Proceedings of the Special Senate Committee on the Constitution, 30th Parliament, 3rd Sess, No 4 (10 August 1978)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 4 (10 August 1978).
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Thirtieth Parliament, 1977-78
SENATE OF CANADA
Proceedings of the Special
Senate Committee on the
The Honourable R.J. STANBURY
Thursday, August 10, 1978
Issue No. 4
(See back cover)
SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION
The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman
The Honourable Senators:
Connolly (Ottawa West)
Fournier (de Lanaudière)
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, Wednesday, June 28, 1978:
“The Honourable Senator Connolly, P.C., moved, seconded by the Honourable Senator McIlraith, P.C.:
That a Special Committee of the Senate be appointed to consider and report upon the subject-matter of the Bill C-60, intituled: “An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”, in advance of the said Bill coming before the Senate, or any matter relating thereto;
That the Committee have power to engage the services of such counsel, staff and technical advisers and to incur such special expenses as may be necessary for the purpose of the inquiry; and
That the Committee have power to send for persons, papers and records, to examine witnesses, to print such papers and evidence from day to day as may be ordered by the Committee and to sit during adjournments of the Senate.
After debate, and—
The question being put on the motion, it was—
Resolved in the affirmative.”
Clerk of the Senate
MINUTES OF PROCEEDINGS
THURSDAY, AUGUST 10, 1978
Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:05 am., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Bourget, Connolly (Ottawa West), Forsey, Fournier (de Lanaudière), Godfrey, Grosart, Lafond, Marchand, Marshall, McElman, Rizzuto, Robichaud, Smith (Colchester), Stanbury and Williams. (18)
Present but not of the Committee: The Honourable Senators Denis, Greene, McIlraith, Neiman and Riel. (5)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
Mr. W. S. Tarnopolsky, Professor of Law, Osgoode Hall, York University.
The Committee resumed its consideration of the subject-matter of Bill C-60:
“An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”.
Professor Tarnopolsky made an opening statement and answered questions put to him by the Committee.
At 12:35 p.m., the Committee adjourned until 2:00 p.m. this day.
The Special Senate Committee on the Constitution met at 2:07 pm., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Connolly (Ottawa West), Forsey, Godfrey, Lafond, McElman, Rizzuto, Robichaud, Smith (Colchester), Stanbury and Williams. (13)
Present but not of the Committee: The Honourable Senators Denis, Greene, McIlraith, Neiman and Riel. (5)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
From the Department of Justice:
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services.
The Committee resumed its consideration of the subject-matter of Bill C-60.
Dr. Strayer made an opening statement.
The witnesses answered questions.
At 3:38 p.m., the Committee adjourned until 10:00 a.m., Wednesday, September 6, 1978.
Clerk of the Committee
Ottawa, Thursday, August 10, 1978
The Special Senate Committee on the Constitution met this day at 10 a.m. to consider the subject matter of Bill C-60, an act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment. of the Constitution with respect to certain other matters.
Senator Richard J. Stanbury (Chairman) in the Chair.
The Chairman: Honourable senators, the first thing I should do is deal with today’s program, because several senators have asked me when we might expect to adjourn this afternoon. During a discussion of this matter it was suggested that because we have already gone over the Charter of Rights and Freedoms with Mr. Cowling, and have spent quite a little time on it with Mr. Strayer, we might now be able to distil our questions to the point where we are able to complete Professor Tarnopolsky’s evidence this morning and return to Mr. Strayer for a short period this afternoon. Bearing in mind the travel plans of committee members, I think we will be able to conclude our business this afternoon at about 3.30, as we did last week. If that sounds reasonable, we will proceed on that basis and see if we can complete our questioning of Professor Tarnopolsky, by lunchtime.
Let me now introduce our witness this morning. He is Walter S. Tarnopolsky, Professor of Law, Osgoode Hall, York University, who is an internationally known authority on constitutional law, especially in the field of human rights and civil liberties.
Professor Tarnopolsky was born in Gronlid, Saskatchewan in 1932. After obtaining an undergraduate degree from the University of Saskatchewan, he received a master’s degree in history from Columbia University in New York City. He returned to the University of Saskatchewan to attend law school, and upon graduation because the first full-time president of what was then the Association of Canadian Students, He subsequently obtained a masters degree in law at the University of London, where he worked with Dr. Des Smith, who was one of the greatest experts in the English-speaking world in the field of constitutional administrative law.
Professor Tarnopolsky has taught at the universities of Saskatchewan, Ottawa and Windsor, and at Osgoode Hall. From 1968 to 1972 he was Dean of Law at the University of Windsor. He is currently Professor of Law at Osgoode Hall.
His book on the Canadian Bill of rights was first published in 1966, with a second edition in 1975. It is chiefly with respect to this book that his reputation has spread to other countries. Within Canada, he has contributed to an almost innumerable quantity of symposia and forums, as well as to all of the leading law journals in our country.
He was chairman of the 1973-74 Osgoode Hall Law School Annual Lectures Series, which had as its theme “Some Civil Liberties Issues of the Seventies.” During the past year he was appointed a part-time Commissioner on the Canadian Human Rights Commission. He is also a member of the United Nations Human Rights Committee, and he has just returned from five weeks of meetings with that committee in New York City. He is also the President of the Canadian Civil Liberties Association, having been just re-elected for a second term in that post.
Professor Tarnopolsky, we are delighted that you are willing and able to come to us, especially after just getting back from New York. We are hoping that you will be able to give us leadership in our consideration of the Canadian Charter of Rights and Freedoms, as proposed in Bill C-60, and in any other way you wish in the general area of our discussion of the reform of the Constitution. I now ask you to lead off and put the matter in your own context.
Professor W. S. Tarnopolsky, Professor of Law, Osgoode Hall, York University: Thank you very much for inviting me. It is a pleasure to have the opportunity at any stage of a constitutional debate to have some small participation it, and certainly at this stage it is important that the whole matter be considered.
Since I don’t know, until I hear your questions, exactly what you would like me to do, my intention is to deal with the proposed charter in three phases. The first would be the question of whether or not according to the proposal the charter would have overriding effect. The second would be the question of its scope, and the various rights and freedoms that it covers. The first, as I say, is its overriding effect, its constitutional position; second is the scope of its provisions-their possible mcanings—and I will finish off that second phase by dealing with the limitation clause, clause 25, of the proposed charter. In the third phase I will deal with remedies—what the courts can do with a bill of rights in respect of its enforcement, and at that stage I will deal more specifically with clause 24.
But very briefly I thought one of the things I might mention to start with is why today we have what has sometimes been referred to as a statutory bill of rights and sometimes referred to as a quasi—constitutional bill of rights. Why do we not have one in the BNA Act?
From what one can tell, the thinking at the time of the enactment of the Canadian Bill of Rights and its original proposal by the Diefenbaker government in 1958 to the time of its enactment in 1960, appears to be the following; Mr. Diefenbaker said that a bill of rights which would be binding both on the federal government and the provinces could not be enacted as part of the BNA Act without the consent of the provinces, and he did not think such consent could be quickly obtained. He did not want to wait, and therefore he proposed to go ahead with a bill of rights that would bind the federal government alone. I think that in retrospect he was probably right in saying that the government probably would not get quick consent from the provinces because, as you know, the Prime Minister, when he was the Minister of Justice in 1968,
proposed a new charter of human rights and after three years of debate, by the time of the Victoria Charter, the small subcommittee that was dealing with the fundamental rights was only able to agree on the rights that appeared in section 1 of the Victoria Charter, which are the ones dealing with the fundamental freedoms of speech, press, religion, assembly and association.
So I think the Diefenbaker government was right in presuming that they would not be able to get the consent of the provinces. So that is why the Bill of Rights applied to the federal sphere alone.
Now as to the question as to whether or not the Bill of Rights should have been made part of the BNA Act, the argument made by Mr. Fulton at the time and by Mr. Diefenbaker was that even if the U.K. Parliament were asked to include the proposed Bill of Rights, binding only Parliament, in the BNA Act, this would not entrench it any more than an ordinary statute of Parliament, because, and here they argued two things; one, in order to subsequently get the United Kingdom Parliament to again amend the Bill of Rights, which would be in the BNA, would require only the single joint resolution instead of going through the usual three readings in both houses, and so they said that in effect the Bill of Rights could be amended more swiftly, even though it would be in the BNA Act, by amendment of the UK. Parliament at the request of the Parliament of Canada.
The second thing that Mr. Fulton argued was that if the Bill of Rights were in the BNA Act, since the Bill of Rights would only bind Parliament, clearly under 91.1 of the BNA Act Parliament could at any time amend it as it can any part of the Constitution which deals only with the federal sphere of jurisdiction. And therefore again one does not achieve entrenchment.
I think there are arguments about these that one could raise, but I think today there is no point in going into them. What is really moe important is the question as to whether or not it would have made a great deal of difference, from the point of view of the overriding effect, if the Bill of Rights had been in the BNA Act even if that would not have changed the facility of changing it. I think that might have been an important step, and I am going to lead in now to the question of this overriding effect.
I think one of the things that one has to assert is that—as you know, Professor Lederman dealt with this yesterday and many of you have mentioned it on many occasions-our Constitution is not just the BNA Act. There are many statutes
of both the United Kingdom Parliament and the Canadian Parliament which are part of our Constitution. My argument has been, and I think to some extent Chief Justice Laskin accepts this, although I don’t think there is yet a complete majority of the Supreme Court to accept it, that the Canadian Bill of Rights, even although an ordinary statute of Parliament, is a constitutional statute in the same way as there are constitutional statutes dealing with the Speaker of the Senate and the Speaker of the House of Commons. There is a simple constitutional statute dealing with the Governor General Act and even, as you know, with the Supreme Court of Canada. These are all, in my opinion, constitutional statutes. They are all part of our Constitution and therefore since the Canadian Bill of Rights purports to deal with the powers of the institutions of government, it too is a constitutional act, even though it is a separate statute.
That, as I say, has never been decided or held by a majority of the Supreme Court of Canada. However, in 1970, in the famous Drybones case, which I am sure has been mentioned many times, the Supreme Court of Canada did hold that if in construing and applying a federal law the court could not construe that law consistently with the Canadian Bill of Rights, then unless that law contained the notwithstanding clause in the opening paragraph of section 2 of the Bill of Rights, the courts would have no alternative but to declare the law inoperative, and that is in effect what happened in the Drybones case. They found that section 94 of the Indian Act, as it was then, which dealt with Indians being drunk off a reserve, dealt with Drybanes in a fashion which was unequal before the law in comparison with anybody else in the Northwest Territories who was not an Indian, and therefore, since the only way to construe that statute was in a fashion inconsistent with the Canadian Bill of Rights, and since the Indian Act did not contain the notwithstanding clause in section 2, that provision was held inoperative.
Mr. Cowling: Section 94 of the Indian Act in the form in which it came before the Supreme Court in 1970 in effect was prior to the enactment of the Bill of Rights.
Professor Tarnopolsky: Yes, it was. I think its origin was sometime in the latter part of the nineteenth century, and it was brought forward through various revised statutes. So the question one asks then is: Does the Drybones decision give the Bill of Rights overriding effect? I think there is no question but that it does. The term used was “inoperative” rather than “invalid”, but nevertheless that was no different from the decision the Supreme Court makes with respect to a provincial law which might be in conflict with the federal law, and the federal law is to be held to be paramount. In that case the provincial law is held to be inoperative rather than invalid. So it seems to me that in fact in the Drybones case the Supreme Court of Canada achieved an overriding, paramount effect for the Canadian Bill of Rights, even though it was an ordinary
statute of Parliament, and this necessarily bring me to the question of whether the new one makes any difference.
Senator Greene: Professor, your evidence is predicated, as I understand it, on the assumption that the consent of the provinces to the Bill of Rights or any other constitutional document was required. Is this a legal conclusion or a probably valid political conclusion on which you base your thinking?
Professor Tarnopolsky: Well, senator, I mentioned that this was Mr. Diefenbaker’s argument, and at that time I did not express an opinion on it. I think I would have to agree with him that if it were a matter which clearly applied to the legislative sphere ofjurisdiction, which a bill of rights would if it were to bind the province and Parliament, that the convention appears to be quite clear that the federal government would ask for the consent of all provinces. How legal a convention or custom is, I don’t know. I don’t know if you want to go into that discussion now. That was Mr. Diefenbaker’s argument, which was really all I had mentioned.
Senator Williams: In the Drybones case, if Mr. Drybones had not been an Indian under the Indian Act, but an ordinary citizen of the Northwest Territories, would he have been able to utilize the Bill of Rights?
Professor Tarnopolsky: Not in the circumstances of that particular case, because the inequality which the Supreme Court found arose out of the fact that under the Indian Act an Indian would be liable, if found drunk anywhere off a reserve that is under that section because there is another one which deals with being drunk on a reserve, whereas everyone else would only be liable if drunk in a public place. Second, the Indian Act provided for minimum penalty and a certain term of imprisonment, while the ordinary liquor ordinance of the Northwest Territoiries, which applied to everybody else, did not have such a minumum penalty. Therefore the Supreme Court decided that that was incquality before the law. But as far as the invocation of the Bill of Rights is concerned, presumably either everybody in the country can invoke it to whatever extent it applies, or it would not be a real bill.
Senator Godfrey: On a point of order, Mr. Chairman, I wonder if it would not be better if as Professor Tarnopolsky refers to three different headings, he were to announce when he finishes with one of the headings so that we could have questions at that time, because otherwise we will never be able to finish. I do not know whether he has finished dealing with his first heading as to the question of overriding effect or not.
The Chairman: I think it is preferable if the only questions we ask as interruptions are questions directed for purposes of clarification or something of that nature.
Senator Robichaud: I thought that was the case with these last three interruptions.
The Chairman: Well, yes, I appreciate that, and I let that go because we were trying to get clarification of some of these items; but I would appreciate it if we could let Professor Tarnopolsky complete his presentation, and that will give us a framework within which we can ask questions.
Senator Connolly (Ottawa West): Do you mind going over the facts in the Dryboner case again, for the record? What you have said has been very clear, I think, but I would like to see it emphasized again. The conclusion is a very important one.
Professor Tarnopolsky: Well, Drybones was charged under the then section 94 of the Indian Act, in terms of which it was an offence for an Indian to be drunk off the reserve. The liquor ordinance of the Northwest Territories of the time provided for the offence of being drunk in a public place. Drybones was convicted, and subsequently the appeal went all the way to the Supreme Court of Canada. He won at other levels, originally by way of trial de novo in the Northwest Territories, and also in the Court of Appeal and the Supreme Court of Canada. The basis for the argument was that the provision in the Indian Act created an inequality before the law for Drybones, because anyone in the Northwest Territories other than an Indian could commit the offence only by being drunk in a public place, and because the penalties were different; there was a minumum penalty under the Indian Act, but there was no minimum penalty under the liquor ordinance. On the basis of the finding that this was an inequality before the law, the majority in the Supreme Court held that the “notwithstanding” part of the opening paragraph of section 2 would have to be given some meaning. It reads to the effect that every law of Canada shall be construed &and applied in accordance with the Bill of Rights, unless it has a phrase included in it saying, “notwithstanding the Canadian Bill of Rights”, so this paragraph had to be given some meaning, and the meaning that was to be given was that if a law of Canada could only be construed so as to be inconsistent with the Canadian Bill of Rights, and that law does not contain the non obstante clause, then it has to be declared inoperative.
Whether that thereby gives overriding effect may be open to some question. I think that that is the kind of effect that a bill of rights may be expected to have with respect to inconsistent legislation, whether you hold it inoperative or invalid.
This brings me to the issue of entrenchment and the overriding effect. I do not think that entrenchment is crucial in determining the overriding effect of a bill of rights. Entrenchment alone is not the crucial issue. The intent of the Bill of Rights and its constitutional status is much more important.
Let me start first, therefore, with entrenchment, I would define entrenchment as any procedure other than the ordinary legislative procedure, whether it be one that requires a mini-
mum of 60 per cent, whether it requires passing through parliament on several different occasions, or whether it requires Parliament plus the consent of other legislatures. Entrenchment would be some procedure more complicated, or more difficult, than the ordinary procedure.
Senator Connolly (Ottawa West): It is good to have that statement on the record, I think, Mr. Chairman.
Professor Tarnopolsky: I do not see that that is crucial because in the United States the Bill of Rights is, of course, entrenched, but, apart from additions to it such as you find in Amendments 13, 14 and 15, the American Bill of Rights has not been amended. That is not because of entrenchment, it is because of the fact that once a bill of rights is written, there is no attempt to change it except perhaps in an attempt to improve it; so that if one looks at the various kinds of charters and documents in the United Kingdom, whether it be the Act of Settlement or the Bill of Rights, those are ordinary statutes of the United Kingdom Parliament that could be amended just as easily as can the Canadian Bill of Rights; but nevertheless, in their essential features they have not been amended.
It therefore seems to me that whether or not one has entrenchment, the likelihood of a bill of rights being amended so as to weaken it is extremely rare, and probably would only arise at a time when a country was in such a revolutionary condition that even a bill of rights is not going to stop the changes of a government that is determined to bring about those changes. What becomes much more important is whether the courts will hold that legislation enacted subsequent to the bill of rights is still subject to its terms, and this is of course the pertinence of the question in the Drybones case, because the Drybones case, on its facts, does not go that far. On its facts the provision in the Indian Act preceded the enactment of the Canadian Bill of Rights; so one could say that all you had here was that the subsequent statute, the Canadian Bill of Rights, overrode the previous statute, the Indian Act, to the extent of any inconsistency; but that does not give an overriding effect of itself to the Bill of Rights over statutes enacted after 1960, when the Bill of Rights was enacted.
The Supreme Court did, in the Drybones case, say that was the effect, but obviously one has to accept that part of their statement as obiter. That particular principle has been repeated subsequently in the Curr case, in which Mr. Justice Laskin, as he then was, on behalf of the majority of the Supreme Court of Canada, said that the Drybones proposition was one that applied to legislation coming before or after the Bill or Rights; and that certainly is the intention in section 5 of the Canadian Bill of Rights—it speaks about its effect on legislation subsequent to it.
Even Mr. Justice Ritchie, who is the one who most frequently has had differences of views with the Chief Justice on the effect of the Bill of Rights, has subsequently said that the Drybones case gave the Bill of Rights “primacy” or “paramountcy”, and clearly, in the Drybones case, he did say that his principle applied to legislation coming after.
What one has to ask, then, is, would the proposed Charter of Rights and Freedoms remove the possible doubt that could still remain, after the Drybones case, of the possibility of enacting a bill of rights—which would override subsequent legislation.
I think that what I have to say is that in my belief one has, here, a great deal of mythology. As I mentioned before, it is not so much whether a bill of rights is entrenched or not that determines whether it is going to be applied: there are other factors one has to consider, and I am going to look at a number of them. What does become important is the question of what the Supreme Court is prepared to do with such legislation, and in that area this has to be taken into consideration.
The first thing that I think one has to consider with regard to the possibility of the proposed charter having an overriding effect over subsequent legislation is the fact that it removes any doubt about its constitutional status. As I argued before, I think the Canadian Bill of Rights is part of our Constitution, but nevertheless there has been considerable questioning about that. Now, by the inclusion of it in a proposed new constitutional amendment bill, there can be no question but that the Bill of Rights is part of the Constitution. Would that be sufficient to convince, let us say, a possibly reluctant Supreme Court in the future that that is intended to give it overriding effect? I do not know. One would hope that it would be sufficient, because the courts have certainly accepted that whatever is part of our basic constitutional text, the BNA Act, is overriding over any subsequent legislation, and so I do not see why another part of the basic constitutional text, which would now be called the Charter, should not also be given the same primacy as any other part of the BNA Act in the past has been given. So that alone, that is, its inclusion in the basic constitutional text, might be important enough of itself to convince anyone reluctant to give it that effect.
Mr. Cowling: Even before entrenchment?
Professor Tarnopolsky: Even before entrenchment. I have argued that entrenchment does not affect the constitutional position, because we have had, as you know, in our Constitution all kinds of matters in the BNA Act that could be amended by act of the provincial legislatures or by act of the Parliament of Canada. Those are no way entrenched as against the provincial legislatures or the Parliament, but yet until amended and changed they clearly override inconsistent legislation because they are a part of the Constitution. So the inclusion in this constitutional amendment bill may be sufficient.
There are four sections to which I would like to draw your attention, which might also go toward achieving that same end. I will start with the least important one, building up to the most important one.
Senator Greene: In effect, you are saying that by calling a statute of the Parliament of Canada constitutional, it has some prior authority in the courts than does an ordinary bill of Parliament. There are two gradations of bills of Parliament. One is what we call constitutional, to which the court will give ascendancy over an ordinary bill of Parliament.
Professor Tarnopolsky: Yes; I think one clearly has to make that distinction, because with us the supremacy of Parliament has been around long enough and is strong enough that the principle of Parliament being able to amend any prior statute is too ingrained. The only limitation on that rule-that is, that a subsequent act of Parliament can override a previous act of Parliament—I think arises out of the constitutional statute of the previous act.
There is a leading decision of the Judicial Committee of the Privy Council known as the Bribery Commissioner v. Ranasinghe, which came from Ceylon, in which the Judicial Committee of the Privy Council in effect held that although Parliament retains its sovereignty—if, in fact, one adopts the British parliamentary system—the very act or statute which gives the Parliament its power can determine under what circumstances that power may be exercised. This, in effect, is the holding of the Ranasinghe case—that the constitutional statute which gives the Parliament its power can also determine the way in which that power can be exercised; and this I have called the manner and form requirement.
I think that that can easily be adapted to this case, and in our constitutional practice with respect to the BNA Act we have really accepted that, because since the statute of Westminster of 1931 it has been quite clear that the legislatures and Parliament can amend most parts of the British North America Act—not all, but most parts of it—without any kind of special procedure. But until it is so done, that constitutional provision overrides others.
Just by way of a footnote, one of the difficulties that this presents at the provincial level is this: one can quite clearly recognize at the provincial level that the BNA Act is part of the Constitution, that the statute of Westminster is part of the Constitution.
Let us take the province of Manitoba: the Manitoba Act is part of the Constitution, and so on. One could say that the acts dealing with the executive, those dealing with the legislature, are part of the Constitution. One might probably argue that the act dealing with the Attorney General’s Department is part of the Constitution, because that is one of the traditional offices of government. But if you get down to, let us say, the act dealing with the Department of Municipal Affairs, is that constitutional or not? I do not know. I would not want to respond to that.
So it becomes somewhat difficult to decide. I think the same example could be used with respect to Parliament. Exactly what is a constitutional statute? But, as I say, in this case, once it is there, even before entrenchment, it should have overriding effect over any subsequent legislation that might be inconsistent with it.
As I say, there are four sections which I would like to draw to your attention, which should help in achieving that kind of conclusion. The first three that I am going to mention are really by way of supplementary argument to what is the most important section on this point, and that is clause 23. I will
start with the less important ones. The first of those is, of course, clause 3 of the constitutional amendment bill. Clause 3 says that the union referred to:
. . .shall be so constituted as to further, to the greatest extent possible, their expectations fora future . . . founded on equality and mutual respect . . .
You cannot have equality without some kind of provisions—well, you can, but without the aims set out in the act. Further on you will see a reference to:
. . . profound respect for personal worth and freedom . . .
All we have here is an introduction to the statement of aims of the Canadian federation. But, on the other hand, because it is a part of the statute and not a preamble, it should clearly be considered in the interpretation of the overall Constitution even more than would a preamble. Yet, as you know, even before now, the preamble to the British North America Act has on a number of occasions been referred to as important support for the assertion of rights and freedoms. If you think of the Alberta Press Bill case— although it was not a decision of the majority of the Supreme Court of Canada—you did have Mr. Justice Duff and two others referring to the preamble as a basis for asserting freedom of expression as against the attempts by the Alberta legislature on that particular occasion.
You have reference to the preamble in some of the Jehovah Witnesses’ cases of the 1950s. So it would seem to me that if the courts have in the past referred to a preamble to that extent, in aid of interpretation, there is no reason why a section, which is part of the operative part of the overall document, should not be so referred to; and this is, as I say, the weakest of the support arguments, but could be resorted to.
The other, somewhat more specific, is in clause 4, where the stated aims of the federation are set out. You will notice that the first one is:
—to protect the fundamental rights of all Canadians and to promote the conditions of life under which their legitimate aspirations and essential worth and dignity may best be realized;
So the first of the stated aims is reference to the fundamental rights.
Senator Bosa: Does the absence of the word “multiculturalism”, either in the preamble or in clause 3 and 4, mean a dilution of the stated government policy in that respect?
Professor Tarnopolsky: Well, it would be a question of what the paragraph, starting on line 29, would mean. You will notice there is reference to:
. . .collective security and distinctiveness . . . new nationality created by their forbears,
And then, in lines 34 to 36:
. . .the proposition that fraternity does not require uniformity nor need diversity lead to division;
Further down you will notice reference, in subparagraph (ii) at line 44:
(ii) to ensure throughout Canada equal respect for the many origins, creeds and cultures. . .
It is not using the term “multiculturalism,” but I would suggest that this is probably an attempt to say the same thing in different words.
I will refer, in another manner, back to another point on language rights which will illustrate what I will be contending with respect to the possibility of enforcing a constitutional provision with respect to either multiculturalism or language rights. Perhaps I could come back to that at that time.
So you do have, then, the reference in two of the subparagraphs of clause 4. The first one I mentioned is to protect the fundamental rights of all Canadians; and the second one, commencing at approximately line 4, states:
—to ensure that its society is governed by institutions and laws whose legitimacy is founded upon the will and consent of the people;
And then there appears this important part:
and to ensure, as well, that neither the power of government nor the will of a majority shall interfere in an unwarranted or arbitrary manner with the enjoyment by each Canadian of his or her liberty, security and well-being;
That really expresses what a Bill of Rights is all about. It is to protect every individual even against the will of a majority, which is the main objective of a Bill of Rights. It is to protect him from unwarranted or arbitrary interference of his liberty, security and well-being.
So you have here, then, in clause 4 of the proposed constitutional amendment bill, two further statements, which mention fundamental aims of the new constitutional amendment bill being, in effect, special protection for human rights and freedoms.
A third of these—and I am talking, again, of clauses 3, 4 and now 5—is what I will refer to as being in supplement of what might be achieved by clause 23. The third of these is clause 5, Clause 5, you will notice, is part of the proposed charter. At approximately line 5 it states:
—that in a free and democratic society there are certain rights and freedoms which must be assured to all of the people—
Further on in that clause it states:
—if they are to endure, be incapable of being alienated by the ordinary exercise of such legislative or other authority as may be conferred by law on its respective institutions of government.
Here a clear intention is expressed in the first provision, which is actually part of the proposed charter, to the end that the ordinary exercise of legislative authority may not override the rights and freedoms. Again, I do not think that this is a clause which actually achieves that, but it is the third of the three clauses to which I have been drawing attention which can be used in argument as to the effect of clause 23. I shall deal with clause 23 now.
Clause 23 states:
To the end that full effect may be given to the individual rights. . .it is hereby further proclaimed that, in Canada, no law shall apply or have effect so as to abrogate, abridge or derogate from any such right or freedom.
Here you have the intention exprcssed—and I won’t say quite as clearly—that the proposed charter is supposed to override any inconsistent legislation on the matter of rights and freedoms which the Bill of Rights deals with. It is a change from the present Bill of Rights which on this particular point in Section 2 states it is hereby recognized and declared that in Canada no law shall be construed and applied so as to abridge, infringe, derogate from, and so forth. So, it is a little more explicit than that. Instead of using the words “construed and applied”, which in fact in the Drybones case, as I suggested to you, has been the basis of holding inconsistent legislation inoperative, here it says it somewhat more clearly that no law shall apply or have effect so as to abrogate, abridge or derogate from any such right or freedom.
There is one slight possibility here that I think I should deal with, but it probably comes in better in a statement I shall make later.
Senator Smith (Colchester): Do you attach any significance to the use of the word “proclaimed” in line 19 of clause 23? “Proclaimed” as different from such words as “enacted,” “shall,” and so forth?
Professor Tarnopolsky: It certainly is a term used to try to give the effect of more prestige. I am not sure it makes that much difference whether one uses the words, “declared,” “proclaimed,” or what-have-you.
Senator Connolly (Ottawa West): Or the word “provided.”
Professor Tarnopolsky: If I had written the original version I think I would have preferred to write in that, “No law in Canada shall be operative to the extent that it is inconsistent with this Part.” There is no reason why one could not have been as straightforward as that, but I am not a legislative draftsman.
Senator Forsey: These people are determined never to say anything in five words that they can say in 500.
Senator Connolly (Ottawa West): Would you use that phrase again?
Professor Tarnopolsky: In a lecture I gave to the Law Society in March I appended to it the Bill of Rights which was
my proposal to the Manitoba Law Reform Commission. That contains the formulation I would have preferred.
Mr. Cowling: Professor Tarnopolsky, I might say that that particular quotation is in the record of the proceedings of this committee in two places now. I am not saying that you shouldn’t cover it—
The Chairman: I might also say that we have arranged for copies of that particular lecture to be distributed to the members of the committee.
Professor Tarnopolsky indicates that he has finished with that particular part, so perhaps it would be appropriate to ask questions on that now.
Senator Connolly (Ottawa West): Could we get the wording on that again?
Professor Tarnopolsky: If one were doing it here, I think one would have to say that, “Any provision of a law, whether enacted before or after the coming into force of this charter, which is inconsistent with any provision of this charter, shall, to the extent of such inconsistency, be inoperative and of no effect.” I think that is straightforward and what one is really after, if one is after that end. I will come back to that later.
The Chairman: Perhaps I could begin the questioning with Senator Greene.
Senator Greene: Professor Tarnopolsky, is there any aspect of the wording of clauses 3, 4, 5 and 23 that encourages you to feel that the lower courts, where the average citizen is going to be either helped or hut by this new charter, will interpret more effectively the new charter than they did the Bill of Rights?
I think anyone who practised in the vineyards of summary conviction courts had very little luck using the Bill of Rights to overcome some arbitrary power given to some official, or under an order in council, or under the authority of some statute authorizing that arbitrary authority. In the lower courts the Bill of Rights was inevitably rather pooh-poohed.
Is there anything explicit that encourages you to think that the wording of the charter of human rights has more teeth in it than the Bill of Rights was generally construed to have by the lower courts?
Professor Tarnopolsky: I will answer the question this way; I do not think the lower courts, with respect to the Canadian Bill of Rights or with respect to this charter, if it is adopted, would be the ones to give it its effect. I think they would wait for the word of the Supreme Court of Canada. In a way I think the question one has to ask is whether the Supreme Court would be convinced. On this basis one doesn’t know, except along the lines I have suggested, that from the point of view of whether it does have overriding effect the Supreme Court did give the present Canadian Bill of Rights overriding effect in the Drybones case.
There is another defect that arises, and that is, not only must one give the Bill of Rights overriding effect, but whether
or not one finds any particular legislative or administrative act to be inconsistent with the Bill of Rights, and it is there that I think the Supreme Court of Canada has largely played down the possible inconsistencies.
The third step is—and this is why I am dealing with it in three steps—even if they find the provision inconsistent, in the particular circumstances are they prepared to provide a remedy? That is the third thing I will be dealing with.
On the first one, which is the one I finished with, an overriding effect, all I can say is that this charter should have a better argument of being overriding, because it is part of the Constitution; it is somewhat more explicit than the present section 2 of the Bill of Rights, it somewhat more explicitly sets out in section 23 that no law shall apply to the extent of abridgement; and there are these other provisions in sections 3, 4 and 5 in supplement of it. The most one can do is guess. I would think that this gives it a somewhat more important position than the current Bill of Rights.
Senator Greene: Is there anything we could do to strengthen that position?
Professor Tarnopolsky: There are some others that I will be dealing with shortly on the second phase, on the scope and effect.
Senator Greene: I think we are trying to stick to making it a better bill. I think that is the general modus of this committee.
Senator Grosart: Do you see any significance in the fact that the rights and freedoms described in clause 6 are being regarded as fundamental and described as fundamental, while those in clause 7 are not? Is there any significance in this?
Professor Tarnopolsky: I don’t think so. The reason for it is a question of how one classifies or categorizes the whole field of civil liberties. I tend to use the one originally proposed by Professor Laskin, as he then was, which was the group of political civil liberties, legal civil liberties, economic civil liberties and egalitarian civil liberties. Other people have traditionally classified the first group, politieal civil liberties, as fundamental freedoms—the freedoms of speech, press, religion, assembly and association, and sometimes adding the ones of equality before the law and due process. I think in that kind of a classification the term “fundamental freedoms” means no more than that one is dealing with the fundamental political freedoms, and in clause 7 one is dealing with what might be called legal rights or the rights one asserts during the administration of criminal or other justice.
Senator Grosart: Do you see any significance in the distinction again made in clause 6 but, strangely enough, not made in clause 4, between rights and freedoms? Clause 6 describes four freedoms and three rights as fundamental. However, when we go back to clause 4—and you referred to this—we find:
. . . the stated aims of the Canadian federation shall be:
—to protect the fundamental rights
There is no mention here of freedoms. Is this just careless draftsmanship or has it some significance?
Professor Tarnopolsky: I don’t know if it was intended to have significance, but you will notice that the second para- graph of clause 4 speaks about:
. . . unwarranted or arbitrary manner with the enjoyment by each Canadian of his or her liberty, security and well-being;
That is generally within the sphere of clause 7 rights, and the first paragraph is generally within the sphere of the clause 6 rights.
One sees these drafted in different ways in different national or international bills of rights. Sometimes they refer to the right to freedom of speech, and sometimes it is just referred to as liberties or freedoms. There are distinctions that Professor Lederman drew in an interesting article way back in 1959 when the original bill of Rights was proposed. Rather than go into that, let me just say that I do not think that is an important distinction along those lines, except that during the constitutional debates of 1968 to 1971 the only thing that the provinces and the federal government did agree upon was some of the rights that you find in clause 6 but none of the rights in clause 7. The provinces were not prepared to go that far.
Senator Connolly (Ottawa West): Perhaps I could put a supplementary question. There are a lot of words being used in connection with legal rights and fundamental rights that are generally in the same kind of category, yet, as you have just said, in some statutes in some countries they use some of these words and in other statutes in other countries they use other words. Is there anything to be said for trying to include here, first of all, some uniformity of language? This can be confusing to people, even to practitioners before the courts, I am wondering whether there should be a clause which indicates the precise meaning that is to be given to the words as they are used in these clauses and subclauses.
Professor Tarnopolsky: I think it is important, of course, to have consistency, but I am not sure that the way in which one words this makes that much difference. Let me give you an example of different kinds of wording. The European Convention on Human rights, which binds the European countries, including the United Kingdom, says in Article 9, the religion article:
Everyone has the right to freedom of thought, conscience and religion.
You have there an example of it being proclaimed in terms of a right to a freedom, Similarly they say that everyone has the right to freedom of expression, so they speak in terms of a right to a freedom.
The Constitution of the Federal Republic of Germany speaks, for example, in Article 8 (Freedom of assembly) in these terms:
All Germans have the right to assemble peaceably and unarmed.
They put it in terms of a right in defining what they say is a freedom of assembly.
These are worded in different ways, and I am not sure that this is as important as consistency in the charter itself. Again, without repeating it each time, my preference for the way this should be set out is really in the appendix to my lecture to the Law Society, which I gather will be available to you, so I will not repeat it each time, but that would be my preference for the best way to set it out. Taken as it is, there is no reason why one could not use the fundamental freedoms in clause 6, the other rights in the administration of justice or legal rights in clause 7. However, I will expand on this somewhat in my second part, in which I will be dealing with the actual rights and freedoms and their scope.
Senator Grosart: In the notes in the document known as “The Constitutional Amendment Bill. Text and Explanatory Notes,” published by the government, we see in the freedom of opinion paragraph:
Freedom of “opinion,” etc., enlarges the prior freedom of “speech” to encompass not only the right to express one’s views but also the right to hold those views.
Does this follow from the actual wording of the clause?
Professor Tarnopolsky: No. I think that is an expression of a hope.
Senator Grosart: What is the position generally, in the interpretation of the statement of these rights and freedoms, of the right to act on one’s conscience or religious views?
Professor Tarnopolsky: Well, I think our constitutional tradition with respect to civil liberties generally has been and continues to be, except to the extent that we make it explicit by statutory or other consitutional changes, that one has the right to do anything one pleases unless there is a law that can be pointed to to restrict that right. In other words I have the right to speak on whatever subject I like, unless someone can find a law which says that some particular statement I make is contrary to law. Similarly I can assemble or associate with whomever I wish unless there is a specific law which says that I cannot do it. It is for this reason that you have traditionally, particularly in the United Kingdom and Canada, arguments that you do not really need a Bill of Rights. If you do not have statutes restricting rights, then you do not need a Bill of Rights. I think that is great for people who are in the majority at all times in whatever way, whether it be of race, colour or ethnic origin, and it is great in time of peace when there is no tension in the country, but I do not think it holds up when a person is in a minority situation or in times of tension. That is why I think one needs a bill of rights. That essentially is our approach.
Senator Grosart: I was thinking, of course, of the blood transfusion cases. How can they be covered by a bill of rights?
Professor Tarnopolsky: One of the questions that arises is whether or not the freedom of religion which is proclaimed is
one that is being infringed with an enforced blood transufion. I think the views of the courts have generally been that when there is protection for freedom of religion, this does not necessarily include all the practices that one justifies as being part of one’s religion, and therefore whether you include or do not include a limitation clause such as clause 25 in the proposed charter, the courts will imply reasonable limitations. Thus, freedom of religion in Canada or the United States would not justify polygamous marriages even if that were part of one’s religion. From that point of view the courts have, on the whole, said that the protection of the right to life in the opinion of the experts at the time is more important than the assertion of freedom of religion.
Senator Godfrey: Mr. Chairman, I should just like to refer for a moment to what Senator Grosart has said. I must say that I had not realized that the word “fundamental” was a euphemism for “political”, and I notice in the heading of clause 6 it refers to “political and legal rights and freedoms”. In the marginal note it says “Fundamental rights and freedoms”. Would it not be better just to have the heading there and cut out the word “fundamental” in the clause itself, but have the marginal note read “political” so that people like myself who are not experts and are not used to these fine distinctions would understand better what that clause is driving at?
Professor Tarnopolsky: I think that may have been preferable. The only thing I would say is that the division into the political, legal, economic and egalitarian civil liberties is one that was formulated by Professor Laskin in the early 1960s. I picked it up and I think popularized it a bit in my book, and now it is coming into currency, but I am not sure it is totally accepted, because different people have different categorizations. But certainly these freedoms have also been know as fundamental freedoms for a long time. The other thing is that during the constitutional debate from 1968 to 1971 there was some argument that if you are talking about political civil liberties, you should clearly include what you have in clauses 10, 11 and 12, and that was done in the Victoria Charter. You may recall, if you look at the Victoria Charter, that the political liberties include these fundamental freedoms and then is goes on to deal with some of the matters dealt with in clauses 10, 11 and 12, and that can be somewhat confusing. I prefer that category because I have adopted it as my own, but there are other ways of doing it.
Senator Godfrey: You talked about the overriding effect of an act which is considered a constitutional statute, but what about the Interpretation Act, does that not have an overriding effect quite often?
Professor Tarnopolsky: Yes, but the Interpretation Act would, of course, be subject to any statute which has its own definitions. It applies in the absence thereof, and in fact every statute starts out being its own definitional statute. So to that extent it can be changed. There was considerable argument at the time of the original introduction of the bill, the present Bill of Rights, that it was a mere interpretational statute, and I must say that Mr. Justice Pigeon still believes that that is all it is. I think that even though lawyers may be able to find some
distinction along that line, that for the citizenry as a whole and probably in some way for its impact even on the judiciary, one has to speak in terms of a bill of rights being constitutional rather than just an interpretational statute.
Senator Godfrey: But it seems to me a remarkable situation that Parliament can say flatly in plain English that this act is to apply to every subsequent act unless that act says specifically that it is not to be so applied. And why don’t the courts just follow through from that? This is what I find difficult to understand, and I am not a constitutional lawyer.
Professor Tarnopolsky: I think it is buried in the long ascendency of the views of Dicey, the British constitutional expert, through the years, that because of parliamentary supremacy, which Canadian lawyers have argued we have in Canada through the preamble to the British North America Act, you could not in fact make a provision by any law of Parliament to override subsequent laws of Parliament. I think that that is Dicey’s view clearly expressed within the context of the United Kingdom, and I think that even he recognized that within a federal state this is not quite possible because you must have a fundamental written document, and certainly I think that that view no longer applies in quite the way it was believed to apply in the 1950s and the 19603. Nevertheless, I think the Supreme Court has been somewhat frightened by the implications of its decision in the Drybones case and has not been prepared to expand on it, and has used two devices which I will be turning to in the next two parts I shall be referring to.
Senator Godfrey: We had the benefit of your ideas as to how clause 23 should read, and to me it seems much simpler and clearer because everybody could understand it. But in effect do you feel that clause 23, as expressed here, is in any way weaker than what you have said in fewer and clearer words? Have you a specific criticism of this clause technically, as opposed to the fact that the drafting is not ideal?
Professor Tarnopolsky: Well, obviously I am guessing, but I think it is stronger than the current Canadian Bill of Rights. It is not as strong as I would have preferred to write it. That is the way I would put it. It has one other possible defect which I will raise when I deal with the third part—namely, remedies. There is an important point which might arise there, but one does not know whether it will arise or not.
Senator Godfrey: But you feel that yours is stronger.
Senator Smith (Colchester): I have two questions to ask, ifI may.
Is it your opinion, Professor Tarnopolsky, that the provisions of the new bill are likely in any way to have an effect upon the application by the courts of the Drybones principle?
Professor Tarnopolsky: I would hope that it would reinforce the possibility of that approach, and carry it further.
Senator Smith (Colchester): You do not anticipate any adverse effect on that decision?
Professor Tarnopolsky: I do not see why. because as I say, for the reasons I mentioned, I think the provisions here go a step further than the “construed and applied” provisions of section 2 of the Bill of Rights, and therefore should at least support the Drybanes principle and carry it somewhat more certainly into effect.
Senator Smith (Colchester): With respect to clause 25, I am wondering if you would agree with the statement that the extent to which this is allowed to impair the usefulness of the previous question of the provisions with reference to rights depends entirely upon the interpretation made of it by the courts, and in particular the Supreme Court of Canada.
Professor Tarnopolsky: Yes. Certainly I think.it depends upon it, although I am going to return to clause 25 and deal more explicitly with some of the problems I see arising from it or some of thejustification of it, if I may.
Senator Smith (Colchester): That is fine.
Professor Tarnopolsky: If you prefer I could deal with it now, but I was going to do it at the end of my part two, which I would be prepared to commence whenever you wish.
Senator Bosa: Mr. Chairman, Senator Fournier (de Lanaudiere) raised a certain matter the day before yesterday, and since he had to leave he asked me to pursue it. It refers to clause 6, line 38, where it refers to the rights of the individual to life. Senator Fournier was wondering how you would interpret “the right of the individual to life”, and say whether it applies only to the individual when he or she is here in person, or whether it applies when he or she are still in the oven.
Professor Tarnopolsky: I do not know. One can only guess as to the possible implications of that. I am sorry, I cannot say anything more than that. There is no reason why it could not extend so as to protect the foetus, and one could also argue that clause 6 refers to the individual. Is the foetus an individual? That would be a matter for legal determination.
Senator Greene: I have two questions, Mr. Chairman.
First, I am much taken by Senator Grosart’s question, which I think is well founded. Is there not a danger, and one that perhaps we can remedy here by better drafting, that, in applying the rules of general statutory intepretation, clause 4 will be interpreted as giving something less than clause 6, because of a difference in wording between the two clauses, so that the courts may say that clause 6 is in a higher category than clause 4, which is more general, and probably will be a more useful one as far as foreseeing future questions of individual human rights are concerned. The rights enumerated in clause 6 are the ones that are extant presently, and therefore
we can enumerate them; but will a court not say that clause 4 gives something less than clause 6? You have higher rights under clause 6, since it speaks of legal rights and freedoms, whereas clause 4 only speaks of rights. Would we not do better to strengthen the wording so as to make sure that clause 4, which might cover future situations better than clause 6, is strengthened so that no court can interpret it as giving something less than clause 6? That is my first question.
My second question is: Is there any definition of “peaceful assembly”? I am thinking particularly of labour matters, where something can happen that is apt to incite a breach of the peace, and that can be pretty tightly construed by provincial law. I am thinking of circumstances in which you assemble outside a plant, and this might be likely to cause trouble. ljust wonder if there is any help in this so that peaceful assembly cannot be limited by restrictive provincial legislation.
Professor Tarnopolsky: On the first question, the only thing I would suggest is that clause 4 is clearly dealing with aims, so I do not think it has the same enacting, operative effect as clauses 6 and 7, that proclaim, or others that declare or explicitly state. I think it would be an aid to interpretation. It may be that one should, in effect, in line 37, provide something to protect fundamental rights and freedoms. That might be more explicit, although, as I suggested earlier, in bills of rights one sometimes speaks of a right to a freedom, or of a right to peaceful assembly, or a right to freedom of assembly—I think they are interchangeable; but I think it might be more explicit to add the words “and freedoms” to line 37 of clause 4. I do not think, however, that clause 4 should be considered as in any way overriding clause 6, which is clearly a declaratory, proclaiming clause, whereas clause 4 only deals with aims.
On the second question, which really arises from what I am going to be dealing with in part two, namely, should one merely proclaim “freedom of assembly”, or “freedom of peaceful assembly”, I am not sure that it makes that much difference. Although I do not know, my guess is that the reason that the words “peaceful assembly” were chosen is that for one thing those terms were included in the agreement with the provinces culminating in the Victoria Charter. The term “peaceful assembly” is also used in the International Covenant on Civil and Political Rights, to which Canada has adhered. I would have thought that one way or another, if one proclaims freedom of assembly, or freedom of peaceful assembly, the extent of the restrictions on assembly would be about the same. For reasons of national security, public order, public health, or morality the restrictions would be about the same.
Mr. Cowling: Unpeaceful assemblies are dealt with in the Criminal Code, are they not?
Professor Tarnopolsky: That is right. They are dealt with as riots, or unlawful assemblies, or whatever the expression is.
Senator Neiman: Mr. Chairman, I wonder if Professor Tarnopolsky would tell us whether there has been any adjudication upon the question of whether the regulations that are drawn to implement statutes, and which are often changed from time to time, are to be construed as being part of that particular statute.
Professor Tarnopolsky: Well, certainly the jurisprudence is pretty clear that a regulation has to be within the powers set out in a statute, and cannot contradict it; so that one of the first grounds of challenge is that the regulation goes beyond the power granted in the statute itself, which it cannot do.
Senator Neiman: Very often the question arises, for instance, under the Immigration Act, that rights of individuals have been infringed or violated, and it is said that these come within regulations that are drawn from time to time. Complainants often seem quite helpless to deal with this in the ordinary course of events.
Professor Tarnopolsky: I think the reason for that is that the regulatiorrmakirig power in the statute is probably broader than the House of Commons and the Senate should have permitted.
Senator Neiman: Exactly.
Professor Tarnopolsky: It is your responsibility.
Senator Forsey: In the Statutory Instruments Committee we have had Crown lawyers arguing that while the Crown cannot dispense with—or, as they like to say, exempt from—the provisions of a statute, it can dispense with or exempt from the provisions of a validly enacted regulation under the statute. We have insisted that this is not so; that there is jurisprudence to the contrary. We have had that kind of argument, and it is a problem that I suppose the courts would ultimately have to deal with; but our advice from our counsel was that there was plenty of jurisprudence to say that the unlawfulness of the dispensing power, the exercise of which power was one of the things which cost James II his throne, applies not only to statutes but also to regulations.
Professor Tarnopolsky: Mr. Chairman, shall I move to part two?
Senator Robichaud: I had a question earlier which was explained fully and adequately by the professor. It had to do with entrenchment and overriding rights. I think it is much clearer in my mind, but I still would like to use a hypothetical, extreme, perhaps impossible, case to illustrate whether I am right or wrong. We talk here—I think it is in clause 6—about the right to life, which in my estimation virtually confirms also the abolition of capital punishment. Am I correct in that assumption?
Professor Tarnopolsky: No. Both the Supreme Court of the United States and the Supreme Court of Canada have held that in effect the proclamation of the right to life, which goes on to say “and the right not to be deprived thereof except by due process of law,” implies that under certain circumstances you can deprive one of life so long as you follow the due processes of law to do it. So the clause has to be read as a whole. It has not been held to abolish the death penalty. In fact, the argument in both Canada and the United Stalesvan argument which has also failed—is that the death penalty is cruel and unusual treatment or punishment. That too the courts have rejected. Under certain circumstances the death penalty may be cruel and unusual treatment or punishment, but it does not of itself constitute cruel and unusual treatment or punishment. So this clause has not of itself prevented the death penalty.
Senator Robichaud: To pursue this a little further, there is another statute on our books abolishing capital punishment. Is that entrenched?
Professor Tarnopolsky: No.
Senator Robichaud: So Parliament unilaterally, without consultation with the provinces, could make an exception in the event an horrendous crime were committed. It could pass legislation which would be binding, which would be legal, to execute a certain criminal, for instance—somebody, perhaps, whose hair was not properly—
Professor Tarnopolsky: Presumably there is no reason why Parliament could not legislate that people wearing glasses will be executed whereas others will not. This is the Dicey view of parliamentary supremacy. There is nothing that can stop Parliament except Parliament itself in that way.
Mr. Cowling: They might have to use the “notwithstanding” clause.
Professor Tarnopolsky: They might have to use the “notwithstanding” clause in the present Bill of Rights. The Supreme Court—I was going to deal with this case in a moment—in the death penalty ease, the Miller and Cockriell case from British Columbia, held that the death penalty was not cruel and unusual treatment or punishement. However, it did not say that it could never constitute cruel and unusual treatment or punishment, and it is quite possible where Parliament becomes that arbitrary—certainly the American Supreme Court has said this where the death penalty is being applied in an arbitrary fashion, or in a fashion which does not permit you to know in what circumstances it can apply—that it may constitute cruel and unusual treatment or punishment.
So your example might be a basis for argument under the cruel and unusual treatment or punishment clause; or—at this stage there is no case going that far—if greater significance is given to the “due process of law” clause in the future than has been given in the past, one might say that such an arbitrary decision would either be an infringement of the “due process”
clause or the “equal protection” clause. Those are all various ways in which one might be able to raise it.
Senator Robichaud: I have one final question, to make it crystal clear. If this were adopted by Parliament and by the provinces, could there be an act of Parliament passed unanimously, or even by a majority vote, starting with the words “Notwithstanding the provisions of section 6 of the Human Rights Charter, from now on the law is going to be. . . “? Can that still be done? If this is fully entrenched and has overriding effect, could that not still be done in Parliament?
Professor Tarnopolsky: I would suggest no, because no provision is made for such a non obstante clause in the present charter. Were there one, the courts might subsequently consider it to be a reasonable restriction, apart from the inclusion of that clause, and we would await their interpretation of clause 25. But the presence or absence of that clause would not make any difference, because the charter does not recognize such a non obsmnte clause as does the present section 2 of the Canadian Bill of Rights.
Senator Robichaud: But that infringes upon the supremacy of Parliament, does it not?
Professor Tarnopolsky: Again, I think that the supremacy of Parliament, in a country which has a Constitution largely written, or at least an important part of which is written, like the BNA Act, would, in accordance with the Ranasinghe case, which I mentioned earlier, also determine how Parliament is to express its powers. And if it says that Parliament, with respect to these freedoms, cannot legislate, except in whatever form is chosen as an entrenchment, namely in conjunction with the legislatures, then there is no way in which Parliament can legislate with respect to those matters exempted by this charter.
Senator Robichaud: How could it? If they unanimously did want to do it, how could they do it?
Professor Tarnopolsky: When it is entrenched to the extent that the provinces will have ratified, and the new amending formula goes in, there is no way they can do it except through the new amending formula.
Mr. Cowling: Does not Senator Robichaud’s point empha» size that there is perhaps an important distinction between an entrenched Bill of Rights and the kind we have at the present time?
Professor Tarnopolsky: It certainly has an important distinction in the sense that if one wants actually to amend it, it will no longer be possible, whereas today it is possible.
Senator Connolly (Ottawa West): No longer possible except through use of the entrenching process.
Professor Tarnopolsky: Except through the cntrenching process. But that does not necessarily determine whether it has an overriding effect over subsequent legislation. This is my argument. I have separated in my arguments the matter of
entrenchment from the matter of overriding effect. Entrenchment clearly increases the chances of overriding, effect, but is not necessarily determinative of it.
Mr. Cowling: Have there been any statutes since the present Bill of Rights in 1960 which have employed the “notwithstanding” provision?
Professor Tarnopolsky: One only. In 1970, when the government proclaimed the War Measures Act and the regulations under the War Measures Act, you may recall that on December 3 these were replaced by the Public Order (Temporary Measures) Act. That one contained a “notwithstanding” clause. It is the only example I know of.
Senator Robichaud: Let us assume that one provision has an overriding effect and another one is entrenched. Which, in your opinion, is the stronger?
Professor Tarnopolsky: There is no question that the provision which is entrenched is the stronger of the two, because it cannot be changed. To one which is not entrenched—even though while in existence I think it could still have an overriding effect—can easily be changed, if necessary. In that sense, it does not stand in the face of a determined majority in Parliament, whereas the entrenchment certainly delays it, if not makes it impossible. So, without question, it is stronger if it is entrenched.
The only point I wish to make on that is that it does not necessarily follow that you can only get overriding effect by entrenchment, nor does it necessarily follow that if you entrench, but do not carefully set out what it is that the Bill of Rights is to do, you are going to get the effect one wants to achieve. You must think of the two. You must think of its constitutional status in the sense of convincing the judiciary it has overriding status, and then, the second step, to which I will refer now, how the courts will actually interpret the terms and how they are going to interpret the possible infractions of the Bil of Rights. That is what I propose to deal with in part two.
The Chairman: I should like to continue on with part two as quickly as possible. However, there are one or two short questions from Senator Marshall and Senator Bosa.
Senator Marshall: Professor Tarnopolsky, my colleagues will probably shudder when I bring this up again, but I do so having confidence in you. I should like to have your opinion on the right of an individual to the use and enjoyment of property. One of the greatest deprivations of Canadians is when a government, at whatever level, takes away a citizen’s property. This makes a mockery of individual rights and freedoms and goes to the legal jargon as to the difference between “in accordance with law” and the “due process of law”. From a fundamental basis of human rights, what is your opinion as to government, at any level, denying a citizen of Canada, regardless of where he lives, the rights to have his own property?
Professor Tarnopolsky: I intended to deal with this in part two, but if you wish, I can say briefly that the distinction made was a distinction back in 1969 in the white paper entitled The Constitution and the People of Canada, which was part of the constitutional debate between 1968 and 1971. That distinction
was proposed for the reason that there are very many people who are opposed to a Bill of Rights, and continue to be opposed to a Bill of Rights, because they are afraid that a Bill of Rights, particularly if it includes a due process clause, and particularly if it is with reference to property, could introduce into Canada the substantive due process interpretation which the American Supreme Court followed from approximately the 1890s to 1937 under which, because of the American due process laws, the American Supreme Court, in effect, held that minimum wage laws, maximum hour laws and child protection laws were invalid because they were in contravention of the due process clause. So, during this period, and up to 1937, the state legislatures and the federal government of the United States had a tremendous number of laws invalidated on the basis that they were taking property or were in interference with the liberty proclaimed.
So, I think it is with respect to that that one proposes the separation of the due process clause referring only to the liberty and security of the person and another clause dealing with property.
I will have some comments to make on that clause later.
Senator Bosa: The preamble to the bill states:
The Parliament of Canada, affirming the will of Canadians—
And then clause 2 of Part I states:
By this enactment, the people of Canada declare and affirm—
Why is there an inconsistency, and can it be taken figuratively? Can the people of Canada declare collectively and unanimously? Should it not be, “The Parliament of Canada declares on behalf of the people of Canada”?
Professor Tarnopolsky: I don’t know that it is an important distinction. On the one hand you have the Parliament of Canada affirming a will which, as being part of the preamble, does not have operative effect. I think it is simply intended to indicate the participation by the people in their most fundamental rights. I am sorry, I just don’t know what more I can say about that.
The Chairman: Perhaps we can move on now to the second area of discussion.
Professor Tarnopolsky: The second part comes from the fact that even if the courts of canada decide that the Bill of Rights has overriding effect, there is still a great deal of discretion open as to whether or not the courts will find a particutar legislative or administrative act to be inconsistent with the Canadian Bill of Rights, because, despite the Drybones decision, which has been repeatedly affirmed, there have been few other occasions on which the Supreme Court of Canada has found action to be inconsistent with the Bill of Rights. The examples are rather unimportant. On most occasions the Supreme Court of Canada has held that there is no such inconsistency. I believe the main reason for this is what I have referred to as the “frozen concepts” theory of interpretation, largely the results of decisions by Mr. Justice Ritchie and Mr. Justice Martland.
Essentially, it arises from this; section 1 of the Canadian Bill of Rights reads as follows:
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination. . . the following human rights and fundamental freedoms—
Both of them on various occasions have said that Parliament, by choosing those words, in effect intended to protect the kinds of rights and freedoms we had at the time the Bill of Rights was enacted, because it used the terms “have existed and shall continue to exist.” Therefore, they have said, “If you want to know what freedom of religion is as protected by the Canadian Bill of Rights, you have to know what freedom of religion meant in 1960,” or at the time the Bill of Rights was enacted. This is why, in the Robertson and Rosetanni case, dealing with an allegation that the Lord’s Day Act was an infringement of freedom of religion, the Supreme Court decided that the Lord’s Day Act was not an infringement of freedom of religion for two reasons, one of which was that because in 1960 it was clear that freedom of religion existed, and yet the Lord’s Day Act was in existence and, therefore, it was found that the Lord’s Day Act could not be in contravention of freedom of religion.
As I say, this has been affirmed in a numer of decisions leading to what I call the “frozen concepts” theory. In effect, they say: “If you want to know what any right on freedom is that is protected under the Bill of Rights, it is not what the courts would interpret at the time they have to interpret, but what the rights and freedoms were in 1960.”
The result of that is that, for example, in the death penalty case, the Miller and Cockriell decision arising out of British Columbia, Mr. Justice Ritchie, on behalf of the majority, decided that the death penalty was not cruel and unusual treatment or punishment, not for reasons that the Chief Justice decided, which was an analysis of the offence in relation to the person, in relation to the severity of the penalty, in relation to the aims of Parliament, but on the basis that the death penalty existed in 1960; it was not considered in contravention of the Canadian Bill of Rights at that time, it is not in contravention of the Canadian Bill of Rights today. He went further to say that, since the Bill of Rights was enacted in 1960 and Parliament subsequent to 1960 on three occasions amended the Criminal Code retaining the death penalty before the subsequent abolition, this meant that Parliament did not consider the death penalty to be contrary to the Bill of Rights, and the court does not so consider.
He went further on this line—and this is why I think the “frozen concepts” theory, if not dangerous, at least diminishes the effect of the Bill of Rights—to say that since Parliament enacted the death penalty provisions before and after the coming into force of the Canadian Bill of Rights and did not include the notwithstanding clause, which you find in section 2 of the Canadian Bill of Rights, then the absence of the non obstante clause meant that Parliament did not intend the
death penalty to be contrary to the Bill of Rights. If you think of that you realize that in no way can the Bill of Rights have effect.
If you follow him and say that the absence of the non obstante clause means the Bill of Rights does not apply, the presence of the non obstante clause clearly by the Bill of Rights means the Bill of Rights does not apply, so how can you apply the Bill of Rights? I think this is the extreme of what the “frozen concepts” interpretation can lead to. It certainly means that presumably our courts 50 years down the line would not hold that any right or freedom which has evolved in the interim is to be protected, because if it did not exist in 1960 it would not exist in the future. I have suggested that, whatever else we do with the present Bill of Rights, we have to remove the words “have existed and shall continue to exist.”
The real question in the present bill is, if you look at the opening words of clauses 6 and 7, would the “frozen concepts” interpretation continue or reappear? You will notice they say:
—in Canada, every individual shall enjoy and continue to enjoy the following . . . freedoms.
For one thing, I do not see how a person at any time that the charter is in operation can enjoy without continuing to enjoy, so it seems to me that these words are superfluous. I thought that statutory interpretation meant that statutes always read as of whenever they are being applied. Therefore, if you use the present tense and say that every individual shall enjoy, why one cannot say “every individual shall have” instead of “enjoy” I do not understand, because I assume we will enjoy it if we have it in any case, whatever else happens it seems to me that there is a danger that the words “continue to enjoy” will either lead back to a possible interpretation similar to that in respect to “have and continue to have” and should be deleted.
I do not think I can say more on it except that the present wording in section I of the Canadian Bill of Rights has led to that kind of interpretation. Whether these words, by repeating “and continue to enjoy”, will do that or not I dont know. In any case, I cannot see what these words accomplish, and therefore, in the fear that it might bring back a “frozen concepts” interpretation, I would have thought it should be deleted.
I might just make one further remark with reference to that. The courts may be tempted to think that these words must have had a meaning if you compare the opening paragraphs of clauses 6 and 7 with the other clauses. For example, clause 8 says:
Every citizen of Canada . . . has the right to move—
It does not say “and shall continue to have”. Clause 9 says “The rights and freedoms … shall be enjoyed”. It does not say “shall be enjoyed and shall continue to be enjoyed”. It there-
fore seems to me that the introduction of those words in clauses 6 and 7 leads to ambiguity.
Senator Connolly (Ottawa West): If it were desirable to eliminate the word “enjoy” and use the word “have” in clauses 6 and 7, what would you do in clause 9? That says:
The rights and freedoms declared by section 6, 7 and 8 . . . shall be enjoyed.
What word would you use instead of “enjoy” there?
Senator Greene: “Had”.
Professor Tarnopolsky: I am sorry, but I do not know that I could quickly come up with a suggestion for another word. I have another reference to clause 9, which is that I do not think it is necessary, but that is another question.
The Chairman: Mr. du Plessis has a comment.
Mr. R. L. du Plessis, Q,C., Law Clerk and Parliamentary Counsel: In developing the “frozen concepts” interpretation did the courts at any time give consideration to section 10 of the Interpretation Act?
The law shall be considered as always speaking, and whenever a matter or thing is expressed in the present tense, it shall be applied in the circumstances as they arise, so that effect may be given to the enactment in every part thereof according to its true spirit, intent and meaning.
Is it because the present tense is not in the introductory words of the Bill of Rights that this interpretation was given by the courts?
Professor Tarnopolsky: I don’t know if that is the reason, but it is certainly the reference to “have existed”, which means “in the past, up to and shall continue to exist”, which was the reason referred to by both Mr. Justice Ritchie and Mr. Justice Martland as, in effect, saying flatly that the Bill of Rights created no new rights. This was Mr. Justice Martland’s statement, that the Bill of Rights created no new rights. There is a long argument as to why I think that is not so, but I don’t think you would have the time to hear that, They had somewhat more reason to avoid the Interpretation Act than might be the case here, but I think the wording is sufficiently close that the danger could arise.
Mr. du Plessis: In the present bill I notice that the present tense is not used, so, as you were saying, we could run into the same problem:
Professor Tarnopolsky: The proposed charter uses the present and the future, The present Canadian Bill of Rights uses the past and the present. It seems to me that the present is sufficient all the way through without bothering about past or future.
Senator Forsey: The present tense appears in clause 8, does it not?
Professor Tarnopolsky: That is right, That is why I suggest that, since the present tense is used in clauses 8 and 9—and if you look at the language clauses the present is used there—one might ask why the other formulation was used. That is why it
seems to me that it is better to be uniform and use the present throughout.
Senator Connolly (Ottawa West): That would mean the present tense in clauses 6, 7 and 8.
Professor Tarnopolsky: Clauses 6 and 7. Clause 8 already uses it.
Senator Connolly (Ottawa West): And clause 9.
Professor Tarnopolsky: Clause 9 is the present; it says “shall be enjoyed”. I think it can be interpreted either way. I suppose more in the future.
Senator Greene: Is that lovely word “enjoy”, which I think is giving us all some concern, not borrowed from the American Constitution?
Professor Tarnopolsky: I am sorry, I can’t say. I should know.
Senator Greene: Do they not speak about enjoying life, liberty and the pursuit of happiness?
Professor Tarnopolsky: That is in the earlier part, because the First Amendment deals with freedom of speech and press and merely says, “Congress shall make no law” abridging speech and press. The reference to “enjoy” is not made there.
Mr. Cowling: Professor Tarnopolsky just alluded to the wording in the United States, where it says, “Congress shall not make any law”. Getting back to clause 23 of the bill, would it be any help if language to that effect were used, such as, for example, “Neither Parliament nor the provinces may make laws which derogate from these principles”? I do not think your own wording goes quite that far.
Professor Tarnopolsky: One can say that the American formulation, “Congress shall make no law”, does not address itself to the point, because at the time Congress makes it Congress does not know whether it is making it law or not. One is talking about its subsequent application.
Mr. Cowling: It is language similar to what you find in clauses 91 and 92, in a way. It is the same idea.
Professor Tarnopolsky: I don’t see any reason why it could not be used. It just seems to me that if one considers the point at which the Bill of Rights has effect, if it going to have effect, is its application and the subsequent possible interpretation by a court, and it is probably preferable to address that point. There is no reason why one could not use the straightforward formulation even that no law shall have effect.
Mr. Cowling: Are you suggesting we use both?
Senator Godfrey: They can make a law in the United States which is constitutional when it passes and becomes unconstitutional fifty years later. They overrule their own decisions without any hesitation whatsoever. Isn’t that correct?
Professor Tarnopolsky: I am not sure they do it without any hesitation.
Senator Godfrey: Perhaps that is an over-statement, more worthy of Senator Forsey.
Professor Tarnopolsky: I am not sure they do it without any hesitation.
Senator Grosart: But surely, on that point, the purpose of the Bill of Rights, or the purpose of entrenching a bill of rights, is to give protection to an individual against activities other than those of legislatures. Surely it goes far beyond that. Not only must it say that a legislature may not, but it must say that any other individual may not.
The real point I have in mind is this, do you see any particular reason why clauses 6 and 7 should not be put together, prefaced with the statement that “Every individual has the following rights and frecdoms..,” because it seems to me, coming back again to this use of the word “fundamental,” that it could be misleading and it could lead, in my view, to a rather strange interpretation. Because the right not to be arbitrarily detained surely is as fundamental as anything in clause 6. So why not clearly state that “Every individual”-assuming that that has been defined somewhere—”has the following rights and freedoms. . .”? Why not do that? And would not that effect what it is intended to effect?
Professor Tarnopolsky: I see no reason why that formulation should not be chosen. it could make all of the rights and freedoms of equal importance. There are some who say that when talking about fundamental freedoms, one is talking really about what is enjoyed or shared by everybody in the society, The other rights are obviously ones that are available to everybody in society, but most people who do not run into the administration of justice process do not have need of invoking them. This is the kind of thing that the scholastics got themselves too far involved in. I see no reason why one cannot merely use one formulation throughout. I quite agree with you. For example, the one I proposed for Manitoba was:
It is hereby proclaimed that in Manitoba every person shall have the following fundamental freedoms. . .
And then we went on to deal with specific sections later. There is no reason why it cannot be used in that way, or, on the other hand, using separate sections for the different kinds of civil liberties.
Senator Grosart: Would you agree that there might be an advantage in doing it this way, in the educational use of a bill of rights, which has generally been regarded as being a fairly important aspect of its application—that is to say, that you would have school children saying that there are 21 basic rights and freedoms, and then they would learn them? They certainly would not be encouraged to learn them from the type of draftsmanship we have here.
Professor Tarnopolsky: I cannot respond to that. I think clauses 6 and 7 are relatively brief, and should not pose an obstacle to learning, but I do not think you would want me to comment on that otherwise.
Senator Forsey: Senator Grosart is merely trying to suggest, I think, what you find in the Anglican prayer book about
sermons. “He that speaketh so turning himself about . . . . in a language understanded of the people.”
Senator Grosart: I was really thinking of the thirteenth chapter of First Corinthians.
Professor Tarnopolsky: Perhaps I could run through the two points that I thought I should mention, even if we run out of time, and then I could deal in more detail with specific provisions.
The two points I wanted to make were these. Taking the one which was my second one, it is that in addition to overriding effects one has to see the actual definition and scope of the freedoms, and for that purpose the opening paragraphs in clauses 6 and 7 become important.
The third point I was going to end up with, and which I think one has to raise is based upon what the present Supreme Court has done with the present Canadian Bill of Rights and that is the matter of remedies. Let me put it in these terms because it comes back to the question that was raised by Senator Grosart with respect to administrative acts. In the case of Regina v. Hogan you had Hogan driving with his girlfriend, being stopped by the police and asked to come to the police station to give a breath sample. On arrival at the police station and waiting for the breathalyzer he asked his girlfriend to telephone his lawyer. His lawyer arrived at the policy station before the giving of the breathalyzer test. Hogan asked to speak to his lawyer and the police said “No, you don’t have a right to speak to your lawyer.” Then the policeman added, “In fact if you don’t take the breathalyzer we will charge you”—under the (then) section 238-“for failure to take the brcathalyzer test.” At that point Hogan said, “All right, I will take the breathalyzer test.” Subsequently, upon his conviction it was argued on his behalf that this was a contravention of the Bill of Rights, paragraph 2(c)(ii) which deals with the right to retain and instruct counsel without delay, and therefore the evidence obtained from the breathalyzer should be inadmissible.
Mr. Justice Ritchie, for the majority, and Mr. Justice Laskin, for the minority, both held that this action by the police was a contravention of the Canadian Bill of Rights. However, Mr. Justice Ritchie went on to say that even if it was a contravention of the Bill of Rights, there is no remedy. This is what I call the “You may have a right, but you haven’t got a remedy” principle of interpretation. The Bill of Rights does not set out a remedy, and so there is no remedy. We do not necessarily, he said, have to accept the American exclusionary rule in order to enforce the Bill of Rights. That is the majority decision in the Hogan case. So this really comes back to the point raised by Senator Grosart. If the Bill of Rights merely applies to legislative acts and does not apply to administrative acts, then it does not cover a huge area, and there is the fundamental problem that I have with the Hogan case which is this; if you apply the majority judgment in the Drybones case. which was given by Mr. Justice Ritchie, then presumably if Parliament had amended the Criminal Code to say that right to counsel shall be denied in the taking of the breathalyzer,
then if you apply the Drybones principle, that provision would presumably be inoperative because as a legislative act it comes within the terms of the Drybones case. An act of Parliament which is inconsistent with the Bill of Rights is invalid to the extent of the inconsistency unless you use the non obstante clause. So, such an amendment to the Criminal Code would be inoperative under the Drybones principle, but in the Hogan case where there was no basis or source in law for the denial, and since it was at the administrative discretion of the police officer, presumably there is no remedy, and therefore, despite what seems to me to be an obvious development that the courts should have had, without explicit provision, that may not be available. That is the one question I have with respect to section 23. That is whether it is enough to say that no law shall apply or have effect or whether one has to be explicit enough and say that no administrative action pursuant thereto shall have effect.
Senator Greene: But is that going far enough? What about the corporate president who says, “We will hire nobody except red-headed Protestants.” Should we not go beyond governmental action?
Professor Tarnopolsky: That could have a different effect in the whole field of equal protection of the law, but then of course you get into the question of whether it is within the provincial or federal sphere. But I presume that the eventual Bill of Rights would apply to both and so it would not be important. But that is dealt with in most anti-discrimination and human rights laws in the provinces.
Senator Smith (Colchester): Just on this point, with reference to the Hogan case, my recollection of it, which certainly is far from perfect, is that the majority really rested its view on the rule that evidence, if it is relevant and material, is admissible no matter how it is obtained, even if it had been obtained by theft, or any other offence you could think of.
Professor Tarnopolsky: That is exactly the point he made. What Mr. Justice Ritchie said was that there is a contravention of the Bill of Rights; however, no remedy is provided. If we consider this particular case, what is available to us? The American exclusionary rule. However, he said that our rule has been that evidence, even if illegally obtained, is admissible if it is relevant. Then he quoted a decision of the Judicial Committee of the Privy Council with reference to a provision in the Constitution of Jamaica, in which the Judicial Committee said that whether the rule is written or unwritten it does not override a fundamental rule of admissibility of evidence. That is the crux of it.
Senator Smith (Colchester): Yes. It would have been exactly the same if the evidence had been obtained by breaking and entering, or by any other offence you can think of.
Professor Tarnopolsky: That is right. There is no question but that the rule in Begin, or the Wray rule, has got to go if one wants to have a bill of rights that is going to have an overriding effect. Either one has the exclusionary rule, or one has to provide rather complicated and detailed machinery for other forms of enforcement.
In the Hogan ease, and another case which arose from your province, Senator Smith, the Steeves case, the majority said, “Well, there are other means of enforcement. You can use a tort action.” But as every common law lawyer knows, the tort remedy has been singularly unused and inadequate for the purpose of protecting rights against police. It has been somewhat more widely and effectively used in Quebec because of the wider scope of delict in the Quebec Civil Code; and of course the Jehovah Witnesses cases give examples of its use. In the common law provinces it has had almost no use at all, but the Supreme Court has said, “That is your method of enforcement, through damages in tort.” So there is no doubt that that is the crucial issue. If one is to provide an effective remedy, one has to face up to the exclusionary rule. If one does not adopt the exclusionary rule, which the American Supreme Court has developed, then I think one has to consider very seriously what other compensatory or disciplinary measures might be taken in enforcement of the Bill of Rights.
Senator Connolly (Ottawa West): Would you say, briefly, for the record, what you mean by the exclusionary rule, or what the American courts mean by that rule?
Professor Tarnopolsky: Well, if evidence is obtained in contravention of the Bill of Rights, that evidence is excluded, and cannot be admitted. It is what they sometimes refer to as the “tainted fruit” doctrine. Any evidence obtained in contravention of the Bill of Rights is tainted by that contravention, and therefore it is not admissible.
Senator Greene: Is that not fairly now, though? Does it not date from about 1951 or so?
Professor Tarnopolsky: It is earlier than that—it was actually developed before World War II; but I think, as Chief Justice Laskin points out in the Hogan case, it is not an approach that is necessarily American. It was an American Supreme Court, struggling for a long period of time with these issues of how to enforce a Bill of Rights with respect to an administrative official, that finally concluded, and in fact I think it was in the late thirties with respect to search and seizure provisions, that the only way you can enforce it is by the exclusionary rule.
Senator Greene: So the Miranda case was a culmination of those efforts.
Professor Tarnopolsky: Yes, and it dealt more with the right of the accused to be informed of his rights, and his assertion of them in that way.
Senator Godfrey: Is there not a primary and a secondary aspect to that exclusionary rule? I have some recollection of the wiretapping bill to the effect that you might exclude the evidence that is obtained in the wiretapping, but if the person talking on the wiretapping referred to an axe in the back yard, you could go and get the axe and use that as evidence without reference to the conversation on the wiretapping, and it would be admissible. Could you expand on that a little?
Professor Tarnopolsky: That was something that came up in the Wray case, in Canada. Wray was in the police station in southern Ontario for a certain number of hours—I forget how many, but long after he should have been there—and he finally confessed. The confession was not admissible in the trial because it was clearly one that was forced out of him; but during the confession he made reference to a rifle that he had thrown into a river, or a lake, or into some body of water, anyway. They found the rifle, and it was clearly admissible in support of the other evidence against him. That kind of subsequent secondary evidence, that is, tangible evidence, that arises from a wiretap or, let us say, a forced confession, might be evidence that is admissible now in the United States. There has been considerable evolution there. There was a time when, if the original evidence was tainted, everything coming from it was tainted. As you know, the Berger court has been limiting, somewhat, some of the broader applications of the Warren court on the effects herein, and I just do not know what stage it was at which they started to limit the full application of it; but it seems to me that in reference to the point raised by Senator Connolly, there is no reason why one could not include a provision—and this is along the lines of the one suggested for Manitoba—to the effect that no evidence which has been obtained directly or indirectly as the result of an infringement of one of the fundamental rights and freedoms herein proclaimed shall be admissible in any court, tribunal, board, commission or other authority.
Senator Godfrey: Would the use of the word “indirectly” admit the rifle, or would it exclude the rifle?
Professor Tarnopolsky: I would suggest that it has to exclude the rifle.
Senator Godfrey: You favour the exclusion of it?
Professor Tarnopolsky: I certainly favour the exclusion of it all. This does not mean that one necessarily acquits if there is other evidence, but it seems to me that there is no alternative to facing up to this kind of rule unless one is going into a very detailed alternative system of police discipline, and compensation for people whose rights have been violated.
Senator Connolly (Ottawa West): Where would you put those words?
Professor Tarnopolsky: Well, in supplement to clause 24; and I want to deal with clause 24 now, because it attempts to deal with this, partly.
Senator Connolly (Ottawa West): You also suggest an addition to line 19, clause 23, to the effect that “no law or administrative practice shall operate so as to”, or something like that. What were the specific words?
Professor Tarnopolsky: I am not sure that they are sufficiently polished to repeat them here, but it has to be something like, “No law or administrative act pursuant thereto shall have effect . . .”
I think one clearly has to make reference to an administrative act pursuant to any law in this provision. In furtherance of an exclusionary rule, plus the effect of clause 23, one has to look at clause 24. I look at clause 24 in terms of the Hogan case, which I described a moment ago. I am not sure that clause 24, as it is now worded, would have helped Hogan, because clause 24 talks about “Where no other remedy is available,” and presumably we do not know the exclusionary rules available unless we write it in. Then, with respect to any competent court, an individual can:
. . . request the court to define or enforce any of the individual rights . . . by means of a declaration . . .
Well, a declaration by the court would have been of no help to Hogan. He needs more than that. It is great for him to know. The Supreme Court gave him a declaration that he had the right—
Mr. Cowling: But there was not time to get it.
Professor Tarnopolsky: There was not time to get it. One has to go further. With regard to “by means of an injunction,” would an injunction be a sufficient interpretation for the court to exclude evidence? You do not ordinarily have an injunction against a court. So who would the injunction lie against? I would have thought that at least one has to say rather than “by means of a declaration . . . an injunction or similar relief,” one should say “by means of a declaration, an injunction, or whatever other form of reliefthe court may consider appropriate in the circumstances.” There is no reason why one cannot use straightforward language in that sense. Article 31 or 32 of the Indian Constitution in effect says that whatever remedy is deemed appropriate in the circumstances shall be granted. I think that article 24, because I do not think it meets the problem raised in the Hogan case, needs some kind of amendment to that effect i.e., that whatever remedy is deemed appropriate in the circumstances shall be granted.
Senator Smith (Colchester): Another difficulty facing an applicant under this section would be to show that there was no other remedy available, because there might very well have been a tort action, which would have been of no practical good to him but which would have been available to him.
Professor Tarnopolsky: Yes, I think you are quite right.
Senator Godfrey: Would Mr. Justice Ritchie think it was appropriate?
Professor Tarnopolsky: I do not know.
Senator Greene: I take it, professor, that you have no other suggestion but the exclusionary rule as a remedy to these rights, Politically, to adopt anything that smacks of being borrowed from the U.S.A. is a very difficult thing to sell. I am wondering whether we have any alternative.
Professor Tarnopolsky: As I say, there are two other alternatives. One is a complicated procedure of police discipline: namely, one does not exclude the evidence in the case of Hogan. However, the police officer who denied him the right to counsel would in some way be disciplined. But then one runs into the whole question of the application of the federal Criminal Code, with the question ofjurisdiction over the police in the province, or municipal police, or whatever; plus the question of whether or not the police discipline tribunals anywhere in the country today are sufficiently efficient or effective. That is one alternative. The other alternative, of course, would be a rather complicated enforcement compensatory system wherein the courts might very well say “If this person’s rights were infringed, some compensation may be granted to him.” But that seems to me to be more absurd than excluding. In other words, let us say in Hogan’s case we uphold his conviction but we grant him $1,000 because he was denied the right to a lawyer. It does not seem to make sense to think of any compensatory scheme in that sense; plus the other fact about a compensatory scheme, which is that unless it in some fashion hurts or affects the person who deprived Hogan of his rights, or his superiors, it is not going to be effective as a deterrent in the future. In other words, if the compensation comes out of some government scheme, how does it affect the police officer on the spot, or his superior, to induce him in the future not to contravene in the same fashion? So one considers all the possible alternatives. I cannot think of a better one than the exclusionary rule.
Senator Smith (Colchester): It seems to me that it would be not unreasonable to make it an offence for any person to violate any of the rights which are set out here. While it would not be the perfect remedy, it would make a fellow pretty nervous about doing it intentionally.
Professor Tarnopolsky: That is certainly a possibility. For example, the approach, in effect, taken in the Saskatchewan Bill of Rights, is to make contravention of it an offence. The only thing is that I do not know that anyone has ever been convicted under it.
Senator Smith (Colchester): Perhaps the reason they have not been convicted is because it scared them off from committing the offence.
Professor Tarnopolsky: That is possible. I would have to backtrack somewhat and say that, as an alternative to police complaint tribunals or compensation, this is probably the other way to do it. I still prefer the exclusionary rule. But making it a criminal offence would be another fashion whereby one can enforce. I think you would still be subject to the same problems which the police complaint tribunals have, which is that
most convicted people, after their conviction, have not been very successful in getting police officers—or anyone else, for that matter—to pay for any contravention of bills of rights or other laws; and I am not sure that they would be here.
Senator Connolly (Ottawa West): Is there any objection, in a document of this kind, to having a penalty clause? This is a Bill of Rights. I think what Senator Smith is suggesting is a very sensible proposal. In a document like this, can you prescribe a penalty?
Professor Tarnopolsky: Yes.
Senator Connolly (Ottawa West): There is no objection to it?
Professor Tarnopolsky: No. In fact—I am not sure that I can find it very quickly—the international covenant on civil and political rights, which Canada has ratified, requires that there be laws or constitutional provisions which provide in some way for penalties for contravention of the civil liberties protected in the state. There is no reason why it cannot be done. As I have suggested, it is done in the Saskatchewan Bill of Rights, and could be added to any other bill of rights.
Senator Connolly (Ottawa West): Could we ask you to consider the drafting of such a clause, even the outlining of such a clause, and the place where it might be inserted?
Professor Tarnopolsky: If you wish, I could make an attempt to draw one.
Mr. Cowling: In Hogan’s case, if he had insisted in his refusal, he would have been better off.
Professor Tarnopolsky: That was Hogan’s mistake tactically—in not continuing; because Brownridge continued to refuse and got away with it. Brownridge is the other case, after Drybones, in which the Supreme Court did give some effect to the Canadian Bill of Rights. In effect, Brownridge was charged without reasonable excuse for failing to take the breathalyzer. When the case reached the Supreme Court of Canada, the Supreme Court said that certainly denial of counsel provided Brownridge with a reasonable excuse. So the majority held that, at least within the term of the Criminal Code, denial of counsel constituted reasonable excuse for refusing to give a breathalyzer. That was Hogan’s mistake.
Senator Bosa: Mr. Chairman, I am wondering whether there are any provisions whereby society, collectively, is protected as zealously as are individuals from these pernicious elements.
Professor Tarnopolsky: That is a difficult question. I would answer that this way: in some ways yes; and in some ways no. Clearly, all of the, as they call themselves, socialist countries, and as we call them, communist countries, have that. In effect, if you look at the old or new Soviet Constitution, or the Constitution of any of the countries of Eastern Europe, they will proclaim the fundamental freedoms, and then have words which vary, but read something like this: “In the interest of the working people” or “In the interest of the working people and
the building of the socialist state.” If one were to use that kind of formulation, clearly the collectivity, for those purposes, is intended to override the individual rights. That is one possibility.
The other approach I could take to your question is that the present British North America Act does have certain collective rights provisions. For example, section 93 deals with the rights of separate schools. This is a protection of a collective right. So, in a way, one can argue that the BNA Act gives more prominence to collective rights, such as that of schools in section 93, and the collective rights such as those of language in section 133, than it gives to any of the other fundamental freedoms because those were never listed in the BNA Act. So there is that kind of approach.
Then, of course, there is a third approach, an approach which I do not think you wish me to discuss here today, that being Bill 101. If one decides that the interests of the majority on language override the interests of unfettered free choice as far as schools are concerned, one can put forth a charter of language, and one can decide that the interests of the majority are more important than individual rights, but that raises a whole series of difficult, conflicting and competing interests, as you can imagine.
Senator Bosa: More particularly, I was referring to the Wray case where, as a result of an illegal act on the part of the police force evidence was obtained. It was discovered that the police had committed a crime, but it was relative evidence. In this case, should not that evidence be valid in order to protect society? Why should an individual like that be allowed to go free?
Professor Tarnopolsky: That is the question one has to face in the Bill of Rights. Does one consider that the punishment of wrongdoers overrides the protections that a Bill of Rights sets out? That is a decision that is made when a Bill of Rights is adopted. There is no question but that occasionally, in the enforcement of a Bill of Rights, one may have to let wrongdoers go free if, in the process of dealing with an accused, the police, or some other government agency, contravenes the Bill of Rights.
Senator Bosa: Would it not be better to compensate the ones who were unjustly treated? If they were persecuted for reasons that they did not deserve, would it not be better to compensate the innocent victim rather than to allow the wrongdoer to go free?
Professor Tarnopolsky: I think it would be much more complicated. One would have to decide whether one wanted to provide such compensation only to the persons acquitted. One would have to go into the whole question of who is guilty and who is innocent and whether the decision of the court in the accusation is a determination of guilt or innocence.
Some of this is dealt with in the various provincial compensation for victims of crime statutes, but, by no means, are they all-inclusive.
Senator Forsey: If you pursue Senator Bosa’s point to the extreme, you will arrive at the situation that used to exist in a certain court in Quebec, I am reliably informed that if an accused appeared before Mr. Justice Sicotte, and if he pleaded not guilty, the old gentleman would look down over his glasses at him and say: “If you were not guilty you would not be here.”
Senator Greene: That is not exclusive to Quebec!
Mr. Cowling: Mr, Chairman, I am afraid I shall have to refer back to item 2 on Professor Tarnopolsky’s agenda. I think this is important; however, if it is not, I will drop it. My question has to do with the right of the individual to property and not to be deprived thereof, except in accordance with the law.
I was just looking at your proposed bill for Manitoba, Professor Tarnopolsky. Am I right that there is no equivalent freedom in that particular bill?
Professor Tarnopolsky: There was nothing there at all on that point.
Mr. Cowling: It seems to me that this is important. Perhaps you could answer that.
Senator Godfrey: Manitoba is a socialist province.
Mr. Cowling: Well, it is a proposed act.
Professor Tarnopolsky: What I should say, for the record, is that that was my proposal, The end version is my discussion with the commission and the commission’s decision as to what would go forth.
This question was raised earlier by Senator Marshall, and I think I should return to it, because this brings it into line. I think the real reason for removing the property clause from the “due process” clause is the continuing fear many people have that we would introduce the substantive due process interpretation that has taken place in the United States. So, one separates it. If one separates it, then the question one faces is what one would put in with respect to property.
Many of the constitutions in the world provide something such as this: “The right of the individual to the use and enjoyment of property” and, “The right not to be deprived thereof except for the common good,” or, “except for the public weal,” or, “except for the public good and upon payment ofjust compensation.”
Usually these are the versions that have been put forth. For example, in the German clause it speaks specifically in terms of expropriation, It states:
Property and the right of inheritance are guaranteed. Their content and limits shall be determined by the laws.
That is about as broad as this. They are talking about their content and limit to be determined by the laws. That is the same as “the right not to be deprived thereof except in accordance with the law.”
They do, however, go on to say that expropriation shall be permitted only in the public weal, and may only be effected by a law which shall provide for the nature and extent of compensation. So, one could go on in such greater detail to deal with that matter of compensation.
Mr. Cowling: Except compensation could be in the amount of $1.
Professor Tarnopolsky: This is part of the problem. If one were to insert the words “just compensation,” then, of course, there is no question that it leaves a wide open field for litigation on what is just, and the whole question of whether the courts would second-guess Parliament as to what is just compensation.
It raises another problem, which is not to say that it should not be included, and that is that a person is deprived of property on many occasions. It might be by way of penalty; it might be by way of payment of a fine, if we are talking about property in the widest sense, personal and real property. There are all kinds of ways in which one is deprived of property by way of a penalty or forfeiture. Another thing is, of course, that one of the ways in which one can define deprivation of property is all the taxation statutes. So would one then want to add: “The right to the use and enjoyment of property and the right not to be deprived thereof except in accordance with the law and just compensation provided for but not so as to affect laws dealing with taxation and penalties or forfeitures.” One could go to that extent if one really wanted to be technically correct on this. I think that this is probably why the draftsmen gave up and said, “According to the laws.” This, at least, meant that without the legislative provision there shall be no taking of property, and that the protection shall be in the legislatures as to whether or not there shall be compensation, and if so, on what terms.
Senator McIlraith: With respect to the use of the words “just compensation”, in the accepted planning legislation in most provinces there is provision for taking part of the land of a development for school purposes without compensation. It is an accepted practice. Do you not get into a difficulty there if you add thejust compensation provision that was suggested?
Professor Tarnopolsky: You are quite right. In fact, a slight extension of that may be this. Suppose you do not have the actual taking for the public good of a school, or whatever, but a zoning law is imposed and suddenly the property drops to 50 per cent of its value. Is that the taking of property? Well, it certainly isn’t taking, but is it deprivation of property? If it is not deprivation of the real property it is certainly deprivation of the value which may constitute the property.
Senator McIlraith: The requirement of the expropriation of property to provide the necessary roads and streets in any subdivision is deprivation of the person’s property, and there is no compensation. You are into difficulties there.
Professor Tarnopolsky: This is why I am suggesting if one wants the relatively short formulation for the purposes suggested by Senator Grosart earlier, of something that school children can learn, then I think one uses a relatively short formulation such as this “in accordance with the law,” and at least one has the protection that it cannot be taken without prior legal authorization. The other alternative goes a long way to provide limitations to exceptions to cover all these cases of zoning, expropriation, taxation, penalty, regulation and so on.
Senator Greene: I believe the Americans have the adoption of present needs. They do not call it expropriation. They have some other expression.
Senator Connolly (Ottawa West): Condemnation.
The Chairman: They condemn.
Senator Connolly (Ottawa West): They condemn property. We expropriate it.
Senator Greene: The Minister of Public Works can, under our act, expropriate all of Canada if he deems it might be needed for the extension of facilities on Parliament Hill. That is all the section does. We are not limiting that. That is under the due process of law. He is given the power in a statute. Somehow it got past our supposedly watchful eyes. Could we not somehow limit that kind of expropriationary power by the doctrine of present need, if it is needed for some presently definable use? Probably we do not want to limit the power to expropriation. However, if it is some broad concept like the future extension of Parliament Hill, then it seems to me that under that section he could expropriate all of Canada. “Some day we may want a subsidiary building even out in Saskatchewan, so let us expropriatc all of Saskatchewan.” Surely we should delimit this. Under the power of law today there are too broad expropriation powers. I think Mr. Justice Hart’s Law Reform Commission report indicates that very clearly. We are not doing much to limit that power by the wording we have here. Under the present need theory I don’t know if there is something wrong with that.
Professor Tarnopolsky: I think one can make an attempt with a more detailed provision. As I say, there is an example of it in the German Constitution, and there are some others. I think there is no doubt that this is the part of the Bill of Rights that has created the greatest problems in the United States, and certainly the greatest problem in lndia, which is one of the greatest of operating democracies with a bill of rights, and yet having parliamentary supremacy (apart from the brief period of emergency suspension). No clause in the Indian Constitution and the Indian Bill of Rights has given as much trouble in the struggle between the courts and Parliament with respect to
the property clause. All kinds of attempts have been made to meet it. I am not sure how successfully. All I can say on that is that I think one could try to meet it. I am not sure it would be any more successful in the brief formulation, but it is possible to find one.
Senator Greene: To get off property, I am more concerned with the fact that we at least consider the law enforcer’s view, no matter which way our personal sympathies go. Obviously, from this discussion here we are not considering the law enforcer’s view is very important, but I think we would be remiss if we did not at least ask a witness as expert as we have here how we answer the law enforcer’s query vis-a-vis organized crime. He says, “You are asking me to fight with kid gloves and organized crime uses these individual rights”, as you outline them, “in order to beat the system and the majority. You can’t apply the rules which we apply to the individual if you are going to effectively fight organized crime.” So says the law enforcer. How do we answer him?
Professor Tarnopolsky: I am not sure that I can provide you with an answer. It seems to me that the decision that is made when one adopts a bill of rights is that one has to have a balance between the protection of society against wrondoers on the one hand, and on the other hand giving unlimited and excessively arbitrary powers to the police. At some stage one balances off, It seems to me that if one goes to the cases in the United States, your famous cases like Miranda, Escobedo and all the others, did not involve organized crime, and this is where part of the problem arises, which is that in effect the police decide in their administration who is and who is not part of organized crime, who is and who is not in a position to have his rights protected.
My concern in these circumstances is that I do not think there is any great danger of any one of us being put in the position that Wray was, so I am not considering myself, and I am sure nobody is concerning him or herself, with respect to the protection of the Bill of Rights. The problem that arises quite frequently is that it is used with respect to people who have little or lesser education, quite frequently with respect to people who cannot speak the language, who may have immigrated recently, quite frequently with respect to people who look different, in whatever form, whether because of skin colour, shape or whatever—just part of the natural antipathy that different shed human beings have for each other. That is what concerns me.
The real question is this. Without a bill of rights, organized crime looks after itself pretty well. The Bill of Rights is not going to give them anything. The people who need the Bill of Rights are the little ones, who do not have the connections, the lawyers, the money that organized crime can have; they are the ones who need the Bill of Rights.
Senator Greene: It seems to me that there are several elements. Organized crime on an international scale, the international terrorist, and the hijacker are three new elements in our global western society that have largely arisen in our lifetime and cannot be ignored. Are we very sure that in the
rights we are giving here we are not giving them a sort of blanket warrant to carry on their activities in an easier fashion than they do presently?
Professor Tarnopolsky: I think I can say this without question, a hijacker or a kidnapper can operate more effectively in Canada or the United Kingdom than he could in the Soviet Union. Now how much power do we want to give the state to deal with a hijacker? It is very easy in the context of a totalitarian state. It is obviously less easy to deal with in a state such as ours. It is a matter of weighing the balance, but there is the other question I should have dealt with, and I do not know if there is time to do so now, which is raised by your question and that is connected with the limitations clause, clause 25. This provides for limitations on different rights and freedoms, and I guess what I am trying to say is this, that whether there is a limitation section or not, the courts will tend to interpret any bill of rights, as the American courts have, with some kinds of limitations. The first amendment of the American Constitution says:
Congress shall make no law restricting freedom of speech.
Yet the American Supreme Court has through the years recognized that despite this absolute prohibition there are certain reasonable limitations. So I think whether one includes it or not, limitations will be interpreted.
One can say that including limitations sections is in the tradition of post-World War II bills of rights. The European Convention, for example, which binds the United Kingdom and all of Europe, does have specific .limitations sections. The new German Constitution drafted by American and German experts does have a limitations section. Most of the new bills of rights drafted for the newly independent members of the Commonwealth by British constitutional lawyers have limitation sections. So it is within the trend to include them. The only problem I have is this, and I hate to leave you with that kind of provocative statement: all of these bills of rights have limitations sections that very slightly and apply to specific rights. They do not apply to the whole bill of rights. This one applies to the whole bill of rights. The object of it I think is a laudatory one, namely that to some extent limitations section 25 replaces section 6 of the War Measures Act, which provided that when the War Measures Act was proclaimed any action under the War Measures Act could not be deemed to be contrary to the Bill of Rights. That may be a laudatory purpose. The only problem is this: if you have a limitations section applying to the right to life—and Senator Robichaud asked about this—can one say that there is ever a situation of national security, public order or public morality which gives a right to limitation on the right not to be subjected to cruel and unusual treatment or punishment? In other words, none of these bills of rights that one has in Europe or in the world uses these limitations sections with respect to the section 7 rights except in specific limited ways, or in times of an actual officially proclaimed emergency. Section 25 applies it to all the rights including section 7 and not just in times of officially proclaimed emergency, but presumably at any time. I think it
is a rather wide limitations section. I understand the reason for it was, and this is from a press conference that I heard, that it was to substitute for section 6 of the War Measures Act. It may be substituting too much.
Senator Connolly (Ottawa West): Do you have an alternative?
Professor Tarnopolsky: Not a quick one. I think again that all the examples one has uses these kinds of limitations clauses with respect to fundamental freedoms only and for specific purposes to some of the section 7 rights, but very specific purposes. But it is a whole question of whether one wants to make specific provisions for emergency measures such as the War Measures Act, or do you want to have it all dealt with under section 25.
Senator Connolly (Ottawa West): Would it be possible to impose upon you and ask you to write us a memo concerning section 6 of the War Measures Act in relation to this and perhaps a suggested draft of some changes which might be made in clause 25?
Professor Tarnopolsky: I am not too sure of the amount of time available, but I could certainly try if that is what the committee wishes.
Senator Connolly (Ottawa West): I know it is an imposition to ask you to do it. I am not, of course, thinking that you should do it today. You might write to us.
Professor Tarnopolsky: It might be possible by August 24.
The Chairman: There is no need to rush.
I really hesitate to cut off this discussion because it has been veryyuseful and it has been very interesting, but it looks as if we have wound down our questioning. I know you have sensed how interested the members of the committee have been, and we are very grateful to you for taking the time to be with us, and we appreciate the guidance you have given us. As I detect from Senator Connolly’s requests of you, we will probably be in touch with you from time to time. Thank you very much indeed.
The committee adjourned.
The committee resumed at 2 p.m.
The Chairman: You may recall that the other day we had Dr. Strayer, Mlle Desjardins and Miss MacDonald with us. Unfortunately, Miss MacDonald is tied up with other matters this afternoon, but Dr. Strayer and Mlle Desjardins are both with us.
Having in mind the relatively short period of time available to us, and the fact that we are not going to be meeting again
until the first week in September, I thought we might ask Dr. Strayer to deal with certain elements that he had indicated he wanted to make some reference to when we were here the last time. That will give us an opportunity to think about what he has to say before we return in September.
Senator Godfrey: Well, if Mr. Strayer has things on his mind, why doesn’t he just plunge in?
The Chairman: Yes, perhaps that is the best idea.
Mr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law, Department of Justice: Mr. Chairman, one area that I assumed the committee would wish to get into at some time or another was that of the role of the monarch and the Governor General. I read the transcript of the proceedings of the meeting of two or three weeks ago and felt that this was one area where we could be of particular assistance, since it seemed to me there was a number of misconceptions abroad concerning the impact of this bill on the institution of the monarchy and the office of the Governor General.
There has been a great deal written in the press about these matters. I think a lot of it is misconceived, though that is neither here nor there for the purposes of this committee; nevertheless, I think some of the ideas that have been circulating have found their way into the discussions here, and I think I might be able to assist on certain points.
Senator Greene: “Misconceived” or “aborted”?
The Chairman: You will remember that what we asked Dr. Strayer and his supporters to do for us was not to deal with policy questions but to try to be sure that we were not going down the wrong path. In other words, if there are areas of drafting which have been misconstrued, or which, at least, have not been interpreted in the way the draftsmen intended, we should be aware of that we do not waste time on unnecessary discussion.
Mr. Cowling: “Misconstrued” is perhaps a safer word than “misconceived”.
Senator Smith (Colchester): I am not sure whether that is a very safe word or not, because most of us can read.
The Chairman: Well, let Dr. Strayer give us his understanding.
Mr. Strayer: I thought I might make a few comments first, and then of course the committee will proceed as it wishes; but just to reinforce what you have said, Mr. Chairman, I am not here to argue policy matters. It is just that I think there are some explanations for the way in which the bill is constructed which have their basis in certain other constitutional documents and in historical developments which have occurred over a period of at least 50 some years. One can understand the bill better, perhaps, in the light of those developments.
I would like to refer just to a few points which reflect some fundamental facts about the position of the monarchy and the Governor General, and relate those to the bill—I thought that might be the most helpful thing to do—so that one could then see the thing in a more or less total context.
One starts off, of course, with the proposition that the Crown normally acts on the advice of ministers who hold the confidence of Parliament. This has been the established practice in the United Kingdom for a hundred to two hundred years. The practices of cabinet government, I think, had become pretty well consolidated by the time Queen Victoria ascended the throne, and this bill, really, does not touch at all the basic proposition that in any constitutional monarchy based on the British structure the sovereign acts on the advice of ministers responsible to Parliament.
A second proposition, more germane to the Canadian situation, is that the Crown is, among other things, a Canadian institution. The monarchy was eanadianized at least as far back as 1926, when, at the time of the Imperial Conference the Balfour Declaration was adopted. That declaration, of course, said that the newly independent members of the Commonwealth were independent states, equal in status, none subordinate to the other, owing a common allegiance to the Crown. The logic of that was, then, that the Crown became a somewhat distinct institution for each of those dominions, as they were called in the Balfour Declaration—that is, Australia, New Zealand, South Africa, the Irish Free State, Newfoundland and Canada.
Logically flowing from that, and as further the symbol of it, at the time of the ascent to the throne of the present sovereign the title of the sovereign was Canadianized becose at that time the Parliament of Canada—and this was with the full agreement of all of the Comonwealth countries of that day— adopted a Royal Style and Titles Act which described the Queen as being, for our purposes, Queen of Canada and of the United Kingdom and of other territories, cetera Defender of the Faith; so that made it very clear at that point that there was a Queen of Canada, and that she was our Queen in a very special way. That proposition is retained in the bill, You will find in Scheule “A” to the bill that the royal style and titles have been amended, but only to the extent of deleting the reference to the United Kingdom. The sovereign is there described as Queen of Canada and other territories, head of the Commonwealth, Defender of the Faith, The deletion of the words “United Kingdom” was a development which was in fact suggested in 1953, I believe, by the government of the United Kingdom. It is something which Australia and New Zealand effected some time ago, and so this is not an innovation.
The question of whether the Queen is head of state—which was, I think, debated at some length here-seems to have turned on the wording of clause 30, which refers to her as the “sovereign head”. There are various opinions on the propriety of that particular phrase, but I think the intent is very clear. If anyone has any doubt about the intent, I think it is clear in the French version, where it simply refers to her as “la souveraine”, and the word “head” is not used.
Senator Godfrey: Why do we have to put the word “head” in, then? Is it love of words?
Mr. Strayer: The draftsmen, I think, were searching for an appropriate term which would also bear the connotation, very
specifically, of “head of state”; but if it does not add to clarity, I do not think it is a matter of very great importance, because the intent is clear, and I think it is even clearer in the French version.
The Crown, then, was established as a Canadian institution, it remains a Canadian institution, and the Queen is indicated as continuing as the sovereign of Canada. I think most people would find no difficulty in interpreting the word “sovereign” to mean the head of state.
Senator Smith (Colchester): Well, people certainly did.
Mr. Strayer: The intent, it seems to me, is very plain; but if it is not, of course the draftsmen can clarify it further. I do not think there was any question in the mind of the draftsmen about what it was they were supposed to do here.
Senator Connolly (Ottawa West): That is the point. Perhaps I am usurping what Senator Smith was going to say, but when Senator Grosart asked “Who is the head of state?” we looked but could not find the words in the bill. We looked at clause 30 and the clause which says that the Governor General is the first Canadian. We came to the conclusion that the sovereign, in fact, was, under the bill, the head of state. Is that not so? We were then confronted with the document that was issued somewhere saying that this legislation proposes that the Governor General shall be the head of state. Of course, I think that probably the legislation might take precedence over that document. What we want is to have it very clear from you, Mr. Strayer.
Mr. Strayer: I can say with complete assurance that it was the intent that the Queen should be the head of state. I am grateful for the mention of the document which was published. It was one of several summaries that were published, one of which referred to the Governor General as being head of state. That was clearly an error. A correction was issued, I think, the same day or the day after, but, as is often the case, the correction did not catch up with the original statement. But that was unquestionably an error.
Senator Connolly (Ottawa West): I have the reference here, thanks to Mr. Cowling. At page 1:116, at the bottom of the left-hand column, where Senator Grosart quotes from the “Highlights of the Constitutional Amendment Bill 1978,” at page 3, he refers to the “Office of the Governor General” and goes on to say:
The Governor General would exercise prerogatives, functions and authority in his own right, as Canadian head of state. However, the Queen would remain as always the sovereign head of Canada, and exercise her full powers when in Canada.
What you are telling us, in effect, is that that statement is now not considered to be operative.
Mr. Strayer: That is correct. The statement is inoperative.
Senator Godfrey: A new lingo. It was operative at the time it was issued, I bet.
Mr. Strayer: The people who write summaries of that nature do not always have the advantage of being lawyers, senator.
Senator Connolly (Ottawa West): Or disadvantage.
Senator Godfrey: Surely, the people who wrote the summary consulted with the person who drafted it, to find out what he meant?
The Chairman: I think it is important to remember that the witness said that it was corrected the same day.
Mr. Strayer: You have to appreciate that there was a great deal of paper produced in a very short time, at the time of the presentation of the bill, in terms of the explanatory material.
Senator Smith (Colchester): I cannot refrain, Mr. Chairman, from expressing the view that surely the person who drafted and who was authorized to publish that explanation of such an important document as this must have been a person who knew what he was doing at the time he did it; and you do not have to be a lawyer to know what the term “head of state” means.
Mr. Strayer: The subtlety had escaped whoever wrote that. That is all I can say. One can look at other summaries in more detail which were published at the same time which do not say that. It has to be seen as an error and an inconsistency which simply was not caught in the process.
Another proposition which flows from the first two that I mentioned is that with respect to Canada the sovereign exercises her powers on the advice of the Canadian government and not on the advice of some other government. This may be self apparent, but it was not always apparent, of course, and this was another thing which flowed from the Imperial Conferences of the 1920s: that in the process of recognizing that Canada was an independent state and the sovereign, the king, was the monarch of Canada, it followed that to apply the principles of constitutional monarchy to Canada the king would act on the advice of the Canadian government.
The bill recognizes this principle, both in clause 42, which refers to the appointment of the Governor General by the Queen, on the advice of the Council of State of Canada, and in clause 48(2), which was the subject of a good deal of discussion here—namely, the provision that the Queen acts while in Canada on the advice of her Canadian ministers, the Council of State for Canada.
So these principles have been well recognized for a long time and are simply carried forth in the bill. What applies to the monarch, of course, applies also to the Governor General as the representative of the monarch. He too acts on the advice of the Canadian government in this case. Again, I refer back to the report of the Imperial conference of 1926, which said—I quote this because I think it is important:
The Governor General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public
affairs in the Dominion as is held by His Majesty the King in Great Britain.
So that the Governor General acts in the same way that a constitutional monarch in any other part of the Commonwealth would act.
This, among other things, meant that the Governor General thereafter represented not the Government of Great Britain, which he had in part up to that time, but rather he represented only the queen—or the king, as it then was. He thereafter was not to act on the instruction of British ministers, but on the advice of Canadian ministers. It also meant, and means, that he is expected to follow that advice as the monarch in the United Kingdom follows that advice, except in those areas which are covered by the reserve powers, where he may be called upon to act on his own authority and without advice, or, on some occasions, contrary to the advice of his ministers.
Senator Connolly (Ottawa West): I do not want to hold you up, but you say that he acts on his own authority under the bill. At the present time, before the bill comes into effect, is he using the reserve powers on behalf of the Queen and not on his own authority?
Mr. Strayer: He represents the Queen and exercises for her the prerogatives.
Senator Connolly (Ottawa West): Then, there is that difference in the present proposal.
Mr. Strayer: Well, I do not want to get into the question of dissolution at this point, but let us go back to the time of Governor General Lord Byng who refused dissolution in 1926. He was acting in the name of the King, but he was acting on his own judgment in that case, and obviously contrary to the advice that he received from his Prime Minister.
Senator Connolly (Ottawa West): Was he doing it on his own authority or was he doing it on behalf of the monarch?
Mr. Strayer: He would have been acting on behalf of the monarch as the monarch’s representative, but he was acting within the authority delegated to him to act in that respect. I do not think, as far as I can recall, that there was any indication of his having any instructions, from London in that matter. He acted on his own.
Senator McIlraith: I am not totally clear as to the distinction between reserve powers and the royal prerogative. ln the case of the Governor General, is it not fair to say that some of his authority is that of reserve power, and the royal prerogative may be somewhat wider?
Mr. Strayer: Yes, it is indeed wider. I think it is fair to say that reserve powers are a very small segment of the royal prerogative, and it is that segment which is capable of exercise without advice from ministers.
Senator McIlraith: The royal prerogative of mercy was used with pardons provided for in the Criminal Code. But then there were other instances where it was used fairly extensively for a short period of time until a new bill was enacted whereby it was used not under the Criminal Code but by virtue of the royal prerogative. So there is something wider than the reserve powers. I am not clear on this. Perhaps you could help me. It seems to me that the Governor General has now been given some of these wider powers, but to what extent he is given those powers, I am not sure.
Senator Connolly (Ottawa West): Perhaps we should know the extent of the royal prerogative, first of all, and then the extent of the reserve powers.
Mr. Strayer: To develop the sequence of matters a little more, it has also been the practice in Canada since 1931 that the Governor General be appointed by the sovereign on the advice of her Canadian ministers. That was agreed to at the Imperial Conference held in 1930. The first Governor General to be appointed on the advice of a Canadian Prime Minister was Lord Bessborougli. He was appointed in 1931 on the advice of the Right Honourable R. B, Bennett. The bill confirms that situation in clause 42.
Another important feature of the constitutional monarchy in Canada is that the government is carried on in the name of the Queen. That is provided for in clause 43, which states:
The executive government of and over Canada shall be vested in the Governor General of Canada, on behalf of and in the name of the Queen.
This touches on an issue which I believe was of some concern to the Committee a few weeks ago and there was concern expressed about the terminology which would be used in cases before the courts, such as prosecutions or actions by or against the government, or in land title documents pertaining to Crown property. Certainly, the intention is that the existing practice, which has existed since Confederation, is to continue, namely, that government is to be carried on in the name of the Queen.
Senator Godfrey: Why is reference to the Queen left out in clause 91?
Senator Connolly (Ottawa West): Is that clause 91 of the bill?
Senator Godfrey: Yes.
Mr. Strayer: That, of course, reflects the change in the composition of Parliament, which is otherwise provided in the act. It changes nothing in practice, apart from the terminology used in the opening clause of a bill.
Senator Godfrey: Does it not mean something by leaving it out?
Mr. Strayer: Clause 43 deals with the executive government of Canada, and clause 91 deals with the structure of the legislative branch, the Parliament of Canada.
Senator Godfrey: Why would you not put in the words “by and on behalf of the Queen” just to allay the fears of some people?
Mr. Strayer: I think I should leave that question for others to answer.
Senator Godfrey: So this is not a drafting matter?
Mr. Strayer: No.
Senator Connolly (Ottawa West): It is policy?
Mr. Strayer: That is right.
Senator Smith (Colchester): Obviously, there is a substantial change contemplated from the present practice by virtue of the provision that it is no longer the Queen in Parliament but the Governor General in Parliament. That is, obviously and clearly, a complete change, as far as nomenclature is concerned, from the practice which has existed since Confederation and long before that. Is that a drafting accident?
Mr. Strayer: It is not a drafting accident; it is a policy decision. With respect to your comment, I should add this: It does not reflect a total change in the practice. It makes, obviously, a change in the enacting clause of every bill introduced in the Parliament of Canada. So, if this were adopted. the enacting clause of every bill would start out with the words:
The Governor General of Canada, by and with the advice and consent of the House of the Federation and House of Commons-
et cetera, rather than what is now used—that is Her Majesty the Queen, et cetera.
Apart from that, dealing with that one question on terminology, the Constitution has never fully placed the Queen in the Canadian Parliament in the sense of being able to perform the royal functions in the Canadian Parliament. The Queen, it is true, can open Parliament, but the Queen cannot assent to legislation of the Parliament of Canada.
Senator Connolly (Ottawa West): Is that so?
Mr. Strayer: Yes. The Constitution provides that it is the Governor General who may assent to legislation.
Senator Godfrey: But he never does.
Senator Connolly (Ottawa West): What is the pertinent section of the BNA Act?
Mr. Strayer: Section 55. If you will consider the past practice in this country, when there have been royal visits, Her Majesty has opened Parliament, but I think there can be no instance found of the Queen giving assent to legislation. That is a function specifically conferred on the Governor General by the Constitution.
Senator Connolly (Ottawa West): It seems to me that at one time on the occasion of a royal visit it was contemplated that the monarch would come to the Senate and would give assent to some bills.
Senator McIlraith: And did.
Senator Connolly (Ottawa West): I do not know if that happened or not. Perhaps you can help us on that.
Mr. Strayer: To the best of my knowledge, this has never happened. It is true that the sovereign has been present on the occasion of assent, but the assent has been effected by the Governor General.
Senator Smith (Colchester): He gives assent thereto in the Queen’s name. The phrase in the province I come from, which I have heard thousands of times, is “In Her Majesty’s name, I assent to these bills.”
Senator Connolly (Ottawa West): We use it in our own formula.
Senator Neiman: It says here:
. . .subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he asscnts thereto in the Queen’s Name, or that he witholds the Queens assent.
Senator McIlraith: Following on the point raised by Senator Neiman, it seems to me that section 55 of the BNA Act gives the power to the Governor General, but it does not take away the power from the Queen and the Queen still has the power, in addition to the Governor General, under section 55. That is the essential difference.
Mr. Strayer: The question has been examined in this country carefully, it has been examined in other Commonwealth countries with similar provisions, and the conclusion has been that the Governor General is the designated person to give the assent.
Senator McIlraith: There is no question about the designation of the Governor General to give the assent, about his ability to give it or withhold it. However, the giving of that power to him does not take the power away from the Queen herself. There is nothing in section 55 to take away her power to assent.
Mr. Strayer: It has been the considered opinion of the Department of Justice for several decades that that is the case, and it has been the considered opinion in other Commonwealth countries where they have similar provisions that that is the case. To the best of my knowledge and information, there has never been any departure from that principle.
Senator McIlraith: I understand the practice has been for the Governor General to do it. I am not questioning that at all. I am questioning whether as a matter of law the point has ever come up that she has the right to assent. Has the point come up squarely? It is not a question whether the king or queen has ever done it since Confederation.
Senator Smith (Colchester): It is the “Queen’s assent,” remember that. The phrase is “presented to the Governor General for the Queen’s Assent”.
Mr. Strayer: Yes, but the assent is to be given by the Governor General.
Senator Smith (Colchester): In the Queen’s name.
Mr. Strayer: Many things are done in the Queen’s name that are not done by the Queen.
Senator McIlraith: That is not the point at all.
Senator Smith (Colchester): That is not the point.
Senator McIlraith: It is quite evident that they are not done by the Queen. The point is, has she the right to do them if she wishes to come over here for royal assent, if the Prime Minister, the government or the Canadian ministers advise her to come for royal assent for this or any other bill? Has she the right to do it under the existing law? That is the point.
Mr. Strayer: Perhaps I might draw a parallel with other situations. Here we have a statute passed by the Parliament of the United Kingdom which designated the Governor General of Canada to do certain things. These were things which, in the absence of that designation, could no doubt have been done by the sovereign. That is very similar to a host of other laws that have been passed over the centuries where the royal prerogative has been specifically turned into a statutory power and assigned to somebody else. Once a statute intervenes, once Parliament has stated that the act is to be done by the person designated, then it is no longer part of the general prerogative power.
Senator McIlraith: I quite understand that, but my point is a little narrower and you are not quite coming to grips with it. The bill seeks to put in it, as I understand it, the present practice. That seems to be the thrust of it at this point. What I want to know is whether before the bill comes into operation the Queen has the right to assent. Is this a right that exists in the monarchy that is being taken away by this bill?
Mr. Strayer: No, it is not, because the Queen could not assent to laws of the Parliament of Canada, and cannot now do that.
Senator McIlraith: Why?
Mr. Strayer: Because the power has been conferred upon the Governor General.
Senator Connolly (Ottawa West): By section 55.
Mr. Strayer: By section 55.
Senator Connolly (Ottawa West): I draw your attention to subsection (2) of clause 48, which reads in part:
For greater certainty, nothing in this act respecting the Governor General . . . shall be construed as precluding the Queen, on the advice . . . from exercising while in Canada any of the powers, authorities or functions of the Governor General under this Act.
Mr. Strayer: That affects the situation, and the net result would be that if this bill were adopted the Queen would be able to do more things in Canada than she can now do, because she could exercise any of the powers of the Governor General. At the moment she cannot exercise those powers. This has been a problem which has been faced, as I say, in other Commonwealth countries. Australia has since 1953, had a Royal Powers Act, which says that the Queen can exercise the powers of the Governor General under any act while she is present in Australia. I believe New Zealand has similar legislation. The net effect of clause 48(2) will in fact be to allow the Queen, when so advised by her Council of State for Canada, to perform these functions and exercise these powers, which would during her absence be performed and exercised by the Governor General. In that sense the bill increases the potential powers of the Queen to act while in Canada.
Senator Connolly (Ottawa West): I suppose all this additional power that is conferred by clause 42(2) is additional only if the considered opinion of the Department of Justice on section 55 of the BNA Act is right. If, in fact, under section 55 there is nothing to prohibit the Queen, in this case, from giving royal assent to a bill or a series of bills, then no new power, I take it, would have been conferred, at least in that respect.
Mr. Strayer: If that is correct, the situation would remain as it is, because presumably the Queen would not be called upon to give assent to bills when she is not in the country; and when here she would not be called upon to give assent to bills except on the advice of the Council of State or the Privy Council.
But to explain further the opinion of the Department of Justice, one must think of other parallels here. The lieutenant-governor of a province is designated to give assent in provincial legislatures. The Governor General appoints the lieutenant-governors. That does not mean the Governor General can give royal assent in provincial legislature, and it has never been considered that the Queen could give royal assent in provincial legislatures. There are certain ceremonial prerogative functions which the Queen performs vis-a-vis Parliament which are not regulated by statute, which she can perform when in Canada, such as the opening of Parliament. That has never been limited by the British North America Act, and has remained a function that she can perform when she is here. Section 55 did limit the powers with respect to assent, and designated a particular officer to perform that particular function.
Senator Robichaud: In the United Kingdom at Westminster, who is physically present and what is the form used, for royal assent?
Mr. Strayer: I am not sure I can answer that.
Senator Godfrey: I can. They took it away from the Crown many, many years ago. Three commissioners are appointed under an act. They do not even call on the House of Lords any
more; they simply stop the proceeding for a few seconds, read it out and that is royal assent.
Senator Robichaud: In provincial legislatures the form is “His Honour the Lieutenant-Governor, on behalf of Her Majesty, assents to these bills.” Who does in Britain? Is it a commissioner?
Senator Godfrey: Three commissioners.
Senator Robichaud: Is it “Mr. Commissioner, on behalf of Her Majesty, assents to these bills”?
Senator Godfrey: I think three commissioners. I think it is “on behalf of Her Majesty”.
Senator Robichaud: Does it say, “Three Commissioners, on behalf of Her Majesty, assents to these bills”?
Senator Connolly (Ottawa West): Sometimes more.
Mr. Cowling: We could find the answer if Mr. du Plessis has Sir Arthur Jennings’ book.
Senator Godfrey: I got the Library of Parliament to look it up. I will distribute it.
Senator Connolly (Ottawa West): It is in the House of Lords Hansard all the time.
Senator Robichaud: What about Ireland, which is not too far from the United Kingdom geographically speaking? Is it the same procedure for royal assent?
Mr. Strayer: You mean in Northern Ireland?
Senator Robichaud: That is right.
Mr. Strayer: I am not sure what the procedure is there. I am not even sure that the legislature is operating there at the moment. I cannot answer that.
Senator Robichaud: In any event, we have departed very largely from the practice utilized in the United Kingdom as well as in Ireland. Over the years, we have largely departed from the practice in the United Kingdom with respect to royal assent, and at the moment this departure is not that important. Is that a good assessment of the situation?
Mr. Strayer: Well, I think I can answer that by reiterating the point I was making that unquestionably the enacting clause is going to be changed in statutes if this is adopted, but in fact it is not going to alter the fact that the Governor General gives assent to legislation either personally or by his deputy. As a practical matter he gives the assent to legislation, And that is not altered, with the possibility that if the sovereign is in Canada, then she can be advised to give assent, in a way which could not have happened before.
Senator Forsey: First of all, about this business of giving assent by commission in the United Kingdom, that is a very old story. Recently I had reason to look the matter up, and I
found that Queen Victoria, after the Prince Consort died, gave assent in person but three or four times, the last time being, I think, in 1872—l could if necessary find the exact date—but for the rest of her reign she did not give assent at all in person; it was always given by commission. That practice was followed regularly, session after session: she opened Parliament by commission, and I think she gave assent by commission. I think she never opened Parliament, except by commission, for most of her reign after 1861. I think the very problem here is that the same thing is being introduced for royal assent.
The essential point I want to raise with Mr. Strayer is this. He says that clause 53, I think it is, has a specific effect, but I think he is overlooking the fact that another clause says that the Governor General shall exercise, and that the Queen may. If it were intended to do simply what Dr. Strayer said, then if you refer to the New Zealand Royal Powers Act,—and there is something similar in other parts of the Commonwealth, and there is something similar in the South African Act—I think you will find that the phrasing is different in New Zealand.
2(1) It is hereby declared that every power conferred on the Governor General by any enactment is a royal power which is exercisable by him on behalf of Her Majesty the Queen, and may accordingly be exercised either by Her Majesty in person or by the Governor General.
Then it goes on to say:
(2) It is hereby further declared that every reference in any act to the Governor General in Council or any other like expression includes a reference to Her Majesty the Queen acting with the advice of the Executive Council of New Zealand.
Then you will find in the Status of the Union Act in South Africa, 1934, the following:
8. The Executive Government of the Union is vested in the King, and shall be administered by His Majesty in person or by a governor-general as His representative.
9. The Governor-General shall be appointed by the King, and shall have and may exercise in the Union during the King’s pleasure, but subject to this Act, such powers and functions of the King as His Majesty may be pleased to assign to him.
Then it further goes on to say:
4. (1) The Executive Government of the Union in regard to any aspect of its domestic or external affairs is vested in the King, acting on the advice of His Ministers of State for the Union, and may be administered by His Majesty in person or by a GovernorvGeneral as his representative.
(2) Save where otherwise expressly stated or necessarily implied, any reference in the South Africa Act and in this Act to the King shall be deemed to be a reference to the
King acting on the advice of his Ministers of State for the Union.
I think you will find that there is something similar-and I cannot lay my hands on it at the moment-in the Australian Constitution. In New Zealand the question came up when they were expecting a visit by the Queen. They discovered that the royal powers under the New Zealand Constitution were vested in the Governor General, and they said, “Good gracious, we have to set this right,” and they enacted the sections 1 have quoted. It seems to me that the effect of these is quite different from the effect of clause 53 of this bill.
Mr. Strayer: In the first place, senator, I think we have never had in the British North America Act provisions comparable to those that you have just cited. The particular point I was making was with respect to section 55, which says:
Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the Queen’s Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.
It says he shall do that. I think that the full significance of that is reinforced by section 56, which then provides for the situation where a bill is reserved or simply sent forward to one of Her Majesty’s principal secretaries of state, and then it is the Queen in Council who may decide whether to disallow or decline to give assent. So that the function of the Governor General is there in section 55, and the function of the Queen is there in sections 56 and 57.
Senator Forsey: And in New Zealand the function of the Governor General is there, and then it is provided that it could be exercised by the Queen. So why can’t we do the same thing here instead of saying, “shall exercise” and then “is not precluded from exercising”?
Mr. Strayer: The net effect is the same in that the sovereign, when in Canada, may exercise these powers if so advised.
Senator Forsey: But only by permission of the Governor General.
Mr. Strayer: Of the Council of States. One cannot imagine a situation where the sovereign would come to Canada and start exercising powers without the advice of the ministers of the crown.
Senator Forsey: No, but one can imagine a situation where the ministers of the crown might advise the Governor General to do this. That is what I am worried about. You could not have that situation under the New Zealand Act.
Mr. Strayer: But the bill takes nothing away from the power of the Queen with respect to the assent to legislation, because the power does not exist now under the existing Constitution. In fact, it opens up the possibility that that power can be exercised by the Queen.
Senator Forsey: Well, wait a minute. What is happening to section 55 of the act under this bill? It is being repealed, is it not?
Mr. Strayer: Yes, it will be, eventually.
Senator Forsey: Where in this bill is there any provision for assent except incidentally, when you are talking about the House of the Federation?
Mr. Strayer: I think it is there by necessary intendment, once section 55, in its present form, which I think we would all agree is inappropriate to the present situation, disappears. Once it disappears, through the various processes of entrenchment, and so forth, then the authority to assent is there by clear implication because the Governor General is part of the Parliament of Canada.
Senator Forsey: This does not satisfy me at all, because you now have in clause 56 the following statement:
There shall be one Parliament for Canada, consisting of the Governor General of Canada, an upper house styled the House of the Federation, and the House of Commons.
Then you go on, in clause 57, to specify as follows:
The Governor General of Canada shall from time to time, by instrument under the Great Seal of Canada, summon and call together the Houses of the Parliament of Canada to meet in Parliament assembled.
But you haven’t got anything explicit about assent. Assent comes in by a side wind in the clauses dealing with the House of the Federation.
Mr. Strayer: Yes, we have, where it is specifically stated in section 67 that bills will be submitted to the Governor General for assent.
Senator Forsey: Bills which have suffered a certain fate in the House of the Federation.
Senator Godfrey: If you read it with clause 91, surely it is there by implication.
Senator Forsey: You lawyers know more about that than I, but I think it is Very odd that an explicit provision for assent in the BNA Act is now struck out.
Incidentally, while I am at it, I want to get at another thing in the curious drafting of this bill. Am I right in thinking that this bill repeals section 94 of the British North America Act? it appears to by schedule B, or schedule II, or whatever it is called.
Mr. Strayer: Yes. That is correct.
Senator Forsey: Well, Dr. Strayer, will you now take a look at clause 118 of the bill?
Mr. Strayer: I am aware of the clause you are speaking of, sir. It has to do with the appointment of judges.
Senator Forsey: Yes.
Mr. Strayer: Yes. I am familiar with the point that I think you are going to make, sir.
Senator Forsey: I quote:
118. (1) Until the laws relative to property and civil rights in all of the provinces other than Quebec, and the procedure of the courts in those provinces, are made uniform, the judges of the courts in those provinces appointed by the Governor General of Canada shall be selected from the respective bars of those provinces.
Where, when section 94 has disappeared, will you find any provision for making the laws relative to property and civil rights in all of the provinces uniform?
Mr. Strayer: To the best of my knowledge, you will not find that power anywhere, and that is an obvious error in clause 118(1). Those words should come out of there.
Senator Godfrey: Are we going to stay with the Queen, or are we going on to something else?
The Chairman: I was tempted to stop Senator Forsey, but I was not sure what he was going to say until he said it. I think we had better stay with our order of speakers on the question we were on.
Senator Godfrey: There has been a criticism of clause 48(2), which in effect says that the Governor General, on the advice of the Council of State, can stop the Queen from exercising her powers when in Canada. She does not have the right to exercise them. Do you agree that that is what is intended, or is that a drafting error, or what?
Mr. Strayer: It is an attempt to state what I suggest is the situation at the moment, namely, that the sovereign, while in Canada, exercises such powers as she is advised to exercise by the Privy Council, or what will become the Council of State, and the clause in fact goes farther and makes possible the exercise of powers which at the moment are assigned purely to the Governor General.
Senator Godfrey: I am not sure that you have exactly answered my question. I understand the second part of your answer, but I think, in effect, the Governor General could tell the Queen, “I have been advised by my ministers that I am to keep on exercising these powers,” and that therefore, in effect, he is superior to her in that respect. Is that what is intended?
Mr. Strayer: As is possible under the present Constitution, if the Queen were to wish to exercise powers which are specifically conferred on the Governor General—although one cannot imagine some unseemly debate between the Queen and the Governor General about the exercise of the Governor General’s powers. The same situation could obtain under the existing Constitution. Here we are trying to set out the constitutional rules, practices and conventions, and that is the essential impact of the clause. I think clause 43 has caused concern in the same context, and that, of course, says:
The executive government of and over Canada shall be vested in the Governor General of Canada, on behalf and in the name of the Queen.
Now, it is true that we have nothing in the BNA Act which states the matter in that way.
Senator Smith (Colchester): In fact, it states the direct opposite in section 9.
Mr. Strayer: Section 9 states
The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.
But it has been part of our Constitution since 1947 that the Governor General is authorized, by letters patent, to exercise all of the powers of the sovereign in Canada, on the advice of the Privy Council for Canada. That has been a principle of the Constitution since 1947. It was recognized at the time that the letters patent were adopted in 1947 that it would be for the Government of Canada to decide which matters should be referred to the sovereign and which matters should be referred to the Governor General. In fact, a number of matters continued to be referred to the sovereign as a matter of policy matters such as the granting of agrément to foreign ambassadors, the signing of letters of credence of Canadian ambassadors abroad, the signing of treaties of peace and declarations of war. Matters like that were seen as being appropriate for reference to the sovereign. Of course, we have not had a treaty of peace or a declaration of war, I think, since 1947.
In December 1977 it was announced that, with the approval of the Queen, the Governor General was therefore to perform all these functions. They would no longer be referred to the sovereign. So in terms of our Constitution, if one looks at the total Constitution beyond the four corners of the BNA Act, it has been the situation since 1947 that the Governor General could perform any of the functions of the Queen which the government of Canada advised him to perform.
Senator Forsey: “May”, not “shall”.
Senator Smith (Colchester): The witness is not telling us anything there. We know that. But we also know that the BNA Act reads the way it does read, and we know that section 9, for instance, says:
The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.
Now, whatever the practice may be—and we do not quarrel for a moment with your description of the practice—the actual law will be changed completely in respect of who has the legal authority under the Constitution. The constitutional practice is one thing, the actual law under which it is practised is another; and here is a clear statement in the BNA Act that the authority is vested in the Queen. There is a clear statement in this bill that it shall be vested in the Governor General. That completely changes a statutory situation under which the practice, in the past, may be developed as seen to be satisfactory and convenient to all concerned.
The same thing is true with reference to section 17 of the BNA Act, which reads:
There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
The proposed bill would change that completely by ceasing to provide that the Queen is part of Parliament, and substituting for her the Governor General. Again, whatever you may say about practice—and I have not heard you say a word about that with which so far I would quarrel—the legal situation will be changed very substantially, indeed completely, in respect of the composition of Parliament if this bill comes into effect.
We can go to section 55 of the BNA Act. You have quoted it quite a bit, but I should like to read it again in order to refresh our memories. It says:
Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent-
That will only be presented to the Governor General for the Queen’s assent if the Queen’s advisers in Canada advise that it be presented to the Governor General. Otherwise, as I read this, and as I understand the law—about which you and I do not agree, obviously—this is not a designation of the Governor General as the sole person who can assent whether the Queen is in or out of Canada. Let us go on:
Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions-
I repeat, “to Her Majesty’s Instructions,” which will be given, of course, on the advice of her ministers in Canada.
—either that he assents thereto in the Queens Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.
That will be drastically changed, so far as the law goes, if this bill becomes law.
Mr. Strayer: It will not be changed so far as the practice is concerned.
Senator Smith (Colchester): I am not saying anything about the practice. I am talking about the law under which the practice has developed and under which the practice may change.
Mr. Strayer: Well, I suggest to you that it is somewhat misleading to say that that is the law of Canada at the moment, because it was agreed 50 years ago that the sovereign would not disallow laws or deal with reaserved bills with respect to the Parliament of Canada. Therefore, many of those words in there are no longer of much significance.
Senator Smith (Colchester): They may be of a great deal of significance to many people just because they are there.
Mr. Strayer: I am not sure about the proposition you are making, senator. Is the proposition that the situation arising from the words in section 55, which would contemplate that the Queen might instruct the Governor General on matters pertaining to Canada without advice from the Government of Canada, should be preserved?
Senator Smith (Colchester): I am not saying anything about the practice, except that so far as I understand what you have said, I agree with what you have said. I am saying, however, that that practice has been conducted by agreement, between all the parties concerned, under a law which it is now proposed to change and change completely insofar as the legal and titular holder of the authority goes. That to me is a most significant thing.
Mr. Strayer: If that is a question, I might try to answer it in this way. First, as I have said before, there is one clear change, which is in the enacting clause of acts of Parliament. If this proposition is adopted, the Queen’s name will not appear in the enacting clause; it will be the Governor General’s name. But beyond that, the purpose and intent of these sections is to state in modern terms what is the constitutional practice, conventions, and rules of the Canadian constitutional monarchy; and those rules are that the Governor General performs the functions of the Queen in Canada on the advice of Canadian ministers, and he performs essentilly all functions except the appointment of the Governor General himself. That is the principal remaining function, under the existing dispensation, of the sovereign, to appoint the Governor General, and, of course, to perform ceremonial roles as sovereign of Canada in a variety of contexts.
The bill has to be viewed from the point of view that it is an attempt to state what is the development of our Canadian Constitution down to this point, just as the Statute of Westminster was an attempt to state in 1931 what had been the evolution of the Constitution, as it were, of the Empire and Commonwealth down to 1931. It is true that the Statute of Westminster in form altered previous legal rules, such as the proposition that the United Kingdom could legislate as it might please with respect to any part of the empire or Commonwealth. But, if fact, that had not been the accepted position for some time, and the Statute of Westminster attempted to state the accepted position; and this bill is trying to do the same thing.
Senator Smith (Colchester): But trying to do the same thing in a much more offensive and divisive way.
The Chairman: That is the kind of question that might be put to the minister—that is, in terms of whether or not it is offensive.
Senator Godfrey: There is one possible mistake. Correct me if I am wrong. You said what the practice has been; but the Governor General did always operate in the name of the Queen.
Mr. Strayer: Yes.
Senator Godfrey: That is the practice you are changing. That is what is stirring up controversy.
Mr. Strayer: With respect, clause 43 says that he is to act on behalf of and in the name of the Queen.
Senator Godfrey: But with due respect, clauses 56, 57 and 91 do not say that. That is the difficulty. If you kept that in the other sections there would not be this outcry.
Mr. Strayer: I prefaced my answer to Senator Smith by saying that with this exception, with respect to the enacting clause in acts of Parliament, where the name of the Queen will be replaced by that of the Governor General, if this is adopted, the bill is intended to state the existing constitutional position.
Senator Forsey: “These clauses are a mongrel affair”, Lord Palmerston said of the attempt to build Whitehall in the Gothic style with the superficial resemblance to the Italian Renaissance. “A regular mongrel affair,” he said, “neither one thing nor t’other.”
Senator Connolly (Ottawa West): On this same point, what I find difficult is that you say that approval of enactments of Parliament are now to be given in the name of the Governor General and not in the name of the Queen as heretofore. I have difficulty when you say the Queen is the sovereign and when you say the monarch is the head of state, and yet you exclude the head of state from the enactment of the supreme body of legislators in this country. Somehow that does not make sense to me. Perhaps that is a question of policy, but I have difficulty knowing why you would not have the sovereign, because of all the meanings that word has, acting with Parliament in the enactment of legislation produced by Parliament. If the Governor General is to act, surely the practice heretofore has been that he has been the deputy and acts legitimately as the deputy in the name of the sovereign. Maybe there is some hole in that reasoning, but I have difficulty with it.
Mr. Strayer: The Governor General, when assenting to legislation now, is exercising a power conferred on him and not on the sovereign. He is exercising that power in the name of the Queen.
Senator Connolly (Ottawa West): The formula used in the Senate is to the effect: “In Her Majesty’s name, His Excellency the Governor General doth assent to this Bill.” It is in Her Majesty’s name, so he is a deputy there. Am I right or wrong on that?
The Chairman: There are several speaking at one time. Senator Neiman has been very patient while a lot of others have asked supplementary questions.
Senator Neiman: For clarification on this matter of assent, there is nothing within this bill that states that a bill comes into full force and effect on passage through the two Houses of Parliament plus the assent of the Governor General. That is omitted from the bill. There is nothing comparable to the assent sections as set out in section 55 of the British North America Act. Is that correct?
Mr. Strayer: We have nothing like section 55, but one must also ask the question: How much of section 55 would you want?
Senator Neiman: I just want to be clear on this. Nowhere does it state that a bill shall become the law of Canada after it has been passed by the two houses and received the assent of the Governor General.
Mr. Strayer: Clause 91 states:
It shall he lawful for the Governor General of Canada, by and with the advice and consent of the House of the Federation and the House of Commons of Canada in Parliament assembled, to make laws for the—
That, I submit, is saying the same thing.
Senator Forsey: The law officers of the Crown didn’t think that was enough for the British North America Act. Of course, the law officers of the Crown of Great Britain may not have been as wise as the law officers of the Crown of Canada now.
Mr. Strayer: The law officers of the Crown in Canada were not instructed to resurrect the former power of the sovereign sitting in London to disallow federal laws or refuse assent to bills reserved by the Governor General. The powers described in sections 55, 56 and 57 must be read together and dealt with a different situation. One hundred and eleven years have since passed.
Senator Forsey: I must say that that part of the answer is, in my judgment, completely irrelevant.
The Chairman: Senator Neiman still has the floor.
Senator Neiman: I see that in clause 67 we can now obtain assent whether or not Parliament is sitting. This appears on page 27 of the bill.
Mr. Strayer: That is correct. That flows from the time sequences which could ensue.
Senator Neiman: There are no legal impediments to ratifying a bill when Parliament is not in session?
Mr. Strayer: I am not aware of any. I am not sure—and perhaps Senator Forsey can enlighten us on this—as to what happens when the time period under their suspensive veto has elapsed in the United Kingdom. Do they have to wait until Parliament is sitting to take a matter to the sovereign?
Senator Forsey: I never heard of assent being given in the United Kingdom when Parliament was not sitting. I have the impression that in Australia there is a provision of this sort, but I am not sure of that.
Senator Connolly (Ottawa West): Might this provision be there because of the other provision to the effect that if the House of the Federation does not consent to the bill, although it has been passed by the House of Commons, it dies on the order paper of the House of the Federation?
Mr. Strayer: Yes. I think the provision is a logical development from the whole system of the suspensive veto.
Senator Connolly (Ottawa West): I can remember when there was some discussion at one time in the government about whether or not we should continue to have royal assent in the Senate chamber, with some members of the House of Commons saying, instead, perhaps representatives from the Senate and from the House of Commons should attend at Government House for royal assent. That was never taken up because I think some of these ceremonial things were felt at that time to have more meaning than what their departure would warrant. Therefore, we continued what we were doing. This one, I think, is explained on the other basis.
Senator Robichaud: I have a very simple and straightforward question. When the Queen is in Canada she reads the Speech from the Throne. If the Queen is not in Canada, the Governor General reads it. In the past, the Governor General could delegate his secretary, for instance, to read the Speech from the Throne. Under this bill, could he still delegate his secretary to read the Speech from the Throne?
Mr. Strayer: I have never considered that point. I should think it would have to be a Deputy Governor General. Of course, he has the authority, under the letters patent, to appoint deputies. That is provided for in the bill. Perhaps one of the Deputy Governors General could read the Speech from the Throne.
Senator Connolly (Ottawa West): That has been done.
Senator Robichaud: I am not being critical at all on this, but under what precedent can the wife of the Governor General read the Speech from the Throne?
Senator Connolly (Ottawa West): None.
Mr. Strayer: I suppose one would have to look to the nature of the function of reading the Speech from the Throne. Traditionally, it has been done by the sovereign or the sovereign’s representative and, in the normal course of events, I think things would happen as I suggested—that is, the Deputy Governor General would read it, but I am not in a position to comment on that.
Senator Forsey: Might I give a piece of information on that. When the Queen has opened Parliament in person in Great Britain, on several occasions the speech was read for her in her presence. She didn’t read the speech herself.
Senator Connolly (Ottawa West): By whom?
Senator Forsey: It was read by the Lord Chancellor, if I remember correctly.
Senator Robichaud: Was she illiterate?
Senator Greene: Mr. Chairman, if we might get back to the question of drafting and questions dealing with the Governor General and the Queen, it seems to me our trouble is in reconciling clause 30 with clauses 42, 43 and 44. I would ask
the draftsman whether or not he sees any inconsistency between clause 30 and clauses 42, 43 and 44, so that we might ease the minds of those of the public who are exercised by what is happening here by reconciling and redrafting those clauses to make sense when they are read together. It appears that by clause 30 we make the Queen something called “The sovereign head of Canada”, whatever that may mean. Then in clauses 42, 43 and 44 we define the powers of the Governor General which, in some measure at least, appear to detract from the fact that she is the sovereign head of Canada, as declared in clause 30. Is there not some contradiction between clause 30 and clauses 42, 43 and 44?
Mr. Strayer: There is certainly none intended. The intent of clause 30 is that the Queen be continued as head of state. This term “sovereign head” has caused some concern, and perhaps that needs to be examined again. In the French, of course, it is simply “la Souveraine”, which I think in normal understanding would be taken to mean the sovereign of the country, who one would assume to be the head of state. Clause 42 then provides for the sovereign to appoint a Governor General who shall represent the sovereign and exercise for her the prerogatives and so on. Clause 43 vests in him the executive Govern ment of Canada on her behalf and in her name. Clause 44 simply refers to his unique position as the Governor General of Canada, and gives him a precedence which was thought to be appropriate for the representative of the sovereign in Canada.
Senator Riel: I have a very short question to ask. Under this bill are we starting a new designation of acts so that in future instead of “26-27 Elizabeth II, chapter 22” it will be “I Governor General, chapter 1”, depending who is the head of state at the moment of the adoption of the law?
Mr. Strayer: I am not sure that that question has been addressed very directly. I would see no inconsistency in continuing the present practice, so that one relates the year of the enactment to the year of the reigning sovereign, the head of state.
Mr. Cowling: Is that not provided for in the Interpretation Act or some other statute?
Mr. Strayer: Yes. I don’t think there is any amendment in the schedules with respect to that.
Senator Connolly (Ottawa West): I should like the answer to one more question, although I do not insist on it now. Perhaps it is too late, but I want to go back to the question raised earlier by Senator Smith, I think, and perhaps by others, about the royal prerogatives and the extent of them, the reserve powers and the extent ct” them, and whether or not by substituting for the Queen the Governor General in so many of these areas the Governor General, perhaps the establishment, may in fact be losing powers and authorities that are there by practice and by tradition, and embodied either in the royal prerogatives or in the royal powers. Perhaps on the next occasion you could give us something about that, and whether or not there is any danger of a deterioration of those powers as a result of vesting in another person like the Governor General
some of the authority that has heretofore been conferred by statute, by the British North America Act, on the monarch.
Senator Forsey: I should like to ask a supplementary question on that, There appears to be provision for the exercise of the reserve power of refusing dissolution of Parliament. That is the only one mentioned. There appears to be also a removal of the traditional power of the Crown to choose a prime minister. What you have got here is something so that, if the government is defeated in the House of Commons, the prime minister can resign, as he can now, or he can ask for a dissolution, as he can now. If he is defeated he can also suggest that he be invited to form a new government. This is something entirely new, which surely takes away a power which the Crown now has. Or he can, according to the marginal note—which I grant you is not part of the bill, but which may be indicative of the intention; at least, one hopes that is what it is put there for—he can suggest the name of somebody else to form a government. This is entirely new, and I should like to have some guidance on what the intention was there, and whether the effect is such as seems to me to follow.
Mr. Strayer: Perhaps I could deal with that briefly, because I think this is a point of some concern. In the first place, the reserve powers, such as they are, were intended to be continued. This is indicated in a variety of ways: in clause 2, which refers to the continuationof the Union and the principles of the British North America Act; in clause 35, which preserves the conventions of the Constitution; and in clause 46, which refers to the powers that may be exercised by the
Governor General individually.
Senator Forsey: It is transitional though.
Mr. Strayer: It indicates the powers are to continue, that such reserve powers as the Governor General may exercise he can continue to exercise.
On the question of clause 53, with respect, I do not think one can read that as being a codification of the kind of advice the Prime Minister may give to the Governor General.
Senator Forsey: It certainly isn’t.
Mr. Strayer: It is obvious that it isn’t, because if one were to take that approach it would mean that the Prime Minister, after four and a half years in office with majority government, could not advise dissolution, and that surely was not intended. Clause 53 only refers to the situation where the cabinet is unable to maintain the confidence of the House of Commons.
Senator Forsey: Yes, I know; quite so.
Mr. Strayer: This is not intended as a codification. It is an indication of certain situations, and for the first time it spells out the possibility, for example, of the Governor General refusing dissolution.
Senator Forsey: Yes, but then it goes on to say:
if the dissolution . . . is not advised by the Prime Minister—
And the ordinary thing would be that if he does not advise dissolution on defeat he would resign.
—or is refused by the Governor General, whether the Prime Minister should be invited to form another administration, or whether the resignation of the Prime Minister and of the other members of the Cabinet should be accepted to permit some person other than himself or herself to be called upon by the Governor General to form the administration for the time being of Canada.
Sir Arthur Jennings laid it down clearly that in the United Kingdom ifa government is defeated on a motion of censure or confidence, or something tantamount to it, what the government considers tantamount, either it resigns or asks for dissolution—period. If it resigns then it is the duty of the crown to call on the Leader of the Opposition. This gives a totally new principle, and as I said yesterday, it means that the Prime Minister having been defeated and having not advised dissolution or having refused dissolution says, “Now, I am the chap clearly who should designate the next Prime Minister. I designate myself or I think you might send for Mr. Stick-in-the-mud or Madame What-not”.
Mr. Strayer: This is obviously a subject we cannot get into at great length today and I would only suggest that this is a debatable area. Professor Phillips, for example, says that if a government is defeated in an election, the Prime Minister on tendering his resignation may advise the sovereign as to whom to call upon.
Senator Forsey: That is entirely contrary to what was laid down authoritatively by Sir Robert Borden here in this country in July of 1920 when he made way for Mr. Meighen. The locus classicus in Canadian constitutional practice to the best of my belief has been what Sir Robert Borden said on that occasion, and he said that there was ample precedent in Great Britain by practice and authority that a retiring Prime Minister had no right whatever to proffer advice as to his successor. He could not proffer it unless he was asked, and if he was asked and did proffer it, then the sovereign could pay no attention whatever to it at all. There is no question whatever that this has been the practice and the rule and the authority on this subject in Canada ever since 1920, at least. And it was well attested even before that. Borden was really only stating what is amply proved by British practice and British authority. I am astonished to hear that Professor Phillips says the opposite. Certainly it has never been said in Canada before to my belief.
Senator Greene: In all these matters affecting the Prime Minister who is referred to by name in several sections including section 49, the key section on the formulation of government, we have no definition of Prime Minister. There is no such thing as a Prime Minister in the British Constitution. As I understand it, the Prime Minister’s office has evolved because one of the early Georges could not speak English and therefore picked somebody with whom he could communicate. This person became the Prime Minister. Are we embodying
that in our Constitution or should we define what is the Prime Minister?
Mr. Strayer: There has been no attempt here to define the office of Prime Minister as such other than to indicate that he is to be a member of the cabinet and he is the person holding the recognized office of Prime Minister. We, of course, have put the Prime Minister into the Constitution where he was not before, and perhaps in that respect made the Constitution somewhat more understandable. But the Constitution does not attempt to define in all respects the office of Prime Minister.
The Chairman: Honourable Senators, I would like to wind up proceedings as quickly as possible. We are going to have Mr. Strayer back with us for some time at our next meeting.
Senator Williams: I just want to go on record, Mr. Chairman, as saying I have many misgivings about Bill C-60, but I am withholding any comment of the Indian people of Canada.
Senator Argue: I just wanted to say, and this is referred to under clause 53, that the Prime Minister could be invited to form another administration. In other words, if the Prime Minister, by a vote of the house, has been thrown out, then he can go to the Governor General and say, “I want to be reappointed.” If he can do that once, under this, then I can see no reason why he would be prevented from doing it time after time after time. You might have a Prime Minister in office with a House of Commons that just did not want him there at all. So how do you get rid of a Prime Minister who does not have the confidence of the House of Commons, with this ridiculous provision in this bill? Why should at Prime Minister be able to reappoint himself after he has been defeated?
Mr. Strayer: The only answer I would attempt to make at this time, senator, is that there is nothing in here which says that the Governor General has to accept that advice on every occasion.
Senator Argue: But it says he may be able to tender that advice to the Governor General, and I think he should not by law be able to do so.
Mr. Strayer: I suppose a typical situation contemplated here is the situation of a minority government in the house, where the government is defeated and where the Prime Minister advises the Governor General that he thinks he could form a coalition government of some sort. That, I think, would be a typical case.
Senator Smith (Colchester): Mr. Chairman, I just want to make reference to, and read into the record, the explanatory note on page 16, almost opposite line 21, which attempts or purports to explain the effect of clause 42 to clause 48. I am not now opening it up for discussion, but I just want to draw attention to it.
In effect, the result would be to retain the monarchy for Canada and to constitute, at the same time, a Governor General with full status and powers in his or her own right rather than merely in the capacity of a representative of the Sovereign.
I think that wouldlead anyone to believe that there is a completely new status being created there, but, as I said, I am not asking for discussion of this point now. I would just like to make that comment.
Mr. Strayer: It means simply that he is not only a representative of the sovereign. He has a certain constitutional status.
The Chairman: We promised we would try to conclude by 3.30, and it is now past that time, so, unless there is other business that we should deal with now, we will adjourn until Wednesday, September 6, at 10 am., when Mr. Strayer, Miss MacDonald and Miss Desjardins will appear, and we will attempt to complete our consideration of the drafting of this bill.
Senator Connolly (Ottawa West): Will that involve two days or one day?
The Chairman: I hope not more than another day. I think we should hear at least one other witness in September, if we can. We will be meeting on September 6 and September 7.
The committee adjourned.
Mr. W.S. Tarnopolsky, Professor of Law, Osgoode Hall, York University;
From the Department of Justice:
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services.
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