Senate of Canada, Proceedings of the Special Senate Committee on the Constitution (October 18, 1978) First Report
Thirtieth Parliament, 1978
SENATE OF CANADA
Proceedings of the Special
Committee of the Senate on the
The Honourable R.J. STANBURY
Wednesday, October 18, 1978
Issue No. 1
First Report on:
The subjct matter of Bill C-60,
the Constitutional Amendment Act, 1978
of the Third Session of the
SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION
The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman
The Honourable Senators:
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, Wednesday, October 11, 1978:
“With leave of the Senate,
The Honourable Senator Stanbury moved, seconded by the Honourable Senator van Roggen:
That a Special Committee of the Senate, to be known as the Special Committee of the Senate on the Constitution, 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”, of the Third Session of the Thirtieth Parliament, or anymatter 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;
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;
That the papers and evidence received and taken on the subject in the preceding session be referred to the Committee; and
That, notwithstanding Rule 66, the Committee be composed of the Honourable Senators Argue, Austin, Barrow, Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Grosart, Hayden, Lafond, Lang, Lucier, Marchand, Marshall, McElman, Molson, Olson, Petten, Phillips, Rizzuto, Robichaud, Smith (Colchester), Stanbury, Wagner, Williams and Yuzyk.
The question being put on the motion, it was—
Resolved in the affirmative.”
The Clerk of the Senate
MINUTES OF PROCEEDINGS
WEDNESDAY, OCTOBER 18, 1978
The Special Committee of the Senate on the Constitution met in camera at 4:15 p.m., this day, the Chairman, the Honourable Senator Richard J. Stanbury, presiding.
Present: The Honourable Senators Argue, Bosa, Connolly (Ottawa West), Forsey, Godfrey, Hayden, Lang, Molson, Olson, Smith (Colchester), Stanbury and Yuzyk. (12)
Present but not of the Committee: The Honourable Senator Beaubien. (1)
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.
The Committee resumed consideration of a draft report.
Following discussion, and upon Motion of the Honourable Senator Forsey, it was resolved that the Committee do now approve the said report and that it be tabled in the Senate.
It was further agreed that the Chairman move that the report be appended to the Debates of the Senate and the Minutes of Proceedings.
At 5:55 p.m., the Committee adjourned to the call of the Chair.
Clerk of the Committee
Note: For previous evidence see Issue numbers 1 to 9 of
the Third Session, Thirtieth Parliament, 1977-78.
FIRST REPORT OF THE SPECIAL COMMITTEE OF
THE SENATE ON THE CONSTITUTION ON
THE SUBJECT-MATTER OF BILL C-60, INTITULED:
“CONSTITUTIONAL AMENDMENT ACT, 1978”
WEDNESDAY, October 18, 1978
The Special Committee of the Senate on the Constitution has the honour to present its First Report as follows:—
1. The Committee
One June 20, 1978, Bill C-60 entitled “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” was given first reading in the House of Commons. At the same time, the Government stated that its target date for enactment of the Bill was July 1979. In accordance with the practice of the Senate to refer to committee the subject matter of important bills introduced in the House of Commons in advance of their coming to the Senate to allow time for careful study, and so that the government. and the House of Commons have the benefit of recommendations of the Senate before such bills are adopted by the House of Commons, the Senate on June 28th authorized the appointment of a special committee to consider and report upon the subject matter of Bill C-60.
The committee, which was known as the Special Committee of the Senate on the Constitution, was duly appointed and commenced its consideration of the Bill on July 25th. Prior to the end of the last Session of Parliament, it had held thirty-six sittings for the purpose of hearing witnesses (see list attached as Appendix “A”) and study and consideration of the Bill. Preparation of a report was in the final stages but it was impossible to complete it in time for tabling before the Session ended on October 10th. The committee therefore reported accordingly and recommended that it be reconstituted for the purpose of completing the report. The present committee was appointed by the Senate on October 11 for that purpose and to continue its study of constitutional matters.
2. Nature of the present report
Although as indicated above the committee has held a number of sittings over a period of approximately two and a half months, it does not consider that there has been sufficient time either to hear all of the evidence that is required on the proposals contained in Bill C-60 or to reach final conclusions on all aspects of the Bill. The proposals are novel and far reaching and deserve serious and unhurried study. Nevertheless, because of statements that the Bill would not be reintroduced in its original form and that drafting of a new bill would likely be put in hand soon, your committee considers it important to record without delay the views based on the study that it has been able to give to the proposals so far, so that they will
be available for consideration in discussions leading to a revised bill.
Your committee heard expert evidence on the proposals in general as well as on particular subjects. In addition, it had several sessions with the draftsmen of the Bill.
While your committee is not in a position to comment on all of the provisions, the queries raised during its hearings are on the record and will be available to those involved in the continuing process of constitutional reform. In this connection, your committee commends to those interested the excellent summary of evidence and discussion prepared by the Research Branch of the Library of Parliament, copies of which are available.
THE “PROCESS” OF CONSTITUTIONAL REFORM
The British North America Act may be 110 years old and some of its language quaint, but it is a document that has, in the main, served Canadians well and proved to be enormously flexible. Drastic changes to it should not be made in haste.
There has been great difficulty over the years in accomplishing comprehensive constitutional change and your committee wishes to commend the Government for taking the step of putting proposals in legislative form. This, together with the original speedy timetable for adoption has focused the concentrated attention of Canadians on constitutional questions.
Essential parties to any form of wide-ranging constitutional reform are the provincial governments. Their negative reaction to Bill C-60 is well known. It was expressed first in August at the Conference of Provincial Premiers in Regina and again in Montreal in September at the meeting of provincial ministers responsible for constitutional matters.
The Premiers complained about the amount of prior consultation, the announced intention of proceeding unilaterally in certain areas and the fact that proposals on the distribution of legislative powers were not available for simultaneous discussion.
Following a challenge, by expert witnesses, of the claimed legal right of Parliament to proceed unilaterally on the proposals regarding the Monarchy and the House of the Federation, the Joint Committee of the Senate and House of Commons on the Constitution adopted a resolution recommending that the question be referred to the Supreme Court of Canada for decision. Shortly afterwards, the Minister of Justice announced that the question insofar as it concerned the House of the Federation would be so referred.
The reference to the Supreme Court will settle the legal question so that any amendments ultimately agreed upon can be made in the certainty that the proper procedure has been followed. However, whatever the Court may say about the necessity or degree of provincial agreement that must precede such amendments, your committee hopes that they, as well as other proposals, will be made in close consultation with the provincial governments.
Your committee expects that these events, the forthcoming federal-provincial constitutional conference and the report of the Task Force on Canadian Unity will have the effect of slowing down the timetable originally proposed and of bringing the discussion of all factors into much closer proximity.
While the advisability of attempts at comprehensive constitutional reform has been questioned (see for example Dr. J. A. Corey, “Uses of a Constitution”, Law Society of Upper Canada Special Lectures on the Constitution (1978), particularly at pages 3, 13 and 15), if we are to embark on such an attempt, it is the committee’s view that all of the proposals should be laid before those whose decision is required.
AN AMENDING FORMULA
A fundamental question in constitutional reform is the development of a suitable amending formula for those important areas, including sections 91 and 92 of the B.N.A. Act, that can now only be amended by an Act of the Parliament of the United Kingdom. Reaching agreement on such a formula is essential to “patriation” of the constitution.
It is also important in the face of the many proposals in the Bill to “entrench” certain provisions. The nature of the amending formula will have a bearing on the question of whether or not it is desirable to place a given provision in the entrenched category. If the formula is too strict, some provisions may be better left unentrenched.
The proposal regarding the House of the Federation also illustrates the importance of the question of entrenchment. One of the legal issues as to Parliament’s right to enact the proposal unilaterally turns on the question of whether the proposal to substitute a House of the Federation for the Senate affects rights or privileges granted or secured to the legislature or the government of a province within the meaning of head 1 of section 91 of the B.N.A. Act. For even if the Supreme Court should decide that enactment of the proposals does not affect such rights or privileges and that Parliament is competent to enact them, the proposals themselves, by giving to the provincial legislatures the right to select members of the House of the Federation, appear to secure such rights. Thus, while Parliament might be competent to enact the proposals initially, it might be incapable of amending them in the future.
Bill C-60 contains no proposals on an amending formula, although the Government subsequently issued a paper entitled “The Canadian Constitution and Constitutional Amendment”, which reviews the history of the search for an amending formula in Canada and sets out various possibilities.
Your committee considers that high priority should be given to reaching agreement with the provinces on an amending formula as part of the continued discussions on the substance of constitutional reform.
II—SPECIFIC OBSERVATIONS ON BILL C-60
The drafting of Bill C-60 in your committee’s opinion leaves much to be desired in many cases. The style of presentation is very similar to that of ordinary federal statutes dealing with technical or complex subjects. While an arrangement consisting of elephantine sections with numerous subsections and paragraphs may be suited to such statutes (not all would even agree on this) your committee suggests that some other approach should be used when it comes to constitutions. Someone has said that the Bill reads like a lease, others have said that it reads like the Income Tax Act. Surely neither is a model of inspiring literary excellence. A constitution should be an enduring historical document, capable, so far as possible, of easy understanding by the layman and by students. If the language of the B.N.A. Act is, as the Government paper “A Time for Action” suggests, “obscure” and “the style plodding and uninspiring”, the Bill is little improvement.
STATEMENT OF AIMS
Your committee considers it desirable to include a Statement of Aims in the constitution. They should be more tersely expressed however and arranged in a more easily readable manner. Clause 3 alone, for example, is a sentence of seventeen lines and many of the stated aims set out in clause 4 are nearly as long.
CHARTER OF HUMAN RIGHTS AND FREEDOMS
1. Present Provisions
The present Bill of Rights is an ordinary statute of Parliament that could be repealed or amended by Parliament at any time. While the Bill of Rights contains provisions indicating that it is to apply even to subsequent statutes that conflict with it, the courts have been hesitant to apply it. The Bill of Rights applies, of course, only to federal legislation, although some provinces have enacted their own Bill of Rights.
2. Bill C-60 Provisions
Bill C-60 would incorporate the substance of the present Bill of Rights in the constitution. It would add additional rights, some of which are taken from existing provisions of the B.N.A. Act and other statutes, dealing with the inter-provincial mobility of citizens, the duration of elected legislative bodies and language and schooling rights.
The Charter would apply to all federal legislation from the date of coming into force of the Bill (subclause 131(1)). In its provincial dimensions, however, it would apply only to those provinces that decided to “opt in”. The incentive for each province to do so is that the federal power of disallowance of provincial legislation would be dropped when any province “opts in”. Apparently, however, a province could opt out later and presumably the power of disallowance would then revive. While there is provision for eventual entrenchment of the Charter (subclause 131(2)), the effect and meaning of this obviously cannot be understood until an amending formula is devised, with provision as to how it will operate in relation to amendments to the Charter.
Of the distinguished witnesses on the subject of human rights that your committee has heard to date, none appeared critical of the actual inventory of rights and freedoms proposed, although your committee points out that it has not had time to hear sufficient evidence with respect to the proposed inter-provincial mobility rights and the language and schooling rights.
On the general question of the enforceability of the Charter, one witness was opposed to entrenchment on the grounds that it tends to give too much legislative authority to the Courts and would hamper the ability of the people to reflect changing values in society through legislative action.
Another witness, although not opposed to entrenchment, felt that it would add little to the enforceability of a constitutionalized Bill of Rights that clearly expressed the intention that it was to override other legislation, He was also concerned that the proposed wording of the Charter would permit continuation of the “frozen concepts” theory in establishing rights and freedoms. Finally, he was concerned that some of the rights and freedoms granted might be rendered illusory by the absence of adequate remedies and, particularly, of an exclusionary rule in regard to administrative acts and evidence obtained in contravention of the Charter.
Your committee agrees with the proposal to place the Bill of Rights in the Constitution.
Notwithstanding the cogent arguments that exist to the contrary, your committee considers that, in principle, entrenchment of a Charter of Rights and Freedoms applicable to both the Parliament of Canada and the provincial legislatures would be desirable. lt refers, however, to its earlier observations about the relationship of entrenchment to a suit-
able amending formula and the difficulty of recommending entrenchment without knowning how the formula would operate.
Your committee refers to the summary of evidence prepared by the Research Branch of the Library of Parliament mentioned earlier in this report and the Proceedings of the Committee, Issue No. 4, August 10, 1978, as to suggestions for improvement in the wording of certain sections.
THE MONARCHY, GOVERNOR GENERAL AND CABINET
Your committee considers that some of the fears expressed on the subject of the provisions relating to the monarchy, the Governor General and the Cabinet have exaggerated the extent of the changes proposed in the Bill. At the same time, it considers that the Government’s avowed objective of stating the actual practice of constitutional monarchy in contemporary terms would, in so far as the role of the Queen is concerned be better achieved by
(a) referring to the Queen simply as the “sovereign” of Canada (as in the French text of clause 30) rather than the “sovereign head” of Canada;
(b) declaring, in clause 43, that the executive government of and over Canada shall be vested in the Queen to be exercised by Her Majesty personally or by the Governor General of Canada; and
(c) retaining the Queen as part of Parliament.
With respect to the appointment of the Governor General, your committee is of the view that some consideration should be given to the inclusion in the Constitution of a provision relating to the security of tenure of the person occupying the position of Governor General.
Your committee considers that section 55 of the B.N.A. Act should be modernized by removing the provision for withholding assent or reserving bills for the Queen’s pleasure as this provision is clearly obsolete.
Your committee also questions whether clause 47 vesting the command-in-chief of the Canadian Forces in the Governor General is really necessary, as clearly, the forces are subject to the control of the Government and Parliament.
If the change recommended in paragraph (b) above is made, that part of subclause 48(2) that purports to preserve the powers of the sovereign while in Canada, could be deleted as unnecessary.
Your committee sees no reason for changing the name of the Queen’s Privy Council for Canada to the Council of State of Canada.
Your committee agrees that there should be explicit provision for the Cabinet, but suggests that it be described as
consisting of the Prime Minister and such other privy councillors as are ministers of the Crown and are invited to be members of the Cabinet by the Prime Minister. The Cabinet should also be described as the principal instrument of policy, charged with the general management and direction of the government of Canada and collectively responsible to the House of Commons. This should not, however, prevent individual ministers from answering for their respective departments. Your committee agrees that no person should be eligible to be a member of the Cabinet unless that person is a member of one of the Houses of Parliament or is qualified to be a candidate for election to the House of Commons. However, your committee is of the view that a member of the Cabinet, or a minister, who for any period of six consecutive months is not a member of one of the Houses of Parliament should, at the expiration of that period, cease to be a member of the Cabinet or a minister.
Your committee does not believe that a Prime Minister who has lost the confidence of the House of Commons should have the right, let alone the duty (as proposed in clause 53(2)(b)) of advising the Crown or its representative whether he, the defeated Prime Minister, should be invited to form a new Government. This would be not a restatement of, but a marked departure from, the existing convention (under which a Prime Minister who resigns, for any reason, has no right to proffer any advice whatever as to his successor, unless the Crown or its representative asks him to do so, and even then the advice need not be taken).
Your committee finds the provisions of clause 51 obscure. If they are intended to provide for the appointment of ministers of the Crown who are not to be members of the Cabinet, they should say so clearly. But the committees proposals on the constitution of the Cabinet (that it should consist of those ministers invited to it by the Prime Minister) would remove the necessity for any such clause, if indeed its purpose is simply to provide for a two-tier ministry, as in Britain.
Your committee considers that any attempt to put the conventions, customs and usages of the Constitution into a text of law should for various reasons be approached with the utmost caution.
For example, except for a very few simple matters, like the responsibility of the Cabinet to the House of Commons, it would be very hard to do. For one thing, there is often some uncertainty, even among constitutional writers of repute, as to precisely what they are. As long as they are left uncodified, this problem can be dealt with by the political process itself: the House of Commons and the electorate can decide what a particular usage, custom or convention is.
Your committee agrees that the written Constitution should make it plain that its text is not the whole of what Sir Leonard Courtney called “the working Constitution”; that conventions,
customs and usages play an enormous part in the way we are actually governed. This might be done by providing that the constitutional conventions, customs and usages in existence in Canada immediately prior to the coming into force of a new constitution would not, unless therein provided, be affected or rendered enforceable by the court.
THE SECOND CHAMBER
Bill C-60 proposes that the present Senate be replaced by a second chamber composed of people selected by the parties in the provincial legislatures and by the parties in the House of Commons, with terms coinciding with those of the respective elected bodies, power reduced to a 60-day suspensive veto and jurisdiction extended to include approval of certain appointments and a special role in matters of linguistic significance.
Senators welcome the opportunity, provided by the government through Bill C-60, to debate reform of the Senate. It is a process in which they and others have engaged. They were a party to the report of the Joint Committee on the Constitution in 1972. But it was not competent for the Senate to implement those findings and the government did not do so.
This report will not discuss specific alternative proposals for the composition, role and veto power of a second chamber in Canada. Reform is required. Senators would promote it and would be anxious to assist in the process. But the constraints on the time available to your Committee have prevented it from undertaking such a study in time for this report. The committee, having been reconstituted by the Senate, intends to do so in the coming months.
It is, however, appropriate to discuss here the fundamental aspects of a second chamber.
Any proposal to deal with the structure and function of a second chamber in a federal parliamentary system must take account of certain basic principles. It is the basic flaw of Bill C-60 that it uses the single test of regional representation. Any such proposal should decide whether the chamber should be elective or appointive. It should consider its role in a system of checks and balances including a check on the executive. It should consider the importance of revision of legislation. It should assess the value of using the chamber to articulate regional interests and the interests of minority groups without frustrating the parliamentary process. It should evaluate its role in the investigation of and report upon issues of great national concern.
It is proposed to assess the provisions of Bill C-60 for a second chamber against these principles.
First, should the chamber be elected or appointed?
Granted, it is anomalous in a democratic age, that a second chamber in the parliamentary system should not be responsible to an electorate. But there are cogent reasons why it is so in our system.
They arise mainly from the fact that in the Commons of a parliament is the power of the purse. To the Commons alone is the executive responsible. A directly elected Upper Chamber would claim equal authority with the Commons. This is so within the Congressional (Presidential) system. It is less appropriate in the parliamentary system, and if the parliamentary system is to continue in Canada, the Commons would not have it other than it now is. In theory many Canadians might applaud a move to make the Upper Chamber directly elective. One must be realistic, however; the House of Commons would not tolerate such a change.
Appointment to office is not foreign to our public institutions. The method is used with good results for the judiciary, for the Public Service, for crown corporations, and, after election, for the Cabinet. But when it comes to appointments to the Senate, they are criticised as being favours conferred by the party in office upon the faithful. Bill C-60 does not answer this criticism and actually diffuses responsibility for the appointments.
Secondly, how would the proposed House of the Federation function as the main element in a system of checks and balances including a check on the executive?
Lord Campion, a noted authority and writer on the British parliamentary system, comments upon these principles and in respect of the Parliament of the United Kingdom notes:
“. . .the development of party machinery, the growing stringency of party discipline. . . have. . . worked . . . to increase the ascendancy of the Executive over Parliament. The Government has also been the chief beneficiary from the restriction of the legislative power of the House of Lords. There has been a deterioration in the position of the House of Commons, as a body, and in the status of individual members.”
(From “Parliament and Democracy”, published in Parliament: A Survey, London, 1952, at page 25)
In Canada, too, Cabinet acts as one; the party acts as one; this is the system. For this reason parliaments in the great democracies of the Western World devised and use the bicameral system.
Should the House of the Federation, as projected in Bill C-60, reject or delay or amend legislation in a manner unacceptable to government policy, the bill in question could be presented for Royal Assent within months, without its concurrence and in most cases without reconsideration by the Commons. In this way, the will of the executive, exercised through
its whips, would prevail regardless of the views held -in the second chamber. The committee feels that Canadians would not want to vest such absolute power in the executive. The very existence of a second chamber with meaningful veto or suspensive power is a brake on autocratic behaviour by government.
There must be a balance, however, between curbing autocratic government and ensuring to the federal authority the clear power to deal decisively with national issues and national emergencies. A House made up of members owing allegiance to so many political leaders and characterized by fragmentation of political opinion could well be an obstructive force in the legislative process, even within the time allowed by the proposed limited power to delay passage of legislation.
Thirdly, how would the House of the Federation perform as a body to revise legislation?
Today, the need for study and revision of the ever increasing volume of legislation, the requirement that judgment must bear upon hastily conceived programmes in the social, economic and political life of the nation, the importance of dealing with new complexities of private and public life—such requirements call for some legislative court of appeal, devise it how you will.
The bureaucracy prepares programmes for the ministers. In turn, the executive through the caucus and the whips apply their pressures to the Commons. The opposition debate, deplore and decry. But after the division bells have rung, the majority group, by which the executive lives, has its way. There is little time or motivation for revision there. But revision is essential.
The work of revision involves lengthy hearings, submissions from informed witnesses, careful cross-examination and the drafting of appropriate amendments. Competence in this work takes much time, effort and dedication. Members of a chamber concerned mainly with partisan political interests, and having an uncertain and brief tenure, are not likely to have the opportunity or motivation required. But in the public interest this work must be done in parliament as a check on the bureaucracy and the executive and as a supplement to the procedures in the Commons.
The maximum tenure (subject to reappointment) for the members of the House of the Federation, would be the same as the life of the Parliament or of the legislatures by which they were appointed. The proposed method of selection would make of the chamber a house of minority groups representing political parties and pursuing the purposes of those parties.
On the basis of the last federal and provincial elections held before July 1, 1978, the formula in Bill C-60 would produce the following groups in the House of the Federation:—
HOUSE OF FEDERATION
Distribution of seats among political parties. based on the popular vote in the most recent elections
|Selected by House
(except for Yukon
(From “The House of the Federation”, a paper issued by the Government of Canada is August 1978)
A body so constituted is not designed to perform the revising function of a second chamber. The interest of members and the thrust of their activities would be in a different direction.
Fourthly, how would the House of the Federation more effectively articulate regional interests and the interest of minority groups without frustrating the parliamentary process?
It should be remembered that existing parliamentary institutions are not without extensive facilities for the expression of regional views. No one should think that members of the Commons confine their interests to the interests of their constituencies. They are much more the spokesmen for provinces and regions.
Cabinet ministers are usually selected on a regional basis. In the Cabinet they are expected to speak for their areas and provinces in all matters where the concerns of such areas are involved. This has always been a fact of life in Canadian politics.
The caucuses of the federal parties are organized on a regional as well as a national basis. Discussions in regional
caucuses are largely regional in character and their concerns are brought to the national caucus.
The B.N.A. Act provides for the appointment of Senators on a regional basis. In the debates, in the committees, and in the special inquiries and reports of the Senate significant attention has been given to regional problems. However, your committee welcomes the proposals of the Bill to allocate fourteen additional seats in the second chamber, twelve of which will go to the provinces in Western Canada. The development in the provinces affected justifies this proposal in any second chamber.
The structure of the House of the Federation, according to the government’s paper “A Time for Action”, is
“to provide Canada’s regions with more effective representation in the national legislative process”
and to establish
“an effective forum for the expression and protection of regional and provincial interests and concerns.”
It is clear in Bill C-60 and in the Table shown above, that the provincial representatives would not control the house. Nor is there any assurance, given the diverse political alignments within and between provincial legislatures, that united effective action could be assured either in respect of regional or of provincial interests.
Provincial appointments would be made anew after each provincial election. Historically the calls of these elections are staggered. Thus there can be no assurance of continuity of provincial representation let alone regional representation. The result would becontinuing uncertainty and instability surrounding proposals to promote provincial objectives.
It should be clear also that first ministers and other ministers in the provinces would not surrender to the provincial members of the House of the Federation the right to determine provincial aspirations and policies. Even a united stand by the provincial representatives against a federal legislative proposal would not assure control of the House. And further, even if some federal appointees should vote with them against the proposal in question, the federal government could have its way in sixty days without further reference to the Commons.
It can be understood why, at their meeting in Regina, the First Ministers of the Provinces did not approve the proposals for the House of the Federation. Indeed, solutions to regional complaints will not be found in any proposals to restructure a second chamber. They will emerge from programmes and policies of both federal and provincial governments and from private economic and social initiatives. They can be recognized and projected in the hard realities of bargaining, compromise
and agreement at the table of the Federal-Provincial Conference. Canadian governments, federal and provincial, as well as the people of Canada have proved themselves equal to this task in the past. There is no reason to assume that such challenges cannot be met again. Your committee detects an underlying confusion in the minds of the proponents of Bill C-60 between a federal-provincial conclave and a parliamentary second chamber.
Fifthly, Could the House of the Federation carry out an investigative role effectively in matters of national concern?
Your committee has come to the conclusion that the limited tenure of the members of such a House, its highly partisan structure (emphasized by the introduction of a limited system of proportional representation) and the subservient role imposed on it, would render it ineffective in carrying out this important function.
Your committee agrees that, in principle, the reduction of regional disparities is a matter that should be dealt with in the Constitution. The references in the Bill are in clause 96 and in the Statement of Aims. It is noted, however, that the operative clause does not give clear expression to the question of ability to pay and does not create any enforceable obligation to assure, as nearly as is practicable, that each province is able to supply to its people a national average level of public services without a greater burden of taxation than the national average.
The matter of making this commitment enforceable is obviously a difficult one and your committee recommends that it be given further consideration by an appropriate Senate committee.
THE SUPREME COURT OF CANADA
1. Present provisions
The B.N.A. Act (s. 101) simply provides that Parliament may establish a general court of appeal for Canada. Pursuant to this power, Parliament established the Supreme Court in 1875. The present Supreme Court Act provides that the Court shall consist of nine judges (the number having been increased from seven to nine in 1949 on abolition of appeals to His Majesty in Council). The Act also provides for the appointment of the Registrar and other officers, for the sessions and quorum of the Court, for its jurisdiction, for the procedure in appeals and for a number of other related and administrative matters.
The Act merely stipulates that the judges must be appointed from among the members of the bench or the provincial Bars by the Governor in Council and does not deal in any way with the process of selection. The only regional requirement is in section 6 which states that at least three of the judges shall come from Quebec.
2. Proposed provisions
Bill C-60 would incorporate in the Constitution, rather than a mere statute, provisions establishing the Court, stipulating the number of judges (which would be increased from the present nine to eleven) and requiring that they be appointed- from the regions of Canada, including Quebec. Parliament would continue to provide by ordinary statute for the organization and maintenance of the Court.
The proposed new constitutional provisions would also include features not heretofore dealt with in the Supreme Court Act or any other legislation setting out in considerable detail the procedure for the selection ofjudges of the Supreme Court. The consent of the Attorney-General of the prospective appointee’s province would have to be secured, or where agreement could not be reached, a nominating council would be constituted. Ultimately, the appointment would have to be approved by the proposed House of the Federation.
Finally, the Bill proposes to place in the Constitution a requirement that all civil law questions be decided exclusively by a majority of the judges of the Court appointed from Quebec.
In addition to putting these provisions into the Constitution, the Bill proposes that they be “entrenched” (see clause 133). Parliament, even after entrenchment, would of course still be free to deal unilaterally with matters of organization and maintenance of the Court by ordinary statute.
The evidence on these proposals that your committee has heard to date is somewhat conflicting, although in the end no witness favoured the ratification of appointments by the House of the Federation. Unfortunately time did not permit, before completion of the present report, the hearing of all the witnesses that your committee originally hoped to hear. Nevertheless, your committee considers that it should set forth its views on the subject based on the evidence already heard.
Your committee sees merit in expanding in the Constitution the very rudimentary provisions now contained in the B.N.A. Act. The Constitution should actually establish the Court, provide for the number of judges, for their qualifications, and for their selection on a regional basis. The Supreme Court of Canada is the final Court of Appeal for constitutional matters and for the interpretation of both federal and provincial laws arising in cases coming from federal and provincial courts. For this reason, your committee thinks there is merit, in principle, in entrenching such provisions in the Constitution. However, it is reluctant to make a final recommendation in this regard in the absence of a constitutional amending formula.
Your committee thinks that the number of judges of the Court should remain at nine. The present practice of the Court is to sit as a full bench in all important matters, particularly constitutional matters. There is evidence that a larger number in cases where the judges were inclined to write separate opinions, would make it difficult to ascertain the ratio decidendi of the judgment. Although fewer than the full court could be assigned to any particular constitutional case, this would involve the Chief Justice in making a selection from among his colleagues that could be criticized to the detriment of the Courts credibility.
Many have advanced the view that the proposed basis of regional appointment ofjudges would politicize the Court and that the only consideration should be the professional competence of the appointee. It is also argued that feelings of regional alienation and the perception that the Court is dominated by the centralauthority would be alleviated by constitutional guarantees providing for regional representation. In view of the present unwritten practice of making such appointments as much as possible on a regional basis, your committee considers that the risk of constitutionalizing the practice may not be as great as has been feared.
Your committee, however, would substitute for the consent of the provincial attorney general or the recommendation of a nominating council (subclause 106(3)) a provision requiring consultation, not only with the attorney general in the province of the prospective appointee, but as well, with the attorney general of each province within the region in question. The committee would propose that such a provision be included in the Constitution. If further elaboration on the consultative process is required, it should be in an Act of Parliament, which could be amended in the light of experience if necessary. However, your committee believes that the existing informal investigatory and consultative processes, properly carried out, are adequate. It sees dangers in too formalized a procedure that may unwittingly exclude highly qualified candidates and prove to be inflexible.
Your committee is opposed to the proposal that appointments to the Court would require ratification by the second chamber. Bothjudges and outstanding lawyers may be unwilling to submit themselves to such a procedure. If the preliminary selection process has been effectively carried out, ratification seems redundant. It has been observed that a ratification procedure exists in other countries, including the United States. We are not accustomed to this in Canada, however, and your committee is concerned that the high quality of appointments to the Supreme Court of Canada that has prevailed to date is unlikely to be improved and could well suffer by the introduction of this requirement.
Your committee also questions the proposed requirement that civil law questions be decided only by the judges appointed from Quebec. There is no similar provision in the present Supreme Court Act although the practice of the Court has been for some time that the three Quebec judges sit on all Quebec cases. Thus on a panel of five judges, normal in cases involving the Civil Code, all three Quebec judges usually sit.
There are difficulties with the wording proposed in the Bill. A civil law question could easily arise in a case in the courts of a province other than Quebec—for example, in a dispute involving a contract stipulated to be governed by Quebec law. It is questionable whether the decision of such a case exclusively by the Quebec judges would help to promote the unifying effect that it is hoped constitutional reform would achieve. Another difficulty is that private law may serve merely to open the door to wider considerations of a public law nature. There have indeed been cases of this kind.
If there were evidence that the participation of common law judges in civil law cases was doing violence to civil law jurisprudence, there might be some basis for the proposal. While there have been complaints in this regard, the material that has been written on thesubject suggests that, to the extent that there has been a problem, it occurred many years ago and would not be addressed by the proposal. It is always open to the Quebec legislature to nullify what it is convinced is a bad precedent.
In his commentary on Bill C-60, which was made available to your committee, Professor David Kwavnick of Carleton University, Ottawa, included an analysis of civil law cases decided by the Supreme Court between the years 1960 to 1966. At the request of the committee a similar analysis for the period 1967 to 1978 was made by Mr. Jeffrey Lawrence of the Research Branch of the Library of Parliament and both these analyses are attached to this Report as Appendix “B”.
The analyses demonstrate that the vast majority of cases (over 90% in the 1967-78 period) were decided in the manner proposed by a majority of the civil law judges on the Court. In no case did a Quebec judge not participate in the majority decision. In the very small percentage of cases in which a common law judge or judges were decisive as to the outcome of the case, the questions although technically arising under the Civil Code, involved matters of interpretation of the language used in a contract, the application of facts to the law and questions other than questions of civil law theory or doctrine.
Since the Supreme Court Act was amended several years ago requiring leave to appeal, the number of private law cases heard by the Court is likely to diminish for the reason that they will not meet the required test of national importance. Moreover, the practice is that the applications for leave from Quebec are heard by a panel containing at least a majority of the Quebec judges.
While it is obviously desirable that the Quebec judges participate in civil law cases, your committee considers that there should be no requirement that questions of civil law must be decided exclusively by them. If in truth the problem being addressed is more “felt” or perceived, than real, as was suggested by witnesses from the Department of Justice (Senate Committee Proceedings, Issue No. 5, page 55), the
most that should be written into the Constitution or, preferably, the Supreme Court Act, is that a majority of the Quebec judges must sit on all cases raising questions of civil law and on all applications for leave to appeal in such cases coming from the Quebec courts.
Richard J. Stanbury
Witnesses who appeared before the Committee
Dr. B. L. Strayer, Q.C.
Assistant Deputy Minister (Public Law)
and Special Counsel on the Constitution
Department of Justice
Miss Alice Desjardins, Q.C.
Advisory and Research Services
Department of Justice
Miss Edythe MacDonald, Q.C.
Department of Justice
Dr. W. R. Lederman
Professor of Law
Mr. W. S. Tarnopolsky
Professor of Law
Osgoode Hall, York University
The Honourable J. C. McRuer, Q.C.
Dr. Gerald Morris
Law School, University of Toronto
Professor Léon Dion
The Honourable K. Rafe Mair, Chairman
Cabinet Committee on Confederation, and
Minister of Consumer and Corporate Affairs
Province of British Columbia
Mr. Melvin H. Smith
Deputy Minister, Constitutional Affairs
Province of British Columbia
1. Analysis of civil law decisions rendered by the Supreme Court of Canada between the years 1967 to 1978:
A. MAJORITY DECISIONS
B. SPLIT DECISIONS
II. Analysis of civil law decisions rendered by the Supreme
Court of Canada between the years 1960 to 1966:
no common common
B. SPLIT DECISIONS