Proceedings of the Special Senate Committee on the Constitution, 30th Parliament, 3rd Sess, No 7 (19 September 1978)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 7 (19 September 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
Tuesday, September 19, 1978
Issue No. 7
(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:
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
TUESDAY, SEPTEMBER 19, 1978
Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:05 a.m, the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Hayden, Lafond, Lang, Marchand, McElman, Phillips, Stanbury and Williams. (15)
Present but not of the Committee: The Honourable Senators Beaubien, Bonnell, Greene and Neiman. (4)
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.
Witness: Professor Gerald Morris, Law School, University of Toronto.
The Committee resumed its consideration of the subjectmatter 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 Morris made an opening statement and answered questions put to him by the Committee.
At 12:30 p.m. the Committee adjourned until 2:00p.m. this day.
The Special Senate Committee on the Constitution met at 2:05 p.m., the Chairman, the Honourable Rjchard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Lafond, Lang, Marchand, McElman, Phillips, Stanbury, Williams and Yuzyk. (15)
Present but not of the Committee: The Honourable Senator Greene. (1)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee.
Witness: Professor Gerald Morris, Law School, University of Toronto.
The Committee resumed its consideration of the subjectmatter of Bill C-60.
The witness answered questions.
At 3:30 p.m. the Committee adjourned to the call of the Chair.
Clerk of the Committee
Ottawa, Tuesday, September 19, 1978
The Special Senate Committee on the Constitution met this day at 10 a.m. to consider the subject matter of Bill C-60, 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, we have with us this morning Professor Gerald Morris of the Faculty of Law of the University of Toronto. Professor Morris was born in 1931 and completed his undergraduate and law degrees at the University of Toronto. After qualifying in 1957 as a barrister and solicitor in Ontario, he obtained an LL.M. in international law from New York University. In 1958 he joined the Department of External Affairs and served in Ottawa, New Delhi and New York, until 1966, when he returned to the University of Toronto as a law professor.
Professor Morris is a specialist in international law. Among his works is an article printed in the Canadian Bar Review, “The Treaty-Making Power: A Canadian Dilemma,” in which he discusses the question of provincial participation in treaty making. He is the co-author of Canadian Perspectives on International Law and Organization (1974). This book is the first comprehensive Canadian conspectus on current issues and developments in international law. He is also the coauthor of a forthcoming book entitled The International Law and Policy of Human Welfare.
When I asked Professor Morris whether this was a relatively comprehensive introductory note, he reminded me, and I should have remembered, that he also chaired the first Canadian Bar Association Committee on Constitutional Reform, which was back in the period 1968 to 1970. He assures me that at that time they operated on a shoestring compared to the budget of the recent committee.
Senator Greene: They didn’t issue press releases either!
The Chairman: Some months ago I had the privilege of sitting in on one of the lectures of the Upper Canada Law Society in the continuing series on the Constitution. A number of you have no doubt seen the textbook which recorded those lectures. As a result of that, I thought that Professor Morris had something to add to the discussions we have been having with other witnesses.
Professor Morris will make some opening remarks, following which there will be an opportunity for questions.
Senator Greene: Mr. Chairman, I wonder if I might put one question respecting Professor Morris’ qualifications before he
makes his opening statement. I would like to know whether Professor Morris was a student at the University of Toronto Law School when the present Chief Justice of Canada was the major-domo there. I ask that question so that we can know whether his opinions might be coloured.
The Chairman: You want a disclosure of bias.
Professor Gerald Morris, Faculty of Law, University of Toronto: I must admit to having learned “the gospel according to St. Laskin,” and I have certainly been affected by it.
Senator Greene: Then you are just as confused as the rest of us who suffered that fate.
Professor Morris: I shall not comment ort that.
Senator Forsey: Contempt of court!
The Chairman: If there are no other questions, I will ask Professor Morris to proceed with his opening remarks.
Professor Morris: Thank you, Mr. Chairman.
Honourable senators, when Senator Stanbury asked me to appear before your committee I told him that I thought the safe thing for any poor but honest academic to do was to run in the other direction, because I felt perhaps it was a “no win” situation to come down here and talk to the committee. Certain of the press reports seemed to indicate that the committee had been a bit rough on those who had come out of their ivory towers to say something. He assured me, but perhaps did not reassure me, that the committee behaved in a very gentle manner, so here I am.
Initially I had thought that I would play it safe and make some introductory comments that would be on the cautious side. However, finally I decided to throw caution to the wind and come down here and say what I really thought. In fact, I am going to be a little deliberately provocative and you can call me names or whatever you want. It seems to me that there is a need for someone to say a few things of the sort that I am going to say to at least stimulate some discussion, so here I go.
For one thing, I must admit that I have been having some doubts in the past year or so about whether or not we can resolve our constitutional difficulties. I hesitate to say that I increasingly wonder whether Canada will be viable as a national state in the future. That, perhaps, is thinking the unthinkable or mentioning the unmentionable. or something of that sort, but possibly it is the academic who can do that sort of thing.
When I indicate that I am a bit uncertain or confused, I suppose it is with good reason, because certainly in recent months there has been such an outpouring of data, studies and proposals that you can get almost anything you want, I feel, nut of the material that has been available in the last six months or so. There have been statistical surveys of attitudes in Quebec following reports on the degree of alienation in the west. Reports, with various figures I have seen, indicate that 10 per cent or fewer Canadians consider that the constitutional issue is important, and yet we are told that in Quebec 84 per cent, or some such figure, apparently want substantial constitutional reform. I gather that in western Canada there is also some substantial feeling in the same direction. We have had
the Law Society lectures that you mentioned. We have had a Canada West Foundation Conference and meetings of provincial premiers resulting in various recommendations and objections. We have had the federal proposals encompassed in Bill C-60. We have had the Bar Association study, and all of the comments and counter-proposals and so on. Therefore, it seems to me that we are all grouping to a great extent.
It is perhaps too soon for most of us properly to have assimilated this material and judge just where we stand. It does seem to me that there is a very strong trend-more than just one of the routine swings of the pendulum that we have had over our history-towards very substantial decentralization of our federal arrangement. This is in face of the fact that it is generally recognized that Canada is possibly already the most decentralized state in the world-certainly one of the most decentralized. I have never really had a satisfactory answer when I have asked someone to tell me which other state is already more decentralized.
Perhaps that should not concern us too much, and we may say we do not need to worry about what other countries are doing. However, when you see the trend in other federal states in the post-war period, which has leaned consistently towards more centralized federal arrangements, we perhaps should at least stop and think about what the consequences may be, if we move very substantially in the direction of watering down our present arrangements.
I am impressed, or depressed, by the fact that almost no one who has commented on federal matters in Canada in recent years seems ever to have raised the question: What does this do to Canada if we do decentralize, so far as our situation in the world generally is concerned, and what does it do with respect to our ability to maintain our economic situation? We have to remember that Canada is one of the major trading states in the world. Something like one in every four dollars generated in the country is from its international trade, and I think it is generally recognized that, while you can say international trade will remain generally within the control of the federal level, it really goes beyond that. Activities at various levels do affect our ‘international trade· situation and our international economic position generally. Provincial governments with enhanced powers over local matters, natural resources and so on, can certainly affect or presumably, in the various proposals I have seen, could make it considerably more difficult for the federal government to develop national policies (if we want to see national policies developed) relating to our economic interests.
This is certainly the view of people outside Canada. When I am in Europe, occasionally talking to government people in
countries such as Germany and Switzerland, I hear rather consistently that they are concerned and disturbed by proposals for decentralization in Canada. They do not see how Canada can keep up in the rather cut-throat international competition for dollars or other currencies that are available and how we can continue to get our share of the pie. While, in a sense, they may not feel too concerned about our problems, when it gets to the point that they see us as perhaps a future sick man of the western industrialized community, then they are somewhat concerned. I get the same impression in New York. Having lived in New York on two occasions totalling five years, I have a good number of friends and acquaintances down there. They repeatedly say that the uncertainty about Canada’s political and constitutional future has already hurt us.
In passing, I might say that this leads me to conclude that the man on the street is mistaken in his appreciation of the importance of constitutional issues, because I think it is important, if only from an economic standpoint, that we resolve some of our constitutional questions and let the world see fairly clearly where we are going, and that we are in fact able to maintain a satisfactory, stable political and economic situation within Canada.
As you might perhaps suspect, I have considerable doubt in my mind whether we should assume that it is open to us to go as far as we like in proposing federal institutions that would place a significant brake on federal action, even where that action in part may relate to provincial fields of interest. Again, I should say that I have a reputation as being something of a centralist. This may reflect my experience in External Affairs, where obviously I got to see the difficulties at the federal level, and it may be that I am somewhat biased in that direction. However, I have also gained the antipathy and ire of some of my former colleagues in the federal government by criticizing them when I have seen that they have been insensitive to reasonable provincial concerns. Thus, I do try to maintain some balance in these matters.
I have gone on record as saying that I consider proposals for a House of the Provinces, or a House of the Federation, if you will, as being something of a recipe for instant national paralysis. Yet at times it seems to me that almost everyone is out of step except Morris, and perhaps some members of this committee and, I gather, Premier Lougheed out west. On the other hand, you have one western group, the Ontario Advisory Committee, the Bar Association people, to some extent the federal government and others as spokesmen for certain political parties suggesting that there should be some version of a House of the Provinces, or House of the Federation, which would be the voice or the watchdog of the provincial or regional interests in Ottawa, and would serve as a significant brake on federal action. There have been various proposals,and I suppose the one thing that I can say about the current federal proposal is that at least it does not seem, in some respects at any rate, to go as far as some of the others, so that
perhaps I was lifted a little less high off my chair when I read what they were proposing than when I read what the Ontario Advisory Committee and certain others seemed to be proposing, if I understand what they are saying.
It does seem to me important that we take this perspective into account when assessing the proposals that we have before us. It is perhaps true that internally, for our own purposes, we can do what we want as long as there is a reasonable consensus across the country that the proposals are satisfactory. If we want to go to something amounting to a confederal arrangement, so be it. I have some doubts as to how workable it would be; I think it would be much more complex than some of the suggestions would make it seem, but, in a sense, that would be a matter between us.
There is, however, this controlling factor, that I do think it·is extremely important for us to be able to act with considerable effectiveness to protect our very important interests-more important than is the case with some of the other large trading nations on the world scene. I am not at all sure that we will be able to take that action if some of the proposals that are before us go through. If we have the consensus, possibly we can make various arrangements work. If there is a sufficient consensus, presumably a House of the Provinces would be influenced to some extent and might throw up fewer roadblocks in the way of the evolution of necessary national policies.
It is, of course, a truism that a constitution will tend to work considerably better as long as there is a national consensus and support. I think the British North America Act has worked rather well over most of our history, because there has tended to be a fairly substantial consensus, or at least acquiescence, and I think it is true that the B.N.A. Act, although it is fashionable to criticize it these days, is really a more remarkable document than many of us have liked to give it credit for being in the last few years.
We must, as I say, remember that we have no place to go in the world except to stand on our own two feet, unless we want to move towards some sort of economic integration with the United States. There have been proposals from a number of quarters for major moves in the direction of free trade with the United States and I have been surprised, in the last couple of years, at how many of my students in Toronto are prepared to accept that sort of idea. My own view is that such an economic association automatically means a major degree of political control, in view of the completely unequal relationship between the two countries resulting from the vastly greater economic power of the United States. Unless we want to move in that direction, no one else is going to support us or back us up.
We have found, I think, in our recent approaches to the European community that they are prepared to be pretty hard-nosed in bargaining with us and extracting concessions. I think that has been a factor in our changed attitude towards our contribution to NATO. Clearly, there was pressure from
European governments to force us to improve the quality of our participation. Who else is going to support us? We are a relatively small economic unit standing on our own, even though we are a significant world trader.
Just to wind up these rather rambling remarks, let me say I think it is imperative that we end up with a constitutional arrangement which does leave our federal government and our federal institutions with the power, and with the structure, to permit them to protect our national interests with effectiveness and with reasonable despatch. I am very doubtful, however, that the arrangements which seem to be gaining considerable support across Canada will meet that standard.
Thank you, Mr. Chairman. I am sure that has given some basis for questions, unkind remarks, or whatever, from committee members.
The Chairman: Thank you very much, Professor Morris. Senator Greene has the first question.
Senator Greene: Professor Morris, I gather from the tenor of your remarks that we are moving in this direction. Whatever we call or however we describe one half of our parliamentary structure, whether we call it the HOF or the House of the Provinces, or whatever, if it is there with the overt and written purpose of representing regionalism rather than the totality of the country, will that lead to a rigidity of federal action such as exists in the United States where the Senate very largely represents regional interests, particularly if the members want to be re-elected? There, time and again, for example, regarding the Treaty of Versailles, the regional interests prevented the federal decision from being implemented. Will it lead to that sort of rigidity if we define one half of our Parliament as being in existence to represent regional rather than national interests?
Professor Morris: This is one of the points that it is very difficult to be precise and absolute about, but I would certainly expect that there would be a tendency in that direction. It is not easy to draw exact parallels between American institutions and Canadian institutions, unless you try to assess them in the overall context of the respective constitutional arrangements, but obviously, it seems to me, there are certain overtones in the current proposals that seem to be adopted from the American system and are moving somewhat in the direction of certain American arrangements. However, it would seem to me that almost inevitably if members of the upper house, by their terms of reference, are to represent provincial or regional interests and if some or all of them are to be appointed by the provincial governments or legislatures, however that may be done and whether it be based on election results or whatever, they are first of all going to see themselves more clearly as provincial spokesmen and advocates in Ottawa. I would think that the tendency in selecting them would be to ensure, so far as provincial governments are making tthe decisions, that they are rather ardent provincialists, if I might use that term, and so, by and large, I would expect that they would see their role
very clearly as being somewhat antagonistic-and perhaps that is a bit too coloured a word-towards the federal government and the other chamber of Parliament. So there would tend to be this rigidity, and I think it would slow things down to a crawl, let alone a walk. Every government, not only that at the federal level, says right now that their great problem is that they cannot get enough of their programs through the parliamentary process. How justified that may be is not for me to say, but that is what they always say. I think they would get a fraction through, that is a fraction of the amount currently enacted, and, as I say, I think it is inevitable that this would tend to have the sort of result you suggest.
Senator Greene: Are you of the opinion that the power, as judicially interpreted to date, to amend the federal aspects of the Constitution unilaterally and by federal action, are valid? I ask this because one witness told us that these give the authority to fix the plumbing but not to install a whole new plumbing system. Would you concur in that concept, or would you feel that the present state of the law enables the federals to change anything federal by unilateral action without going back to Westminster?
Professor Morris: This in one of the things on which I know some people have gone in one direction and others have obviously gone in the other. I think an argument can be made on both sides. As far as the Senate or the House of the Federation is concerned, I have considerable doubt as to the propriety of going ahead unilaterally, and on a policy basis I think it would be unwise to do so on something that is so obviously controversial and which will generate so much opposition. Again, if we wish to encourage a reasonable national consensus, I doubt if something that sweeping should be pushed through, even if technically the right of the government to do so should be upheld. I have what I might describe as a declining order of doubt, and I am really quite doubtful with respect to the Senate. But so far as the Supreme Court is concerned, I think they probably can go ahead.
Senator Greene: I gather that you think that legally they have the right to do so–forgetting the question of policy which involves politics which men in ivory towers are not interested in-even with the Supreme Court?
Professor Morris: I am convinced the Supreme Court could be changed. So far as the position of the monarchy is concerned- and here I must admit that I have not as yet taken the time to go back through the letters patent in I 947 and earlier history to compare them word for word-but simply from looking at the proposals and from my recollection, I just shrugged a little bit on that. As an Anglophone with ancestors all coming from the south of England I have considerable sympathy for the monarchy, but it is unclear to me how significant the changes are. I think they may be more symbolic than substantive, but at the same time symbolic changes can be significant. My impression is that there may be some flexibility for one government or another government to make
more or less of the proposed changes, but, as I say, on that I am somewhat in balance.
Senator Greene: You would not go as far as the witness who told us that under the authority to date You can only fix the plumbing but you cannot build a whole new building?
Professor Morris: Are you making that comment with respect to the position of the monarch? Because, again, I am not sure if that is building a whole new building if I read the proposals correctly. On the House of the Federation, it is going to the point of completely revamping the institution to the point that it is a completely new one, and I do have doubts as to whether the federal authorities can go that far legally. I think it is very wise, at any rate, to refer that question to the Supreme Court of Canada.
Senator Godfrey: I was interested in your remarks about the second house paralyzing legislative action and only getting a fraction of the legislation through. My impression, professor, from reading Bill C-60 is that in fact it has no power at all, if it can only hold it up for 60 days. They do not even have to resubmit it. There is no sober second thought in Parliament there. So how will it affect the process of the House of Commons? All it can do is hold legislation up~ and I am only talking about the ordinary legislation, not the Iinguistic~for two months. What is a delay of two months, if a bill has taken eight months to stagger its way through the House of Commons? Or it might even be two sessions. How is that going to affect the fraction going through?
Professor Morris: Here again my comments were directed as much to the general tendency to propose a House of the Provinces with, by and large, much more substantial—as with the Bar Association proposals—much more substantial power to delay or turn back legislation. When I said that at least with the House of the Federation I was not quite so concerned, one of the reasons was that there certainly had been a greater limit put on the ability of the proposed house to hold up legislation. Nonetheless, I suspect that even the House of Federation, if I am correct in assuming that it will contain a substantial and rather hostile element, will be a deterrent even with respect to action by the Commons. Debate, even if it delays for only 60 days or thereabouts, if it is in fairly extreme terms, if it displays somewhat emotional hostility, can colour the public’s perception. I am painting a bleak picture here and maybe I am going a bit far in doing so, but I think it can significantly colour the public’s perception of legislation. As I say, it may be a deterrent; it may in fact slow the process of the Commons; but I am not as concerned in that regard with the proposal for the House of the Federation. I am certainly concerned about the proposed make-up of the house and the way in which it would be put together.
Senator Godfrey: Do you really think that this proposed house would get any more publicity than the Senate gets now, having extracted all its powers from it?
Senator Greene: They will back home.
Professor Morris: Yes. I think that would be my feeling. Obviously, I cannot be certain. It is crystal-ball gazing to some extent. At one point I had the unfortunate role of acting as a press officer for the federal government. That was one of the assignments they thought suitable for a lawyer. A lawyer had the gift of the gab, or something. One thing I learned was that someone with any sort of knack for public relations can get the attention of the press gallery and can get some coverage. With provincial appointees, if they have any crusading sense at all, I should think they would be able to establish the necessary rapport with some of the members of the press.
Senator Flynn: We cannot presently?
Professor Morris: I was not commenting on whether or not the Senate was adequately covered or fairly treated, or anything of that sort. That I would shy away from.
The Chairman: As chairman, I might take judicial notice that certain members of our group have succeeded in demonstrating that knack. Having made that remark, I would have enjoyed calling upon Senator Forsey as the next questioner, but do continue, Senator Godfrey.
Senator Godfrey: You refer to the fact that, on the whole, the people appointed from the provinces will be ardent provincialists. We do have six members of the Senate right now who are former provincial premiers. I should say that one would expect that, if anyone would be an ardent provincialist, they would be. Have you studied their records in the Senate to see whether or not they considered the national good first, the provincial good first, or even the universities first, or their parties first, or other things that they find important? What, in your opinion, has been the record of these ex-provincial premiers that would lead you to believe that people appointed by premiers would be any different?
Professor Morris: I am certainly not going to sit here and attempt to go through them, one by one, assessing their voting records and so on. I do think there is a difference. Without, as I say, wanting to get into any personal references or relative assessments, there is a difference in that there is not the pressure that comes from having to consider the need to be re-elected or re-appointed. The present terms of reference of the Senate strike a more satisfactory balance so far as keeping in mind the regional concerns and the national concerns, and it seems to me that someone serving in the Senate at the present time, if I may presume to comment at all on this, is naturally led by the role set out for the Senate to strike that balance, again in general terms, more satisfactorily. Obviously, the present Senate has some overtones of representing provincial, regional concerns; but it is also set up somewhat more along the lines that prevail with respect to the House of Commons,
in which the members must keep in mind both the concerns of their constituencies, of the regions which they represent, and the national concern. Thus, I think there would be a difference. Certainly, it has been assumed on occasion with respect to certain appointments that a person would take a certain role or have a certain philosophy, when in fact it has not turned out that way; but I supect that by and large this regional attitude would be quite pronounced in a House of the Provinces and that it would colour the functioning of that house, whatever name is given to it.
Senator Connolly (Ottawa West): If I may ask a supplementary, you have spoken a great deal about the function of the House of the Federation, as proposed, representing provincial or regional interests. Have you anything to say about another role the Senate performs, and must perform, and that is the revising role?
Professor Morris: Well, for someone coming from a university government.
Senator Connolly (Ottawa West): Could you assess the value of the two, revision as against representing regions?
Professor Morris: I really do not know how far I can go on that. I would attach value to both of those. I do want to see concern for regional interests. Let me make that clear. I think that input should be there. I think the voice should be there. I think that voice can be provided quite adequately and effectively by the elected members of the house and by appointed senators if they are carrying out their function in the way that I think it should be carried out- and I think that very often it has been.
Mr. R. J. Cowling, Counsel to the Committee: Everyone comes from a region
Senator Godfrey: What is your reaction toward having at least some provincial gppointments by the government? I am not talking about what it should be, whether it should be 25 per cent or 30 per cent. For instance, when the Union Nationale were in power in Quebec they would at least have had some input; or the provincial Conservatives in Ontario, or the Social Credit in British Columbia, or the Social Credit in Alberta before Senator Manning was appointed. So that there would be more parties represented even though they are provincial parties, and some of them are very closely allied with the federal party. What would be your reaction to that. as opposed to the present proposals?
Professor Morris: In the past I held at least a tentative view that there should be some channel, some means of communicating provincial viewpoints in Ottawa, that would permit that communication even where there were not members in either chamber representing that particular party in power in a
province; and I have suggested that perhaps there should be some sort of provincial liaison offices in Ottawa and that this viewpoint should be investigated. It has not received a very happy reception when I have come out with that sort of idea. Even in Germany, where they have tried it, I was told that in some ways it functioned quite well and did take account of this sort of situation where there might be a rather regionalized party in power in one of the states. It would mean that it had a minister in charge of that liaison office resident in the national capital, with an accepted function of expressing views and having some input through that means.
I must admit that I am not enthused about the idea of provincial appointments to either chamber of Parliament, as such. I suppose it is a question of “Well, if you reduce the numbers sufficiently, is it still a life or death matter, and would I object absolutely?”, and so on. Perhaps I would have to shrug and say, “If it became a nominal thing, perhaps it would not concern me so much.” But I would prefer to see some other mechanism, so long as we are talking about a substantial proportion of the members of one of the houses, whether it is 50 per cent, or 40 per cent, or even I 00 per cent, being named provincially.
Senator Greene: Professor Morris, would you think it viable, or are we sufficiently politically mature, to handle a system like this? For instance, I understand that the Queen’s Honours List in the U.K. is handled in a fashion that while the list is given to the Queen by the Prime Minister, even the Liberals get a certain number of titles, because they have X per cent of the membership in the House of Commons, and therefore the Prime Minister, as a matter of custom, asks the leader of the Liberal Party to name for the list whatever percentage of the Commons he has. He has that percentage on the Honours List to go to the Queen. Apparently, it has worked without rattling the crockery too much. It has maintained the balance in the House of Lords, in the, proportion that the parties were represented in the Commons. That has been done by custom. There are no laws involved. It has worked reasonably well. Could such a system possibly apply in a variegated country such as ours? Is that a viable alternative?
Professor Morris: Here again, that may be getting a little out of my area on which I have any great basis for commenting, but I should think that there could be some informal or fairly flexible arrangement of consultation-which I understand now takes place from time to time, perhaps not always satisfactorily-regarding appointments, so that appointments could be made from among those who are not declared adherents of the governing party. Some such system would perhaps be satisfactory, but I really do not have any developed views on that.
I do not close my mind to the idea of Senate reform, but I do not think it should be changed for the sake of change. I am not happy with the proposals in the form in which they have. been put forward. Perhaps something could be worked out that might reassure some of the critics of the present arrangement.
But I should say that I myself do see a role, I am attracted to a role, for people appointed to play a part in government. I think there are people who could make a very useful and valuable contribution, yet who may not be in all cases born politicians who enjoy kissing babies and so on. They may have a most valuable contribution to make. So I am not turned off, as I gather many people are, by the idea of appointed members of the one chamber of Parliament.
Senator Forsey: I have a number of questions, all of which are pretty brief, Mr. Chairman. First of all, I have one arising, as a sort of supplementary, out of Senator Godfrey’s remark about provincial ex-premiers whom we have now in the Senate. I gather that it was Professor Morris’ feeling that the difference between their position and that of people who would come into the House of the Federation, or the House of the Provinces, or whatever it might be, is that these people who are here now, with provincial experience, are not specifically mandated by any provincial government or any provincial party, whereas people who would come in under the House of the Federation scheme, or the House of the Provinces scheme, would come in here really mandated by a provincial party or a provincial government. Am I correct? Do you feel there is that difference?
Professor Morris: I think that is perhaps basic to my feeling that, yes, there is a difference. As I say, I do not want to go too far in commenting on the role of former provincial premiers. Some of them may feel that I am making them sound like turncoats to their home province if I say they have done a proper job of serving the national interest. Whatever I say I might end up on delicate ground. I think that essentially that is at the core of my feelings.
Senator Forsey: Another question I should like to ask is supplementary to Senator Greene’s question. Some of us have suggested that it would be desirable to have in the new or revised Constitution provision for a minimum number of senators belonging to the opposition party or parties, say, a quarter or one-third of the Senate, which should never allow the representation of the opposition party or parties to fall below a certain level. Have you any comment to make on that?
Professor Morris: The general idea that there should always be a fairly substantial voice in the upper house that is not the voice of the governing party, assuming that there had been a prolonged period of government by one particular party, rather attracts me. The idea that there would be a sort of guarantee of an opposition voice, or independent voice, if that is a better term, has definite merit. I have not really fixed on numerical proportions and further consideration might have to be given to how that would be worked out.
Senator Forsey: I thought it would fit in with Senator Greene’s reference to the Queen’s Honours List in the United Kingdom, because, presumaly if you had this representation you would have the government taking the advice of leaders of the opposition parties as to whom they should appoint.
My next question deals with this business of a regional voice. Have you considered the recommendations of the 1972 report of the joint committee on the Constitution that half the senators should be appointed by the central government but from lists submitted by the provincial governments?
Professor Morris: I think that is possibly a small step away from the present type of proposals, but I am not much happier. I must admit that the idea of the provincial governments providing a list of their most militant and outspoken supporters does not put the federal government much further ahead in being able to choose from among them. Again, I do not want to seem to be suggesting that all provincial premiers are necessarily Machiavellian and are going to be scheming in this way. I think it is natural to have a sort of tension between provincial and federal levels. In a major sense, that is what federal arrangements are all about-to set up that sort of creative tension to bring about some degree of balance. I think it would be natural for the premiers to tend somewhat in that direction, to ensure that the list was filled with people who they would expect would present their viewpoints. I am not much happier with that idea than I am with suggestions that appointments to the Supreme Court should be made from the same sort of list provided by provincial governments.
Senator Forsey: If I may be allowed two further questions, Mr. Chairman. In relation to the blocking powers of this proposed House of the Federation, I think that both Professor Morris and Senator Godfrey made an exception of the measures of special linguistic significance where the blocking power of the proposed upper house would be considerable, but there is something of a tendency to suggest that this might not amount to very much in practice. I wonder whether that is quite clear and true. It seems to me possible that you might get a broad interpretation of that “spongy expression,” as a very distinguished senior constitutional lawyer called it in a letter to me, which would mean that quite a large number of bills might come under this heading and, therefore, would get a very substantial degree of obstruction. I find the term somewhat vague, shall I say, and open possibly to interpretations which would give it a wide scope.
Professor Morris: I think that is quite possible. It had not been my intention to dismiss that segment of the upper house’s proposed powers. I think that term could have quite a reach, knowing that phrases have been extended, both in our own constitutional practice over the years and in the United States-! am thinking of the interstate commerce power, and so forth-sometimes out of recognition in the probable view of the originators of these terms. It would seem to me that that is one which could be given quite a wide reach and, therefore, there would be numerous occasions on which there would be much more substantial blocking n’t attempt to comment on the way in which that would work with concurrent majorities, and so forth. I must admit that when things get to that level of complexity I tend to trhow up my hands a little.
Senator Godfrey: May I correct a pervious statement, Mr. Chairman? I have just examined clause 67(b). Really this 60-day blocking power is more effective if it occurs at the end
of a session, because clause 67(b) states, “forty-five days were days during which Parliament was sitting in the session in which the Bill was presented to the House of the Federation”. So that if a bill comes through at the end of a session, as so many do, then there is effective blocking over to the next session. In certain circumstances, depending on what time the bill is presented to the House of the Federation, there is a substantial blocking power.
Senator Forsey: That is a very important point.
The last question I wish to ask is perhaps rather especially in Mr. Morris’ particular field of interest and experience. I notice there is nothing in the bill, that I can discover, that says anything about the treaty power. There is nothing about section 132, and I wonder whether he has any comments on whether he could find something in the bill dealing with the treaty power which I overlooked, and whether he thought if there were not any, there ought to be something, and if so, what?
Professor Morris: I have great doubt that I would find something which you have overlooked, Senator Forsey.
Senator Forsey: I’m a mere amateur. You’re a lawyer.
Professor Morris: I think for, in a sense, understandable reasons there is not anything at this stage in the bill about the treaty power or, more broadly, about the foreign affairs power. Bill C-60, as I understand it, is designed at this stage, essentially, to reproduce the provisions relating to the allocation of legislative competence in much the same form, subject to technical changes required by Part I of the bill, as they appear in the 1867 B.N.A. Act, as amended.
The treaty and foreign affairs situation is one that has obviously been a real stumbling block in prior federal-provin- . cial negotiations. It is widely agreed that section I 32 is now moribund. Chief Justice Laskin, when he was at the University of Toronto, certainly wrote to that effect; that is, that it is moribund and cannot be revived in the present-day context. So, it is perhaps out of the picture. It is understandable that it is not proposed to continue that provision, although there is general acceptance, I think, of the fact that, in so far as there are treaties still in effect that pre-date the 1926, or thereabouts, period, the federal government would continue to have the necessary legislative power.
But the negotiations have simply ground to a halt as far as the foreign affairs power is concerned. It is my understanding, at least according to the rumours I have heard, that this was one of the touchiest issues that the Molgat-MacGuigan group had to deal with in preparing their report. My understanding is that even in Victoria, when the Victoria Charter was being discussed, the closed door discussions that touched upon the foreign affairs competence of the provincial and federal levels almost broke down, with considerable animosity being shown. I was not present, but I heard from what I consider unimpeachable sources to that effect. So, it has been largely left
aside, and I suspect that it will be one of the last issues to be resolved, if these issues are ever resolved.
It is a very explosive issue. Professor Lederman, in recent years, has said that if you made him prime minister here in Ottawa and gave him competence over international affairs and the environment, and allowed him to give wide interpretation to those two powers, he would have control of everything, because he could relate everything directly to those two heads of power.
Senator Connolly (Ottawa West): He should try the Senate Committee on Banking, Trade and Commerce.
Senator Forsey: If I might ask a supplementary about section 132, isn’t it true that the interpretation of that by the courts-notably, the Judicial Committee-has in fact given the provinces a pretty considerable power to implement treaties, the subject matter of which would fall normally within their jurisdiction, and that therefore it could not come into Phase I, because if you have to make any alteration to section 132, it would be taking away a power belonging to the provinces by judicial decision, and would therefore fall within the exceptions contained in section 91.1.
Professor Morris: I think that is very true. The line of decisions in the Privy Council, and notably the labour conventions case in the 1930s, has given, as you say, a considerable role to the provinces, specifically with respect to the implementation of treaties dealing with matters which ordinarily would fall within their legislative competence. But by implication that decision perhaps can be read, or at least the provinces have inferred that that opens the door to them to go even farther and have direct intergovernmental dealings themselves, and perhaps even claim the right to membership in certain international organizations, although the precise limit on such action is still being debated.
Accordingly, it would certainly have to be settled in the second phase. I certainly hope that the situation can be clarified somewhat. Otherwise, it is going to be rather interesting to see where the Supreme Court of Canada goes after some of the intriguing hints that they have given, even in the last two or three years, that they may be considered overturning the labour conventions doctrine.
Mr. Robinette, as I understand it, will be testifying in a day or two and you may want to ask him about that. He has spoken out about the Vapor (Canada) Ltd. v. MacDonald decision of the Supreme Court of Canada. He testified in a Federal Power Commission hearing a year and a half or so ago in the U.S. indicating that, in his view, it was a very clear signal by the Supreme Court of Canada that they were prepared to reverse the labour conventions doctrine, which has now become part of the accepted political fabric in Canada. I think it would place the Supreme Court in a most controversial position-which might be entertaining to those of us in the academic area, but a bit unfortunate, I think, for those who have the more direct responsibility at the governmental level.
Senator Connolly (Ottawa West): Professor Morris, I think we can perhaps take judicial notice of the fact that the Senate itself is the forum in which reform of the Senate has been more widely and variously discussed than any other forum in the country. Some of the proposals that have been made are good ones, but the Senate itself has never been able to implement any of them. All it can do is suggest. One of the problems about the second chamber in Canada is the fact that, being an appointivc body, it is not really a democratic institution. There have been suggestions made in the Senate that consideration should be given to making the Senate directly elective. Would you like to comment on that?
Professor Morris: As I say, Senate reform is something that I am certainly prepared to accept, so long as the proposals seem to make some sense and serve a useful, constructive purpose. Perhaps an elected Senate is the answer, although I would rather hope that a continuing role for some appointed individuals could be found in the governmental process. I suppose another alternative might be appointments for a term of years.
Senator Connolly (Ottawa West): That was going to be the next question.
Professor Morris: There is the question of whether or not these should be renewable appointments, and I must admit that that is a political issue and I can only offer a layman’s view.
Senator Connolly (Ottawa West): Let’s take the first question, about the proposition that the Senate might be elected directly, as is the United States Senate. In the light of the parliamentary establishment which we have here-and, of course, the Australians have departed from it-and in the light of the known views of a lot of members, certainly in the House of Commons, do you think it would be a feasible proposal for reform of the upper chamber to be advocated?
Professor Morris: I think something might be gained, and I think probably something would be lost. I suspect that there is sufficient pressure across the nation, and I am not sure that it is all informed pressure, to democratize the upper chamber. In fact, that might be the direction in which there would be a move, especially if the proposals for the House of the Federation are ultimately rejected. This would satisfy the demands for a more democratic chamber. As I say, I think there is something to be gained by limiting the direct pressures on the members of the house with somewhat limited powers, as compared with the Commons, by avoiding the need to seek re-election. If Senators were forced to seek re-election, the obvious result would be that members of that house would be thrown right back into the mainstream of active party politics. I am not saying appointment to the Senate automatically strips the appointee of any of his party sympathies, but it may, over the years, allow him to feel a little less constrained or obliged to refrain from speaking out and indicating a somewhat more independent view.
I am not the one to try to read the minds of members of the house, but it seems to me that something would be lost. It might persuade the electorate that their views were being more
directly presented in the upper chamber, but the Commons already exists to serve that function and perhaps some element of sober second thought is lost by electing senators every six years or on whatever basis it would be. Therefore, I think there is something on both sides of the ledger, but I am not entirely enthused about that proposal.
Senator Connolly (Ottawa West): Suppose in the real world, because of the parliamentary system we have, that this is not feasible, for the reasons that the house, being directly responsible to the people, would claim equal authority with the Commons, and the Commons themselves would view with some alarm the idea that their powers, over the purse, for example, would have to be shared with the second chamber, would you think that term appointments over, say, ten years, which would be 2Vz parliaments, or six years, which would be I V2 parliaments, normally, always within a retiring age of 75, as it is now, or 70, but with power to reappoint-with the expectation that on performance reappointment would be possible- would be any feasible kind of reform in your view?
Professor Morris: It would be reform. The problem is that almost anything of that sort really depends on how it is worked out in practice, and it could work well, I suppose, or it could work less satisfactorily.
Senator Connolly (Ottawa West): Do you mean by that that it would depend upon the character or personality of the appointee?
Professor Morris: It would very largely depend on the Prime Minister and his attitude and the people he appointed. I don’t know that we would necessarily end up any further ahead than we are now, assuming that there is some agreement that there should be a change.
My own feeling in this entire situation is that the present arrangement is capable of doing quite a satisfactory job, and I do not see the need for a great rush to make a change. Therefore, I look a little skeptically at proposals for change.
Renewable appointments on a term basis could work out, but it again subjects the member to certain pressures to conform or not to be reappointed. Therefore, you lose something rather substantial that you have now.
Senator Greene: Professor, you are the only public person I have ever heard in a public forum approve of the efficacy of some appointive element to a law-making institution. As a result of that, I wonder if you can help me with this. Certainly among the legal fraternity, and I think among the press and public, the appointed method of selecting the judiciary is, I think, pretty well universally accepted in Canada, as opposed to the generally elective methods utilized in the U.S.A. Is there any reason why the press and public think it is good to appoint judges rather than elect them and have accepted that as the best of all possible worlds, and yet take umbrage at that same concept being applicable in the legislative area? I find that rather a conundrum, and I wonder if you can help me.
Professor Morris: No, I don’t know that I can interpret the public psychology very meaningfully there. I suppose they simply identify the members of the Senate as politicians, or as being directly part of the political process, which they again, perhaps without a great deal of thought on the matter, assume must be democratic. From grade I they have heard these phrases, and in their view “democratic” means by election, whereas judges they perhaps see as being more akin to career officials performing what is more of an administrative function. I am guessing, but I assume it is something along that line. I cannot really account for the difference. I agree that there does seem to be acceptance of appointment in the one case and less acceptance in the other, although I am not sure why.
Senator Connolly (Ottawa West): With regard to this proposed House of the Federation, it is suggested that the purpose of having it this way, as set out in the bill, is to give regional representation, to give the provinces more input on Parliament Hill, as is often said. I wonder whether you have any views on the wisdom of one jurisdiction having authority to appoint to an institution of another jurisdiction in a federal state, and whether that is a sound constitutional provision.
Secondly, if what is desired is to give an authentic and credible input· by the provincial jurisdictions to policies of the federal jurisdiction, I wonder whether something more could not be made of this by doing it through an elaboration of the federal-provincial conference rather than attempting to do it through a second chamber in the Parliament.
Professor Morris: Generally, I am sceptical of the idea of appointments, as you say, being made into one level of government by another. I think that earlier I mentioned that I found myself in agreement with remarks made by Premier Lougheed of Alberta. As reported, at any rate, back in the winter or early spring he indicated considerable disenchantment with the idea of a House of the Provinces.
Senator Connolly (Ottawa West): This was before the bill.
Professor Morris: That is right, it was before the bill, but there had been one or two proposals for a House of the Provinces. As I understood his remarks, he felt that the levels of government should be more or less separate, that it was the function of the provincial government to make its views known, and that they were quite capable of doing that effectively; that yes, there should be perhaps more effective, somewhat enlarged machinery for federal-provincial consultation. I certainly feel that there have been times when the provinces have apparently been denied information that they needed in order to anticipate developments and make their own policies.
Senator Connolly (Ottawa West): Like what, for example? Programs like DREE?
Professor Morris: There have been occasions when we have been negotiating with the United States with respect to our economic relations with them. I think there has been some improvement on this, by the way, in the last several years, but
I do not think it is by any means perfect yet. I believe the provinces have had a very basic interest in knowing what our policies might be with respect to the export of oil and natural gas, the auto pact, and so on. They have not always been kept in the picture to the extent that I think they should have been. At times perhaps the provinces themselves have been a bit responsible for creating an atmosphere of some distrust, I suppose, so it is not all one way. I think there is room for considerable improvement, even taking into account some of the improvements that have been made. It seems to me that is the road we should go.
I find myself becoming increasingly irritated by continual references to the federal government as being a bloated, over-centralized octopus constantly intruding into provincial jurisdiction. Of course, there may have been instances of such intrusions. The taxing power and the spending power provide some opportunity for at least creating a certain amount of friction. In fact, however, I think anyone looking at all objectively at our federal arrangement has to say that more often than not it is the federal government that has been under siege in the last decade or two, and that the provinces are really quite capable of standing up for their own interests and letting not only Ottawa but the Canadian public know very, very emphatically what is at stake and what the regional viewpoint is. They can protect themselves. We must also keep in mind the dual role of members of the Commons and members of the Senate in representing both regional interests and national interests and trying to effect a balance there.
Senator Greene: You will have noted, professor, that in the bill we introduce, I think for the first time in our constitutional evolution, the technique of advise and consent with respect to the appointment of judges of the Supreme Court of Canada. Do you believe that this technique is valid in a parliamentary, responsible democracy of our type? If you do, should it be enlarged to appointments of ambassadors, deputy ministers and so on? If you do not agree with the first part, the second part of my question, of course, is superfluous.
Professor Morris: On balance, I don’t agree with the idea. As so often, there is again something to be said on both sides. I know it can become a little dreary if there is always this “on the one hand and on the other hand” business. As the experience in the United States has shown, I think it can occasionally serve to weed out someone who is clearly not suited, even when that person may have slipped through other preliminary screening processes. At the same time, I think that even in the United States it has deterred a lot of very good people from allowing their names to be put forward for appointment, perhaps not so much with respect to the United States Supreme Court. I think well-qualified candidates there have been prepared to go through the cross-examination and the public interrogation that they receive, because the role of the Supreme Court in the United States has been, and I gather will continue to be, significantly more important than the role of the Supreme Court of Canada. I gather that it is going to continue to be a somewhat narrower function that that court
will play, and my own view is that we will probably see what has happened with respect to appointments to some agencies and with respect to ambassadors and so on in the United States. Frankly, I think that the level of appointment there has tended to be, by and large, with some exceptions, somewhat below the level of appointments in Canada. There is also another factor there, in that their patronage system, the Jacksonian system as I believe it is called, also allows, perhaps, for appointment of people on occasion who might not be elected on merit. It seems to me that we have been very fortunate. My own experience in External Affairs may predispose me in this direction, but I think that the ambassadors we have had and have now in our foreign service-and again I do not want to be taken as making comments that could be regarded as being somewhat offensive if they should ever reach the ears of any Americans-compare very favourably with American appointments. I do not think that the situation has changed much since Senator Kennedy, as he then was and later President Kennedy, wrote that Canada probably had the finest foreign service in the world. I think that is in part because we have gone for a merit system of appointment with relatively few non-career or non-merit appointments.
With respect to judges, I just do not think that leading lawyers, by and large, would want to submit themselves to cross-examination in public on all aspects of their life. I think there is a need for some sort of screening process, but I also think there has been considerable improvement since consultation with the Canadian Bar Association has been established, by which possible candidates are rated to some extent. I prefer to see us continue on the sort of basis we have now. I think that many good candidates would simply not like their names to be put forward if they are to be subjected to cross-examination, and sometimes somewhat partisan cross-examination, in the second chamber.
Senator Connolly (Ottawa West): And personal crossexamination.
Professor Morris: And personal cross-examination.
Senator McElman: If we might just retrace our steps for a moment and back away a little from the advise arid consent process to the other element of the process suggested whereby there is consultation between the attorneys general, at one stage it becomes imperative that three names shall be proposed on which the Attorney General for Canada and the attorney general for the particular province involved have to consult.
Now, I should like to put to you a certain situation and get your reaction to that situation. Let us say that there are three names under consideration, that two of them are recognized practitioners before the bar while the third is a member of the supreme court of a province, and that after the discussions between the two attorneys general have been concluded-and they being human and political persons, political considerations will have been involved-the judge of the supreme court does not make it, so he remains as a judge of the supreme court of the province, what is his situation from that point forward?
Professor Morris: First of all, I am all in favour of consultation as a general principle. The more consultation the betterat least until we get to the point that we spend all our time consulting and not much time in doing. But I do not see any real objection to consultation between the attorneys general at the two levels. The important factor, in my mind, is going to be who suggests the names to be discussed, and from there on it really becomes a question of whether or not you want the names to be made public and whether you can rely on the discretion of the respective cabinet ministers concerning the names being considered. At the present time names put forward as suggested appointees to superior courts are not supposed to be made public. Sometimes, at least, this element of confidence is well maintained, but certainly I have heard, on what I considered to be rather good authority, that so-and-so and so-and-so were being considered. Then perhaps one or both failed to be appointed. That is not a pleasant situation, and the situation of the provincial supreme court justice could obviously be somewhat awkward and embarrassing. I do not know how you can get around the situation where the names. are made public. I do not think there should be any publicity attached to this process because I think there are some areas in which the public right to know has to be limited, and I think that, at these preliminary stages of selection of names and discussion of them, the highest practicable degree of confidentiality should be maintained. Nevertheless, there will be embarrassments from time to time, and people will be put in these awkward situations.
Senator Connolly (Ottawa West): In other words, our present system is fairly good.
Senator McElman: But my question was predicated on the assumption that this element of keeping the names confidential does not. exist so far as the profession itself is concerned. I am not talking about the public at large, but in the profession itself the practising barristers in every province know pretty well whose name has been put forward, and I see no reason for believing that any new system would be any more failsafe or secure than the present system where the bar committee quotes the names of those concerned and they become widely known. My concern, of course, is-and I guess you have answered my question to a degree-that the position of the provincial supreme court judge in such an instance could be depreciated almost to the extent that in some cases he would become, in effect, a lame duck judge sitting on the bench.
Professor Morris: I suppose the way in which the situation was handled, and perhaps even the identity and stature of the person selected might influence the degree to which he would be embarrassed or compromised, in a sense. I suspect that, as you say, a fair number of the members of the profession could get to hear about the names being considered, and this may be more frequently the case in the smaller provinces than in, for example, Ontario and Quebec. These things are to some extent risks of the game, and I suppose we all have to live with the fact that if we want to be considered for a higher appointment, then there may be some risks that we have to face. It is a question of how far you want to go and whether you want to almost institutionalize the process of putting the person on the
rack and letting everybody know all about his most personal details and his family’s entire situation and circumstances, and so on.
I think the present situation is pretty good. It may be that someone can come up with better arrangements. I think that as it stands the attorneys general in the provinces in fact frequently know who is being considered and do have a chance to make their views known.
Senator Bourget: I am not a lawyer. Are members of the Bar generally satisfied with the system that is now in existence?
Professor Morris: Again, I hesitate to speak for the profession as a whole, but my impression is that there is now considerable satisfaction. Certainly there is in Ontario. The feeling of the profession in Ontario is that the Ontario Supreme Court and Court of Appeal have become a strong bench in general, and they are really quite pleased with the nature of the appointments that have been made in recent years.
Senator Bourget: Did the Canadian Bar Association make any recommendation at its last meeting regarding the appointment of judges?
Professor Morris: I think the text, which I do not have at hand, does have something to say on that. I must admit that I was one of those who could not get to Halifax because of the airline strike. Unfortunately, I do not know what was said at the meeting. I do not recall precisely what the provisions on the judiciary were.
Mr. Cowling: They do not go nearly as far.
Professor Morris: That was my recollection. I thought they were much more in line with the present situation and did reflect what I would say is the general satisfaction of the profession with the way appointments are made now.
Senator Bourget: As a matter of fact, there was no criticism of the actual method of appointing judges, was there?
Professor Morris: That is my recollection. I do not think there was anything critical in that report on judicial appointments. I do not recall hearing that anything was said in Halifax during the discussion of the report.
Senator Forsey: Did the report not propose ratification by the upper house with respect to the appointment of Supreme Court judges?
Professor Morris: I do not think so, but I would not want to stand on that. I would have to go back and check.
The Chairman: We can check on that during the lunch hour.
Professor Morris: There were some things to be ratified by the upper house, but I do not recall that one was judicial appointments.
The Chairman: We can check that during the lunch hour, just to be sure on it, and we can perhaps continue our discussion on it later.
Senator Greene: Professor, accepting your evidence of the improvement in the calibre by reason of consultation, has the
politics of judicial appointment not rather moved to the Canadian Bar Association, rather than being done through the political processes as it used to be? Is that not where the politics is done?
Professor Morris: Certainly, I would not want to say that personal factors, the “old boy” network are not present as possible factors, simply because the Bar Association is consulted. But again, so long as you have a group of fairly prominent and, I would think, generally respected lawyers from across the country acting as a sort of consulting group, responding to the inquiries from the federal level about the qualifications of prospective appointees, it seems to me that it is likely to balance out and that you are not in all likelihood going to get the members designated to respond to these inquiries all being dyed-in-the-wool Tories or Grits, or whatever.
Senator Greene: Are they good members of the club?
Professor Morris: I am certainly not prepared to say that they would be anxious to recommend someone known as a non-conformist in a far-reaching fashion.
Senator Greene: They are only responsible to the club, not to the public at large.
Professor Morris: That is true, but again I do not know that it is feasible to get away from some problem or another. Either you go to a group that should be in a position to give you a rather expert evaluation of the person’s professional, technical, and intellectual competence-and then you have the risk that the members of the group will prefer someone who is more or less in their own image and stands reasonably well with them; or you go to another body, or to the general public, and you get a rather uninformed response. It is a trade-off, and I think the present arrangements are good, again judged by the results, at least in Ontario where I have heard many practitioners, and even the law teachers who usually are not slow to be critical, say rather complimentary things about what has been happening in respect of appointments to the Ontario courts.
The Chairman: It may be important to point out that that is not the only input into appointments. The chief justices are consulted; the other judges are consulted; the political process is still intact, and the balance comes from all of those elements being present.
Senator Greene: I gather from your prior evidence that the more informal and non-constitutionalized or put-into-liturgy the process is, the better.
Professor Morris: I tend to feel that way, yes. As you say, the present processes are largely informal, although there is now an understanding with the Bar Association. There is some balance.
I have had my view consulted on one or two occasions concerning a possible appointment, and not in any role connected with the Bar Association. Maybe that is why I think it is not too bad an arrangement. Some of the inquiries are done
at second hand, indirectly. It may be that some people are not aware that they are being sounded out on behalf of the federal level concerning one of their colleagues.
Senator Greene: It still boils down, surely, to how good is the attorney general and how good is the Prime Minister at picking an attorney general.
Professor Morris: I certainly would not deny that the level of the name selected as one who should then be checked out in these various ways is the key to it all. The seriousness and the sense of obligation that the Prime Minister or Minister of Justice bring to the task is all important. Surely.
The Chairman: Did you have something to add, Mr. Cowling?
Mr. Cowling: Thank you, Mr. Chairman. Senator Greene’s last question clarified the point I wanted to put.
Senator Williams: Professor Morris, I have possibly three questions, and I will try to keep them short. Although the majority of the members of the House of the Federation will likely be elected, there will be some appointees. I feel that it will no longer be a house of sober second thought on legislation coming from the House of Commons, but will more likely be a house of opposition to legislation and will create a good deal of delay. It will be a delaying factor. Could you comment on that?
You have referred to treaties. During colonial days several treaties were entered into between Canada and the Indian people. Since then this country has acquired the status of nationhood. I often wonder whether today we can still refer as treaties those treaties that were entered into between this country and its native people, and whether they can be honoured as treaties today.
I feel, rightly or wrongly, that eventually the BNA Act will be brought back to this country in its entirety, and when it is controlled by the Canadian government, then, according to the whims of the members of the government, certain rights of the Indian people will be whittled away, or will become null and void.
Being a monarchist, I cannot see why the monarchy should take second place ·in Canada. Could you comment on that, please?
Professor Morris: First, it is my understanding that under the current proposals it will be selection rather than election to the proposed upper house. With regard to the Yukon and the Northwest Territories, appointees will be selected by the Governor in Council, but it is still a process of selection or appointment, if I understand that arrangement. In any event, I would agree that the changed nature of the proposed upper house will result in a greater possibility of opposition to the proposals of the federal governement. I am not happy about the possibility that the members will see themselves on a “we-they” basis, as being sent to that chamber primarily to
oppose, which to my mind would be a step backward and would introduce an unduly negative element.
On the senator’s next point regarding the Indian treaties, it has been a rather unfortunate chapter in the history of this country and I doubt whether many people would wish to stand up and defend the way in which the original inhabitants of this country were treated in the past or the way in which some of the so-called treaties were negotiated or were subsequently interpreted and dealt with.
I do not believe there is much likelihood of the court of the present day re-establishin these treaties as being, in the international sense, treaties between sovereign parties, but I would certainly hope that those treaties would serve as a basis for providing some level of just treatment and recognition of claims, and the right of the original inhabitants to a better deal than they received in the past.
Beyond that, I believe it is now a political matter much more than a legal matter. I know there are actions pending in the courts relating to some of these claims. I do not know how far I should go in commenting, except to say that I believe in recent years there has been some realization of the need to provide better treatment for the Indian and Inuit population. I believe that is recognized, at least in general terms, in the draft bill. Beyond that I cannot say much more, except to express the hope that the process will continue and that it will be possible to resolve those very serious issues that are long overdue for resolution.
On the issue of the role of the monarch and what might hapen after patriation or repatriation of the Constitution to Canada, again it is very difficult for me to predict what will happen, and I hope that it will not mean a more difficult situation for the Indian and Inuit people. I would hope that there is sufficient recognition on all sides that we have to be able to demonstrate to ourselves and to the rest of the world that we are prepared to give fair and just treatment to those elements of the Canadian population. That is as much as I can say.
Senator Flynn: Mr. Chairman, with regard to the House of the Federation, it seems to me that the architects of this proposed house had in mind to create some sort of shock absorber or buffer between the federal Parliament and the provincial legislatures. I have read that some premiers are afraid that this is the very idea that the architects had in mind in order to say, “You will have your chance to air your grievances there, so, if you don’t succeed, don’t complain.” You are afraid of this proposed house from the federal authority’s viewpoint, but I wonder whether you have considered it from the viewpoint of the provincial governments.
Professor Morris: I would be rather surprised if many provincial premiers or cabinet ministers were enthused about this sort of arrangement. Certainly, I would expect that insofar as there was any expectation that the provincial premiers or senior cabinet ministers themselves were going to come down and participate in the sessions of the upper house-
Senator Flynn: That would be the House of the Provinces; but the House of the Federation~well, of course, they could sit.
Professor Morris: They could, as I understand it. I just assume that they would rarely be on hand. So far as the other people that they might name are concerned, well I mentioned that it is sometimes difficult to predict what will happen when one appoints someone and sends him off on his own and puts him in what might be seen as a hostile environment in Ottawa.
Certainly, I would think that most premiers would expect that their case on behalf of the provincial government would be better expressed by their own ministers-
Senator Connolly (Ottawa West): Or themselves.
Professor Morris: … than by people working at least one stage removed from direct involvement in the provincial government and not privy to its deliberations.
Senator Flynn: My second point relates to your comment about Canada being one of the most decentralized countries in the world. You referred to some comments you heard in Germany and Switzerland, which were pessimistic about the future of Canada. I am wondering, since these comments came from two very decentralized countries, whether they were directed at the trend of decentralization that could be noticed here, or whether they were directed merely to the situation created by the so-called “western alienation” and the situation in Quebec?
Professor Morris: I think it was a mixture, as far as I can tell, and it may well be consistent with the sort of comments made to me that they were at least as much influenced by and aware of the developments in Quebec as the reports of western alienation.
They also expressed considerable concern, and quite bluntly so, about the apparent inability of our federal government to more or less keep the provinces in line.
They expressed amazement that the federal government would allow the provincial governments the present degree of international involvement and direct dealings with foreign governments, and so forth.
Senator Flynn: In the economic field?
Professor Morris: In particular, but I do not know if it was limited to that. It is certainly one of their concerns that the provinces seem to be in a position to be able to challenge, to some extent, the policies of the federal government with respect to economic situations and our economic dealings at the international level in oil, phosphates and trade relations generally.
While they did not go so far as to say that the provinces could successfully bring federal initiatives to a halt, nonetheless they had difficulty seeing how we could hope to function effectively without the appearance, as seen by these other countries, of a somewhat more unified voice and approach to our foreign economic relations.
Senator Greene: Borrowings?
Professor Morris: This is something that was specifically mentioned. There had been some awkwardness in past years when German banks had been approached by a provincial government. Perhaps I should not go into that much further, but there had been a question as to whether the provincial government had clearly represented its financial situation and whether or not the federal government had a responsibility to intervene or provide information to the foreign government when approached at the federal level.
There were various complex difficulties. We seemed prepared to see our credit standing perhaps being put in question in the foreign money markets, and we made no attempt to control that situation, even where there was a question as to whether the province was behaving appropriately in providing inadequate financial information to the prospective lenders. The question of access to foreign money markets was raised in more general terms than that one situation I recall being mentioned. This was one of the problem areas mentioned as perhaps something that needed to be controlled more.
Senator Flynn: How would you do that?
Professor Morris: I have no idea!
Senator Flynn: Would you change section 91 and section 92 to give to the federal authority exclusive jurisdiction with regard to the public debt and the borrowing of money?
Professor Morris: It might be possible to do something on that basis; but it might have to be something that was written in or construed as being part of a foreign affairs power, if they ever get that spelled out. It is certainly something that is rather basic to our dealings with foreign governments. I was told in Germany that there would be no question of allowing such far-reaching freedom of action by their states in some of these situations, and that the federal government told some of their state governments to back off when they purported to deal with foreign governments or international organizations on the sovereign sort of basis that our provinces occasionally propose to invoke. This had been pretty well accepted without question by the German states.
In Switzerland, I was told by cantonal officials that they were not about to rock the boat; that they felt too much was at stake economically in Switzerland. I am not sufficiently in touch with the developments in Switzerland concerning the constitutional reform they have been attempting, but I have been told that the cantonal officials there see part of the need as being the strengthening of the federal government.
Senator Flynn: They are much more decentralized than we are.
Professor Morris: In some respects, and certainly the way their constitution is written it appears that they are decentralized. I gather that the practice, customs and constitutional conventions in fact have tended to centralize their operation more than would appear from their 1871 Constitution. In particular, the taxing power of the centre has not been strong enough, even in the view, I gather, of some of the cantons.
Senator Flynn: Would you say that the concern expressed by these people does not go beyond the financial or economic fields? Is there anything in the trend that you see in Canada that would create problems beyond those two spheres?
Professor Morris: I suppose I would have to say that, yes, there can be other problem areas. The difficulty-and this again goes back to what Professor Lederman has said-is that international relations are so wide-ranging that it is difficult to know where you want to draw the line. We are in an era of ping-pong diplomacy in which even cultural relations can have very important significance with respect to our relations with other countries.
One need only look to the fact that the U.S.A. has found that not only could it secure an opening to China partly through the sending of a table tennis team there and that this was almost a watershed point in their relations with the People’s Republic of China, but the fact that on various occasions their cultural programs with other countries have been cut off to express their disapproval, and this was done at the time of the Soviet move into Czechoslovakia.
Senator Greene: The Olympics would be another example.
Professor Morris: The Olympics certainly gave us some indication of the importance that can be attached to that aspect of cultural relations as an expression of disapproval.
I would have to say that, yes, it can range more widely than that, although, as I say, the comments I have received from people outside Canada have tended pretty much to relate, so far as they have been specific, to the economic area-trade and monetary matters, and so on.
The Chairman: Mr. Cowling, understand, has a supplementary.
Mr. Cowling: Mr. Chairman, I think this follows on from Senator Flynn’s first question. I am wondering whether Professor Morris has any comment on the so-called Phase I/Phase II approach that is contemplated by Bill C-60. I gather he is not in favour of comprehensive overhauls of constitutions, and even the Prime Minister ten years ago, when he was Minister of Justice, said he wasn’t.
Given that perhaps some accommodations have to be made as far as the provinces’ role in Confederation is concerned to help keep the country together in the present climate, is it a wise strategy to approach one important phase-namely, the possible re-allocation of legislative powers-after a consider-
able concession may have already been made to the provincial authorities in Phase I?
I don’t know whether it is still the gospel, but it was contemplated at one time at least-and this is the way the bill is structured-that certain things would actually be enacted while discussions were going on in other areas.
Professor Morris: I think the Phase I/Phase II approach has some built in difficulties. To some extent, you are buying a pig in a poke, I suppose, and trying to figure out whether you will go along with the proposed changes, or proposals which would involve changes in important national institutions when you do not know what the distribution of competence, the allocation of powers, will be subsequently. I suspect that there is going to be some difficulty, and I suspect that this may be why the federal government was pressing the idea that they were constitutionally in a position to put through some of these proposals.
One of the things that may have motivated federal officials, along with, I suppose, the obvious and perhaps natural wish to be seen as achieving something at long last and getting something moving on the constitutional problem, is the fact that there is just so much involved in a comprehensive constitutional reform that it is extremely difficult to attempt to deal with the whole package in one stage.
The proposals of the Canadian Bar Association committee numbered 133, if my recollection is correct, and when I look at their recommendations I can see immediately all sorts of questions that they seem to have slid past. I think there could just as easily have been 233 proposals. It is extremely difficult to get any sort of meaningful focus on such a complicated package.
Usually when you have a constitution being agreed upon you have tremendous pressures, a revolutionary situation, a threat from a powerful neighbour-something of that sort-that pushes the people into putting their trust in a relatively small group of people and perhaps buying what those people hammer out. They hammer out something in relatively short order, and more often than not it is remarkable how well these things do stand up over a period of time. Although we talk of a crisis at the presnt time, we really do not have that sense of crucial necessity necessary to agree on something being formulated in short order.
Senator Forsey can perhaps sharpen my recollection on this, but it seems to me that it was about a year ago that the Swiss commission on constitutional reform, after some 11 or 12 years of work, came out with their first draft, and as I recall it was comprised of the preamble and the first article or the first two articles-and this was for discussion; it was their draft.
That is indicative, because I do not think that they face quite the pressures we do. They have some linguistic divisions, and so forth, which have given them some problems, but I do not think their pressures are as critical as those we seem to be facing. It is that sort of time factor and that sort of limited progress that is the norm. That is the difficulty here. You almost have to focus on something first, and yet it is a package; it all ties in. Even if you take the position that it will
not be comprehensive, that we will take certain elements, again, the more you get into it, the more you see that everything seems to be related to everything else. It is hard to focus on it all at the same time, and yet it is hard not to focus. So, whiFhevcr way you proceed, you are going to be in great difficulties, unless you are prepared to put it all in the hands of the first ministers or a committee of wise men, whoever they may be.
The Chairman: Here we are.
Senator Marchand: Let’s not get into that again!
Senator Greene: Do you see a danger in that, that we are giving away half of our chips before all the cards are dealt?
Professor Morris: I might not have chosen those precise words, but I think there is a difficulty in jumping into fairly basic new arrangements, such as arc proposed, without knowing the basic relationship that is going to be established between the two levels of government.
The Chairman: May I stop you at this point just to say that it is obvious that we are going to continue after lunch and I have a list of questioners-Senator Lang, Forsey, Fournicr (de Lanaudierc), Bourget and Hayden? It is my hope that a little later this afternoon we might discuss where we have come to and what we may be trying to do before October 10. I am hopeful that we will be able to thank Professor Morris not too late in the afternoon, but I also do not want to cut off the questioning because it has been a very interesting morning. I have five names on my list and I will gladly accept other names. I am just giving you an indication of how I hope we will proceed. We will adjourn now until 2 o’clock.
The Committee adjourned.
The Committee resumed at 2 p.m.
The Chairman: There was one point that we got on to this morning about which our counsel feels we should correct the record. That was the question dealing with the Canadian Bar Association committee’s recommendation with respect to appointments to the Supreme Court.
Mr. Cowling: Recommendation 3 of Chapter 10 of the Committee on the Constitution of the Canadian Bar Associal ion reads as follows:
The federal government should have the power under the Constitution to appoint judges to the Supreme Court with the consent of a Judiciary Committee of a reconstituted Upper House working in camera.
Then, reading very briefly from the narrative on page 60 of the report, it says:
To promote respect for the law, we feel that the Supreme Court of Canada should so far as possible be independent of political disputes. In addition, the rigours of political interrogation in public might induce individuals of capability and integrity to refuse a nomination to the Supreme Court. It would therefore be better that deliberations of the Upper House concerning the appointment of Supreme Court judges be exercised in camera. Deliberations in
camera are by no means anomalous. They exist under the present system, as they would under the Victoria Charter.
Senator Bourget: This is a recommendation, but this was not discussed at the Canadian Bar Association meeting in Halifax.
Senator Lang: I could speak to that.
Senator Bourget: You were there.
Senator Lang: To the best of my knowledge, there was nothing in committee dealing with this question of judicial appointments. I can speak from firsthand knowledge in saying that there was absolutely nothing mentioned at the plenary sessions. The first plenary session spent the whole morning of the monarchy. When it got down to more important aspects of the report in the. afternoon there was a handful of delegates present. It was a beautiful afternoon and all the rest had gone golfing.
Senator Greene: That is where the appointments are made!
Senator Lang: The next morning there was a motion to refuse adoption of the report. This motion was about to carry wher. a voice of moderation, and sort of concern for those who had laboured in producing the report, moved to amend the motion to the effect that rather than not adopting the motion the meeting should refer it back to the provincial associations for their further consideration-which is, of course, effectively shelving the operation. I do not recall anyone from the floor in the plenary sessions speaking in favour of the more important provisions of that report. The only support came from the members of the panel, which consisted of the committee itself.
Senator Bourget: I do not think that in the past the Canadian Bar Association has complained about the way the nomination of judges has been made. Am I right in saying that?
Senator Lang: There has certainly been no complaint.
Senator Bourget: Or at meetings of the Bar Association?
Senator Lang: I cannot speak for the whole bar, but I think the average member of the bar is very satisfied with the present way the system is operating.
Senator Bourget: That is what I thought, but I was not sure, because I am not a member of the bar. Thank you very much.
The Chairman: Thank you very much, Mr. Cowling.
Senator Lang, would you like to start the questioning?
Senator Lang: I am afraid, Mr. Chairman, that my question, which is of a general nature, may have been answered, either explicitly or implicitly, by the witness before I arrived this morning. If I am repeating something that I should not because of my absence, I apologize.
Professor Morris, in a paper you delivered, to the Law Society of Upper Canada in early spring you used some words, if I may paraphrase you, implying that Canada was now hellbent on a move towards decentralization, and that if this
impetus was maintained we would end up as a loose confederation of associated states.
My question concerns the overall effect of Bill C-60. If that bill were implemented in its present form, would it be your opinion that its implementation would further that process of decentralization, or whether it would be neutral in the proposition, or whether in fact it would tend to reverse the trend?
Professor Morris: This perhaps relates in part to some comments I made this morning. On balance, I certainly think that the bill as it stands would further the process of decentralization, Part I being the portion of particular concern. It would be a move in that direction only of perhaps a rather moderate sort, because it is difficult to know just how far the move might go until we know really what would happen with respect to the other provisions relating to the distribution of legislative powers. However, the provisions, particularly with respect to the House of the Federation, and to some extent the other provisions regarding the federal institutions, would certainly, to my mind, be a clear move in the direction of decentralization.
Your paraphrase of my comments last March~when I may have been feeling a bit ill-tempered, because I had just struggled out of a sick bed when I gave that lecture and may have been suffering the after effects of not having been well-does, I think, summarize my concern that our belief, which seems at times to be an almost unqualified belief, that we can do whatever we need to do to ease our internal strains loses sight of the fact that at some point we do cease to be a federal union in the sense in which that term is accepted today, and we do become a confederal arrangement. That line is somewhat imprecise but the international community does have something to say about this question, and as to whether they will continue to accept the “federal” government as speaking effectively for the constituent states or whether at some point they begin to question the right and the ability of the federal government to speak on behalf of the other states, and whether they begin to take the view that we have in fact become a group of associated states. It is not quite as simple as I have made it sound because presumably the claims to separate status and the right of separate access to the international machinery will come from the component states as much as the questions or the challenges will come from outside. But there is a point at which the recent history of the world indicates that the international community is not fully prepared to accept the legal status as being that of one state. The evidence would indicate that confederal arrangements, as such, simply do not last in the modern world. One or two of the more recent attempts at that sort of thing have lasted for 18 months or so and then have broken down. This is perhaps putting it in somewhat dramatic terms, but I do feel that this very real problem needs to be brought out. There is this free-and-easy talk we hear from various directions suggesting that we can change the balance in our federation so that it would be the provinces who have the dominant role; that it would be more clearly established that the federal government had only the power permitted to it by the provinces; that residual powers
would rest with the provinces, and so on. I must say that some of the statements that have been made by some provincial representatives in the last year or two have very much had this tone to them. Sometimes when the provincial premiers get together there are overtones of-“Well, we have to get together and see how much we are prepared to let the federal government have”-a very clear implication that now it is accepted, or acceptable, that it is the provinces who can determine what is left to the federal government.
The whole idea of the sovereignty of Canada as a member of the international community is really determined at the international level, and what we can do and how we can do it, at least if we want to be accepted and dealt with by the international community. That is, as I say, essentially determined internationally, and we have already reached the point at which representatives of other countries have occasionally made it quite clear that they feel it is high time we got our house in order. At international meetings other delegations have indicated some concern on this score, that they have trouble in knowing who is speaking for whom. When we have joint delegations-and I have no objection to provincial officials and representatives on joint delegations to certain organizations- it has reached the point at which it is not clear to other nations in all cases whether our provinces are speaking as sovereign states and are claiming that right, or whether the federal government can impose a policy or make commitments on behalf of Canada. There is at least one instance that I have been told about-I was not involved myself-in which the suggestion was made to us during bilateral negotiations with a major western power that discussions should be discontinued because of challenges made by a provincial spokesman, and that it was necessary for us to work out where we stood and what we could say and what commitments we could make. This more or less indicates to me that we are already getting close to the limit. Beyond this point it becomes a very chancey thing if we start to decentralize very substantially and in very basic ways and in a manner which would encourage both the outside perception that our provinces are becoming more and more sovereign in this international sense and which would encourage our own internal assumption that the provinces can behave as they want and deal with foreign governments or international organizations as they may choose. I think that in that direction there is a great potential for trouble, and we have already gone about as far as I think we should go. It is in this direction that I use these terms about sliding into a confederal arrangement or an association of largely sovereign states.
Senator Lang: I would like to ask your opinion, Professor Morris, as to the timing of constitutional change, taking into account the political realities in the country today. Do you think we are in an appropriate time frame to write and agree upon a new constitution? Or might we not be crystalizing for many, many years to come a constitution which in itself would crystalize a division of powers at a time when the federal presence is at its nadir?
Professor Morris: Once again, I am a little at a loss as to what to say on that. There seems to be a considerable clamour
or expectation, but I am not sure how many of the average citizens are demanding constitutional change. This morning I said something to indicate that it may not be the highest priority of most of the citizens of this country. But there does seem to be this vocal and determined pressure for a change, and I would think that in some parts of the country the expectation has grown to such an extent that there might be rather unfortunate consequences, a sense of disillusionment and perhaps increased alienation, if something does not happen to indicate to them that steps have been taken to meet this expectation on their part. At the same time I think it is extremely difficult to see how a very satisfactory resolution of the constitutional situation can be pushed through in the next few years without, in my view, a substantial risk, a fairly serious risk, that in order to get something done there may be a tendency to almost throw up one’s hands and buy a package that has some serious built-in problems or risks for Canada in the future. Certainly, it is my view, and I think it is the view of a good number of observers, that we are in a period in which the pressure or the trend is essentially against the federal government and the competence at the federal level. There seems to be a general assumption that it would be a good thing to reduce the powers of the federal government for the reasons I have indicated. I am not entirely in accord with that widespread assumption, but, as I say, it may be necessary to do something, and it may be necessary really to pick out certain elements in the package. If I had to make a small wager, and as an impoverished academic that is all I could afford anyway, I would guess that the full package that seems to be contemplated may not be adopted within the time-table that has been set out, or even within a considerably extended time-table, and it may be a question of picking and choosing a few rather narrow points and trying to reach an accommodation on them.
I am not fully persuaded that the environment is right or that the necessary prerequisites exist to enable agreement to be reached, to enable a national consensus to be reached on a package that could rationally be accepted by the federal level. Certainly, institutional changes are suggested here, but, if this is controversial, and I think it clearly is, then, when Phase II comes along and we get back to the jurisdictional questions and the allocation of legislative competence, it will be far rougher than anything that arises out of this.
I just feel in my bones that it is not going to be possible to satisfy the expectations of at least some of the provincial governments, and that Phase II could well break down again. The only way that we could avoid having that sort of breakdown, I think, is by a sense of general fatigue at the federal level and a lessening of the will to continue to negotiate and bargain on a rather tough basis, and the giving in to proposals for a package that would be, as I say, extremely dangerous so far as the future viability of Canada is concerned.
Senator Greene: Could we go as far to say, Professor Morris, that perhaps the voices of parochialism in various
areas-and I am not pomtmg to provincial premiers in particular- in institutions and elsewhere, have unwittingly fallen into the trap that they are tacitly, if not overtly, espousing Mr. Levesque’s sovereignty association rather than a strong Canada, and that this bill will do nothing to reverse that trend or dispel that trend, but rather, if anything, will contribute to the growth of that sort of trend; we are playing into his hands?
Professor Morris: You put it in very direct and blunt terms, but I think that there is a dangerous conditioning process that has been going on now for afew years which comes very close to what you are saying. Our assumptions, our perceptions of our country and where we stand and what the proper relationships should be are naturally being influenced by this sort of tidal wave of pro-regional, provincial sentiment: “Let’s all do our own thing. Leave as little as possible to Ottawa.”
I must say that I have heard colleagues on my own faculty in Toronto-and they may not appreciate my saying thissaying that they would cut the federal government right down to the most basic things: defence; perhaps exchange of diplomatic representatives, but in the very narrowest interpretation of that sort of activity; perhaps the printing of money for the country; and not much else.
As I say, it is just amazing to me to hear lawyers, faculty members at a leading university, talking that way. I think it is representative of a remarkable amount of misguided public sentiment, not all of which has surfaced yet.
Senator Greene: So the only difference between them and Mr. Levesque is that he would want to print his own money, too.
Senator Bourget: That is not so sure.
Senator Forsey: Mr. Chairman, I have two questions. First of all, this morning Professor Morris spoke of the function of our Supreme Court as being traditionally narrower than that of the Supreme Court of the United States. I wonder if he would agree with my impression that, if this bill were passed as it stands, the Supreme Court of Canada would have a much wider function that it has ever had before, first, because it would have to interpret the Charter of Rights and Freedoms, and, second, because it would have to interpret a whole new set of extremely vague phrases, notably in connection with the conventions of the Constitution, hallowed, unhallowed or otherwise, so that its function would take on new dimensions.
Professor Morris: I certainly think that the adoption of any extensive constitutional reform will mean that lawyers will get rich, or even richer. I think it is certainly true that this package would mean that the Supreme Court of Canada would have a wider function to play. I am not sure, and quite
literally I am not sure, how far that would go in the sense of putting it on ore or less an equal basis with the Supreme Court of the United States. I am not sure that it would be seen in quite the way the U.S. Supreme Court is, as a sort of coequal branch of government, one of the three: the executive, the legislative and the judicial.
I think also the somewhat more conservative view of most Canadian judges as to the proper role of the judiciary would continue to have an effect and would limit, probably, the role that the court would instinctively choose to play so that it would still, I think, fall short of the role that the U.S. Supreme Court has been playing. But it certainly would be considerably broader than it has been in the past, I expect.
Senator Forsey: Arising out of that, it seems to me that, even if there is a relatively small extension of the function of the Supreme Court of Canada, it becomes doubly important to be sure that the method of selecting the judges does not adulterate the quality of the Supreme Court bench, because it seems to me that, if you get a third- or fourth-rate Supreme Court, you will get a third- of fourth-rate interpretation of these new expressions in the Constitution and also the Rights and Freedoms which the charter purports to confer both on individuals and, in some instances, on collectivities.
The other question I wanted to ask was, assuming that Parliament has the power to pass Phase I simply as an ordinary statute, would you agree with my impression again that the House of Commons alone could, within a period of two months, transform us into a unicameral republic?
Professor Morris: I must admit that I had not contemplated that possibility, senator. I do not know whether anyone in the Commons has that in the back of his mind, but I suppose it might be possible. I think I would want to reserve judgment on that and look at it a little more carefully.
Senator Connolly (Ottawa West): Perhaps I could ask a supplementary question on that. Once you dilute the veto power of the Senate, and this bill certainly does that-it not only dilutes it but reduces it to a delaying power of 60 days after a certain amount of time has elapsed-then, surely, if the Parliament of Canada has the right to pass this bill and do that, there is nothing to prevent the Parliament of Canada, acting through the House of Commons, from saying, “We will now abolish the Senate.” The Senate rejects the bill, but 60 days later the job is done. Is that not the mechanics?
Professor Morris: I would think that is a reasonable interpretation of what could happen. I certainly do not want to stand here and say-
Senator Connolly (Ottawa West): And it might not be too long before this Tower of Babe! of the House of the Federation would drive the House of Commons to the position where it would say, “No more of this stuff. Let us get rid of it.”
Senator Godfrey: We are just speculating-
Senator Forsey: I said, “assuming Parliament has the power.”
Senator Greene: A supplementary question on your views vis-a-vis the United States Court and our own. This is sacrilege to the legals, but is it not, in the nature of things, inevitable that the Supreme Court of a federal state has closer to a legislative function at the end of the road than has a Supreme Court of a unitary state, which can be purely judicial?
Professor Morris: I am not sure whether the higher courts of even a unitary state are purely judicial. I believe the courts in Great Britain have something approaching a sort of legislative function, in a sense that they make law, and so on; but I do think it is a little more clear-cut and extensive in the.case of a federal state, that with any power of constitutional review they are really going to flesh out the legislative provisions in a major way which, as we have seen and certainly we could point to U.S. examples, can almost mean a reversal of the apparent meaning of the original phrases.
If I am meeting the question head on, I think it is inevitable that the Supreme Court will have quite a substantial function in that regard, and presumably, unless they duck it entirely by being unduly cautious, they will have a good deal to say about what the Constitution means, and they will put a lot of the flesh on the bones. I do not see any way around that.
Senator Greene: Mr. Justice McRuer found it sacrilege, think, that our Supreme Court, in interpreting the Bill of Rights, could have, although they did not choose to, come up with a Miranda decision using provisions of the Bill of Rights as the foundation for such a decision, and could have come up with a Warren court type of decision on language rights, which they chose not to do, because our courts have shied away, almost panic stricken, from any thought of legislating. The chief justice found it most reprehensible that the Warren court had chosen to put people on school buses. To me, if our Supreme Court had gradually evolved a doctrine of linguistic rights through the use of the Bill of Rights or other areas of the Constitution, it might have been far less traumatic to the unity of the nation than having to jam it through the political process, which obviously has met with no consensus. I think the chief justice found it reprehensible that anyone with legal training would even think that that might be a good thing.
Professor Morris: There are abviously differing attitudes among members of the legal profession. It is the traditional cliche that judges do not make law. That is a sort of comforting view, I suppose, to many people; but I think really that they always have made law to some extent. It is a question of where you find the balance, the appropriate role. I would not want to sit here and try to defend all the decisions of the Warren court, but at the same time I am not enamoured, I guess, of the conservative view that a court could not possibly have an appropriate function so far as developing the law,
moving it ahead a little, perhaps in a situation where Parliament could also take action; but frequently Parliament does not get around to it. Governments are always complaining that they can only get one-third or one-quarter of their program through during a session, so it can take some time before these matters are dealt with in the parliamentary process, or perhaps the parliamentary process finds it almost impossible, for whatever reasons, to deal with those issues.
I suppose that I am a moderate activist in my view of what the courts might do, and it does not frighten me too much to think that perhaps our Supreme Court could have gone a little further than it has in making use of the Bill of Rights over a number of years. Some people felt that the court was beginning to turn around a little in the Drybones decision, but then it seemed to back away again. It has been pretty cautious, and that is in line with the tradition here.
As I say, on the whole I would probably not be too disturbed if they were a little more adventurous in their attitude and perhaps did a little bit more. Certainly, that possibility is there. I have difficulty in seeing any great likelihood that Canadian judges will seize the bit in their teeth and run away with the sort of legislative law-making function-
Senator Greene: Not as long as the Canadian Bar Association has the veto over their appointment.
Senator Fournier (de Lanaudière): Mr. Chairman, since the beginning of our discussions in this committee, there is something which bothers me. There is something in this committee, as well as in the other one, which I find very difficult to understand: it is the value of the vote which the future member of the House of the Federation will have to give. In an assembly which will have to legislate, to participate in the drafting process of the laws of a country, what matters most, what has the most value, what is the essential function of each member, is his vote. If he does not have the right to vote, he has no business to be there. If his vote is useless, he should not be there.
Now, what happens in the case which is suggested to us, is that the future senators will be allowed to vote, naturally, according to their conscience, in the way they will understand the problems presented to them. But sixty days later, whether they have voted for or against the Bill they have introduced, it is as though they had not voted at all. Their presence becomes useless. The government has only to write at the bottom of its bill: “this act will come into force on the day it receives the Royal assent.” They could also say: “or will come into force sixty days after it has been passed by the House of Commons.” It does not even need to return to the House of Commons, which in fact would be redundancy, a useless scenario, starting again for nothing. It does not need to return to the House of Commons. It has already been enacted, it has already been passed. Besides, I think the Standing Orders do not allow that the same bill be discussed twice during the same session. Now, the government would keep from submitting its bill a second time to the Commons, and it would become law in spite of the
opposition of a House composed, I hope, of men as responsible as those who sit there today, and who, at a certain time, would realize that their presence in the Canadian Parliament, that their title of member of the Canadian Parliament, is absolutely worthless.
Then, under those circumstances, those who would be responsible, who would understand the situation would quickly realize that this cannot operate in nothingness and worthlessness, being a waste of time for everybody. Then, Mr. Morris, I would like to have your opinion on this point, although I have one or two others to raise.
We cannot imagine exactly what must occur. Therefore, unable to consider what must occur, I wonder whether we do have the right to define a future constitution, a constitution which is the basic legislation which governs all the actions of the citizens of a country. Then we are proceeding in the dark, we are groping along. At a certain time, people will realize that they are there only as shadows and nothing else. Their opinion, their vote, their presence, everything would be useless; the day they will realize it, they will say that the institution is bad. Where is the weakness of the institution? Is it because our House is composed of two different groups, the provincial groups and the federal one which, at a certain time, will probably not get along? Then you would have a House divided against itself, and you would surely end up with what my colleague, Senator Connolly, said earlier, that is with the tower of Babe!, because the vote of an MP or of a senator must be the major priority. Now, with the new House, since half of the future senators would be appointed by the provinces, by a provincial party, by a provincial government, the major priority would be their allegiance to the leader of the party who has appointed them. If they are separatists, they will remain separatists in spite of their oath of allegiance to Canada, or, if you wish, their oath of fidelity to Canada or their oath to serve Canada. They will come here to destroy it from the start.
Secondly, they represent a province. They are here, appointed by a party to represent a province, and not quite to represent Canada in a Canadian House, in a Federal House. You are setting the fox to keep the geese. Moreover, you will note that all the provinces are dissimilar. None of them are alike from the point of view of the law, from the legal point of view, with regard to the constitution. Of course, in that respect, the provinces are on an equal footing. But if we consider the situation of the Maritimes, of Quebec, of Ontario, of the West and of British Columbia, from the geographic, social, economic, historic or cultural point of view, we notice that each province is different.
Therefore, we would be faced with a House composed of citizens whose first priority would be allegiance to the party which designated them. The second priority would be allegiance to the province they represent, and the third, in most cases, I hope, would be allegiance to the country they come
here to try to govern in co-operation with the House of Commons.
Consequently, when reasoning in pushed to its limits and if you end up with something absurd, I do not think it would be rightful for us to adopt such an institution. The matter should be cleared up for us, we should be given guarantees, we should be told that it is going to operate normally, intelligently and freely. But the way things stand, such will not be the case.
Besides, the matter is often presented in a false light. Lately, in the coupe of describing the act to a service club in TroisRivieres, the Minister, Mr. Lalonde, explained the new powers of the future House. His speech led his audience to believe that the powers of the new House would be superior to those the Senate now has. When one knows that the vote would carry no weight, whether it be positive or negative, it would be as if they had not voted, as if they had pretended to vote. That is the only consideration the government would have for them. A vote is no longer a vote in that king of House, it is merely the expression of an opinion.
With regard to certain frequently justified criticisms levelled at the Senate, there are many people who say that we do not have enough work to do. I think we could do more. It would be easy for the government to appoint a certain number of senators to each commission of inquiry, any colnmission that it sets up to study a specific problem in Canada, in any part of our country. The Senate could be represented to great advantage. Take for instance the commissions of inquiry that have been set up in the Senate, by Senators. They have always ended up by presenting sound reports, which taught something to those who wanted to learn from them. I think that Senators have enough time, I do not say that they should all sit on commissions, but a certain number should, maybe three, four, five, six, who would take part directly in those inquiries.
Thirdly, the election to the Senate. I am not against this idea. To me, it is an interesting idea and we could give it a try. But I would be opposed to the election of senators for a specific term, that is four, five, six or ten years. I think that if we wish to keep the Senate’s serenity, if we want it to be able to concentrate exclusively on its major duty, its major priority, which is to reconsider, re-examine, amend and correct legislation, to make suggestions to the government, as is often the case-and in almost all cases, succeeding governments have really always accepted our suggestions. We must rid the Senate of electoral concerns. A senator cannot be here and carry out his duties as a senator if he has to be concerned about his re-election, if he has to think about his organizers, if he has to set up an electoral fund, of if he is compelled to do all the housekeeping work an MP is forced and supposed to do. In his case, it’s normal, but in that of a senator it is not. He could be elected, but only once until he is 75 years old. Then those who say that we do not have an elected Senate are right. We are not elected. Anyway, we are not the only ones-we are not, within the public administration system, the only instru
ment that is not elected. The judges, the civil servants, and in fact most of the people who participate in the government, the executive or the judiciary, are not elected. We, of the legislative body, are not elected to a certain extent. But, all the same, things go right.
A senator however should be elected only once, so that he is not distracted from his task by the obligation to be re-elected.
Thank you, Mr. President, for your patience and your kindness in listening to me. I spoke a little too long perhaps. We have heard today a very interesting witness like all those that have spoken before him. They came to tell us very nice theories, interesting things. We have learned something and we must thank them, and express them our appreciation for their efforts, their participation and their cooperation. However, most of them, and certain have admitted it, have never seen a sitting of the Senate or of a Commission of the Senate. Then, from a practical stand point, that of the parliamentary legislation, they were less qualified than from the point of view of the constitutional law. It seems to me, that academics, scientists, constitutional law jurists, should come closer to the parliamentary legislation by following the study of a law, from its drafting till its promulgation, in order most of all to learn and to see the process. We who have been here for a certain number of years, are learning every day and more particularly within this committee, and I am very grateful for this. However, the theories that we have heard are contradictory, despite that they are all nice and all interesting. According to some lecturers, it would seems that all is permitted when you arc dreaming. Thank you.
The Chairman: Thank you, Senator, it was a good question. I feel that perhaps it was a supplementary.
Would you like to respond, Professor Morris?
Professor Morris: First of all, I should perhaps apologize for resorting to my security blanket here. I do frequently participate in meetings conducted in both languages without benefit of simultaneous interpretation, but in this instance, as a Torontonian who gets too few chances to practise his comprehension or expression in the French language, I felt somewhat more secure with it.
Mr. Cowling: Perhaps the record should show that Professor Morris was holding up his earphone when referring to his “security blanket.”
Professor Morris: I shall not comment in detail on each and every phase of your remarks, senator, but certainly my feeling has been that the proposals seem to be rather remarkable in the way they appear to reduce the functions that would be given to the members of the new house. It has certainly occurred to me to wonder just who the people would be who would take “great joy” in being the members of the new house.
It does seem to me that there would be considerable limitations on that function, subject to the comments made by Senator Forsey about the possibility of a much broader interpretation being given than might seem apparent at first reading to the reference of linguistic legislation, or legislation pertaining to linguistic questions. I think there may well be a problem in that respect. The first problem might be to find the people and maintain the interest of the newly appointed members of any such new house.
I find myself in an intermediate position on the question of the election of members to the new house. I still am inclined to think that there is merit in the idea of an appointed chamber, again with the assumption that the members will be of not only sufficient merit, but will represent a sufficient variety of experiences and backgrounds, perhaps with some commitment to at least a minimum representation of the opposing political viewpoints.
I suppose election in the first instance might be a possibility. I certainly would prefer that to the idea of the need for the member of the new house to seek re-election relatively frequently. That, again, is probably a political matter as much or more than it is a legal matter. I simply feel that the value of the function of the present Senate has been consistently underrated or under-reported, and I am reasonably content with the present arrangement, unless someone can demonstrate conclusively to me that they have a much better arrangement in mind. I do not think I have seen that evidence as yet in these proposals or in the other proposals for a substantially new upper chamber.
The Chairman: I have a question which Senator Hayden asked me to put to the witness, but before doing so I will call on Senator Godfrey.
Senator Godfrey: Just to get back to the question of law. Over the weekend, I was reading a book on the trial of the Crossman diaries. I would just like to read a couple of extracts from the book and see whether or not you agree with them. There is an affidavit submitted by Godfrey Le May, who is a fellow and tutor in politics at Worcester College, Oxford, and author of British Government 1919-63, Selected Documents. He refers to Dicey and he says:
… the influence of Dicey’s Introduction to the Study of the Law of the Constitution, first published in 1885. He argued that ‘Constitutional law … appears to include all rules which directly or indirectly affect the distribution or the exercise of the Sovereign power in the State.’ He then distinguished two kinds of rules. ‘The one set of rules are in the strictest sense “laws” since they are rules which … are enforced by the courts. The other set of rules consist of conventions, undertakings, habits, or practices which, thought they may regulate the conduct of the several members of the Sovereign power … are not in reality laws at all, since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality.’
Later on in the book, Professor H. W. R. Wade, Professor of English Law of Oxford University, a noted authority on constitutional and administrative law, says:
No convention, constitutional or otherwise, is enforceable as such in a court of law. The whole essence of a convention is that it is regarded as binding for non-legal reasons, so that if it is broken there are no legal sanctions.
Would you agree with those statements?
Professor Morris: I wish that we had an arrangement by which it was possible to plead the Fifth Amendment. I would be inclined to the view that conventions are not normally enforced in the courts. If I am taking issue with someone like Professor Lederman on this, then I am apprehensive because I have great respect for him. I would think that our courts would be a little bit reluctant to make their constitutional decisions entirely on the basis of a constitutional convention. Yet, I am not prepared to say that the court would never make a decision on the basis of a well established constitutional convention. Such conventions have been referred to by judges, but I would think reliance on convention normally would be a sort of supplementary basis for reaching a decision and not a primary basis. That is about as far as I would want to go on that, possibly because I have tended to be dissatisfied with the few instances of apparent judicial emphasis on such conventions. That is propably going to get me into difficulty with someone. I do not know what the previous testimony was on the text in question.
Senator Godfrey: I do not know if you have had an opportunity to consider section 35. I was just wondering whether you thought, if this bill is passed, the effect of section 35 would change what I have just read.
Professor Morris: I would think it would. I was trying to dredge back and see whether I could recall what comments had been made and precisely what had been said.
Senator Godfrey: I think Senator Forsey referred to the term “justiciable”, and I think that is what he meant.
Professor Morris: I would think it crystallizes the situation beyond what the present state of constitutional law or the bases of decision in the Supreme Court would be. That would be my feeling. I would expect, and hope, that the Supreme Court would not normally make its decision simply on the basis of constitutional usage or custom alone. As I say, I am a hesitant about saying that the court simply would not find itself able to decide on the basis of a convention that it felt was well recognized and well established. I think it would feel a bit awkward and reluctant to do so.
Mr. Cowling: It is hard to think of examples, in a way, of conventions which might come before the court. However, if you are talking about the kind of conventions which exist between the Governor General and the Prime Minister, such as dealing with dissolution, it seems to me that it is unlikely that that kind of question would ever come before the court.
Senator Greene: It would make a lot of work for those poor professors who are the expert witnesses in the constitutional cases. What is a convention that has been accepted? Those poor professors may get as rich as the lawyers.
Professor Morris: This kind of determination would be one of the first difficulties. The sort of thing that occurs to me is the argument that there is a convention that, for example, certain treaties should be presented to Parliament for the purpose of obtaining a resolution endorsing or supporting entering into that agreement even though there may not be a need for implementing legislation. There are statements going back into the 1920s concerning these sorts of treaties that should be presented in this way.
First of all, as you say, it is difficult to imagine that this would come before the court. I suppose it is a possibility, but I am doubtful that the court would want to make a decision simply on the argument that this is a well accepted or firmly crystalized convention, and, therefore, the government is legally bound to present this treaty in Parliament to seek a resolution of endorsement or approval. I am doubtful, but I would not want to wager a week’s wages, which isn’t very much, that the court could never see its way clear to make a decision solely on that basis.
The Chairman: All right. Thank you very much. Senator Hayden wanted me to ask you a question, and I hope I can do justice to it. I think I understand what he was after. It was roughly this. Is it wise for the governments-and I suppose he would put both the federal and provincial governments in this category—to settle the institutions, in other words, Phase I and the distribution of powers in a federal state, without having first decided upon an amending process?
Professor Morris: Perhaps I am getting tired, because I am not sure just what I want to say or what I should say on that. I think that certainly it is difficult for governments, and possibly unwise for governments, to agree on a major package relating to the distribution of powers, or to institutions without knowing on what basis changes can be made, and just how strong the voice of that particular government may be in securing a change, or what safeguards there will be against an unwanted change.
It does not seem to me that it is an absolute bar to negotiation. It would seem to me that governments can, if the spirit is there, enter into negotiations on a fairly broad basis, although that becomes awfully complicated, or on more specific elements selected as being more or less ripe for agreement. It would not seem to me that it is an absolute bar, absolute in the sense of being unwise or impractical in the extreme. It is understandable that they might want to know what the bottom line is concerning the possibility of altering the arrangement if it turns out that it is much less satisfactory or workable than they expected it to be; or if they buy a package on the basis· that the package hangs together, can they be fairly certain
that there will be either a veto power, or, at least, a very strong safeguard against a certain element of the package being changed in the succeeding years. Beyond that I do not think I can reply.
The Chairman: Thank you. Going back to the supplementary question that I had this morining, I would still like to get your reaction to it, if I may. We were discussing the question of whether it was wise to have provincial participation in a house of the federal Parliament by way of appointment or selection by provincial governments and so on. It occurred to me that, recognizing the difficulties that that sort of arrangement might cause, the answer might well be that it is a matter of proper liaison rather than actual participation. In other words, if there has been an inadequacy in the Senate in terms of dealing with regional matters, it may be because, having been appointed to the Senate, the people who become members of the Senate are so involved in the work of the Senate that they lose direct contact with what the legislatures of their provinces are doing and what the concerns of their provincial legislatures might be.
You might well correct that loss of contact, loss of direct information, by having some system whereby the senators from a particular province meet with a standing committee, a federal-provincial committee, let us say, of the legislature of that province on a regular basis to discuss the impact of federal legislation and provincial legislation and vice versa, and then they each go back to their own legislature, not as the creature of the other legislature, but better informed to deal with the matters that are concerning or have an impact on the other level of legislation.
The reason it seems to me that that is important is that, while we have the federal-provincial conferences, those are government to government. What we are looking for, it seems to me, is something which is legislature to legislature, so that there is an understanding by the legislators, when they are legislating in a particular area, of the impact that it will have on the other level of government.
Senator Bourget: Do you think it would be easy to do that? Let us take us, for instance, in Quebec.
The Chairman: Not right now.
Senator Bourget: If we are going to discuss the separatists do you think it will be easy? For me, it is a dream in our province.
Senator Marchand: I don’t think we can answer that question. The only thing we can consider are the rights that are inscribed there. From there you can have all kinds of situations. You can have provinces who will give real authority to their representatives in the Senate, or alternatively they will accept what they are saying and feel bound by it; but it will be up to them, and it would be up to the federal government to give some kind of status to the senators. I can argue this. I can
say it would be a very efficient body, because what the governmet has in mind in building this chamber-and this is, from my point of view, very, very childish-is that they say, “We will no longer have to go to Quebec or to call federal-provincial conferences because they will have representatives right here, and they will solve the problems of federal-provincial relations here in Ottawa.”
Senator Bourget: It is crazy.
Senator Marchand: This is what they have, not only in the back of their minds but in the front of their mouths. I think this is childish. That does not mean it wouldn’t work. If everybody in good faith says, “Let’s keep Canada together. This is a good formula and we are going to support it,” it might be a completely different situation.
Here, I think the only thing we have to look at is the text and ask what it means, what kind of powers they are going to have. I tell you that they will have the powers that the parties-and by “the parties” I mean the provinces and the federal government-will be willing to give them. There are a few powers, of course, which are generalities, but in fact this is what will happen.
Outside that I can imagine all kinds of things. Mr. Lougheed is not a separatist, but he is ready to make a deal with Rene Levesque, the consequence of which is to build up Rene Levesque and the Parti Quebecois in the opinion of the population.
Senator Bourget: Hear, hear!
Senator Marchand: Now we are facing a situation which has nothing to do with the Constitution, where every time the premiers meet together without the federal government, each time the provincial ministers meet to discuss federal-provincial relations, everything goes well. It is only when the federal government is there that it goes badly. I think the mistake is there. It is Ottawa that has to change. Mr. Lougheed has an interest in that. His purpose is not to destroy the country. His purpose is to have more power over the natural resources. It is as clear as that. Mr. Blakeney was not there at that time, but before potash was found in Saskatchewan we know what the situation was there. They were relying on Ottawa for almost everything. Now they are much more independent. This is a power play. It has nothing to do with the Constitution.
I listened to Senator Fournier (de Lanaudière), and what he said makes a lot of sense. But I can’t answer that question, and I don’t see how we can answer it. The only thing I tell you is that with this piece of legislation as it is, as far as the Senate is concerned I personally prefer that they destroy the whole damn thing. I prefer to be dead rather than ridiculous. It is as simple as that.
The Chairman: Now has the witness an answer?
Senator Marchand: Excuse me. It is not a question; it is something that just came up.
Senator Godfrey: Do you agree or disagree with Senator Marchand?
Professor Morris: I am not sure, but I always prefer to sound positive and say yes! I really think that there have been comments on a number of topics-some highly political-to the point that I could hardly respond.
Senator Greene: Professor Morris, I just want to make sure in my own mind that I have clearly understood the one general thesis that I think has come through your evidence, and that is that we can have a much closer federal-provincial dialogue, and a greater input, if you like, of regionalism into the federal decision-making process by institutionalizing certain arrangements such as federal-provincial conferences, and perhaps many other such arrangements, without constitutionalizing any such procedure, am I correct?
Professor Morris: I think that is quite true. We could go as far as we wanted to go, and possibly even end up putting too much time and money into that sort of thing, but we could improve the record very substantially without changing a thing constitutionally if that is what we want to do.
The Chairman: Are there any further questions?
If not, I should like to thank you, Professor Morris, for being with us this morning and this afternoon. I do not think you can have any doubts about how interesting the senators found your opening remarks and your answers to the subsequent questions. We were delighted to have you with us and we appreciate your contribution very much indeed.
The Committee adjourned.
Mr. Gerald Morris, Law School, University of Toronto.