure every senator is familiar with. Rule 1 reads:

In all cases not provided for in these rules, the customs, usages, forms and proceedings of either House of the Parliament ofCanada shall, so far as is practicable, be followed in the Senate or in any committee thereof.

This rule, I submit, shows that without question the customs and usages of the Senate are to be followed, when there is no particular rule applicable, so far as is practicable. They are not lightly to be cast aside at the wish of a senator or a government. I point out, as I am sure everyone would agree, that customs and usages are those found in the available precedents showing what the action of the house has been in similar circumstances in the past. Here the precedents have been clearly put before the chamber, as I have said, and have not been disputed. I therefore submit that the motion of Senator Flynn is consistent with and is supported by rule 1. No reason has been given to indicate that the motion is not practicable. Therefore, it should be accepted, I submit, as required by rule 1.

There is also in our rule book Appendix II which is entitled, “Forms and Proceedings.” It begins at page 40 of the rule book with an index. lts substantive contents begin at page 41, and the very first sentence reads:

(This appendix is a general description of Senate practice and is included in this volume as a source of information on the customs, usages, forms and proceedings of the Senate referred to in Rule 1.)

I am not sure who composed this material, but I have checked back and it is in previous rule books, perhaps not in exactly the same way but certainly containing the same substance. I think we are entitled to assume that it would not have been included in our rule book by the Rules Committee unless it had been considered authoritative. I therefore think it is reasonable to refer to it and to consider it as authoritative.

At page 51 of the Rules of the Senate, under the heading “Messages between Houses,” the matter of relations between the two houses in respect of legislation is considered. An examination of this material shows that the matter of concurrent debate is not considered at all and that it is clear that the material is written on the assumption that a matter is introduced in and considered by one house, which, when it has finished its consideration, sends a message to the other house telling that other house what it has done and asking that other house to concur in it. There is no provision for concurrent consideration, but there is set out what happens when one house does not concur in what the other has already done. That will be found at page 53.

So, again I say that the customs and usages of the Senate are based on consideration by one house, followed by a message from that house to the other informing the other of what it has done and asking concurrence therein. It is only on receipt of that message that debate in the other house begins. That is what the present motion asks.

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Again, I say that the Leader of the Government in the Senate does not dispute the precedents and what they show have been the customs and usages of the Senate. Being unable to dispute them, however, he endeavours to distract attention from the weight that should be given to them by saying that in the case of one such precedent—that of 1960, particularly on the dates June 14, July 13 and July 29—concurrent debates might—and I emphasize that, as I followed him, “might” was all that he could say—concurrent debates might have been simpler than the sequential debates, although I believe he fell far short of establishing even that “might have been” was a fair proposition.

I wish to say, first, however, that there are more precedents than those of 1960, and they are all to be found in the remarks of the two senators I have mentioned. ln any event, when the line of precedents establishes certain customs and usages, that line is no less persuasive because in one of them it “might” have been easier not to follow the precedents.

The Leader of the Government referred to one of the traditional and established roles of the Senate as being the body of sober second thought. He acknowledged the acceptance and the importance of this role. He then went on to make what, to me, was the extraordinary and illogical argument that, although this role was important in most things, it should not apply in this, the most important matter that has come before us for many years, or perhaps that has ever come before us. ln effect, he was saying, it seems to me and I submit to honourable senators, that sober second thought is good in ordinary matters but it has no place in the most important matter.

Then, as I followed him, he argued that sequential debate would be time consuming butthat concurrent debate would be time efficient. But how would concurrent debate be time efficient? Certainly, the other place will not debate either more or less because its debate is concurrent with ours. lt will proceed at its own pace in any event and regardless of the procedure we adopt. 1t is true that sequential debate is likely to cause a longer lapse of time between the beginning of debate in the other place and its completion here, but while we would be debating it here, the other place would have finished and would be able to get on with such matters as the economy, unemployment and energy, just as quickly and effectively as if the debate had been concurrent.

I pause to ask myself, and I ask honourable senators: Why all this concern with total lapse of time anyway? The finished product, if there is one, will be no better or no worse, if it comes on one day as opposed to another. A number of explanations occur to me which might make the government feel that time is important, but in the interests of being gentle and persuasive I shall omit them so as not to arouse the ire of the honourable gentleman opposite who, of course, knows what they are anyway, having heard them many times.

Honourable senators, I submit to you that the Leader of the Government has not given the Senate a single good reason why the motion should be defeated. What he has given us are excuses—and perhaps if I were not disposed to be gentle I would describe those excuses—for a decision already made.

Let me ask who or what will be the next victim, if the government gets its way now and pays no attention to customs and usages? Nobody knows, because nobody knows when the next time will be that somebody or something will get in the government’s way.

I would, therefore, prefer to ask honourable senators now to support the motion and uphold the customs and usages of the Senate. It may, however, be that the government would prefer Senator Manning’s suggested compromise.

Accordingly, in that frame of mind and with that object in view, I move, seconded by Senator Molson:

That the motion be amended by striking out all of the words after the word “report” in the third line thereof and substituting the following therefor: “until the eleventh of March.”

The motion as amended would then read:

That the Senate do not consider approval of the report of the Special Joint Committee on the Constitution, or the resolution based on that report, until the eleventh of March.

If I may say so, as anyone can easily calculate by referral to the date, that is a period of three weeks from today.

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Flynn, P.C., seconded by the Honourable Senator Macdonald:

That the Senate do not consider approval of the report of the Special Joint Committee on the Constitution, or the resolution based on that report, before the House of Commons has disposed of them.

In amendment, it is moved by the Honourable Senator Smith, seconded by the Honourable Senator Molson:

That the motion be amended by striking out all of the words after the word “report” in the third line thereofand substituting the following therefor: “until the eleventh of March.”

The motion as amended would then read:

That the Senate do not consider approval of the report of the Special Joint Committee on the Consitution, or the resolution based on that report, until the eleventh of March.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Hartland de M. Molson: Honourable senators, I fully realize the situation with regard to this resolution. I know the government’s commitment. We all understand that. I understand, therefore, that the government party members are anxious to have this resolution passed by this chamber.

I also understand, in this world of politics, why the opposition party does not agree with that particular move. I think both positions are quite understandable, quite justifiable and quite proper.

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The suggestion by Senator Manning that there be a period of delay—I believe he called it ,”a little lead time”—to enable the Commons to get on with the matter, makes good sense from every point of view. While it may not suit the political wishes of either party, I believe it is a very wise suggestion from the point of view of the Senate, the value of debate, and the good of the country in finding its new Constitution.

For that reason, I take great pleasure in seconding the motion in amendment. of Senator Smith.

Hon. Douglas D. Everett: Honourable senators, I find myself in a difficult position because of the high respect which I have for those who support both the amendment and the motion. I suppose I would like to support the amendment, for it is a very reasonable compromise between the two positions.

As to the motion itself, if I understand the argument correctly, the opposition is invoking precedent, custom and usage in order to establish the fact that we should deal with this matter in a sequential way. I will not attempt to argue the legality of that situation; I leave that to others.

However, to deal with the essence of the matter, it seems to me that we in this chamber constantly find ourselves reacting to actions taken by others. Senator Smith suggested that we find out, first of all, the government’s thoughts on the matter. I believe another argument was, “Let us see where the other place stands on this issue.” One of the things which I enjoyed very much in the past was the very strong attempt that was made to have bills introduced in the Senate and then considered by the House of Commons. When I first came to this house, that was the case with a number of bills.

I remember the introduction of the bill which changed our coinage and the bill which created the National Museums Corporation, both of which were introduced in the Senate and subsequently sent to the House of Commons. I believe that the use of this procedure has diminished over the last few years. There are still bills introduced in the Senate, but not as many, and they are not as important. I would like to see a much greater workload placed on the Senate as a consequence of the introduction of government bills here.

We have been given an opportunity to consider this bill without having to decide what the Commons thinks or says. Usage aside, that seems to me to be a very valuable possibility. We should take advantage of it.

While I have great respect for Senator Manning and the compromise suggested by the amendment, I do believe it is more important to grasp the fact that we have an opportunity to consider the bill as the Senate, to decide what we want to see in it, and not react to either what the government wants or what we perceive the government wants or what the House of Commons wants or what we perceive the House of Commons wants. For that reason—not because of usage, custom or precedent, but the valid ground that this is an opportunity for the Senate—I will vote against the amendment, and I will vote against the motion.

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I can understand the argument made by Senator Everett, but we are not faced with the same type of situation. The Senate is not considering a bill which originated in this place. This situation is quite different. It is a matter which is vital to the future of Canada. The essence of a Constitution is that there be a consensus. Of course, if by accident, the House of Commons were to say, “No”, then it would be stupid on our part to have said “Yes” in advance.

In any event, the problem is now with the amendment. The question is whether we should delay consideration of the resolution until it has been disposed of by the other place, or whether we should delay consideration until March 11, which is the substance of the amendment moved by Senator Smith following Senator Manning’s lead.

As far as I am concerned, if the suggestion contained in the amendment is more acceptable to the government leader and the majority in this place, I have no objection to the adoption of the amendment as opposed to my motion. That is the point I want to make at this time.

Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, I shall speak first on the amendment, although some of my observations in that regard will apply equally to the motion. I intervene on both points, by saying, first, that I believe all senators share some of the concerns that lie behind both the motion and the amendment. I know I do. In order to explain why I say that, it is important to consider three basic steps. We are talking about the introduction of the resolution in each house, pursuit of the debate in each house and the disposition of the resolution in each house.

In this instance the first stage is a fact. The introduction is, in effect, taking place in both houses at virtually the same time. Of course, there is plenty of precedent to support the introduction of the resolution in both houses simultaneously. It began in 1940. Before that time there was no precedent for the introduction of a resolution in the two places at the same time, as Senator Smith, Senator Asselin and Senator Flynn have pointed out. Following 1940 it was the vogue, for a period of approximately 20 years, to introduce such matters simultaneously. On none of those cases did the second stage—namely, the debate-take place at the same time; nor did the disposition take place at exactly the same time, although in many cases it was very close-a matter of 24 hours in some cases.

The motion refers to stages 2 and 3. lt says that we should not debate the matter until these stages have all been completed in the other place. The concern that we all share—and I may be corrected if I am wrong, but I have paid attention to all of the interventions—is disposal of the matter much sooner than it is disposed of in the other place.

The motion talks about our not debating the matter until after its disposition in the other place. The amendment talks about giving the House of Commons some lead time. In my respectful submission, honourable senators, the difference between the amendment and the motion is not a difference in

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kind but simply a difference in degree because they both deal with stage two. Both the motion, stating that we should not debate at all until after disposition in the other place, and the amendment, stating that we should delay the debate for a certain period, really deal with the debate portion.

It is at that point that there is some difference, in my opinion, between the views of the opposition, the views of the government party and, perhaps, the views of individual senators.

I share the concerns that I detected in the interventions of Senators Flynn, Asselin and Smith on the question of our disposing of this matter too soon before it is disposed of in the other place. The sequential aspect of having the Senate dispose of the matter after it is disposed of in the other place is a principle that I found persuasive as it was expressed by the three honourable senators I have just mentioned.

On the question of debate, it seems to me, for the reasons advanced by Senators Everett and Perrault, that there is no need for, and no advantage to be gained by, delaying the debate on a matter which has received the extensive pre-study this matter has. We should take our due time with the debate. But I feel that we should start the debate now, and that we should talk later about the sequence of disposition as distinct from the sequence of the debate.

For those reasons, honourable senators, I will vote against both the motion in amendment and the main motion, but I ask honourable senators’ leave to add a comment or two later about the motion itself, although many of the observations 1 have made relate equally to it. I do want to add two or three detailed points supporting the essence of Senator Flynn’s intervention when it relates to the motion itself.

Hon. Allister Grosart: Would the honourable senator accept a question before he moves away from the amendment?

Senator Frith: Yes, certainly.

Senator Grosart: Would the Leader of the Government or his deputy be prepared, at this time, to give the Senate an undertaking that the government will not seek to complete the disposition stage in the Senate before a similar stage is completed in the other place?

Senator Frith: Honourable senators, the only information I can give on that point is to repeat my concern and my own view that the preferable sequence is for the House of Commons to dispose of it before the Senate does. I would add that I am already discussing that matter with the Leader of the Opposition, and I hope we will be able to settle the matter.

I thank Senator Grosart for the question because I do want to say that I hope no honourable senator will take the result of the vote on this motion or the amendment, should they both be defeated, as an indication that we are not interested in talking about setting up a reasonable program for debate, giving ample time and working towards the principle raised by Senator Grosart, namely, a disposition, as distinct from debate, more in conformity with the tradition of the Senate having the last word.

Senator Grosart: It seems tome, honourable senators, that the deputy leader has not completely understood the reason for the opposition on this side to the procedure suggested by the government. He has stressed that we are thinking only of the problem of debating, at the same time as the House of Commons, this same question, without taking into consideration what would seem to me to be an essential matter, and that is, what will happen if, in the other place, an amendment is suggested by the Opposition or another member and the amendment is accepted? Will that be communicated immediately to the Senate? In the course of a debate, will the Senate be informed that, because of something that has happened simultaneously and concurrently in the House of Commons, the government in the Senate, as opposed to the government in the House of Commons, is prepared to change the whole course of debate? The possibility of that happening seems to me to be a very good reason for postponing the debate stage here.

I might indicate some other similar types of problem. Perhaps the government will give an answer to an objection raised in the other place, and, under our rules, as I understand them, we cannot quote the statement made in the other place. This. of course, is another reason for what has, been called the “precedent” for not having in this type of situation, concurrent debates.

Senator Everett made another point, but it seemed to me that he was, at more than one stage of his argument, still confused by the fact that we are not dealing with a “bill.” On two occasions he referred to the matter before us as a “bill,” when, of course, it is not a bill. That is not just a semantic observation because it is an essential part of the difference in the approach we take. Of course, there would be nothing objectionable at all—in fact, much would be desirable—if more bills were introduced and debated here in the first place.

However, I can foresee other examples of confusion which may arise as a result of simultaneous debate. I would, therefore, support the amendment at this time for that reason and because this is one of the rare occasions when an important amendment from the opposition has been supported by the other two parties in the Senate, the “Manning party” and the “Molson party,” neither of which can properly be said to be in opposition. ln other words, here we have all three parties on this side of the house urging the government to reconsider. I am not so concerned with the precedents because precedents here have come to be like our rules—we do not pay much attention to them unless someone wants to argue them, particularly on the government side, for a particular reason, at which time we are given quotations from long out-of-date sections of Beauchesne.

I would urge the government to reconsider this on the grounds of common sense. Surely if you look at the situation that can develop, it makes the kind of common sense that Senator Manning suggested to delay the debate. because it seems obvious—again, as Senator Manning pointed out—that there are far more members likely to want to speak on this in the House of Commons than there are in this chamber. Why

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would we, therefore, put ourselves in the ridiculous position of having the government send us messages to slow up or keep it going? We do not want to get into the absurd position of having completed the debate in the Senate and then the Leader of the Government or his deputy saying, “Now, I did indicate that it made a lot of sense for us not to dispose of this before the House of Commons did; therefore, let us sit and wait. For two or three weeks we will do nothing. We will pretend we still have the matter before us and that we are still debating it.” We will be going on day after day adjourning the debate in someone’s name.

What would be the position if, on this side, there was a feeling on the part of an individual senator, or more than one senator, that going slow might make sense?

When a senator on this side adjourns the debate and says that he is not prepared to go ahead with it for a week or so, will the government say that he cannot hold the adjournment—that precedent or custom will not be honoured? Is that going to be the situation?

I raise these matters because they seem to indicate the common sense of the government’s taking into consideration at least, and preferably undertaking to accept, the motion that now has the support of three of the four parties represented in this chamber.

Senator Frith: Honourable senators, I have already intervened on this subject once, so I am not entitled to speak on it again. However, I want to say that some of the points raised by Senator Grosart I should like to deal with in a short intervention on the motion itself. On the question of the government’s acceptance of amendments, perhaps the Leader of the Government wishes to say something apropos what was mentioned by the honourable senator.

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, the motion moved by the Leader of the Opposition, and the suggestion made by Senator Manning yesterday, which was accepted by the Leader of the Opposition, have been considered carefully by the government.

May I say that many honourable senators believe that there is real merit in having, first of all, an opportunity given to senators to participate now—not later—in the constitutional debate. lt is one of the most important matters ever to come before the Parliament of Canada. Many senators would find it unthinkable and unacceptable to be asked to wait until March 10 to register their views about the constitutional future of Canada, and I think to impose such a delay would place an unfair and unjust restriction on senators.

1 know that there are many honourable senators who are eager to put on the record of Parliament their views on the subject of the Constitution and patriation. They want to do it now, so that their ideas can be considered properly by the other place and by the country.

Senator Asselin: Name them.

Senator Perrault: I do not believe that the other place should be the sole repository of wisdom and proper judgment with respect to the constitutional future of our nation.

Senator Asselin: Name them.

Senator Perrault: I believe that those senators who wish to participate at the outset of this debate about the future of their country should have that opportunity.

Secondly, honourable senators, I see merit in the proposal that the Senate should not rush to finish its debate on the constitutional proposals under a time schedule which is totally unrelated to the events taking place in the other place.

Senator Asselin: Table a list of your speakers.

Senator Perrault: Yes, honourable senators, and I happen to believe that if good ideas for amendment are originated in this place, they could merit action by us to suggest amendment. lf the two chambers are debating concurrently, such an amending proposal could go to the other place and be discussed there and considered for adoption.

So, if the question is whether it is reasonable to hope that we can finish our debate at approximately the same time, or some brief time after the House of Commons, if one believes that there should be an extra margin of Senate debating time in order to permit the well-accepted idea of sober second thought, then I find that that could be a supportable argument. I would hope that we could negotiate with the official opposition and that we could discuss various aspects of the debate in which we will be engaged shortly.

I do not think that the two ideas are incompatible. I think there is a basic understanding in this chamber about what we would like to do with respect to this constitutional package. However, there is a difference of viewpoint about when the debate should begin. I think that difference stems from the views expressed by the Leader of the Opposition, as well as from those expressed by Senators Grosart and Smith. We all have respect for their judgment. However, I think our views differ as to when senators should be permitted to discuss this constitutional package.

Surely, there is a substantial difference between—and I mentioned this yesterday—the ordinary process, which sees a bill which may relate to ports and harbours, or grasshopper control—a bill which may have been studied and passed by the other place and then sent to us so that we could analyze it, refer it to committee, and so forth—and this matter. We are looking at a package of proposals which have been studied in a more detailed fashion than perhaps any other body of constitutional recommendations in the history of Canada. The joint committee has spent hours and weeks on this. For example, Senator Roblin has put in many hours of parliamentary overtime and a great deal of work to bring his views before that committee. Also, Senators Hays, Austin, Lamontagne and Connolly have worked diligently on this matter. lndeed, over 50 senators have participated in the preparation of this report.

Senator Asselin: Did you say Senator Hays?

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Senator Perrault: This package has been studied by many members of this chamber already and they are familiar with it in great detail. Many members of this chamber are eager to get on with the debate. We are not asking that a vote be held within 10 days, two weeks or three weeks. However, I think a persuasive argument can be made so that we can proceed in concert with the members of the other place. We are not restricting the right of senators to speak, and we are not going to establish arbitrary time limits. I do not think we can tell any senator to wait until March 10 to say something on the subject of the Constitution.

This is why we find ourselves unable to support this amendment to the main motion.

Senator Molson: May I ask the Leader of the Government a question? He mentioned today, and I think yesterday, that by dealing with this matter at the same time as the other place, if there were some difference in the treatment of some of the matters contained in the resolution we could communicate with them. Unfortunately, there is no machinery that I know of and nothing in the Rules of the Senate which would permit us to do that.

If we were to debate it at the same time and if we could communicate with them, I believe that would be helpful. However, there is no machinery in our rules or in the rules of the Commons which will permit us to do that.

Senator Perrault: First of all, there is always the informal consultative process. Secondly, if the government decides to accept a proposal, which is acceptable to members of the government in both houses, it is much easier to advance that proposal. The government has not rejected the idea of change. This has been said many times.

Senator Asselin: Mr. Chrétien said there would be none.

Senator Perrault: If there is an amendment of merit which comes from the House of Commons or from the Senate, that amendment is going to be considered.

Senator Asselin: Who said that?

Senator Perrault: If the House of Commons were to finish its debate ahead of the Senate, and if it accepted the constitutional package, or accepted it with amendments, and the Senate made amendments to the package different from those made by the House of Commons, then the debate in the House of Commons would have to be re-opened, rescheduled, and the rescinding process would be difficult and complicated.

It seems to me that the proposal to have approximately concurrent debates in both the Senate and the House of Commons meets the utmost test of parliamentary democracy.

As I stated earlier, I think it is unfair to ask honourable senators to stay out of this parliamentary debating process until March 10, March 15 or whatever date, while members of the other place, with an equal background in the study of the constitutional package because of their committee participation, are given a free opportunity to debate.

Senator Grosart: Honourable senators, I should like to ask the Leader of the Government the question that I asked his deputy. In the spirit of good feeling, which he suggested was his approach—it is certainly ours in this matter—would he now give us an assurance that the government in the Senate will not seek to bring this matter to a conclusion before a message has been received from the House of Commons?

Senator Perrault: Honourable senators, I support that principle. However, I would like to discuss it with the Leader of the Opposition to determine whether or not a consensus can be reached. The arguments which I have advanced fully support thatidea.

Hon. Edward M. Lawson: Honourable senators, I am impressed by the views my honourable friend, Senator Grosart, has expressed, particularly when he points out that this amendment has the support of the leaders of the other two parties on this side—Senator Manning’s and Senator Molson’s.

Senator Flynn: We forgot about you.

Senator Lawson: Notwithstanding that, I am in favour of anything that will advance this debate as quickly as possible. While I accept the view of the Leader of the Government with respect to the importance of the debate to the future of Canada, I am in favour of having it completed quickly, but in sufficient detail, so that we can deal with the economic matters facing us and thus assure a future for Canada. Notwithstanding the high regard I have for Senator Molson, Senator Flynn and the leaders of the other party on this side, as a member of the fourth party I am opposed to anything that will delay the debate, and will vote against the amendment.


Hon. Arthur Tremblay: Just for clarification purposes, I should like to ask the government leader a question concerning amendments because he gave us a very long explanation on the most productive way to propose amendments if the discussions were held simultaneously in both houses. Are the amendments to which he referred, amendments to the proposed resolution which came out of the committee, or are they amendments to the proposed resolution which is included, by itself, I believe, in the Orders of the Day under the heading “Motions”? Something bothers me in this regard. As concerns the committee, which the Leader of the Government congratulated for its very elaborate and careful work, I have noted one thing, namely that the report of the committee, that is the proposed resolution referred back by the committee, is not exactly the same as the proposed resolution which the Leader of the Government presented to the Senate.

I have noted an important difference between the report of the committee and the motion introduced in the name of the Leader of the Government. This point concerns the title of the measure to be laid before the British Parliament, which is “An act to amend the Constitution of Canada” in the committee report

In the proposed resolution presented by the Leader of the Government, the title is “An act to give effect to a request by the Senate and House of Commons of Canada”. There is an

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obvious difference of contents in the two titles given to the legislation on which this whole operation hinges. Are we to consider that an amendment has been made according to the report of the committee? Is this how we are to consider the matter? Can we hold a debate here on whether the title should be more substantial to be in accordance with the report of the committee? All these are questions that I would like the Leader of the Government to clarify as concerns the principle of moving amendments and the procedure to follow, because, in fact, a de facto amendment has been made to the report of the committee compared to the motion which has been moved. This concerns the whole procedure for amendments and the question of what can be amended.


Senator Perrault: Honourable senators, my reference to an amendment was in anticipation of a possible decision in this chamber or in the other place which would in some way change the wording of the resolution or recommend certain changes be made in the measure which has been tabled in the two chambers. At this point in time the government does not anticipate proposing, of its own volition, an amendment or change, but the Prime Minister has said from the outset that the government would always be willing to at least consider amendments should they be required. As I stated a few moments ago, having the two houses debate this measure concurrently aids very much the process of amendment, should that be necessary.


Senator Tremblay: With your permission, I should like to ask a supplementary question, arising from the example I have just given. Could we be assured that between the committee report and the motion before us, there are no substantial amendments other than the one I have indicated? This is a very serious question, because I am under the impression that all those who are called upon to participate in this debate feel that this is the committee report, because the committee had recommended that the text of the resolution which the government would move be the same as that found in its own report. Considering that there is at least one difference which I have noted, could we be assured that no other substantial changes have been made? And in case there are, I ask why that one instead of others? If I ask this question, it is because most people think that we are dealing with the committee report, although I have found a difference between the motion before us and the one which would have strictly resulted from the committee report.


Senator Perrault: Honourable senators, the point is not directly relevant to the motion which is under debate, and I have nothing further to add to my previous remarks.

Hon. Joan Neiman: Honourable senators, having listened to the arguments put forward on this motion, I would like to add a few words. In my heart I cannot believe that the usefulness of the Senate and the good of the country would be advanced by supporting the motion of the Leader of the Opposition. We have before us a measure that has been debated in great detail and with great care by all members of Parliament in both houses for the last couple of months. We have now come to the final crunch, as it were, in this debate. In my view, I cannot see the point of waiting for the other side to make their amendments, and then we, afterwards, deciding what we are going to amend—if we are going to amend—and again waiting for the other house to consider our amendments. Surely we now have our own ideas as to amendments.

At the same time I think it is perfectly obvious that the opposition, as well as we on this side, will have consulted our colleagues in the other house and, in all probability, we will not advance amendments that are totally embarrassing to our party. Therefore, if the opposition is going to propose amendments, they should do so in consultation with their colleagues in the other house. My point is that if there are amendments we wish to make, we should make them now after consultation with our colleagues in the other house. There is no reason why we cannot do that.

I made a speech on the resolution that was proposed a few months ago in which I expressed a number of serious reservations. Happily for me, at least, a lot of my reservations have been resolved by the amendments with which the government has agreed, and which now appear in the present bill. 1f there are further amendments, both sides should be making them now in consultation with their colleagues. That is the responsible way of approaching this matter, so that we can get on with dealing with the final resolution. That will enable us all the sooner to deal with the other problems that are plaguing this country.

In my view, we in the Senate have really no justification for sitting for four, five or six weeks on this resolution. According to the views expressed in the other place, the opposition there would like at least that period of time to debate the resolution. Therefore, what justification have we to sit here waiting until the resolution has been dealt with in the other place, and then to play the record over again? I am sure we have our own ideas, our own points of view, to put forward. Therefore, let us get on with it; let us do it at the same time, work with our colleagues in the other place, and deal with the resolution satisfactorily.


Hon. Azellus Denis: Honourable senators, I wish to add one word only to say that, unfortunately, I shall be unable to support my friend Senator Flynn, or Senator Molson; because if I were to do so, we would, as a result, only extend the debate on the Constitution. Personally, I feel that the Canadian people have had more than enough of this constitutional talk: the sooner we get it over with, the better it will be for Canada. Either the proposed resolution will be rejected or accepted by the Queen; or, at a later date, it will be rejected by the Canadian people or the Supreme Court; so, the sooner we settle the matter, the better it will be. As for me, I should like, as Senator Asselin said, us to give it “a sober second thought”. At this point, we are on an equal footing with the House of

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Commons. What they know, we know. The pros and cons of the matter have been given and we are every bit as competent as the House of Commons to discuss the Constitution. For God’s sake let’s get it over with and put an end to the bickering in Canada. Let’s face it: there are as many Canadians for the package as there are against. Therefore,let us settle the matter as soon as possible; prolonging the debate is not getting us anywhere.

Senator Asselin: Just a moment. I don’t think that you would talk like that had clause 44 not been deleted in committee.

Senator Denis: What makes you say so?

Senator Asselin: We know what you were saying when clause 44 was part of the document.


The Hon. the Speaker: Order. We are discussing all kinds of things except the amendment. I must inform honourable senators that there is an amendment moved by Senator Smith, seconded by Senator Molson:

That the Senate do not consider approval of the report of the Special Joint Committee on the Constitution, or the resolution based on that report, until the eleventh of March.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion in amendment please say “yea”?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion in amendment please say “nay”?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the “nays” have it, and I declare the motion in amendment defeated, on division. We will now consider the main motion.

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, the motion in amendment was defeated on division. As to the main motion—

The Hon. the Speaker: I draw the attention of honourable senators to the fact that if the Honourable Senator Flynn speaks now his speech will have the effect of closing the debate.

Senator Flynn: I am sure that suits everyone.

Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, as I mentioned, I want to add a few supplementary comments with reference to the main motion.

The Leader of the Opposition, the mover of the motion, divided his observations into three categories of reasons why his motion should be supported. They were precedents, importance and strategy for the Senate. I consider that to be an excellent analysis, but we do not agree on their application. I agree with his analysis of the precedents. As I mentioned in my earlier observations, I believe it is accurate. However, in this case, we must recognize the fact that the precedents cited were themselves at one time not precedents, but became so because they dealt with unusual situations. We are dealing now with a most unusual situation which, in turn, brings me to my second point. I have nothing to add to what he said regarding the importance of this matter, but with regard to the strategy to be adopted by the Senate, my observations with reference to the amendment apply equally here.

I agree that there is an attractive argument for our working toward simultaneous, or even second, disposition of the motion by the Senate—that is, that the Senate should have the last word. The question of timing is something that I have already started to discuss with the Leader of the Opposition. I hope that we can come to an arrangement that will meet his requirements and those of his colleagues, and also the requirements and wishes of the government and its supporters, and that will not lead to extended hours in respect of meeting the undertaking or arrangement that we might be able to make. If we can reach some kind of agreement that will fulfil all the requirements for debate on this important issue, we might also be able to make some arrangements with regard to sitting normal hours and not extending the hours unless it is necessary to meet those objectives.

I wish to assure honourable senators that that is the objective of both the Leader of the Opposition and those on this side. I hope we can reach that objective, and I do not want the defeat of this motion, if it is defeated, to be construed as slamming the door on any of those initiatives.

Senator Flynn: Honourable senators, I agree with Senator Denis that many people on both sides of the issue are tired of discussing this matter. But that is not a valid reason for the Senate’s refusing to deal with this matter in the normal way. We should be discussing and disposing of this motion only after the House of Commons has decided upon it. If the House rejected the resolution in principle—and that is always possible—that would be the end of it, and we would not have the problem of discussing it. I do not mind Senator Neiman”s expressing her views on the question right away, but it would be rather useless if a message were not to come to us from the other place asking us to concur in the resolution.

However, I must acknowledge that what the Deputy Leader of the Government has said is very reasonable if we set aside the principle I am defending with this motion. Therefore, I want a recorded vote to be taken on this motion because there is a principle involved, and I believe the Senate should be made to take a position. If the Senate says no, I am quite sure that we will be able to agree upon an orderly manner in which to discuss and dispose of this question.

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Flynn, P.C., seconded by the Honourable Senator Macdonald, that the Senate do not consider approval of the report of the Special Joint Committee on the

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Constitution, or the resolution based on that report, before the House of Commons has disposed of them.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say “yea”?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say “nay”?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the “nays” have it.

And two honourable senators having risen.”

The Hon. the Speaker: Please call in the senators.

Motion of Senator Flynn negatived on the following division:






van Roggen

The Hon. the Speaker: I declare the motion defeated.

The Senate adjourned until tomorrow at 2 p.m.

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