Proceedings of the Special Senate Committee on the Constitution, 30th Parliament, 3rd Sess, No 5 (6 September 1978)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 5 (6 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
Wednesday, September 6, 1978
Issue No. 5
(See back cover)
SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION
The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman
The Honourable Senators:
Connolly (Ottawa West)
Fournier (de Lanaudière)
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, Wednesday, June 28, 1978:
The Honourable Senator Connolly, P.C., moved, seconded by the Honourable Senator McIlraith, P.C.: That a Special Committee of the Senate be appointed to consider and report upon the subject-matter of the Bill C-60, intituled: “An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”, in advance of the said Bill coming before the Senate, or any matter relating thereto;
That the Committee have power to engage the services of such counsel, staff and technical advisers and to incur such “special expenses as may be necessary for the purpose of the inquiry; and
That the Committee have power to send for persons, papers and records, to examine witnesses, to print such papers and evidence from day to day as may be ordered by the Committee and to sit during adjournments of the Senate.
After debate, and—
The question being put on the motion, it was—
Resolved in the affirmative.
Clerk of the Senate
MINUTES OF PROCEEDINGS
WEDNESDAY, SEPTEMBER 6, 1978
Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:03 a.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Flynn, Forsey, Godfrey, Hayden, Lafond, Lang, Lucier, Marchand, Marshall, Olson, Petten, Robichaud, Stanbury, Wagner and Yuzyk. (15)
Present but not of the Committee: The Honourable Senators Denis, McIlraith and Molson. (3)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
From the Department of Justice:
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services; and
Miss E. I. MacDonald, Q.C., Senior Counsel.
The Committee resumed its consideration of the subject matter of Bill C-60:
“An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”.
Dr. Strayer made an opening statement.
The witnesses answered questions.
At 12:30 p.m., the Committee adjourned until 2:00 p.m. this day.
The Special Senate Committee on the Constitution met at 2:15 p.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Godfrey, Grosart, Hayden, Lucier, Marchand, Marshall, Olson, Petten, Robichaud, Stanbury and Yuzyk. (11)
Present but not of the Committee: The Honourable Senator Molson. (1)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.
From the Department of Justice:
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services; and
Miss E. I. MacDonald, Q.C., Senior Counsel.
The Committee resumed its consideration of the subject matter of Bill C-60.
The witnesses answered questions.
At 5:15 p.m., the Committee adjourned until 10:00 a.m., Thursday, September 7, 1978.
Clerk of the Committee
Ottawa, Wednesday, September 6, 1978
The Special Senate Committee on the Constitution met this day at 10 a.m. to consider the subject matter of Bill C-60, an act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters.
Senator Richard J. Stanbury (Chairman) in the Chair.
The Chairman: Honourable senators, although there is some business we should discuss among ourselves, I think that can wait until later in the day, until after the steerig committee has had a chance to meet either at the lunch hour or, if that is not possible, just after the meeting today. For now we will proceed with our witnesses.
As you will recall, we were proceeding with the evidence of Mr. Barry Strayer, the Assistant Deputy Minister, Public Law, Department of Justice. Mr. Strayer is also Special Counsel on the Constitution. He has with him Alice Desjardins, Directeur, Services de Consultation et de Recherche, and Miss Macdonald, Senior Counsel in the Department of Justice.
I would ask Mr. Cowling to put us into the context in which we left off at the last meeting. Perhaps you could indicate, Mr. Cowling, where you would like to commence the questioning and we will get others to join in as we go along.
Mr. R. J. Cowling, Special Counsel to the Committee: Mr. Chairman, when Mr. Strayer and his colleagues were here before we dealt to quite a considerable extent with what is now being called “the process.” This has to do with how provisions will become entrenched, and so on. We had started on the Charter of Human Rights. Then, if honourable senators will recall, we had to interrupt that because of other witnesses who were scheduled, but we did have another afternoon with Mr. Strayer and his colleagues in which we covered the subject of the monarchy and the executive. I do not know that we covered it completely, but we certainly had a good session on it.
According to my list, we have not yet fully completed the Charter of Human Rights section, and, if it is agreeable to the committee, I would propose that we go back to that and take the questions more or less in the order that they are in the bill.
The Chairman: I must apologize to Mr. Strayer, Mr. Cowling. He did mention that there was one point he wanted to clear up from his last day’s evidence. We will let Mr. Strayer do that first and then we will proceed with the questioning.
Mr. B. L. Strayer, Q.C., Assistant Deputy Minister, (Public Law), Department of Justice: Thank you, Mr. Chairman. With the indulgence of the committee, I want to correct one wrong impression I left with the committee last day. In reading over the evidence which I gave on the subject of the
monarchy and the effect of the bill on the monarchy, I found that, in response to questions and comments, I expressed a view as being that of the Department of Justice that the sovereign could not exercise the power of royal assent in Canadian Parliament.
In looking that over and in looking over the factual background, I think I overstated the position of the Department of Justice. The position of the Department of Justice has really been defined more fundamentally than that, to the effect that where the B.N.A. Act, for example, designates the Governor General as the person to do an act, and where it is clear that he is the one who is to do it, then that precludes the sovereign from doing it. That is the general proposition which I was really referring to and which has been recognized not only in Canada but in other Commonwealth jurisdictions as well. What that means with respect to particular sections, of the B.N.A. Act is a matter of interpretation. One can debate how it applies to particular sections, as to whether they assign powers to the Governor General which cannot be exercised by the sovereign.
It seems fairly clear, for example, that section 11, which empowers the Governor General to summon members of the Privy Council, was intended to give that power to him alone. In fact, the practice has reflected this, I think, in an instance where the sovereign was present in 1958 for the summoning of someone to the Canadian Privy Council, namely Prince Phillip. The actual summoning was done by the Governor General in the presence of the Queen. I take it that was based on a certain interpretation of section 11.
Without prolonging the matter, I think section 55, which relates to the giving of assent, can be open to some difference of opinion as to interpretation in this respect. I think I may have lapsed into the expression of a personal view as to what the meaning of section 55 was with respect to the designation of the Governor General as the person to do the act. There is a certain argument which can be made that he is in fact persona designata for the giving of royal assent. However, I need not go into that.
I had also said that to the best of my knowledge and information the sovereign had not given royal assent in the Canadian Parliament. Senator Forsey was good enough to point out to me subsequently that the King had in 1939 given assent to some bills. I had had the impression that in that case the sovereign was present but did not actually give the assent, but in fact it appears the sovereign did give the assent on that occasion.
I therefore wanted to remove any impression that that particular situation developed contrary to the advice of the Department of Justice, which so far as I am aware has not had occasion to take any position on the specific question of intent.
I can only add that, in looking again at the question of the giving of royal assent by the sovereign herself, apparently it has not happened in the United Kingdom since 1854 in terms of the personal giving of assent. Therefore, it does not in any event seem to be a fundamental practice in the British parliamentary system.
That is all I need to say on the point, Mr. Chairman.
The Chairman: Are there any questions arising out of that?
Senator Robichaud: For the record, Mr. Chairman, would it be fair to ask Mr. Strayer to summarize the position taken by the Canadian Bar Association at its recent meeting in Halifax, particularly with respect to the role of the monarchy and the Governor General?
The Chairman: I would rather not ask Mr. Strayer about something that is not dealt with in the bill. Perhaps we can find other witnesses who can answer that. It would be a matter of interpretation on Mr. Strayer’s behalf.
Senator Godfrey: For the record, I should repeat that which is stated in a memorandum I sent to members of the committee. I made some observations with respect to royal assent in the United Kingdom. In the memorandum I stated:
You will notice that I was in error in my recollection of the present practice in the United Kingdom at Westminster. The three Commissioners who gave Royal Assent since 1854 have, since 1967, been replaced by the Speaker, who now simply advises the House that Royal Assent has been given.
The Chairman: There is no particular ceremony now.
Senator Godfrey: I gather it takes place while the proceedings are under way.
The Chairman: If there are no further questions arising out of Mr. Strayer’s limited remark, perhaps we should proceed. Mr. Cowling, do you wish to start things off?
Mr. Cowling: Yes, Mr. Chairman. I will be going from a rather general area to a rather specific area, but if we go back to where we left off, I should like to refer the witnesses to clause 7 on page 5, and the second listing of rights. In relation to the third right, I would ask Mr. Strayer what sanctions he thinks might be brought to bear for failure to grant the rights referred to in (i) and (ii). Are there any sanctions that are available either in the present bill or which would be available in law to enforce those rights?
Mr. Strayer: I hesitate to venture what might appear to be a definitive opinion on that. As I recall it, the jurisprudence under the Canadian Bill of Rights, where similar provisions are found, has been somewhat uncertain. In general, I think the abridgement or violation of these rights has not resulted in a nullification of the proceedings against the individual.
Mr. Cowling: That would be the Hogan case?
Mr. Strayer: Yes. We thought that in clause 23 we might have changed things because we say “no law shall apply or have effect,” and we thought the words, “have effect” might be stronger than the words, “construed and applied,” in the Canadian Bill of Rights so as, perhaps, to, nullify the proceeding. Clause 24 would, of course, give some right to seek a declaration, if no other remedy were available.
I suppose one could also consider the remedies available under both the common law and civil law systems as to
whether there would be a remedy for damages for unlawful arrest, but that, of course, may not be a very effective remedy in the circumstances of the situation. I suppose the more important remedy would be one which related to the validity of the whole proceeding.
Mr. Cowling: That is right. There is really nothing in this bill on which a court could confidently rely as giving it the right to declare a mistrial or throw out evidence that had been adduced contrary to those provisions.
Mr. Strayer: I think Mr. Tarnopolsky commented on this. We certainly intend to look at this more carefully.
Senator Godfrey: Dealing with clause 24, I wrote in as a suggested revision the following: “or by means of an injunction or whatever other remedy the court may consider appropriate in the circumstances.” I believe Professor Tarnopolsky said if that were inserted, it would allow the courts to have other sanctions. Would you like to comment on that?
Mr. Strayer: It is an interesting idea, we should look at it carefully. We felt we had left open any other possibilities by saying that “when no other remedy is available” the remedies under section 24 would apply, and thus the courts would also be free to use what remedies there are available to them under the general law.
What Professor Tarnopolsky suggested would be a further enabling provision in this bill. Perhaps it is desirable.
Mr. Cowling: Mr. Strayer, I do not think this has been brought up by any witnesses so far, but I am curious about this because the Law Reform Commission of Canada recommended that staturory offences be discontinued in Canada; that is to say, offences where mens rea or guilty intent does not have to be proved. Was any consideration given in drafting the Bill of Rights contained in Bill C-60 to the inclusion of a provision against statutory offences, at least insofar as individuals are concerned?
Mr. Strayer: No. I think it is fair to say that it was not considered. There are, of course, a number of complex issues that arise out of the recommendations of the Law Reform Commission. The courts have I believe, had occasion to look at the question of whether an offence of strict liability offends the guarantees of the Canadian Bill of Rights with respect to constitutional safeguards such as protection against self-incrimination. I believe the interpretation has been that as long as it is necessary to prove certain elements of the offence which give rise to the strict liability, that preserves, in effect, the presumption of innocence even though mens rea itself is assumed. We were conscious of that line of reasoning.
There are, of course, difficult situations for which offences of strict liability were originally designed where the proof of mens rea may not seem too germane to holding a person
responsible for something for which he should have accepted responsibility. It is difficult to sweep aside all of that reasoning by a constitutional measure. This is not say that there are not too many strict liability offences now. I think we would not disagree in principle with the Law Reform Commission that there have been too many of these offences created and that they should be examined and reduced or narrowed considerably. But it seemed to us a lot to do with one stroke of the pen—to do away completely with the possibility of strict liability.
Senator Godfrey: Were it in the Constitution, it would even eliminate the possibility of charging people with the offence of possession of burglary tools, which is a strict liability. I do not think anyone has ever really objected too strenuously to that type of thing.
Mr. Strayer: There are a number of situations where strict liability would be justifiable. It comes down more to a matter of legislative policy as to when you use this instrument and when you do not.
Mr. Cowling: Mr. Chairman, my next question relates to clause 8 of the bill. While there is a good deal more material in clause 7, I think we had a fairly good discussion on that with Professor Tarnopolsky.
Clause 8 of the bill contains a reference to equal protection of the law. It reads:
Every citizen of Canada, wherever the place of his or her residence or domicile, previous residence or domicile, or birth, has—the right to move to and take up residence in a province or territory … and in consequence thereof to enjoy the equal protection of the law—
In the explanatory note there is reference to the same legal benefits. I am wondering whether there is a distinction in that respect. It seems to me that “legal benefits” might cover such things as certain types of social security, whereas I think possibly “equal protection of the law” has another connotation. Could you clarify that for me?
Mr. Strayer: We thought that the phrase “equal protection of the law” would have a fairly broad connotation, and in fact would have a meaning somewhat similar to that which it has been given in the United States; that is, that a guarantee of equal protection of the law would preclude a province from denying benefits and protection under the law to someone moving into that province on the basis simply that he was not resident or domiciled in the province.
There is a corollary to that proposition which has been recognized by American law, that if the basis for distinction has some rational connection to the purpose of the legislation, then the making of that distinction does not constitute a denial of equal protection of the law. An example of that would be a member of the legal profession qualified in one province who wants to practise in another province. That individual may be required to do certain things in the province of his adoption in order to become qualified in the knowledge of the laws of that province, and that kind of distinction made with respect to him
would not constitute a denial of equal protection of the law. But if he is required, for example, to live in the province for six years before being allowed to practise law, that does not seem to have too much to do with becoming qualified; therefore that could be a denial of equal protection of the law.
The same applies to social benefit schemes of one kind or another. It would be consistent, I feel, with equal protection of the law if a province were to require at least that the person decide where it was he was going to live so that he could be clearly identified, for example, with one medical services scheme or another.
Mr. Cowling: So, there would be a minimum residency qualification in that respect?
Mr. Strayer: Something of that nature, yes, so that it can be determined which scheme it is he is going to support. Such a requirement would be reasonable both in terms of financial policy and administrative efficiency. However, the individual should not be barred from benefits under such a scheme simply on the basis that he has not been a lifelong resident of the province of his adoption.
Senator Flynn: A period of six months may be too long. If one moves from Ontario to Quebec and has to wait six months before qualifying for benefits under the Quebec scheme, then one is without benefits.
Mr. Strayer: I stand to be corrected on this, but I think that there are arrangements within Canada whereby if one moves from one province to another, medical coverage continues under the scheme of the former province until one qualifies in the province of adoption.
Senator Olson: I wonder if I might ask for a more detailed explanation of the second part of clause 8, which reads:
—the right to acquire and hold property in, and to pursue the gaining of a livelihood in, any province or territory of Canada—
Does that mean that anyone moving to a province is to be treated in the same way as the residents of that province with respect to acquiring and holding property for a means of gaining a livelihood? If so, there would appear to be some conflict with respect to provincial laws respecting the acquiring and holding of property, particularly farmland and recreational land.
Would there not be some conflict in that respect, or have you taken that into account?
Mr. Strayer: There could be some conflict, but the clause is framed in such a way that it preserves the validity of laws of general application in the provinces which are not geared solely to the residence or former residence of the would-be owner. If a province has general laws with respect to zoning or the size of holdings of property, or land use requirements with respect to the development of property, and these are general laws which would apply to all owners or occupants of the property, whether new or lifelong residents, those laws would not be affected by this clause.
If a province had general laws with respect to absentee landlordism, or something of that nature, which applied equally to the absent owner who was a resident of the province but did not happen to live on his land, then again that same law could be applied to persons coming from outside the province.
What this provision would seem to preclude would be restrictions which were based solely on the place of residence or former residence of the would-be owner and which could not be justified on some basis of land use policy in the province.
Senator Olson: I am more concerned about when this right becomes available to a new resident. From my reading of this clause, it would seem that he assumes the right immediately to be treated exactly the same as long-time residents of the province.
Are there any laws in existence that do not recognize that an individual has all the rights of a resident immediately? To take it one step further, if a person moves to a province and acquires a land holding and then leaves after a short stay, is he then required to sell the property in order to comply with the law?
It becomes a matter of time frame, I would expect, because where there are restrictions on non-residents holding land, those restrictions could be circumvented simply by the individual moving there for a few days or a few weeks. That being so, would they then be able to use the Constitution to supersede, if that is the right word, the provincial law with respect to the acquisition of property?
Mr. Strayer: If I understand the situation you are addressing, I think the clause would preclude any restriction based solely on place of residence. If that were the case, then it would not matter whether the person took up residence in the province simply for the purpose of acquiring property. None of these things would be relevant because the law, insofar as it restricted a citizen of Canada on the basis of his place of residence, would not be valid in the first place. In that situation, the Canadian citizen moving from one province to another would be protected under the Constitution.
I think you were discussing the situation where, if a province had a scheme that restricted ownership, let us say, to those resident in the province, then there would be ways of evading those schemes by having what is really an artificial residence in the province. That could be achieved by coming in, acquiring property, and then leaving, with the possibility of somehow retaining the rights of a resident by having once resided there. The whole thrust of this clause is to invalidate those kinds of distinctions insofar as they may apply to Canadian citizens. Here, of course, we are talking about individuals, not corporations.
Senator Hayden: Clause 24 bothers me.
Senator Godfrey: I would like to pursue clause 8 before we go on to something else. I had a supplementary question.
The Chairman: Yes, I am sorry, I did have Senator Godfrey on the list. If you will excuse us for a moment, I will allow Senator Godfrey to ask a supplementary.
Senator Hayden: Certainly.
Senator Godfrey: I am really worried about this restriction in the second part of clause 8, as to whether that is the proper type of thing to put in the Constitution.
At a previous sitting I referred to the problem of the absentee landlord. This problem existed in Ireland when it was part of the United Kingdom. It was a problem in Scotland with the grouse moors owned by Englishmen, and they would not allow reforestation. It used to be the Caledonian forest, and was treated as wasteland.
Surely that is a political question that should be decided by individual provinces if they find that the evil of absentee· landlordism is such that they want to legislate it? Why should they be prohibited?
I am not arguing one side or the other; I am just asking if that is the type of provision that should be in the Constitution or whether, in fact, that should be left to political decision from time to time by the legislature.
Mr. Strayer: I will just try to explain more fully the rationale for the clause as it is. Taking your example of grouse shooting and so forth, if a province wants to regulate the use of property in the province and to say that it should be used for agriculture and not for game, it can do that. It can address that problem directly by legislation which says precisely that. If it wants to avoid speculation which could involve land being left idle for generations and perhaps becoming run down because there is no incentive to maintain it, it can do that.
What the clause is trying to address is the kind of distinction which may well have, as a general goal, the achievement of some land-use policy in the province but which uses as its mechanism a distinction between Canadian citizens; allowing certain Canadian citizens to enjoy certain rights and prohibiting other Canadian citizens from enjoying certain rights, all on the basis of their place of residence. That is the problem which is being addressed here. It was seen as being more related to an expression of the rights of Canadian citizens to move around the country, undertake activities, make a living, and hold property anywhere in the country without distinctions which would be based not on the kind of activity they were carrying on, not on the use they were making of land, but rather on the place where they happened to live. It was approaching the problem from the other end.
The clause does make these rights subject to limitations which are reasonably justifiable. These could include limitations, from example, which have to do with the proper development of land, as long as those limitations are not set up on the
criteria of residence or domicile of the individual who wants to exercise those rights.
Mr. Cowling: A further supplementary, Mr. Chairman. Can not the provinces really achieve the same thing by passing a law which states that nobody could acquire or own more than three acres of land without the consent of the Lieutenant Governor in Council or some other body and then, in practice, turn down all except those who came from that particular province?
I am not quite sure, but I think that is the type of legislation they have in Prince Edward Island at the present time.
Mr. Strayer: I suppose that if a person felt himself aggrieved by that, he would presumably be a non-resident Canadian citizen. If he could establish that this was a policy that was being followed and it was simply a device for avoiding clause 8, he could perhaps seek a declaration under clause 24 to have that issue determined.
Senator Godfrey: What is the present constitutional position about holding land? Does that prohibit all non-residents?
Mr. Strayer: The present position, which was clarified somewhat by Morgan and Jacobson case in the Prince Edward Island case, which went to the Supreme Court, appears to be that provinces can restrict non-residents in the holding of land in the province. However, it is still an open question as to whether they can restrict aliens, that is, non-citizens. The legislation before the Supreme Court in the Morgan and Jacobson case was really not predicated on citizenship, so we do not know what the court would have said in that situation.
It has been the view of the federal government that provinces cannot restrict land-holding on the basis of citizenship alone because, by virtue of the Citizenship Act, an alien has the same rights as a citizen to hold and acquire property.
Mr. Cowling: A provincial law of that type would have been a law in relation to citizenship and therefore would have been unconstitutional.
Mr. Strayer: For that purpose, the Citizenship Act was amended two or three years ago to delegate certain authority to provincial governments to restrict alien land-holding subject to conditions which were laid down in the section providing for delegation. I had the pleasure of discussing that section before a committee of the Senate a couple of years ago.
Senator Olson: Could I ask whether or not this clause does, in fact, leave the provinces the right to define “residence” and “Canadian citizen”?
Mr. Strayer: No, I do not think so. They could define “residence” in a situation where this section would permit residence to be a legitimate requirement, .if it were, for example, a matter of entitlement to carry on some kind of profession where residence was relevant to carrying on that profession—I cannot think of an example—or if it were a matter of requiring
residence for the purpose of obtaining certain social insurance benefits.
Senator Olson: I am confining my thinking at the moment to the acquisition and holding of property.
Mr. Strayer: Basically the clause precludes provinces from imposing residence requirements on the holding of property. Therefore, it does not really leave it open to them to define “residence” for those purposes.
Senator Olson: What I said a few minutes ago probably would be the practice because, if the residence requirement is met immediately upon living in a province, then the province would not be open to or have the right to further define or restrict the definition of “residence” for this purpose.
Mr. Strayer: I do not think, for the purpose of holding land, they would have any right to define “residence”. I just cannot see how it would arise.
The Chairman: Now, are we ready to go to Senator Hayden’s question?
Senator Hayden: A preliminary question, Mr. Chairman. I notice the discussion has been on clause 8. If I jump to clause 24 am I interfering with the logical dealing with these provisions?
Mr. Cowling: No, because the two are very much related.
Senator Hayden: Frankly, I am puzzled by those words “Where no other remedy is available or provided for by law”. As I understand the proceeding by an individual who feels that his rights and freedoms declared in the charter have been violated, it is to bring an action to enforce the recognition of his rights. Necessarily involved in any such action would be the question of interpretation, as to whether what he is claiming as his right actually exists under the charter. Therefore, there is a remedy in every case for a person who feels that his rights and freedoms have been violated—that is, he can bring an action, and involved in that would be interpretation.
The only thing that puzzles me about this is that these words, “Where no other remedy is available”, may suggest that the court has a power to pick up loose ends on something that does not really exist in the rights and freedoms that are established under the charter, and they may wander so far as to suggest additional rights.
I do not think that is a wild and fanciful theory. I think th.at clause 24 would be just as good, and perhaps better, if those opening words were not in it. I do not think they contribute anything, except some confusion.
Mr. Strayer: I suppose they have the advantage of first directing people to their normal remedies and rights. One would assume that a person would first exercise whatever remedies he might have otherwise by law.
Senator Hayden: Would you agree that interpretation can be involved in any proceeding by an individual to assert his
rights and freedoms and claim that they have been violated? It is up to the court then to determine whether in fact he enjoys such right or freedom, as well as whether there has been a violation.
Mr. Strayer: I do not know that I would agree that it is in every case clear that a person has a remedy where a right has been violated, or what one might think to be a right. If one looks at the common law, the common law struggled very hard with trying to identify particular kinds of interests with particular forms of action. For example, it was debated at one time, I believe, as to whether one had a right of action for the denial of his right to vote, and I think it was finally Ashby vs. White that settled that. I am not sure that the civil law system suffers under quite the same difficulties that the common law system does. One can again imagine in the area of public law the difficulties with remedies such as prerogative writs. We know that there are some situations that don’t fit neatly in any prerogative writ.
Senator Hayden: Mr. Strayer, if there is no other remedy what is there to define; what is there to enforce?
Mr. Strayer: The charter here is in some ways restating and confirming recognized rights. In other cases it is perhaps creating new rights. One might look long and hard to find a way in which you could frame a remedy or a claim in the traditional system of remedies to enforce one of these rights. For example, Mr. Cowling raised a question about the rights under clause 7 with respect to arrest or detention, and the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay. There have been debates over what remedy there is for a violation of rights like that, and it is not at all clear that we have effective remedies in the existing law.
Senator Hayden: But, Mr. Strayer, isn’t the basic thing that must first be established under clause 24 as it exists that there is no other remedy in the charter for the complaint or claim of the individual.
Mr. Strayer: Not in the charter, but in the law generally.
Senator Hayden: If in those circumstances you are going to permit the court to define and enforce, what is it that they are defining after a determination has been made that there is no other remedy?
Mr. Strayer: Well, one must keep in mind that the opening words of clause 24 refer to remedies available or provided for by law, the system of law generally. I think one could look at clauses in this charter and raise questions as to whether the existing system of law and remedies would provide a right of action. For example, let us take clause 8, the one we have just been discussing. If a province sets up an administrative tribunal which decides that X shall be entitled to own property and Y shall not, and does so on the basis of residence, one could get into a debate on how you would attack that decision of the tribunal. One would have to consider whether it was a
quasi-judicial body, an administrative body, et cetera, to try to decide what remedy could be used. There you would be looking to the total body of the law for the source of your right of action or remedy.
Senator Hayden: Mr. Strayer, the only point I am trying to make is that clause 24 is confusing; that it is capable of giving the court authority to enlarge the rights and freedoms declared under the charter.
Mr. Strayer: That was not the expectation or intention. It was really addressed to the remedial side of the issue, not the substantive side of the issue. It was not saying that the court could create such additional rights or recognize such additional rights as it might see fit. It was saying that if a party was seemingly precluded from enforcing rights that this charter purports to give, by virtue of the fact that the normal rules of law did not provide any remedy, then he could rely on clause 24, but he would be going to court to ask the court to enforce the rights defined in this charter.
Senator Hayden: The prerequisite is that a person who proceeds under clause 24 must first establish, or the court must determine, that there is no other remedy provided in the charter.
Senator Godfrey: In the law.
Senator Hayden: Or in the law.
Mr. Strayer: Certainly we will re-examine the clause with that perspective to see if anything needs to be done to it. The intention, as I say, was really to address the remedial side and to ensure that no right should be defeated because of the want of a remedy in the existing body of law.
Senator Hayden: I think I have made my point, and I am not going to labour it. I do not think those opening words of clause 24 are needed. If you want to give to the court the authority to establish further rights and freedoms we had better have a good look at it.
The Chairman: A good look at the court too.
Senator Godfrey: At the side of clause 24 I have written “would not help Hogan.” Would you give us your opinion on that? Do you believe that clause 24 would help Mr. Hogan?
Mr. Strayer: I think it could, yes. Whether even the right to go for a declaration and an injunction would, as a practical matter, help Mr. Hogan, I am not sure. Conceivably, it could. He could insist on seeking his remedy under section 24 before anything else happened.
Senator Godfrey: You mean that after he had taken the blood test he could then, under section 24, stop them from using the evidence.
Mr. Cowling: It is just impractical. There is no time to do it. I think that is the problem.
Mr. Strayer: I think that that question probably is more closely related to the effect of section 23, as to whether section 23 would in fact make the whole prosecution null and void because of a denial of the right under section 7. I suppose that if the charter were interpreted in that way, if section 23 were interpreted in that way, then its effect could be achieved simply by his raising the objection at trial and the judge dismissing the case on the basis that his rights had been denied under section 7.
Senator Godfrey: I must say· that Senator Hayden has started making me think about whether or not those first few words are either necessary or even advisable. If there is some remedy, there may be a very inadequate remedy. Mr. Hogan’s remedy was to say, “I refuse to take the test,” and that did not help him at all. He had the remedy which was to say no, but it did not help. It is a court remedy, of course, but why are those words necessary in there? Why not just open it up? There may be some kind of remedy, but if there is a better one, let the courts use it, if they can think up a better one.
Mr. Strayer: I suppose we were concerned about the possibility of disrupting all sorts of established legal procedures and remedies which now exist. One could imagine that if we had left out those words, this section would have been subject to very considerable attack by the provinces, for example, who would say that we were rewriting their civil law or their common law.
Senator Godfrey: Well, you are anyway.
Mr. Strayer: Well, this really supplements whatever the remedies are of the existing legal system and does not purport to replace them or supersede them.
Mr. Cowling: Mr. Chairman, perhaps this is a rather technical question, but on another subject I refer to clause 11. Section 91.1 of the BNA Act prevents Parliament from modifying the provision that has to do with the length of a Parliament. Should not, therefore, clause 11 of the bill be a designated provision? I realize that it repeats the five-year provision, but nevertheless it deals with a matter which, under section 91.1, cannot be modified by Parliament alone.
I realize this is just a repetition, but it points up the difficulty of this whole approach.
Mr. Strayer: The theory of it, Mr. Cowling, was that section 131, subsection ( 1), would confine the effect of the adoption of the charter by Parliament to those matters within federal jurisdiction. It does not get us into the question of the provinces, therefore, and, vis-a-vis the Parliament of Canada, is merely restating the law without changing it. It was not thought that that would be in conflict with section 91.1. It was simply restating it.
Mr. Cowling: But in large measure this bill is restating in clauses 91 and 92 of the bill sections 91 and 92 of the BNA Act. Yet it was thought important to make clauses 91 and 92 of the bill designated provisions. The changes that are there are so small that I would have thought the same kind of considerations would have applied. I do not want to labour the
point, but certainly section 11 is an area which Parliament does not have the power to deal with on its own.
Mr. Strayer: We felt that section 91.1 did not preclude this kind of restatement of the provisions which are in the BNA Act, specifically sections 20 and 50, I believe. Section 91.1 is really only a saving clause vis-a-vis sections 20 and 50 of the BNA Act. This is a restatement of sections 20 and 50 of the BNA Act, but not in violation of the saving clause in section 91.1.
The Chairman: Can we move along?
Mr. Cowling: Could you explain the significance of clause 13? What does it do that we do not have already? Does it not leave complete flexibility as to the English and French language to either Parliament or the provinces? Are you trying to achieve anything by including clause 13?
Mr. Strayer: It is just a matter of exposition. There is nothing more, Mr. Cowling.
Mr. Cowling: Dealing with language rights in the courts, would the word “court” as used in clause 16(2) include administrative tribunals? I am thinking especially of provincial administrative tribunals, because I think insofar as federal administrative tribunals are concerned that may be covered by clause 19(1). But, as we know, there is more and more judicial and quasi-judicial business being handled by administrative tribunals today and this could be important.
Mr. Strayer: It was not our expectation that the reference to “court” in clause 16(2) would cover administrative bodies. It would always be open to provinces to expand the language rights to cover administrative tribunals, just as has been done in various ways federally under the Official Languages Act.
Mr. Cowling: There is a situation now where a province is trying to restrict the use of languages, not add to it.
Mr. Strayer: Yes, that is so. But, of course, the charter would not come into effect in any province anyway unless the provincial legislature made it effective. So unless there is a will to do that, these provisions—clause 16(2), for example—would not apply anyway.
Mr. Cowling: Mr. Chairman, the question has been raised whether clause 21 confirms the right of a province to deny freedom of choice to the majority linguistic group. It does deal with the rights of the minority, but fears have been expressed that the majority may end up with fewer rights than the minority in respect of choice of language.
Mr. Strayer: The effect of the section, so far as we are concerned, is that it does protect the minority but does not specifically protect the majority. It does not protect the freedom of choice of the majority. The rationale for that was that
majorities would be able to make their own decisions and that, typically, in provisions of this kind one protects minorities and assumes that the majorities will take care of themselves. There is a certain parallel in section 93 of the British North America Act with respect to separate schools where, with the possible exceptions of some parts of Quebec, the rights are cast in terms of minorities.
Senator Godfrey: How does a majority in a region or area protect itself?
Mr. Strayer: Are you thinking of a situation where a group constitutes the majority in an area?
Senator Godfrey: Let us take the town of Westmount as an example. How does the population of Westmount protect itself against things which the Government of Quebec might wish to impose on them?
Mr. Strayer: The question of who is the minority is judged on the basis of the composition of the population of the province as a whole.
Senator Godfrey: I see. I could not follow this gobbledygook in the middle of this. It is the population of the province as a whole that decides the majority?
Mr. Strayer: Yes.
Mr. Cowling: Mr. Strayer, would clause 22 affect the enactment of legislation such as Bill 101 in the Province of Quebec? I realize that we are always faced with the words “if adopted by a province,” but would it prevent the adoption of that kind of legislation? I realize Bill I 0 I encompasses a number of things. I am thinking of the non-educational parts of Bill 101.
Mr. Strayer: I should think it would, assuming you are talking about legislation which was enacted after the charter, because it is prospective in its effect and not retrospective. In that case one would have to look at the legislation to see whether it did affect adversely the preservation of either English or French as a language spoken or otherwise enjoyed by any such group of individuals. If we are talking about legislation such as Bill 101, I should think one could make that case.
Mr. Cowling: Clauses 18, 20 and 26 seem to me to be dealing with pretty well the same thing. It may be simply a question of drafting, but is there any reason why those clauses could not have been consolidated in some manner? I find it confusing to have, more or less, the same subject laid out in three different places.
Mr. Strayer: Perhaps they could be consolidated in some manner, but I think one would have to touch all the elements in the three clauses when consolidating them. They do have somewhat different thrusts. Clause 18 preserves the existing language guarantees in the Constitution, such as section 133 and the Manitoba Act provision. Clause 20 states the proposition that it is possible to increase language rights above and beyond those which are provided for in the charter. That may seem fairly apparent, but there was considerable litigation on this point a few years ago. You may recall the actions which
eventually ended up in the Supreme Court of Canada with respect to the Official Languages Act, whereby the thesis was that Parliament could not increase the rights given under section 133.
Mr. Cowling: But it was held by the court quite clearly that it could.
Mr. Strayer: Yes. The section, perhaps, springs from an abundance of caution.
Mr. Cowling: That argument has been invoked by Mr. Lang in another connection.
Mr. Strayer: Yes. Clause 26 is a more general provision stating that nothing in the charter shall affect any rights or freedoms now existing. These, of course, are any rights, whether language rights or otherwise. They are not confined to language rights, whereas the other two sections are so confined. Of course, this includes things such as the rights of native peoples under the Royal Proclamation of 1763.
Clause 26 has its genesis in the Canadian Bill of Rights where there is a similar provision which was added to make clear that the bill did not affect existing rights.
Mr. Cowling: Mr. Chairman, those are all the questions I have on the substantive parts of the charter, but I should like to refer to clause 131 which deals with how these provisions come into effect.
The Chairman: Perhaps we should take a supplementary question from Senator Godfrey.
Senator Godfrey: Dealing with clause 23, there was a suggestion made by a previous witness that the words “or administrative act pursuant thereto”, should be inserted after the words, “no law”. That would take care of the Hogan case, if you wished to take care of the Hogan case.
Mr. Strayer: That is a suggestion that should be considered seriously. I believe it was our assumption in the development of this clause that if it stated that no law shall apply or have effect so as to abrogate, then anything done under the law would have to be similarly restricted. If someone is being improperly arrested under the Criminal Code, then the Criminal Code is being given an effect which is prohibited by this charter. Offhand, I see no problem in adding the words which Professor Tarnopolsky suggested. I should think about it a bit more, but I suppose it would add to the clarity. I suppose one would have to ensure that by mentioning administrative acts one is not excluding by implication something else that might be done under the law.
Senator Godfrey: I gather from the first part of your answer that you thought it was already covered without those words.
Mr. Strayer: We thought so.
Senator Godfrey: If you thought so, why not put the words in.
Mr. Cowling: I think this did arise in a discussion with Professor Tarnopolsky. I think what he would like to see is
something much clearer and which would, in effect, say, if there had been an administrative act or evidence wrongly gained in conflict with the charter, that there could not be a conviction. If that is really what you are going to get at, those are the words you should use and make no mistake about. The question is whether you want to go that far.
Mr. Strayer: I think that is the question, particularly on the issue of evidence being wrongfully obtained. That needs to be addressed squarely. I think it should be clear as to which way the bill is coming down on it.
Senator Godfrey: That is the kind of thing the legislators should direct their minds to and not leave it up to the courts to decide. The decision should be made whether direct evidence obtained illegally should be excluded.
Mr. Cowling: That is the difficulty which arises when one addresses these things in wishy-washy language and leaves it up to the courts to possibly decide one way or the other. It is passing the buck.
Still dealing with the charter, but jumping to clause 131 which deals with the rather complex and ingenious way in which the provisions of the charter are brought into effect, do I understand that any province wishing to adopt the charter as part of provincial law, and any province that does so adopt it, is then relieved of the disallowance provisions in the BNA Act? At the present time, provincial laws can be disallowed by the federal government. Is this a sort of carrot that is being held out to the provinces to encourage them to adopt the charter? Is that the intent in putting in those provisions?
Mr. Strayer: You can choose your own vegetable.
Mr. Cowling: I called it a withered carrot on an earlier occasion because I do not think disallowance has been used very often in the last 30 or 40 years.
Mr. Strayer: But the provinces periodically argue that the power should be deleted, and its deletion was considered at the Victoria Conference and would, in fact, have been provided for had that charter been implemented.
The issues are linked by clause 131 (3). If a province decides to bring the charter into effect within its own jurisdiction, the provisions of clause 131(3) would apply so as to make disallowance and reservation inapplicable to legislation of that province.
Mr. Cowling: Assuming a province decided to opt into the Charter of Rights and Freedoms with the result of the possibility of having its laws disallowed removed by this provision, what would happen if a subsequent government in that province decided to opt out of the charter? Would the disallowance provisions in that situation then pop back in?
Mr. Strayer: The draftsmen thought that this had been dealt with in the opening words of clause 131 (3), which read:
From and after such time as it is provided by the legislature of any province—
Mr. Cowling: This is before entrenchment.
Mr. Strayer: Yes. If it ceases to be provided by the legislature of the province that the charter shall apply, then the provisions of clause 131 (3)(a) would no longer apply to that province. In other words, the powers of disallowance and reservation would be revived.
Mr. Cowling: Reservation of federal bills is also tied into this clause, is it not? Looking at subsection 131(4), paragraph (c), the reference there, I think, is to the power of reservation of federal bills.
Mr. Strayer: Yes.
Mr. Cowling: I am curious as to why that is tied in with the whole question of the Charter of Rights and Freedoms. I am not arguing the point of whether or not the power of disallowance of federal bills should go or not. I am just curious as to this rather obscure way of dealing with it in an implementation clause dealing with the Charter of Rights and Freedoms.
Mr. Strayer: The provisions dealing with reservation and disallowance of federal legislation under subclause 131 ( 4) would be repealed on the occasion of the entrenchment of the charter.
Mr. Cowling: I do not see the connection between the two subjects. It seems to me they could be dealt with separately.
Mr. Strayer: I am not sure of the rationale for that, other than, perhaps, that sections 55 to 57, insofar as they relate to reservation and disallowance of federal laws, do not constitute a very live issue. There was, of course, an understanding at the Imperial Conference of 1929 that this power would not be used with respect to dominion legislation. So, it perhaps was not thought to be something that had to be cleared off immediately.
But there are other things involved in sections 55 to 57. The process there with respect to reservation and disallowance is made applicable to the provinces by virtue of section 90. So, as long as there is a possibility of reservation and disallowance of provincial legislation, the mechanisms which are provided in sections 55, 56 and 57 are retained for the purpose of their possible application to the provinces through section 90. To that extent, there is a connection between the entrenchment of the charter, which would wipe out all reservation and disallowance powers vis-a-vis the provinces, and wiping out sections 55 to 57, because sections 55 to 57, through the ingenuity of the draftsmen of the 1867 act, are made applicable mutatis mutandis through section 90.
Senator Forsey: May I ask a question about that? I may have to come back to it later when we get to clause 131 (4).
It seems to me very curious that you are proposing, once the provisions of clause 131 (2) come into effect, to repeal the whole of section 55. While it is true that reservation of a dominion bill is in section 55, there is a great deal else there, too. It reads:
Where a Bill passed by the Houses of Parliament is presented to the Governor General for the Queen’s Assent—
Until clause 131 (2) comes into effect, apparently the Governor General has to give the Queen’s Assent, which sits very ill with some of the other provisions with regard to the Governor General.
—is presented to the Governor General for the Queen’s Assent he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions—
And there aren’t any now, I understand.
—either that he assents thereto in the Queen’s Name Observe, the Queen’s name again.
—or that he withholds the Queen’s Assent Again, observe that. And then of course, comes:
—or that he reserves the Bill for the Signification of the Queen’s Pleasure.
Apart altogether from the gross and flagrant inconsistency of that with the fancy work about the Governor General in other parts of the bill, you then have apparently removed completely any provision for assent except in the case of the rejection of bills by the upper house.
I know this is a point I made with you elsewhere-less completely, however. I am more and more struck by the fact that you would, in these circumstances, be removing completely the power of assent, and until clause 131 (2) comes into effect the whole of section 55 is still there, including the power of reservation of dominion bills for the signification of the Queen’s pleasure.
I agree that this has no particular practical significance because of the resolution of the conference of 1929, but the whole thing seems to me to be a very curious mishmash and a piece of drafting which, to the layman, for whom the bill is supposed to be clarifying everything, is somewhat obscure. I don’t want to use too strong language.
Mr. Strayer: I appreciate the problem you raise about the interim period before the time that sections 55, 56 and 57 disappear completely and the question of assenting in the Queen’s name. I think we should have another look at that.
I also appreciate your point about there not being any general provision about assent in the bill. This, I think, is based upon an assumption which I have tried to explain before—perhaps not very well—that sections 55, 56 and 57 were there for a particular purpose, that being to provide the mechanisms for reservation and disallowance. We have not devised any other express provision with respect to assent because those sections were seen as having a very special purpose which was going to disappear. But I think your point is well taken. It should be looked at as to whether we need a general provision for assent. We thought it was implicit by providing, with respect to Parliament, that the Governor General was part of the parliamentary trinity and, therefore, would necessarily have to give his assent, and, with respect to the provinces, that the lieutenant-governors were part of the provincial legislatures and, again, would have to give their assent.
If there is any uncertainty about this, or any continuing doubt about it, then we should look at a provision which would deal generally with the question of assent.
Senator Forsey: It is a new idea to me that the question of assent in the British North America Act was put is simply to provide for reservation. That seems to me to be a far-fetched assumption. In any case, I would like to ask whether you know of any situation with another Commonwealth country which retains the monarchy where there is not explicit provision for assent.
Mr. Strayer: I could not answer that. We have not looked at other constitutions with that particular question in mind.
Senator Forsey: While we are at this, we may as well try and clear up the whole thing. If you look at clause 131(4)(c), you will find that sections 55 to 57 of the Act of 1867, respecting the reservation of assent to bills, the disallowance of acts and the signification of pleasure on bills reserved, as those sections extended and were applicable immediately before the convention of this act to the legislature of the federal provinces, cease to extend and apply thereto if section 90 is repealed insofar as it relates to matters provided for in this paragraph.
Section 55 is not concerned simply with the reservation of assent; it is concerned also with assent. If you are repealing section 55 under clause 131(4)(c), it seems to me that you are incidentally removing any explicit provision for assent in the provinces. As section 90 now applies to section 55, you may be wiping out in one fell swoop any explicit provision for assent either to dominion bills or provincial bills.
I venture to think that you experts might take another look at that and see if you are doing exactly what you intended to do and whether, if you are doing exactly what you intended to do, it is what you ought to do, and that you may not be causing problems which have not hitherto swung under your ken.
Mr. Strayer: It does seem to me that clause 131(4)(c) does, by istelf, leave alive, as it were, the provisions of section 55 with respect to assent of provincial bills.
Senator Forsey: You don’t say, “Those portions of sections 55 to 57 respecting the provision … ,” and so forth; you say, “These sectionsare … ” The sections refer to other things than those which you mention there. It does not seem to me to be clear at all, and while it is quite true I am not a lawyer—and to laywers this may be perfectly clear—I understood that one of the ideas behind this bill was to make the whole of the Constitution more comprehensible to the layman. It is perfectly possible that I am the stupidest layman in Canada, but it is also possible that there are others even more stupid than I.
The Chairman: Would you like to comment on that?
Senator Godfrey: This particular lawyer thinks it would be clearer if Senator Forsey’s suggestion were included—in other words, “those portions.” That would just clear the matter up. I like the layman’s drafting better than the experts’ drafting.
Senator Forsey: I suggest we do not need to have an answer now. I am suggesting you take a look at it. I think we are all agreed that you want to get rid of the reservation of dominion bills. You can write that right out and disallow dominion acts. Clearly, if the purpose of the legislation is what it appears to be, in certain circumstances where the provinces have done certain things, you want to get rid of the reservation of provincial bills and the disallowance of provincial acts. If that is so, that is perfectly comprehensible. I have some doubts about the wisdom of getting rid of these provisions, but that is a matter of policy. All I am suggesting now is you might take another look at this and make quite sure that you express clearly what you want to do.
Mr. Strayer: Yes, the point is taken, senator. The problem, as I am sure you will appreciate, is that we are trying to do something here which is rather complex in its nature, and if it had been simply a matter of repealing in one fell swoop the reservation and disallowance, that would have been very simple. We did it very simply in the schedule of the Victoria Charter, for example. However, because here it is combined with this opting-in provision with respect to the charter because it is combined with ultimate entrenchment of the charter—and because the draftsmen of the BNA Act themselves, with all respect, were not the model of precision, clarity and simplicity in the way they linked, through section 90, sections 55, 56 and 57 to the provinces, we have run into a great deal of complexity which I am not sure can be entirely avoided.
Having said that, I accept your point that we are doing away with sections 55 to 57 insofar as they apply to assent, reservation, and disallowance, both federally and provincially. We will certainly look at it again with respect to the question of whether we need a clear substitute of some sort with respect to the question of assent alone.
Mr. Cowling: Is it competent for Parliament to do away with the disallowance provisions on its own? Is that an amendment which Parliament could make without recourse to the U.K. Parliament? I am speaking of federal bills.
Mr. Strayer: I should think so, under section 91 (1) of the B.N.A. Act. I do not think it comes within any of those categories or matters which are excepted from Parliament’s power under clause 91 (1 ).
Mr. Cowling: Mr. Chairman, just a final comment—or perhaps it is another way of expressing it—but I do think that
we have a problem here. It is possible that clause 91 of the bill could come into effect before section 55 of the BNA Act is repealed. As I understand it, that is a theoretical possibility, because of the provision for bringing provisions of the bill into effect in a piecemeal fashion? If that occurred, you would then have a situation where, under section 91, Parliament consists of the Governor General and the two houses, whereas section 55 would still be in the BNA Act and it refers to the Governor General giving assent in the Queen’s name which, of course, is completely anomalous. The only way you could get around that would be to make sure that clause 131 was brought in at the same time as clause 91.
Senator Forsey: A cynical monarchist might say that the best comment on the whole thing is:
O what a tangled web we weave,
When first we practise to deceive!
Mr. Strayer: I think the particular problem that Mr. Cowling raises would be dealt with by clause 127 because there would then be an inconsistency between the new section 91 (1) and section 55 of the B.N.A. Act, and clause 127 would make the new section 91 (1) prevail.
Mr. Cowling: Now I have found a reason for clause 127.
Senator Forsey: That looks to me as if it might raise some further problem. I suspect there may be a booby trap in there also.
Mr. Cowling: Mr. Chairman, again not to enlarge the point—and I do not think it has come up in the committee before—but in clause 34(4) the expression used is: “The law of the federal authority … may amplify or modify this Act with respect to … “, and so on. The federal authority is defined somewhere else in the bill.
Senator Forsey: Clause 31 (a), is it not?
Mr. Cowling: Clause 31 (a). It is defined there as being “the Parliament of Canada and the executive government of and over Canada”. I am wondering whether the use of the words “federal authority” in clauses 34(1) and 34( 4) was intentional, or whether what was really envisaged there was an act of Parliament, and if so why the words “act of Parliament” were not used.
Miss Edythe MacDonald, Q.C., Senior Counsel, Department of Justice: No. In this particular case the possibility is that it could be, say, a proclamation or an act of Parliament.
Mr. Cowling: Or?
Miss MacDonald: For instance, the flag came into effect after resolutions of both Houses of Parliament, and then a proclamation was issued. In the case of the national anthem, a bill was before the last session of Parliament, so in that case a bill was contemplated. In the case of the motto, it was a royal proclamation, I believe, of 1921 that brought it into effect. In
actual fact, these different items have come into effect m different ways, not necessarily all by act of Parliament.
Mr. Cowling: So it is an either/or type of thing?
Miss MacDonald: Yes.
Mr. Cowling: And it would not in any event require both an act of Parliament and a proclamation, which usually takes the form of an order in council?
Miss MacDonald: No. For instance, with the motto I do not think there was any resolution preceding it. There was simply a proclamation. However, with the flag there were resolutions preceding the issuance of the proclamation.
Senator Forsey: In other words, all these things could be changed simply by act of the Governor General and the Council of State. Is that not so?
Miss MacDonald: I think it would probably be a political question as to what was considered appropriate. For instance, with the national anthem a bill has been introduced.
Senator Forsey: Yes, it would be a political question as to what would be considered appropriate, but it could be done under this by the executive authority alone.
Miss MacDonald: Yes, and has been in the past.
Senator Forsey: I know it has been in the past in respect of certain of these matters, but this would mean the executive authority alone would do this?
Miss MacDonald: Yes.
Senator Godfrey: Do you mean the definition of “federal authority” in clause 31 (a) can be read disjunctively or conjunctively? It can be either one or the other or both together separately or together?
Miss MacDonald: Yes. Would you agree with that?
Mr. Strayer: Yes.
Senator Godfrey: If that is the meaning, “federal authority” could be just the executive government alone?
Miss MacDonald: Yes.
Mr. Cowling: Mr. Chairman, perhaps I might turn to another point. The word “hallowed” is used in clause 35, and it has given us some difficulty here. I wonder if the witness could shed some light on that. Are there some conventions that have been constitutionalized in some way but not hallowed? I just find that whole provision rather unclear.
Mr. Strayer: One might perhaps debate the choice of the right word.
Senator Forsey: It is not in the French text at all.
Mr. Strayer: The intention, I think, as indicated in the French text, was that this would be the conventions that had been recognized as being constitutional conventions. They are simply referred to in the French text as being constitutional conventions, customs or usages. It is always a matter for
debate, as we have seen here and elsewhere, as to what are conventions. The word “hallowed” was, I think, simply there to mean “respected” or “recognized,” as being part of the Constitution.
Mr. Cowling: But it says “hallowed by it”, “it” being the Constitution of Canada, and the Constitution of Canada being what is contained in Bill C-60.
Mr. Strayer: The Constitution of Canada is not limited to Bill C-60.
Senator Forsey: That becomes somewhat circular, surely.
Mr. Cowling: Clause 1 of the bill says that Part I of the act may be cited as the Constitution of Canada.
Mr. Strayer: It may be cited as the Constitution of Canada Act.
Mr. Cowling: Touché.
Senator Forsey: But look, who is going to do the hallowing, and how do we know when something has been hallowed? Are we going to get a church committee of bishops, moderators, archdeacons and what not to come along and say which of these things has been hallowed, or perform some sort of ceremony which will bestow on them this sanctity? What is going on? You yourself said a moment ago that really we don’t know which one. You may be, it seems to me, writing into the law here things which are now conventions, which opens up a vast field for judicial discretion and judgment.
Mr. Strayer: If the word “hallowed” conjures up images of congregations of bishops and so on, I think perhaps we should choose something else. The purpose of the clause was to remind the reader that the Constitution is not just the statutes and the written word, but also includes conventions and usages, and it was intended to indicate that those conventions and usages were to continue and were not being repealed or overridden by this bill; also that those conventions and usages should continue to have such force as they now have. We are not giving them some different force than they would now have. It also does not preclude the possibility of conventional usages evolving over time.
Senator Hayden: What degree of usage would be necessary in order that something might become hallowed?
Senator Forsey: Exactly.
Mr. Strayer: I think it is beyond my ability to define that. As I say, the purpose of the clause, and the connotation we thought attached to the word “hallowed”, was to the effect that conventions and usages which come to be recognized as part of the Constitution would continue to be part of the Constitution. I think we all recognized that at least on the margin there can be debate on whether something has become a convention or usage, and we also recognize that these things can evolve from time to time.
Senator Hayden: Why the word “hallowed”? It has a sort of a sacrosanct suggestion to it. Why not the word “recognized” or something of that kind?
Mr. Strayer: I think the English version at least does have to be re-examined. I think the French version is clearer on this. If the word “hallowed” is creating problems, which obviously it is, then I think it ought to be reconsidered.
Senator Forsey: The point Senator Hayden just raised is a not unimportant one, you know, about when a usage becomes hallowed or when it becomes recognized for that matter, because it is involved in a point that Professor Lederman made here about the amending procedure. He insists that the amending procedure, involving, as he says, substantial compliance by the provinces, is now law. There are other people—I venture to think of some constitutional lawyers, Mr. Brewin for one, and I suspect I could mention Professor Frank Scott here—who would deny this. So where are you with this kind of thing?
The point that Senator Hayden raised seemed to me to be of great importance. When does a convention become hallowed or recognized, or whatever word you want to call it? And once you have the courts, by virtue of this, coming right into the picture and saying, «Well, that is not hallowed; this is hallowed; that is not recognized; this is recognized,” are you not running into the risk of trying to write into a text of fundamental constitutional law something very uncertain indeed?
Mr. Strayer: There are two aspects to the question. One, whether “hallowed” is the right word, and that certainly is something which should be reconsidered; and the other—
Mr. Cowling: Even in the French version, I think, the question is still there to some extent.
Mr. Strayer: The other perhaps more fundamental question is: What are constitutional conventions? How do they come into being? When are they recognized, and to what extent can they change? What legal consequences can they have in terms of enforcement by the courts?
On the latter category of questions, certainly it was not the intention to change the existing principles of the Constitution. We are all aware that there are important constitutional conventions which govern the way in which government is carried on, including the whole concept of responsible government. It was not intended to abolish those conventions and usages, nor was it intended to write a codification of them. We have seen the difficulty of that in section 53(2), where the draft attempts a partial codification in one particular area. Questions have been raised as to whether that was a complete codification and precluded all other presently existing elements of the reserve powers of the Governor General. It was certainly not the intention to do that. It was partly for this reason that section 35 is there to indicate, or signal, that conventions and usages, however they are formulated or come to be recognized, however they evolve and whatever effect they have in terms of their enforceability, are to continue.
Mr. Cowling: And to have the force of law and to be applied by the courts.
Mr. Strayer: Well, only to the extent that they are now, which is a debatable point.
Senator Hayden: Mr. Strayer, with respect to the words “conventions, customs and usages,” what is included within those words? What sort of thing is included?
Mr. Strayer: Well, there is, for example, a host of conventions around the concept of cabinet government, which are not in any way spelled out in the B.N .A. Act itself. There is the basic concept of the responsibility of the cabinet to the House of Commons, for example.
Senator Hayden: Would conventions, customs or usages be included in the word “practices”?
Mr. Strayer: Well, the terms “conventions”, “customs” and “usages” are, I suppose, normally used to refer to practices which are of long standing or are clearly recognized as being the normal and proper practice. They would not include, perhaps, the isolated practice.
Senator Hayden: Would it be, for istance, anything that is done in the administration of government that does not flow directly from specific provisions in the Constitution?
Mr. Strayer: That is a difficult question to answer. I should think that it would not include things that do not have some sort of constitutional element to them, that is that do not relate to the basic operations and relationships of government institutions.
Senator Hayden: What about judgments of the Privy Council and of the Supreme Court of Canada on constitutional issues? Do they fit into any one of these words?
Mr. Strayer: I do not think so. They become part of constitutional law. They become part of the interpretation of the Constitution. Judgments of the Supreme Court or of the Privy Council, for example, on the meaning of section 91.27 are a part of constitutional law.
Senator Hayden: Is that not sort of begging the question? What does constitutional law mean? It means the judgments under which the Constitution has been interpreted as to its meaning. It that not what it is?
Mr. Strayer: Well, I would say that the interpretations of the written Constitution, in effect, become a gloss on the written Constitution and are not normally regarded as being part of the conventions, customs and usages.
Senator Hayden: A judgment would not be a convention, a custom or a usage, then, as I have been speaking about it.
Mr. Strayer: No, I should think not. You are speaking of judgments interpreting the Constitution.
Senator Hayden: Yes. Then what are they?
Mr. Strayer: Well, I suppose there is a multitude of conventions of the Constitution. I was starting to mention some of them concerned with cabinet government and the convention that the cabinet is responsible to the House of Commons. If it loses the confidence of the House of Commons, then it should resign. There is the convention that the Governor General or the sovereign acts on the advice of ministers who have the confidence of the House of Commons. There is the convention
that a prime minister who enjoys a majority in the house normally can seek dissolution and be granted it. They are this kind of thing.
Senator Hayden: Should there not be some provision for a declaration by the courts as to what is a convention, what is a custom and what is a usage?
Mr. Strayer: Well, conventions, customs and usages, I think, normally tend to have their enforcement in the political process and not in the legal process.
Senator Hayden: Would this provision preclude anyone from challenging the use of a convention or custom or usage in the courts and saying, “This is not a convention, as you are assuming. This is not a custom. This is not a usage.”?
Mr. Strayer: I cannot think of examples offhand where that would seem to flow from the section or would seem to be appropriate. I cannot think of an example where you would go to court to get a decision about what is a custom or a usage.
Senator Hayden: The question is whether in this section these things have been enshrined as being not subject to challenge. I want to know who makes the determination that this is a convention, and, therefore, applies under whatever the authority is under this section.
Mr. Strayer: Well, as I say, I think that normally customs, conventions and usages are adjudged and enforced through the political process, and our dilemma with the bill was to preserve these customs, conventions and usages of the Constitution, except to the extent that they might be modified by the provisions of the bill.
Senator Hayden: But, you see, the use of the word “hallowed” imposes a condition. Is that not right?
Mr. Strayer: Well, it was a manner of expression to identify those customs, conventions and usages which have come to be accepted, have come to be recognized as part of our constitutional system; and there is a host of those which makes the Constitution work.
Senator Hayden: But who makes the determination that the convention or the custom or the usage is hallowed? Is it the executive? Is it Parliament? Is it government?
Mr. Strayer: I think I can only answer that by saying that in the concept of the bill this would be adjudged in the same way as it is adjudged now, and that, if a government—for example, an executive—takes some action which is regarded as being contrary to constitutional conventions, then it will be dealt with by the political processes, as would be the case now.
Senator Hayden: Let us assume that this clause becomes law in the form in which it is. All Parliament has done in those circumstances is enact a condition to the application of convention, custom and usage—that is, it must be held. Who, then, makes the decision that in these circumstances, leaning on such and such a thing as a convention, a custom or usage is hallowed and, therefore, one can proceed on that basis? It is not Parliament, because if Parliament enacts this clause, it has
enacted it with a condition. Who makes the decision that the condition is met?
Mr. Strayer: All I can do is repeat what I said before. If it is necessary to decide whether something is in compliance with accepted constitutional conventions or in violation of such constitutional conventions, however that decision is made now it will continue to be made in the future. The word “hallowed” is simply a means of referring to those customs and usages which have come to be accepted as part of the constitutional process. If it is not a felicitous term, then some other term can be used. The idea this is intended to convey is that some customs, conventions and usages that have developed over a period of time have been recognized and some have fallen to the wayside.
Senator Hayden: All this clause says is that conventions, customs and usages that are hallowed are part of the Constitution of Canada.
Mr. Strayer: Perhaps it is just a surplus of words that creates the problem.
Senator Forsey: Even if you take out the word “hallowed” and translate the French version into English, there is the danger, it seems to me, that you are making this justiciable. There is a considerable amount of comment on this, if my memory serves me, by Professor de Smith which, unfortunately, I have not with me. It is in my office and I can draw it to your attention privately.
If all you are trying to do is leave the conventions, customs and usages alone, and leave the whole business to be determined as it is now, which is what I gather from what you just said, why in thunder did you put this in at all? You only needlessly complicated the situation. If you had left out this particular phrase about customs, conventions and usages, would you not have been in precisely the same position, on your showing that they don’t become justiciable, as you are now?
Mr. Strayer: They were put in as a part of the general approach in drafting the bill to try to explain more of the Constitution than is now apparent in the B.N.A. Act. Of course, a number of things have been inserted which are not in the B.N.A. Act which were intended to reflect how the Constitution works. This is simply a reminder that, yes, apart from the written Constitution, there are customs, conventions and usages.
Senator Forsey: It will not be very enlightening to anyone who has no idea of what they are, and I feel the number of such people is legion.
The other point also is that you say you are merely trying to embalm, shall we say, the customs, conventions and usages which now exist, but if you look at clause 53(2)(b) you will find something that is introduced which is, in my judgment, absolutely new. The received customs, conventions and usages on the subject of what happens if a government resigns were stated authoritatively by Sir Robert Borden in July 1920. I
believe it was July 10th, but it may have been the 12th or 16th. I am sure you know what I am referring to. It was his press statement. It has never been challenged, to the best of my belief, by anybody. It says perfectly clearly that if a Prime Minister resigns he has no right whatsoever to proffer advice as to his successor unless he is asked by the Crown’s representative, and if he is asked and proffers advice it is not in any way binding. This is amply supported by all the British authorities up to that date, in any event. There may have been some qualifications introduced by some of them since.
Here you have an explicit statement that the Prime Minister shall, if dissolution of Parliament is not advised, that is, if he resigns or if he is refused a dissolution by the Governor General, he shall advise whether the Prime Minister should be invited to form another administration. This is a radical departure from existing practice. That a defeated Prime Minister should come prancing into Government House, or waltzing into Government House and say, “I have just been defeated. I will now recommend that I should be entrusted with the formation of a new administration”; this is not only a marked departure from conventions, customs and usages hallowed hitherto by long acceptance, but it is also a revolutionary and, I think, subversive, provision and one which would clearly greatly enhance the not inconsiderable powers now enjoyed by the Prime Minister. I am talking about any Prime Minister. I am not gunning for this particular one. The Prime Minister’s powers are now very, very large, and this distinctly adds to them.
Mr. Cowling: There is the point also, Mr. Chairman and Senator Forsey, that clause 35 does not suggest that the provisions of this constitutional act will override or supersede the conventions, customs or usages. So, it would be possible to argue that the convention Senator Forsey has alluded to might carry equal weight, shall we say, with the provisions in clause 53(2).
Mr. Strayer: There a number of questions wrapped in those two comments. With respect to clause 35, I did not say we were intending to “embalm” the conventions. I was saying we were attempting to preserve them but not to retain them immutable. We also contemplated that this would allow conventions to evolve over time. Of course, it was not the intention that we were going to preserve all the constitutional conventions as they now exist without any exception whatsoever. I think one can go through the bill and find places where modifications have been expressly made.
On Mr. Cowling’s point, it was certainly our understanding of our constitutional history that where conventions have been reduced to statute or have been modified by statute, then they cease to exist as conventions or they continue as modified. I think where the bill does specifically deal with matters otherwise previously dealt with by convention, that they would be effectively modified by the bill.
On the question dealing with clause 53(2) Mr. Lalonde said in the other committee that it was not the intention to change the conventions by that section. There was a question with respect to clause 53(2)(b) and I think it was the purport of what the minister said in the other committee that if, in fact, the conventions had been mistated or overstated then the section should be reconsidered. I would make one or two points about clause 53. It does not say that the Governor General has to accept the advice given in this situation. In other words, this bill would not alter the convention which says that where a government is defeated in the house, the Governor General is entitled to take certain steps on his own with respect to the replacement of that government. Clause 35 of the bill would continue the conventions that exist.
Senator Forsey: It says “shall advise,” and that does alter it, because under the existing convention he has no right whatsoever to proffer advice unless asked.
Mr. Strayer: My point is that the Governor General does not have to take the advice. That was never intended. I do not think that is what the section says. The Governor General can refuse the advice. I cannot imagine the situation conjured up from time to time by some critics of this section of a Prime Minister’s going back again and again with modified “administrations” and thus extending the life of his government. In that situation the Governor General could reject the advice he gets.
Senator Forsey: I did not conjure up that.
Mr. Strayer: I was not suggesting you had, senator.
Senator Hayden: Mr. Strayer, looking at clause 36, would you say that the Constitution of Canada as laid down in clause 35 is one of the laws of the federal authority?
Mr. Strayer: I think the reference in clause 36 to the laws of the federal authority would include this bill to the extent that it becomes law by virtue of its enactment by Parliament. It would not embrace the whole of the Constitution of Canada.
Senator Hayden: This bill says that the Constitution of Canada is made up in such and such fashion, as clause 35 says. Clause 36 provides for the administration and enforcement in relation to both the federal authority and the provincial authority. I simply want to know what is included. You say that Bill C-60, if it becomes law in the form in which it is, becomes a law of the federal authority. But the making of the Constitution of Canada is proposed to be participated in by the provinces as well as the federal authority.
Mr. Strayer: It is the thesis of the bill that there are parts of the Constitution which can be amended by the Parliament of Canada, and those provisions of the bill which would come into effect simply through enactment by the Parliament of Canada would be within the ambit of Parliament’s authority to enact laws. Parliament can amend the Constitution of Canada in a variety of ways, and that is what this bill would be doing.
Senator Hayden: So, if we want to find out what the federal authority is, we look at clause 42 and the following clauses where the title is “The Federal Authority in and for Canada,” and one of the chiefs factors in that is the Governor General.
Mr. Strayer: And the Parliament of Canada.
Miss MacDonald: I wonder if I might clarify the use of the words “the federal authority.” I think I misled the committee a little earlier when we were talking about clause 34. The words are first used in clause 31, and I think I indicated that they could be read separately, being Parliament or the executive government. I think in clause 31, for instance, they are read together as being Parliament and the executive government.
Senator Godfrey: You are saying that in clause 31 (a) it is to be read as a conjunctive?
Miss MacDonald: Yes. When we talk about the federal authority per se, we are talking about Parliament and the executive government. When we get into subsequent clauses—for instance, clause 34( 4) and clause 36—they talk of the laws of the federal authority, and that refers to the laws that relate to the federal authority or emanate therefrom. Some of them may be acts of Parliament. That is why that choice of words was used in clause 34 rather than simply the words “an act of the Parliament of Canada,” because the laws of the federal authority may come from Parliament or they could be—
Senator Godfrey: Regulations?
Miss MacDonald: Yes.
Senator Forsey: Or something under the prerogative.
Miss MacDonald: Yes.
Mr. Cowling: It must be that, because regulations always stem from enabling legislation.
Miss MacDonald: I think the bill is fairly careful in that where it means an act of Parliament in the limited sense of that phrase, the words “an act of Parliament” are used. When it is something more general, the words “law of the federal authority” are used, and that occurs in clause 34 and also in clause 36. But the words “federal authority” themselves contemplate Parliament and the Governor General and the executive.
Senator Godfrey: Where do you see “Governor General” in there? Clause 31 (a) only mentions the two.
Miss MacDonald: The Governor General would be part of the executive, and he is part of Parliament, of course.
Senator Godfrey: Is it generally accepted custom and usage that the Governor General is part of the executive?
Mr. Cowling: There is clause 43 which states that the executive government shall be vested in the Governor General of Canada.
Senator Hayden: Are you saying that the laws of the federal authority are any laws enacted by the Parliament of Canada?
Miss MacDonald: Yes, I think that would be a correct statement.
Senator Hayden: So, it would include more than the Constitution of Canada, if it does include the Constitution of Canada.
Miss MacDonald: Yes, the phrase “the laws of the federal authority” would include any act of Parliament, as well as certain proclamations issued under the prerogative.
Senator Hayden: The question might be as to whether the Constitution of Canada as contemplated in this bill is part of the laws of the federal authority.
Miss MacDonald: I think Mr. Strayer answered that to a certain degree earlier.
Mr. Strayer: This bill basically has two components. Those provisions which may be enacted by Parliament as an act of Parliament, which are not designated, which are not starred, would become a law of the federal authority, namely, Parliament. Those provisions in the bill which are designated and which require the use of the constitutional entrenchment processes to become law would not be laws of the federal authority. They would be something else.
Senator Hayden: If I may just interrupt, are you saying that Bill C-60, when it becomes a law enacted by the federal Parliament, creates the Constitution of Canada?
Mr. Strayer: No, it creates part of the Constitution of Canada.
The Chairman: Senator Robichaud.
Senator Robichaud: I am told that one night in September, 1939, Mackenzie King called on three cabinet ministers and declared war on Germany. That constituted a quorum then. Then he convened Parliament to ratify an act that four cabinet ministers had passed during the night.
During the period of the act taken by the four cabinet ministers and the ratification of that act by Parliament, did a state of war exist between Canada and Germany?
Senator Forsey: I would disagree with the basic fact that war was declared at that point.
Senator Marchand: Is this an issue involving federal-provincial relations?
Senator Robichaud: We are talking about convention, custom and usage. By custom, convention and usage, did a state of war actually exist between Canada and Germany in that interim period?
Senator Godfrey: I do not think he ever did declare war. My recollection is the opposite—that he deliberately, in spite of great fury from some of my right wing Conservative friends, held off declaring war until Parliament authorized it.
Senator Robichaud: I know of one cabinet minister who was involved. He later became the Chief Justice of New Brunswick.
Mr. Strayer: I cannot speak to the particular facts of the meeting of cabinet, but my recollection of what happened is that Mr. King made a great point of calling Paliament together a week after the United Kingdom had declared war. I think the legal position would be that war would not be officially declared until the king had issued a proclamation. That did not happen until after Parliament had met. The words of the proclamation were cabled to London and the king approved them.
Senator Flynn: Would that be Germany’s interpretation?
Senator Robichaud: Suppose my theory were correct, and I believe it is, that an order in council was passed during the night and four cabinet ministers signed it. Would a state of war actually exist by custom, convention and tradition between Canada and Germany? In the affirmative, suppose Parliament, either the House of Commons or the Senate, had failed to approve the act taken by those four cabinet ministers, and the government had been defeated and a general election had ensued, would a state of war have existed between Canada and Germany by custom, tradition and usage?
Miss MacDonald: I would hesitate to try to answer the whole of that question, but I would suspect that what both senators are saying could have happened. In other words, a meeting could have been held during the night to pass an order in council, which could have been done by a quorum of four, directing the issuance of a proclamation. In the intervening time before the actual proclamation was prepared and signed by the Governor General, or the king in this particular case, the matter was taken up by Parliament. I suspect that probably was the sequence of events. They may have had the meeting authorizing the issuance of the proclamation, but until that proclamation actually issued, there would be no state of war. The whole thing could have worked that way. While the proclamation was being prepared, they could have placed the question before Parliament, and, had Parliament not approved, it presumably would have been withdrawn.
Senator Marchand: That does not mean a state of war existed at this time without having the War Measures Act proclaimed by the House of Commons. You may, morally, say that there is a state of war, but before the government can really do something it has to be proclaimed under the War Mesures Act. Therefore, I think what Senator Robichaud is saying is right; that did not mean we were at war; it was just a moral declaration that we were at war with Germany, but the government could not do anything.
Senator Robichaud: It could not spend one penny in the meantime.
Mr. Strayer: I believe the act of declaration of war is an executive act. I do not think the Prime Minister was obliged to go to Parliament to get approval of that; but, of course, had Parliament subsequently repudiated what the executive had done, then there would have been a vote of non-confidence and there would have been an election, as you suggested. However, the actual declaration of war is an executive act which, to be completed, must include a proclamation of war by the head of state. That was, in fact, done by the king after Parliament had considered the matter. It did have immediate international implications. One of the reasons the government postponed a week in declaring war was that they wanted to get some material from the United States which they could not have obtained if Canada were a belligerent.
Senator Godfrey: Can we get the discussion back to clause 53? I am not a constitutional expert, but the statement was made that under clause 53(2)(b) the Governor General did not have to accept the advice of the Prime Minister to call upon him, for example, to form another administration. Is that custom or usage? Is it indicated anywhere in the bill that when the Governor General is advised of a wish to form another administration, he can exercise his prerogative and not follow that advice? Can he do that without criticism and have people like Senator Forsey second-guess him? Where is it clear that he does not have to follow the advice?
Mr. Strayer: It is generally recognized to be part of the reserve powers of the sovereign or the Governor General, where the government is defeated in the House, for him to exercise a certain independent judgment. He may, for example, refuse dissolution if the Prime Minister comes to him and asks for dissolution. If the Prime Minister resigns, he must then look for a new Prime Minister.
I think the point that Senator Forsey raises is an important one, that the conventions are not strongly in support of what is in this bill with respect to the Prime Minister advising the formation of a new administration. The rationale was that if you had a defeat in Parliament and the Prime Minister, in a situation of a minority parliament, felt he could form a new administration with a coalition, it would be sensible for him to be able to advise that.
I think the point of distinction is as to when he would offer any views on that, and I think Senator Forsey is saying, if the Prime Minister offers any views, it should be after he has submitted his resignation or after he is asked by the Governor General for his views and not before. I think that is the point of distinction. Senator Forsey is saying he ought not to tender this advice without being asked, or prior to submitting his resignation.
Senator Godfrey: It sounds sensible to me that the Prime Minister should be able to advise the Governor General even if he thinks he can form another coalition. However, I think it should be clearly set forth that the Governor General is at complete liberty to reject that advice. That is a point of criticism of this bill. It seems to me to be assumed that if the Prime Minister gives certain advice to the Governor General, then he is bound to follow it. Would it not be advisable to put something in here to clearly indicate that he does not need to follow that advice?
Mr. Strayer: Perhaps so. We had thought that with section 35, which preserves conventions, customs and usages; and with section 46, which recognizes that the Governor General can exercise certain powers individually, it would be clear that these reserve powers were being continued. Certainly, if there is any doubt about it, it should be cleared up.
Mr. Cowling: Is it not the case that the convention is that the Governor General should accept the advice of the Prime Minister, but legally he does not have to?
Mr. Strayer: I think the convention is that where the Prime Minister enjoys a majority in Parliament, with some perhaps debatable and limited exceptions, the Governor General should act on his advice. Qhen the Prime Minister does not enjoy the confidence of the house, the Governor General is at liberty to do certain things.
Mr. Cowling: As the Governor General in Australia did, and he did have the last word.
Mr. Strayer: There the Prime Minister did have a majority in the House.
Senator Godfrey: I have read numerous articles on how critical the government was, but what is the Governor General for if he does not do what the Governor General in Australia did? After all, we did fight an election in 1926 on this issue. Canadian people have one opinion, and Senator Forsey has another.
Senator Forsey: And the bill has another.
Mr. Strayer: The difference in Australia was that the Prime Minister did have a majority in the house. In 1926 Mr. King did not.
Senator Forsey: That was a very peculiar situation, involving the provisions of the Australian Constitution. If it is a question of a minority Parliament in which no party has a clear majority and the Prime Minister is defeated, quite apart from usages, conventions and so on, in European countries, even in republics, if a ministry is defeated the president, king, queen, or whichever, then says, “What do we do now?” If the premier is defeated he doesn’t rush in and say, “I’m the chap to do this.” It is the president who says, “Now we will have Mr. So-and-So.” That seems to me the common-sense view of the thing when somebody has just been rejected by Parliament, which to my mind bolsters up the practice as stated by Sir Robert Borden. My reading with respect to European coun-
tries certainly seems to indicate that the premier bows out and then the head of state has to decide what to do, not Mr. Tindemans, Mr. van Agt, Monsieur Stick-in-the-mud or Madame Unetelle.
Mr. Strayer: I think one could argue that it is not entirely contrary to common-sense that the prime minister should be allowed to offer the view that he could form another administration, that he could get support from this or that party in the opposition to form another administration, as long as the Governor General has the right to say, “No, I don’t want any part of that.” There may not be a very practical difference between the Prime Minister saying that before he resigns and the Governor General saying “Yes” or “No” and the Prime Minister resigning and ten perhaps the Governor General asking him if he has any suggestion on what to do next. There may not be a great practical difference between the two.
Senator Forsey: Perhaps I might be allowed to refer Mr. Strayer to the specific place at which Professor de Smith makes the point about the danger of making customs and conventions justiciable. It appears on page 86 of his work, the exact name of which I cannot at the moment find. However, I think it might be worth while for the draftsmen to look at page 86 of that work of Professor de Smith, with which they are probably very familiar.
The Chairman: Thank you very much.
Senator Godfrey: With respect to clause 35, a memorandum was prepared by Professor Kwavnik. I may say that in reading the memorandum and his suggestions for improving the drafting, I agree with him about 80 per cent of the time; not 90 per cent or 100 per cent, but about 80 per cent. For the record, he refers to clause 35 as “meaningless puffery,” and suggests that it should simply say:
The Constitution of Canada shall be the supreme law of the Canadian federation.
He says it should stop there. The Constitution of Canada is obviously not this act, because it leaves out the word “Act”; it is not “The Constitution of Canada Act.” I think there is a great deal of merit in this.
Mr. Strayer: There are some other provisions of clause 35 that have been thought by some to have all sorts of sinister implications and not to be mere “puffery.” However, we will take all these comments into account.
The Chairman: Gentlemen, it is now almost 12:30. I think there is a danger that we will get stuck in the mud, to use Senator Forsey’s description of one of those possible premiers of Holland. Unless there are further important questions in the area we have been discussing this morning, perhaps we should move to the Supreme Court of Canada and the House of the Federation this afternoon, and hopefully wind up Mr. Strayer’s very patient evidence before the committee. I think it
important we shoud deal with the Supreme Court of Canada, because we will have Mr. Justice McRuer before us tomorrow and I should like the committee to have a good run at the drafting of these provisions so that we certainly understand them before we begin talking to him. If that is generally acceptable, we will adjourn now until 2 o’clock when we will come back and move into the area of the Supreme Court of Canada and, hopefully, the House of the Federation.
The committee adjourned.
The committee resumed at 2 p.m.
The Chairman: Honourable senators, continuing our discussion from this morning, perhaps we could commence with the subject of the Supreme Court of Canada and the provisions relating to the Supreme Court of Canada.
Mr. Cowling, if you want again to start off, we would appreciate it.
Mr. Cowling: Mr. Chairman, those provisions begin at page 49 of the bill, section 100. The first question I have noted, because it arose from our earlier discussions, may be of a policy nature. I should like to ask the question and see whether there may be some non-policy aspects to it.
As we understand it, the consultation that takes place when a vacancy occurs on the bench of the Supreme Court is between the Attorney General of Canada and the attorney general of the province in which the prospective candidate is a member of the bar. The point has been raised that since, except so far as Quebec is concerned, these appointments are supposed to be regional in nature, perhaps the attorneys general of all of the provinces in the region should be consulted rather than just the attorney general of the province in which the bar to which the candidate belongs is. Is that too much of a policy question?
Mr. Strayer: I suppose it is principally a policy question. The pattern which is proposed in this bill is the same as that which was discussed at Victoria and was put into the Victoria Charter. I do not think there was any particular disagreement about this particular issue with the provinces at the time. It would be a potential problem only with respect to the western provinces and the Atlantic provinces.
Mr. Cowling: That is right.
Mr. Strayer: But I suppose there is a policy question there as to whether all of the provinces in that region would be seen to have an equal interest in that appointment.
From a technical point of view it would complicate the process somewhat—the process as contemplated here with respect to the formation of a nominating council—but I suppose some variation could be worked out to deal with that.
Mr. Cowling: On the subject of nominating councils, is that not really an improper term for the kind of committee that is envisaged in this bill? I mean the nominating council does not
really do any nominating, does it? Would it not be more appropriate to call it an arbitration council?
Mr. Strayer: Well, it does produce a nominee in the sense that a name is produced which then has to be considered by the House of the Federation. The actual appointment is made by the Governor in Council so it is a distinction between the appointment process itself, which is a matter for the Governor in Council under section I 02, and the affirmation process of the House of the Federation and the process at the provincial level, which is described as a nominating process.
Mr. Cowling: But the nominating council cannot come up with any names on its own. It can only deal with the names that are put before it by the Attorney General of Canada, and which he has discussed with the attorneys general of the provinces. Is it envisaged that there might even informally be some flow-up from the nominating council or other sources with respect to other candidates?
Mr. Strayer: The only limitation in the bill is that the Attorney General of Canada, where the matter goes to a nominating council, must put before the nominating council the names of at least three persons about whom he has sought the agreement of the attorney general of that province. This is laid out in section 106, subsection (6). Therefore, the names would have to be names discussed with the provincial attorney general.
As I read section 106(6), the Attorney General of Canada could not at that point introduce extraneous names that had come to light after he had had his discussions with the attorney general of the province.
How the discussions between the attorney general of the province and the Attorney General of Canada might go is a little hard to foresee, but one can imagine consultations having taken place before those formal discussions were held.
Senator Lucier: Mr. Chairman, this may not be the proper time to ask this question, but it seems to me that the drafters of the legislation have ignored the fact that about two-thirds of Canada happens to be north of the sixtieth parallel. All of the discussions taking place on the bill concern the ten provinces, which happen to be below the sixtieth parallel. We do not want to deny the fact that the people of Prince Edward Island should have a representative on the Supreme Court, and the fact that we could put Prince Edward Island in one small corner of our territory and not even see it is probably neither here nor there, but I wonder is some provision could not be made for the north in this type of legislation.
I am not suggesting that we should have a supreme court justice for each territory. I realize that population has much to do with it, but is there not some way of having at least one representative for the territories? Could there not be some concession made for the northern territories? It seems to me that we are large enough and have been ignored long enough in many of these areas that we should have some type of recognition.
Mr. Strayer: I should say that the drafters as such were fully aware of the existence of the territories. It is essentially a policy question, however, which I cannot really deal with. Section 104 leaves open the possibility of appointment from the territories, of course, but it does not guarantee that there will be an appointment from the territories.
Senator Lucier: We are pretty well guaranteed that there will not be an appointment. The point is that in section 102 you mention the “Chief Justice of Canada, and ten other judges, who shall be appointed respectively by the Governor General … ” You discuss provincial jurisdictions.
Senator Hayden: Senator Lucier, look at section 103, dealing with the eligibility of persons for appointment. It says:
” … a judge of any court in Canada or a barrister or advocate at the bar of any such province or territory … ”
Senator Lucier: I understand that they could take one from the territory, senator. I am simply saying that there just happens to be the right number of judges to fit the number of provinces. What I am saying is that there is more to Canada than the ten provinces.
Mr. Cowling: There is no mention of the territories when the bill deals with the regions from which they are to be drawn.
Senator Lucier: No, there is not.
Senator Godfrey: Do you think the Territories should be guaranteed one appointment to the Supreme Court?
Senator Lucier: I would like to think that there would be one appointment other than from the provinces. I think the number ten did not just come out of the blue. It was arrived at because there are ten provinces.
Senator Godfrey: There are going to be 11 appointments. The last appointment Prince Edward Island had was Sir Louis Davies, I think. But if there is someone with the ability and comes from the territories, there is no reason why he should not be appointed.
The Chairman: While I suggest it is a good question and a good matter for consideration, it is really a policy question and, as such, is a question to which we can hardly ask Mr. Strayer to respond except insofar as it relates to the drafting of the bill. I suppose the point you are raising is whether there is a relationship between the number ten and the ten provinces.
Senator Lucier: Yes. We are talking about ten judges and ten provinces. We from the north do not like to miss an opportunity of pointing out that there is more to Canada then the ten provinces.
Mr. Strayer: On the point of ten judges and ten provinces, I do not think that is really the concept of the bill. In the first place, four of those appointments are from Quebec because of their civil law system, and the other six must be distributed among the rest of Canada. While there are minimum requirements for one judge from each of the other three regions, plus British Columbia, there is nothing in the bill which states that the judges shall be evenly distributed amongst the provinces. In fact, they could not be because there are only six judges to be distributed amongst nine provinces.
If one looks at past experience, the typical pattern has been three judges from Ontario, three judges from Quebec, two judges from the west and one from the Atlantic provinces. So there has been no practice of one judge from each province.
Mr. Cowling: Except that the territories are excluded from the regions that are to be considered. Could you not put in, for example, the following words: “From among the western provinces and the territories and British Columbia.” At least then the territories would not escape consideration.
Senator Lucier: Can the north not be considered a region of Canada?
Mr. Strayer: I suppose so. I have never been quite sure as to what defines a “region.” One can define that in various ways.
Mr. Cowling: It is a word like “market.”
Senator Olson: This may be a policy question, and I am not sure whether Mr. Strayer wishes to answer it or not. However, I will ask it on the assumption that he will respond to it. After it was determined what the policy would be for the clauses dealing with the procedure for appointments was decided upon, you were then asked to give legal terminology that would give effect to that policy. I am wondering whether all that is involved in this procedure for nomination and subsequent appointment is not much different from that which happens now, and if it is, I am wondering whether it is not simply an attempt to codify it to some extent or to formalize the procedure that has been initiated by the Minister of Justice until he reaches the point where he recommends to the Governor in Council the appointment of an individual?
Mr. Strayer: I will answer that to the best of my ability. I can say that I think it was not the intention to codify the existing practice. Of course, the reason is that, in the first place, there is no involvement of the Senate or anything comparable to the House of the Federation now.
As far as I am aware, the sort of consultations which go on are essentially held with the Canadian Bar Association and not necessarily with the provincial attorneys general. I do not think this reflects the existing practice. Certainly those were not the instructions we were given. This really reflects the discussions which have gone on with the provinces over a number of years and, for the most part, incorporates what was agreed to at Victoria in 1971.
Senator Olson: I agree that it expands to some extent the procedure or at least changes it in that it takes away some of the so-called secrecy that is now used to reach the stage of appointment. The question was raised once before. It is whether, in practical terms, you can get around this change. You changed the word from “secrecy” to “confidentiality.” In practical terms, does not confidentiality have to remain if one is going to seek the qualifications that are required? The question was raised as to whether someone would want to be
subjected to this public scrutiny while the process is being put forth.
Mr. Strayer: That is a critical question. The processes that are laid out in the bill, up to the stage of nomination before the House of the Federation, could—and I expect would—be carried on in confidence. That is not really addressed directly in the bill, but I think one would assume the consultations which took place between the Minister of Justice and the provincial attorneys general would be confidential consultations. The work of the nominating council would probably be in confidence as well.
Certainly the criticism can be made that at the stage of the House of the Federation nominees would be exposed to public scrutiny and criticism.
There is another argument to be made on the other side of that issue, and that is that these are very important appointments and they should not be carried out completely in secrecy and that it is a salutary thing to have some step in the process where there is the possibility of public comment.
One can read the experience in the United States two different ways. One can find examples of unpleasant situations in the United States Senate where it has to confirm Supreme Court appointments. On the whole, I think the experience there has been good and the results on the whole have been quite good. I do not think you could say that the Supreme Court judges in the United States are people who got there because they have particularly thick skins or a particular political ability to get there. They have been very competent people.
It is an issue that is essentially a policy issue. Once can see both sides of the question.
Senator Hayden: Mr. Strayer, is there a regional point that has to be looked at when the United States Senate is considering a proposed appointment?
Mr. Strayer: Not as far as I am aware. There may be some conventions which the President follows in choosing the people whom he nominates, but I don’t think that they are nearly as elaborate as this. There may be some sense of having a north-south balance, but beyond that, I do not think there is a conscious regonalization of the court.
Senator Hayden: I was wondering why we have a number of checks here at different points when in the United States the problem is a larger one because of the size of the country, but I would say, not any more important than the selection here. Why do we need more checks?
Mr. Strayer: Again, this gets us back to some basic policy issues with respect to the concern which some of the provinces have expressed over the years that because the court is appointed solely by the federal government, somehow or other the implication is that it does not take into account provincial interests to the extent that it should. That is a suggestion that is much easier to make than to document. I think it would be very difficult to document it. Nevertheless, the feeling has
been there, and the provinces have for quite a long time pressed for some role in the appointment of judges.
The idea of having a two-stage process, one involving consultation with a particular province and the second involving the House of the Federation, was designed to provide some kind of balance. In the consultation with the province, regional concerns might be more pre-eminent, but the affirmation by the House of the Federation would provide some sort of national check on the system. A person, therefore, appointed would not be approved if he were seen by the House of Federation as perhaps having only the narrowest of regional interests at heart and as not being a proper person for the Supreme Court of Canada where he would have to judge cases from all over the country.
Senator Hayden: But the proposal contained in the bill does constitute a double check insofar as the provinces are concerned in that the majority of the members of the House of the Federation will be provincial appointments and, secondly, the attorney general of the particular province comes into it.
There is the check provided by the House of the Federation, the selection by the Attorney General of Canada, and the participation in the matter by the attorney general of the province where the proposed appointee resides or practises. We are certainly piling it up. One would think we did not trust these things to people.
Mr. Strayer: There are some people in this country who do not trust them to the Government of Canada, apparently.
Senator Olson: Might I ask whether or not you anticipate that the House of the Federation, when asked to ratify this, would be permitted—and I use that word advisedly, because I presume they could do certain things that they decide they are going to do—permitted to call for the background information leading to the nomination, which background information would include, I suppose, the communiques between the federal and provincial attorneys general, as well as other matters?
Mr. Cowling: Perhaps I might be permitted to put a question, Mr. Chairman, which I think ties in with Senator Olson’s question.
Would it be possible under this bill for the House of the Federation to refer the matter to a committee of the House, which would be a more appropriate body to receive the kind of information contemplated by Senator Olson’s question.
Senator Olson: Further to that, is it anticipated that the nominee—and I presume it is only one each time—would be called before the committee? Also, is it anticipated that the committee might call before it some of the other people named in the bill, those being the particular attorney general of the province concerned and members of the nominating council, prior to a vote on ratification?
Mr. Strayer: As far as I can see, the House would be at liberty to make its own rules on the matter and could handle it as it saw fit.
Senator Olson: I do not dispute that. I am just wondering whether the policy directive which was given to you anticipated that these things might happen.
Mr. Strayer: I cannot recall that issue being considered or any instructions having been given on that particular question.
Senator Godfrey: In relation to the previous discussion we had about whether people could be appointed from the territories, Senator Lucier has brought my attention to subclause 106(3) which would, in effect, make it impossible for an individual to be appointed from the territories, because before an individual can be nominated, the attorney general of the particular province must agree to the nomination. Because the territories do not have an attorney general, that would apparently make such appointments impossible. Yet clause I 04 speaks of appointments “from among provinces or territories.” Obviously, there is some bad draftsmanship here to begin with. What was actually meant? Those two clauses contradict each other.
Senator Yuzyk: In that respect, I would draw your attention to the fact that subclause 112(3) states:
For the purposes of this section, the term “province” includes the Yukon Territory and the Northwest Territories.
But that is only for that clause. Why could not that be applied to other clauses of the bill?
Mr. Strayer: I think the point raised is a very good one. I was having a disturbing thought for a moment along the same line after our earlier discussion. First, I am not sure what the situation would be where a member of the territorial bar was also a member of a provincial bar, specifically whether in that situation subclause 106(3) could be made to apply or not.
I suppose the answer probably is that the Attorney General. of Canada, who is also the Attorney General of the territories, would consult with himself. Clause 106(2) is applicable only where the appointment is to be made from a province.
Senator Godfrey: Could you tell us at least whether it was the intention to permit appointments from the territories.
Mr. Strayer: To the best of my recollection, yes. Clause 104 flags the possibility of appointments from the territories.
Senator Godfrey: Perhaps we can leave it at that and simply point out that subclause 106(3) makes it seemingly impossible to have appointments from the territories.
Still on the subject of the Supreme Court, we had a discussion previously as to whether subclause 107(2) referred to sitting days or not. We also went into the fact that simply by conducting a filibuster for 14 days, the appointment is automatically affirmed. A minority of senators could ensure a nominee’s appointment, notwithstanding the wishes of the majority, by simply conducting a filibuster.
Before asking you to respond to those two points, I would point out that subclause 63(2) does refer to sitting days, whereas clause 107 simply speaks of 14 days. There is obviously a distinction.
Mr. Strayer: Subclause 107(2) speaks of the first 14 days that the House of the Federation is sitting, so that, we believe, is a reference to sitting days.
Senator Godfrey: Why do you believe that?
Mr. Strayer: It is the first 14 days that the House is sitting.
Mr. Cowling: Does it mean days on which the House actually sits on each of such days, or simply 14 consecutive days during a period in which the House may be sitting some of that time?
Senator Godfrey: If it means six sitting days, then it is not clear and it should be changed.
Mr. Strayer: One can contrast it with the provisions of section 67 which deal with the suspensive veto. There it talks about so many days having elapsed, and those are not sitting days. This is in contrast and it is days that the house is sitting. However, if the intention is not clear, it should be cleared up.
Senator Godfrey: What about the filibuster?
Mr. Strayer: I would think that is a matter which can be dealt with by the rules of the house. Has it no way to bring a matter to a vote? I cannot quite envisage what the rules of this house would be, but I would think there would be a way of dealing with that in the rules.
Mr. Cowling: Clause 107(2) says: “the House of the Federation shall debate the matter of the nomination”. Do I understand you correctly, Mr. Strayer, as saying earlier that in your view this would permit the house to have some rules whereby the matter could be referred to committee?
Mr. Strayer: Yes, I can see no reason why they should not have rules to do that, and if one is talking about 14 sitting days, this could be spread over some period of time.
Mr. Cowling: Another question arose under section 107(3). There is reference there to adjournments and prorogation, but what about the situation where Parliament has been dissolved? I understand that is a different concept.
Mr. Strayer: If the house were dissolved, I do not think this procedure would apply. I suppose one answer to that is that would not be a proper time for appointments to be made because, presumably, both houses would be dissolved at that point.
Mr. Cowling: But the earlier provisions do not prevent the Speaker from receiving the notice at a time when the house may be dissolved, or is there even a Speaker when the house is dissolved? Perhaps that is the answer to the question.
Mr. Strayer: I would have thought that if the house were dissolved, then there would be no way of proceeding with the matter under clause 107(3) and you would be back to the rules of clause 107(1) and 107(2). In other words, the matter would have to await the re-establishment of the house.
Mr. Cowling: In other words, the starting point is that there must be a Speaker who is capable of receiving the notice provided for in section 107(1).
Mr. Strayer: There would be various problems. Clause 107(3) is really an exception to 107(1) and (2), and that exception would not apply if the house is dissolved. If the house were dissolved, clause 107(1) and (2) could not operate. As you say, there would not be a Speaker. Moreover, the house would not be sitting, and it is only expected to do certain things within its sitting days under clause 107(2). They could not be expected to do those things.
Mr. Cowling: They would not be sitting if they adjourned.
Senator Hayden: Have you thought of the situation where some provincial government may be at the stage of a provincial election and the nominee that the Attorney General of Canada proposes may be from that province? That stymies that procedure, does it not?
Mr. Strayer: On the basis that a provincial government ought not to be making appointments at that time. Whether that principle should apply to consultation in this context, I am not sure, but probably it should.
Senator Hayden: With 10 provinces, I would say that you are bound to have an election every year in some province. That is a fair assumption.
Mr. Strayer: Yes, and it could result in a delay if it happened. to be the turn for that province and they happened to be in the midst of an election. There could be a delay of a month or two months before anything could happen. These appointments, from any given province, are not made that often, and I suppose the odds are against those events coinciding with a provincial election, but it could happen.
Mr. Cowling: On section 107, I just have a very small drafting suggestion. At the top of page 53 it says:
—if fewer than ten members thereof request such a debate—
Surely it would be better to say, “unless more than ten members thereof”. It seems to be worded backwards.
Mr. Strayer: Yes, I think that is probably a good point. We will make a note of that.
Mr. Cowling: It is a very minor point. If there are no further questions from the members of the committee, I want to turn to the civil law provisions and the way the court would deal with civil law cases.
Those provisions are found in clause 111. A distinction is made between a case and a question, so that, so far as we can understand, it may be possible for a case arising in Quebec, say, to go into the Supreme Court. The panel hearing the case in the Supreme Court might be composed of common law and civil law appointees, but only the civil law appointees would rule on the particular civil law questions. Is that the way it would work?
Mr. Strayer: Yes, that is the expectation, and the decision of civil law judges on a point of civil law would be incorporated in the judgment of the court on the whole case. There is a distinction between a decision on that particular question and the judgment on the entire case which would resolve the dispute between the parties.
Mr. Cowling: In practice, do you think that all Quebec cases would start with a mixed panel and only as they go into the case would they decide whether there were civil law questions which could only be decided by the civil members?
Miss Alice Desjardins, Q.C. (Director; Consultation and research Services): You have asked me how, in practice, the court would proceed. You have asked me if the Court would proceed with a mixed panel. I would tend to say that the question should probably be referred to be chief Justice once the bill adopted.
Mr. Cowling: That gives rise to a second question. In fact, a number of questions follow from this section. What is exactly a question of civil law since no definition given in the bill?
Miss Desjardins: No. To us it is “a question of law relating to the civil law of Quebec”, including private law in the province of Quebec and namely matters arising between individuals. I believe that at the begining, under l’Acte de Quebec, it was intended that civil law should not include public law in Quebec or matters arising between individuals and the State, but should include all questions of law concerning matters between individuals. It would include commercial law, law of insurances, but not State insurances and, in our mind, it could also include civil procedures because it is an area of law related to matters arising between individuals.
Mr. Cowling: It would not be limited to the Code civil only?
Miss Desjardins: No, and it would include all the questions of law bearing on matters between individuals. It is the private law of the province of Quebec. Obviously, everyone knows how difficult it is to decide in any a given case, whether it is purely a question of civil law.
Mr. Cowling: There are many cases which raise mixed questions, and it was suggested to this committee that the famous case of Roncarelli v.s. Duplessis was an excellent example of a case that raised both public and civil law
questions. On the basis of that suit the way the door was opened to the application of public law was through Article 1053 of the Civil Code. Then the whole case was decided on the basis of public law really and the standards that applied to the behaviour of a minister of the Crown. If you had a case such as that, would it be just the civil law judges who heard it, or would that be appropriate for a mixed panel, or would they have to divide the work in some way?
Miss Desjardins: What you are asking me in fact, is how we think the Supreme Court would settle such a case.
Mr. Cowling: I don’t know that it is fair to pass this off on to the courts.
Miss Desjardins: No, I can comment on this. The Roncarelli case was purely a civil law case which would require interpretation of statutory law and raise the question of the «rule of law». I believe that it would be necessary to have a mixed panel to settle civil law question raised under Section 88 of the Code de procedure civile, or section 1053 of the Code Civil. The civil law group would be asked to rule only on the broader questions, whereas the interpretation of statutory law in the province of Quebec would be left to the court as a whole.
Mr. Cowling: I do not believe there is a provision here for the court deciding whether a question is a civil law question or not. In the Victoria Charter, which dealt with the whole matter in another way, there was a provision at least whereby you could get a decision on whether a question was a civil law question or not. Has any consideration been given to that idea?
Miss Desjardins: I would tend to believe that you would need a majority of the court in order to know if the case is a matter of civil law or not.
Mr. Cowling: But that is not in the bill?
Miss Desjardins: No, but it seems to me that it is part of the normal proceedings of the court in such a case. I do not see how else it could proceed.
Senator Godfrey: Could I ask a question on that line? I should like to read a couple of short paragraphs from comments on this bill prepared by Professor David Kwavnik of the Department of Political Science, University of Carleton, Ottawa. He says:
First, the myth that the common law judges have done violence to the meaning and intent of the civil code. In 1967, I attempted to test this proposition empirically. To that end, I searched the Supreme Court Reports for the 7-year period 1960-1966 inclusive for cases which, according to their headnotes, involved the interpretation of the civil code and/or the code of civil procedure but no other legislation (in order to avoid getting into the problem of determining the exact point upon which the case turned.)
A total of 51 such cases were found. The results may be summarized as follows: 44 cases were decided unanimously, there were no cases in which the majority decision of the whole panel was dissented from by a majority of the
civil lawyers. There was only one case in which the result was determined by the common lawyers—the panel had consisted of 2 civilians and 3 commoners and the civilians had disagreed among themselves.
That research was done for the years 1960 to 1966. Did you people do any research subsequent to 1966 to indicate that the situation has changed in any way?
Miss Desjardins: We have not taken any official position on the matter of deciding whether civil law has in fact been corrupted or misinterpreted by the Supreme Court of Canada. Quite a number of research projects have been undertaken nevertheless. I am namely thinking of the study made by Professor Peter Russell of Toronto and of which Mr. Lederman has already spoken to you when he appeared before the committee. Let us say that there has been a considerable number of studies make in Montreal and Toronto universities on those issues. Some have said that common law judges saw civil law in the light of their own knowledge of common law, and that they often misunderstood the provisions of civil law. I am therefore only repeating opinions expressed by some lawyers throughout Canada.
I believe that that provision reflects, or tries to reflect, or correct this situation.
Senator Godfrey: I have a little difficulty with the interpretation. It is not coming through very loudly, but I do not think you quite answered my question.
Senator Marchand: She speaks very good French.
Miss Desjardins: Merci.
Senator Godfrey: The English interpretation is not so great; that is the problem. What I am trying to find out is whether statistically anybody has gone through the cases from 1966, or in any period, because my understanding is that whenever there is a Civil Code matter before the Supreme Court of Canada they always have a majority of three Civil Code judges sitting on the case, so they really have a panel of five. Since 1966, since this study was made, is there any indication that the common law judges have in any way overruled a majority of the Civil Code judges? Has there been a situation where there were two Civil Code judges to one Civil Code judge and two common law judges sided with the minority dissenting, and who, therefore, overruled the Civil Code majority? Is there a single case you can refer us to that would indicate the necessity for this clause? I am looking for names.
Miss Desjardins: We did not do the kind of research that you are referring to.
Mr. Strayer: Perhaps I might just add something on this. Mr. Lalonde made the point in the other committee recently. The Department of Justice has not advanced the thesis that the Supreme Court has undermined the civil law. This provision is there to deal with the frequently expressed point of view in certain quarters that there has been this effect, or that even if there is not this effect there is the appearance of the
possibility of this effect. We are not really here to challenge what Professor Kwavnik says. What he says does not surprise me in the least.
However, the problem is there and has been recognized before. It was addressed in the Victoria Charter in one way. The joint parliamentary committee report of 1972 addressed this problem, and went further in a sense, because it recommended that any province should be allowed to terminate appeals to the Supreme Court in matters of provincial law. That would have been one option that could have been followed, but was not, in this bill. What I am really saying is that we are in the bill addressing what is an additional problem, and no matter how many analyses one does one cannot eliminate the feeling that there is a problem, real or potential, and we are trying to meet that particular concern. Of course, studies have been done, particularly in Quebec, as Alice Desjardins has said, where the argument has been made that there has been a harmful effect on civil law by decisions in the Supreme Court of Canada.
I am not here to advocate the validity of those studies, although they do exist and there is some documentation for them.
Senator Godfrey: At least three or four weeks ago I said that if there were any such studies I should like to have a copy of them. To suggest that there is no way that you can change attitudes by facts is not a position I can agree with. I am afraid I don’t agree with you. Until I saw this document done by Professor Kwavnick, I was not aware that this was the case, and surely it would not be too difficult for the Department of Justice to carry out this type of factual survey for the benefit of this committee. Just study it from 1966 on, or go back and check with Professor Kwavnick. If, in fact, the problem does not exist, why put in something which is really divisive? You are saying that the common law lawyers cannot sit on civil law cases but that civil law lawyers can sit on common law cases. That just does not make sense to me. Is it possible for you to get somebody in the Department of Justice to do the research for this committee, and to carry on with what Professor Kwavnick started? I would like to tie you down, because I like facts and not this attitudinal business. The facts may not change attitudes, but let’s have the facts first.
Mr. Strayer: We could probably provide references or copies of some of the articles, and so on, that have been published on this subject. I am not prepared at this point to undertake that we will do a thoroughgoing piece of research on this, because I do not think we have the resources to undertake it. We will try to make available to you what material is available.
Senator Godfrey: Will you at least look into it? This seems to be remarkable. This is an important question. Are you suggesting that you cannot do what Professor Kwavnick was able to do all by himself? Are you suggesting that you have not anyone available to do this for the benefit of this committee?
Mr. Strayer: This is not the only problem we have to deal with. I do not know what Professor Kwavnick has to do, but we have a number of other problems to deal with. When all is said and done this is not central to the thesis we are advancing. We are trying to address here a felt problem. Certainly, if we had boundless resources, we could carry on the research, but I am not sure that the interpretations put on the Supreme Court decisions by the Department of Justice would necessarily satisfy this committee anyway. So unless I am so instructed by my minister, I do not think I would be prepared at this point to undertake to carry out that kind of study. We will try to provide you with materials which are available.
Senator Marchand: Mr. Speaker, I am now going to apply cold logic. As I see it, the way in which Senator Godfrey sees the problem is an indication, precisely, of a cultural difference. Now, without establishing any hierarchy between the cultures this is not the point at issue; the issue is one of legal training. That is to say, whether the work he requires is done or not, whatever its results may be, and if the research is done and has been carried out exactly along the lines just mentioned by Senator Godfrey, that does not change a thing in my opinion. Nonetheless, I feel that this provision should obviously be kept there, in view of the present situation in the province of Quebec. That would enable us, in fact, to say to people who are aware of this difference between the Civil Code and this special, let us say, legal training of Quebecers who still live under the Paris legal custom, that this is entrenched in the Constitution. For, if we look solely at the facts, there will always be this basic prejudice whereby it is those whose legal training is based upon common law who will always end up winning. Whereas, if it is explicitly indicated in the Constitution, we will feel that real protection is provided and, indeed, we do believe in this culture which we want to safeguard and which is ours. This may not be a very strong argument either legally or philosophically, but I challenge anyone here to come to a meeting and try to prove me wrong. They will see that the legal distinctions are not fully grasped, because that which is not written is officially stated. There is nothing that can be done about it. Prejudice will continue to be felt along the same lines as it is now, and this was very aptly described, if you will, by Mr. Duplessis who said that the Supreme Court is like the Tower of Pisa because both always lean the same way. Mr. Duplessis does not have to prove anything anymore; he does not have to do anything anymore; this has become part and parcel of customs. So, the research in itself may be interesting as such. I am not saying that it would not be interesting; I would be interested in seeing the results, but it would not change my opinion.
Senator Godfrey: I suggest that there may be one alternative that can be put into the Constitution, and that is what the actual practice is now, namely, that there must be a majority of judges from the Civil Code province. If the facts show that there is a majority and that it is always the majority which decides it, then that is another alternative.
Senator Marchand: Why is it necessary to make a compromise on this at this stage? What embarrassment do you see in it? I am trying to see what you have in mind, because there is a difference between the Civil Code and the common law. There is no doubt about that in my mind. If there is a difference, why not indicate that we recognize that fact?
Mr. Cowling: May I make a comment on that, Mr. Chairman? When I was in law school I learned that one of the great things in Canada was the fact that the civil law system had learned something from the common law system and had been inspired by it in certain areas, and that the converse was also true. As a matter of fact, I can recall the example of the civil law beneficially inspiring the common law better than I can the other way round. The example that was often given was in the area of contriburoty negligence. It was said that the Quebec Civil Code rules on contributory negligence had had an effect on the common law interpretations which was thought to be beneficial and which had been accepted by common law scholars.
I think that with a provision such as we have in this bill the chances of intercourse between the two systems will be diminished and perhaps to the disadvantage of the two systems.
Senator Marchand: I do not believe that. I do not believe that any text in any book, even if it is an important book like the Constitution of Canada, can prevent this exchange. Not at all. Even if in Quebec we have some specific institutions, and we have provincial control of education and we have a different culture, say, there is no doubt that the Quebec culture, to the extent that there is one, is influenced not only by the Anglo-Saxon culture but also by the total North American culture. This is why many French Canadians feel more at home in Toronto than they do in Paris, Even if we say we are French, we speak French, and our culture is French, there is no doubt that this culture is quite different from the one existing in France. I do not think this will prevent what you mentioned. I think this type of exchange is good for Canada.
One argument I use in fighting separatism is that whatever barrier one tries to build against anglophones in Canada, it is useless because this culture is going to come here in any event, whether it be through televison, through literature, and so forth. French Canadians will go to the Atlantic shores in the summertime and those richer French Canadians will go to Miami. You cannot prevent that anymore than you can prevent a common law lawyer and a civil law lawyer being influenced. I think they are influenced, and I think it is a good thing that they are influenced.
For those who are going to ask what kind of guarantees there are in the Constitution concerning the civil law, something which was protected in the act of 1867, you can say that you are reinforcing that. You may say that the only value of that is political, but political in that sense is something damn important. I am not talking about the Conservatives, the NDP
or the Liberals. I am talking about a political fact which is probably more important than anything else.
From a legal point of view, I think you are right. But if we take into account the political situation at this point in our history, I think you should bear this in mind.
[Text] You, me and anybody else one day will have to explain how the values we want to protect are protected, and they are protected in the new Constitution. This is the way I see it. It is not formally legal, but I think it is right.
Senator Robichaud: It is emotional.
Senator Marchand: When you talk of these things it is always emotional. I am not a machine; I am a human being. It so happens that there are many human beings in Canada.
Senator Godfrey: I personally was not aware, until fairly recently, of the practice of a majority of civil law trained judges. I doubt that many people in the Province of Quebec knew this. There will always be a majority of anglophones dealing with common law, so you have tit-for-tat. That would be an easy thing to sell to someone. You could have a seven-man court with four civil law trained judges. That would satisfy any feeling.
Senator Marchand: You think it would.
Senator Godfrey: I think so. Were you aware that they always had to have a majority of civil law trained judges?
Senator Marchand: Yes.
The Chairman: The Constitution is both an administrative document and a political document. The problem is to satisfy the political needs within a reasonable administrative framework. The only problem we have with this discussion—and it has been an excellent discussion—is that basically Mr. Strayer can help us with the administrative aspect but not the political aspect.
Mr. Cowling: I have a truly administrative question. Clause III talks about questions of law relating to the civil law of Quebec. It does not say cases arising out of the courts of the Province of Quebec. A question has been raised with respect to a case arising out of the courts of Alberta, for example, involving a question on the civil law of Quebec. This is not so far far-fetched. An Alberta court might be called upon to construe a contract to which Quebec law applied. The question is whether a case of that kind could reach the Supreme Court of Canada having gone through the Alberta courts with the civil law question in it? Would that question in those circumstances be decided by the Quebec appointees?
Mr. Strayer: I think the answer is yes it would. I suppose I am not entirely certain as to how the Supreme Court might view that. I suppose the essential question is what would be the result of a holding by the court on a point involving Quebec civil law, no matter where the case comes from. If the effect would be to crystallize the civil law on a particular point, then that would have happened just as readily if the point were involved in an Alberta appeal as it would in a Quebec appeal. I
think the rule would apply, but that does not mean the whole case would be decided by the Quebec judges. That particular point would be decided in that manner.
Mr. Cowling: I want to make sure I understand the section correctly. Do I understand that this possibility might occur on a case involving a civil law question? Of course, there will be four judges from the Province of Quebec. Let us say that one of the judges was indisposed and could not sit on a case involving civil law, leaving only three out of the four. Is it possible that a majority of two to one of the three would carry the day, so to speak? Is that the correct interpretation of the last few lines of subclause (2) of clause 111? Of course, I am thinking of a situation where you might get a two-to-one decision reversing a unanimous Quebec court of appeal decision which had, in turn, confirmed the trial judgment in Quebec, so that you would end up with considerably more judges on the losing side, shall we say, than on the winning side? That can happen today, as someone pointed out. With these numbers you do get down to this two-to-one situation, or two-to-one seven situation if you include the other judges. This, it seems to me, might leave the litigants wondering about the judicial system. I think, under the present system that aspect of it is glossed over because there would be at least five judges rendering a decision in a case or participating in a case.
Mr. Strayer: We interpret that clause to mean that there would have to be at least three judges deciding in a particular way to have a decision. It must be the decision of the majority of the Quebec judges.
Senator Godfrey: The majority of the four and not the majority of those sitting on that case?
Mr. Strayer: No.
Mr. Cowling: I do not think that is clear.
Mr. Strayer: The words are:
—a decision of a majority of the judges of the Court appointed from Quebec … shall constitute a decision of the Supreme Court thereon.
Mr. Cowling: Yes, but up above that it states:
—a majority of the judges of the Court appointed from Quebec shall constitute a quorum—
A majority of four is three, so the quorum is three. You might have started out with two common law judges sitting on the case, but when they reach the question on civil law, there are only three judges participating. They might divide two to one.
Mr. Strayer: It still requires the decision of a majority of the judges of the court appointed from Quebec. That is a majority of the four.
Mr. Cowling: What is the meaning of the following words:
—a majority of the judges of the Court appointed from Quebec shall constitute a quorum—
Really what you should say is that all four judges must sit on every such case.
Mr. Strayer: If you can assume that three judges can agree on something, then three judges may sit and those three judges may decide.
Mr. Cowling: What you are saying to me is, in terms of a two-to-one decision, that if the three sitting divided two to one, that would not be sufficient to reverse the appeal, to put it into plain language?
Mr. Strayer: No. if it is split that way, then the decision of the court of appeal would stand.
Senator Godfrey: On the question of law only and not on the case itself?
Mr. Strayer: No.
The Chairman: That explanation does not stand out from the wording.
Senator Godfrey: No, but it is probably the right explanation.
Mr. Strayer: I think it is clear in the French version.
Senator Godfrey: It is clear when you look at it, but that is quite a result.
Mr. Cowling: Clause 112 is something I have a great deal of difficulty with. It deals with the jurisdiction of the court. Without putting a specific question, I wonder if any of the witnesses could explain that clause, because I find it most confusing.
Mr. Strayer: Perhaps I can start off and my colleagues can assist. First and foremost, the effect is to give the Supreme Court a certain guaranteed jurisdiction with respect to constitutional questions. It may hear appeals on any constitutional question from any judgment of any court. Then, starting at line 45, there is the possibility of a restriction on that right of appeal. The effect of the remainder of the subclause from line 45 onward is that Parliament may authorize the Supreme Court to limit appeals in cases coming from courts other than the highest courts of the provinces on constitutional matters. Subclause (2) allows a further exception in that it allows the court itself to have, in effect, a system of leave to appeal from the highest courts—in ther words, the right to refuse leave where the court feels that the question is not one of sufficient public importance. But with respect to the matters dealt with in subclause (2), Parliament cannot interfere with the jurisdiction of the court. It would be for the court itself to decide when it wants to limit an appeal from the highest court of the province.
Mr. Cowling: Why of all matters are constitutional questions singled out for treatment in that manner? It seems to me that the Constitution might want to provide that the Supreme Court of Canada has the right to decide what cases it is going to hear on the basis of an application for leave. This says that the court has that right with respect to constitutional questions, but as to other kinds of cases, it would rather suggest the
converse—that the court might not have any choice or might not have the right to deny leave in a case which did not involve a constitutional question.
Mr. Strayer: Subclause 111 (1) gives Parliament general jurisdiction to prescribe the appellate jurisdiction of the court, which is the present situation. Parliament may prescribe the jurisdiction of the Supreme Court, and Parliament has done that. It now, in almost all cases, leaves it with the court to decide whether it will grant leave to appeal. I suppose one could imagine similar provisions continuing to exist.
The reason for this particular treatment of constitutional cases, I suppose, has to do with the particular role of the Supreme Court in a federation and a feeling that there should be certain things about the jurisdiction of the court that Parliament cannot tinker with, thereby putting a “floor” under the jurisdiction of the Supreme Court. The Supreme Court, in appeals from the highest courts of the provinces in constitutional matters, could hear those cases without interference by act of Parliament and the court itself will decide when it wants to refuse leave to appeal in such cases. I think it has to do with the whole concept of putting the Supreme Court in the Constitution, making it a constitutional body, involving the provinces in the appointment of the court and seeing it as a fundamental instrument of the federal system.
Mr. Cowling: Does the second part of subclause 112(1), starting at about line 45, refer to appeals to the Supreme Court of Canada which might come directly from a court in a province lower than the court of appeal of the province?
Mr. Strayer: Yes. The appeal per saltum which now exists under the Supreme Court Act is subject to certain conditions. I am not sure that I can recite those conditions. I think the appeal can only be taken with the agreement of both parties and the leave of the Supreme Court. There are several conditions laid down.
Mr. Cowling: I thought that the Supreme Court had ruled recently that that no longer existed; that you had to go through the court of appeal of the province even where both parties agreed to go directly to the Supreme Court. I do not have the citation right at my fingertips, but it seems to me that there was a recent decision in that respect.
What this seems to be saying is that the Supreme Court, by its rules, may be more restrictive or more choosy about appeals . on constitutional questions that come from a lower court than from the court of appeal of a province. Is that a fair summarization?
Mr. Strayer: Yes, that Parliament may authorize the court to impose certain restrictions. It would still be for the court to
impose those restrictions by rule, I believe. And Parliament would have to authorize that limitation.
Mr. Cowling: But it could not do so where the appeal came from the court of appeal of a province?
Mr. Strayer: Then the only condition would be that leave would have to be given by the Supreme Court on the considerations which are set out in subclause 112(2). I am sorry, I do not have the particular provisions of the Supreme Court Act here which deal with the appeal per saltum. I think it still does exist, and it is subject to more conditions than appeals from the highest courts in the province.
Mr. Cowling: Those are all of the questions I had.
Senator Molson: Mr. Chairman, it is well known that I am not a lawyer, but there is one thing that puzzles me about clause Ill. I am wondering, if this matter of dealing with matters relating to the Civil Code of Quebec requires this provision of clause Ill, why could not a parallel provision be put into this clause saying that cases relating to the common law shall be decided by a majority of the judges appointed from outside Quebec? It seems to me, in this case, you are putting something in here which is, in essence, provocative. I do not see any necessity for it. I am not sure why there should not be the same thing for the common law as there is for the civil law.
Mr. Strayer: It is essentially a policy question, sir. In terms of the argumentation that has been made in the past, I do not think there has been any significant expression of concern from the common law community that the common law is being corrupted by the civil law. It is also, of course, a fact that the common law judges are always in a majority in the Supreme Court whereas the civil law judges are not. In that sense there is a distinction between the two cases. Beyond that, I think it is essentially a matter of policy which I am afraid I cannot explain.
Senator Hayden: Mr. Strayer, there is nothing in this bill to prevent civil law judges from sitting on common law cases.
Mr. Strayer: No, that is true. Typically they would, of course, be in a minority when sitting on a common law case.
Senator Hayden: The reason for having the provision might present the same argument for covering the other side of it.
Mr. Strayer: Yes. If the viewpoint expressed by Mr. Cowling commends itself to people generally, I suppose that common law lawyers, at least, would perhaps want to advocate the retention of civil law judges participating in common law decisions because their is enrichment of the common law from the civil law system.
Senator Robichaud: One is just as emotional as the other.
Senator Molson: That would not apply in the other direction.
Senator Marchand: This is the point. I do not seriously think that in English Canada anybody thinks the Supreme Court has been dominated by lawyers who have practised civil law. I was referring to a political problem, not to a legal one. The reverse is true in Quebec. You can say they are wrong, and probably you are right. They are wrong, but whether they are right or wrong, the problem is there. Somebody thinks he has a grievance, and if you do not handle that case you have problems. I have no objection from a semantic point of view to saying there is a fair balance. However, if you say it is exactly the same situation, then I say it is not. This is why, in Switzerland, they laid down the principle that minorities should always have more representation than majorities, although it does not make sense logically.
Senator Hayden: It may be suggested that if that principle applies, and the minority always has more rights than the majority, then the majority is the minority.
Senator Marchand: That means something a little different. This means that the minority needs more protection because the majority is so strong it does not need the law.
Senator Hayden: The thing that bothers me is that it looks as though we are going to have two divisions of the court. How do you classify them? Can you say one is junior and the other is senior? That will not do. I mean, it would be a horrible thing to imagine that in the Supreme Court of Canada you have a majority court and a minority court.
Mr. Strayer: I am not sure, senator, that the effect of this clause will be to divide the court into two divisions. The questions of civil law will normally be found in the context of a case which will involve a number of other issues which will be dealt with by the court as a whole. The process would, I suppose, involve the court as a whole or perhaps seven judges of the court or whatever sitting on the case with a decision being rendered by the panel as a whole, except that the particular points of Quebec civil law would have been determined definitively by that Component of the panel made up of judges from Quebec.
Just to elaborate on that a little bit: in the Victoria Charter in 1971, there was a special provision for dealing with those appeals which involved nothing but questions of civil law, and the provision was that there would be a panel of five judges of whom a majority would be judges from Quebec, and that they would decide cases involving nothing but civil law. That was criticized at the time and afterwards on the basis that this kind of case is rather rare, and that this provision would not have much practical application because these questions of civil law would normally be found in the context of a case involving a number of things. If that is correct, then I take it, in the majority of cases, judgments would be made by the court as a whole as they are now with the component of that judgment involving the question of Quebec civil law being the result of a decision of only some of the judges, but they would be sitting
as part of a larger panel. I do not think the result would be to create a clear division in the court.
Senator Hayden: Is it clear in this bill—it does not appear to me to be—if there are several issues in the appeal to the Supreme Court of Canada, and one of them is based on the Civil Code and the others are based on the common law, which group of judges is to be assigned to hear the case?
Mr. Strayer: It would be for the Chief Justice to assign the judges to sit on a particular case. Typically, the present court has been sitting with a full court on most cases. Clause Ill (2) says that:
Where any case before the Supreme Court of Canada involves a question of law relating to the civil law of Quebec, that question shall be decided solely by those Quebec judges.
Therefore, the court would be composed as it is now, but the Chief Justice would have to ensure that there was a majority of the Quebec judges on the case if it involved a question of civil law. In other words, out of a panel of nine, let us say, he would have to ensure that there were at least three Quebec judges.
Senator Hayden: I am not sure that that is the interpretation. If the majority of the judges have a right to deal with civil law, their right is to deal with civil law. Now, it seems to me not only possible, but it must be the interpretation that the other questions would have to be decided by the rest of the court. Therefore, you would have two different sections of the Supreme Court of Canada.
Mr. Strayer: There is nothing in the clause which says that. It clearly contemplates a case which would ivolve a number of issues and where a decision on certain issues would be taken by the majority of the Quebec judges, but there is nothing there to suggest that the case is going to be split up and heards in two different sections by two different groups.
Senator Hayden: It would lead to an absurdity, I would think.
Mr. Strayer: It would certainly lead to a lot of unnecessary complexity and I cannot see any reason for the Chief Justice to deal with the matter in that way. Counsel coming before the court would want to argue the entire case and one minute they might be arguing a point of Quebec civil law and the next minute they might be arguing some point of common law, statutory law or federal law, and it would only make sense to hear the whole case together. I do not see anything in clause 111 (2) that directs the court to do otherwise.
The Chairman: I would like to move on to the House of Federation.
Senator Godfrey: am just giving a little thought to this problem. In a way, this could result in cases from Quebec being heard and having the full panel of nine or eleven sit, whereas, at the present time, you cannot have more than five. If it involves any question of the Civil Code you only have a panel of five judges to make sure there is a majority from Quebec. If, in fact, the common law judges have never influenced any decision, then it might be better if you had a larger panel sitting if the only element was the Civil Code. But if there were other even more important elements, instead of having five judges, you could possibly have eleven sitting with four deciding that one small point. I am beginning to see the other side of the argument.
The Chairman: Honourable senators, I think we should move on to the House of the Federation because, if possible, I would like to wind up with Mr. Strayer and his supporters this afternoon. However, I do not want to cut anyone off if there are further questions about the Supreme Court provisions.
Senator Hayden: When do you intend to adjourn, Mr. Chairman?
The Chairman: I would think somewhere around five or five-thirty. Have you any concerns about that? If so, perhaps we should hear them, but we normally try to adjourn at that time.
Senator Hayden: Five o’clock is not bad, but I don’t know about 5.30.
The Chairman: We will see how we get along. We also have a steering committee meeting after that, so some of us will have to keep on working.
Senator Hayden: That is the penalty for being on the steering committee.
The Chairman: That’s right. Mr. Cowling, would you like to lead off.
Mr. Cowling: These points on the House of the Federation are not in any order of importance, but they are more or less in the order in which they arise because of the way the clauses are set out in the bill. There is a provision in subclause (2) of clause 63 for interim appointments to the House of the Federation. In the first selection of the members of the house that has to be made there is provision for interim appointments. I would like to ask what problem was envisaged that the possibility of these interim appointments would be solving.
Mr. Strayer: The problem envisaged there was seen as arising particularly out of the practices of provincial legislatures, some of which sit for only perhaps two months during the year. If a day were fixed for the time to start running with respect to appointments to the House of the Federation, and if that day happened to be at a time when the legislature of a
particular province was not expected to be m session for a period of some months—
Senator Hayden: Or was in an election.
Mr. Strayer: Possibly, although if it were a matter of an election it would still be a question of how soon after that they would likely be sitting. If that were to arise, then the lieutenant- governor in council could make the appointments on an interim basis. Of course, the same could happen at the federal level as well, but I suppose one might assume that the governor in council would not fix that day for a time when it would be impossible for the House of Commons to comply with the appointment requirements.
Mr. Cowling: Let us assume, then, that in practice it would arise only in the case of provincial members.
Mr. Strayer: That is certainly much more probable.
Senator Hayden: Suppose the interim appointments were made and there is an election going on and the result of the election is to put a different party in power in the province, then what?
Mr. Strayer: Then the appointments would be made by the new legislature after it sat, I suppose.
Senator Hayden: So the interim appointees should go out and campaign to keep their jobs.
Mr. Cowling: They might be in there for only a matter of a few weeks.
Mr. Strayer: Yes.
Senator Robichaud: Without actually ever sitting In the House of the Federation.
Mr. Strayer: Yes.
Mr. Cowling: Is Senator Robichaud’s hypothesis a possible situation?
Mr. Strayer: I think it is possible. One would assume that there would be some common sense applied to whether such interim appointments were ever made. If a provincial government were in the process of an election and anticipated its legislature coming together within the next few months, in time to make the appointments before the House of the Federation would sit, then presumably it would leave the matter until that time.
Senator Hayden: It would appear that in those circumstances there is no real purpose to be served in having interim appointments.
Mr. Strayer: You are assuming a particular kind of fact situation. Assume another kind of fact situation, where you have a provincial government that is one year into its mandate and anticipates its legislature sitting next some eight months later, and the House of the Federation is going to be called together in three month’s time. It wants to have provincial appointees there, so there might well be good reason for its appointing members at that point so that the provincial appointees would be there in the House of the Federation.
Miss MacDonald: Perhaps I might just add one thing. In the kind of situation that Mr. Strayer has described, the likely thing would be that the premier would have discussions with the leader of the opposition and the leaders of the other parties, and probably the effect would be the same; the interim people could very likely be the people who would finally be chosen by the legislature.
Senator Hayden: The whole problem becomes very iffy, doesn’t it?
Mr. Strayer: This is, of course, a transitional measure; it is a once-only operation.
Senator Hayden: It is a sort of make-do.
Miss MacDonald: Yes.
Mr. Strayer: To bring the whole system into operation, given the fact that we have eleven different legislative bodies involved here that operate on vastly different time-tables.
Senator Hayden: I am just wondering how important all these make-do iffy situations are. Do we have to go that far?
Mr. Strayer: I think that is a question of policy, whether you want to provide for this contingency.
Senator Hayden: I recognize that you may not speak on a question that touches on policy, but we can.
Mr. Strayer: Agreed.
Miss MacDonald: The alternative might be that you would never have a full House of the Federation until perhaps close to a year after the house was to commence operating.
Senator Lucier: You may never have a full one anyhow.
Senator Hayden: So what?
Senator Molson: How good are these temporary appointments?
Miss MacDonald: On the question that you may never have a full one anyway, I think you would after the first one comes into effect, because once it is established the members remain members until their successors are chosen.
Senator Lucier: I am just saying that the Senate is never filled now.
Senator Godfrey: Right.
Senator Lucier: And we seem to have managed since 1867.
Senator Marshall: In the province of Newfoundland there was a situation in October 1970, when a P.C. government got in with a majority of one, which was questionable, and it went along for almost six months before the premier in power would resign. It went along for six months until the next March, when they had another election. In that case either party could get in. There are six months during which nothing is happening. It certainly makes it ridiculous to have a situation like that, which could occur again. There .is now a situation in P.E.I. where there is a majority of one. suppose somebody drops dead tomorrow and they have to have another election. They will have a change in two or three months, and you will get new people coming in and the old people going out.
Mr. Strayer: After each election, do you mean?
Senator Marshall: Yes.
Mr. Strayer: This is after the system is in operation. The question there would be how much change you would expect to take place if the members of the House of the Federation are to be selected on the basis of the popular vote in the province, and if the popular vote shifts only slightly this would not dictate any major change in the composition of the membership of the House of the Federation.
Senator Robichaud: I hope you are not assuming that this system as advocated in this text here will ever become operative.
Senator Marshall: Perhaps we should let it become operative. It would have the effect of putting everybody in straitjackets.
Mr. Strayer: I am here only to explain the system proposed in the bill, senator.
Senator Robichaud: But you said, “I assume that when this system becomes operative … “. I hope you do not assume that.
Senator Godfrey: His minister does.
Senator Marshall: Just for spite we should put it through. Everybody would go crazy.
Mr. Cowling: Miss MacDonald’s answer to an earlier question intrigued me, because she said that in the case of an interim appointment what would likely happen is that the premier would get together with the opposition people and appoint people on the basis that it would be unlikely that there would be any change once the real first selection was made.
Senator Robichaud: I was a premier for ten years, and that is impossible.
Mr. Cowling: It seems to me, Senator Robichaud, that it also suggests that really what is happening here is that these provincial members are the appointees of the premier and that the so-called election that they would go through in the provincial legislature would be almost a sham.
Miss MacDonald: I would not have suggested that. I merely wished to suggest a hypothetical situation in which there was the possibility of coming close to the final lists when making the interim appointments.
Senator Hayden: You know, if there is any problem, it is only because there appears to be a hurry to get the House of the Federation somehow in some kind of shape and in force so as to get rid of the Senate.
Mr. Cowling: On the question of the nomination list—
The Chairman: Senator Hayden, I think that is a policy question.
Mr. Cowling: That is why I jumped in.
Senator Godfrey: I received a letter today addressed to me at the House of the Federation. There was no problem in locating me in Ottawa.
Senator Robichaud: The postmen are very educated people.
Mr. Cowling: Mr. Chairman, on the question of the nomination list, and dealing with provincial members just for the sake of argument, is there anything in this bill which ensures that the members of the provincial legislature have some real choice in the selection they make, or is it possible that the nomination list might contain exactly the number of candidates for the appointments that have to be filled so that, in effect, the members of the legislature have no real choice before them? Is there anything which prevents that kind of a nomination list being presented to a legislature?
Mr. Strayer: I do not think there is anything to prevent that kind of nomination list from being presented, but, of course, one has to keep in mind the requirements of sections 64 and 65, section 64 being that there must be consultation with the party leaders in the house and section 65 being that the distribution of nominees must correspond to the popular vote in the last election.
I could perhaps just add one policy comment which Mr. Lalonde has made on this in the other committee, and that is that it was the expectation of the government that, in effect, the party leaders would agree on a list which would include their respective choices. Thus if there were a slate put up it would be because it reflected the wishes of all the party leaders in the legislative body.
Senator Hayden: Mr. Strayer, what happens if one or more of the provinces refuses to nominate or to furnish a list?
Mr. Strayer: There is then provision in section 63(3) for the House of Commons to select. The same would be true if the House of Commons failed to select their share of the members. Then the legislature would select those members from that province.
Senator Hayden: If the House of Commons in those circumstances takes over and makes the appointment, then it is not a provincial appointment.
Mr. Strayer: That is correct.
Mr. Cowling: They are deemed to be provincial appointments.
Senator Hayden: That is certainly the limit, to say that something that the House of Commons does shall be deemed to be something that the province did.
Mr. Strayer: Well, that is only for the purposes of some of the other provisons of the section.
Senator Hayden: Whatever the purpose is, it is an odd provision.
Mr. Strayer: If we were then to spell out this qualification in every place where there is some distinction made between provincially-appointed members and federally-appointed members, I dare say there would be comments that the bill was to
complex. So this is to try to simplify the matter somewhat by deeming them to have been appointed by the body that originally had the right to appoint them.
Senator Hayden: I know what the purpose is. The point I am making is that the House of the Federation is represented to be one made up mainly of provincial appointees.
Mr. Strayer: Well, sir, you have said that twice, that it is to be made up mainly of provincial appointees, but it is really to be half provincial appointees and half federal appointees.
Mr. Cowling: Selectees.
Mr. Strayer: Selectees, if you prefer. The opportunity for the House of Commons to appoint provincial members would not arise unless the province failed to do it itself. There is reasonable time allowed, I think, for the province to deal with this matter. If the province does not deal with it in that time, it is probably because it chooses not to have representatives.
Senator Hayden: So what we are saying in the proposed legislation is, “You leaders of the provincial parties, if you don’t make the appointments that you are supposed to make, then you lose the right and the House of Commons will appoint somebody that you might have appointed.”
Mr. Strayer: Yes. It is in order to ensure that the house will be able to function.
Senator Hayden: Interesting!
Mr. Cowling: Mr. Chairman, I wonder if we could get some clarification of lines 7 to !I on page 25. Speaking of the nomination list, it says:
—which shall be presented to and acted upon by that body—
Meaning the legislature, if it is the provincial selection, or the Commons, if it is the federal selection.
—in such manner as may be prescribed or authorized by the law of the applicable jurisdiction in the case of that body, or otherwise in accordance with the rules of that body—
Does this mean that these rules must be contained in the case of provincial selections in a provincial statute, or does it mean that the province can decide whether they will be contained in the statute or contained just in the rules of the legislature, or whether it will be a mixture of both—or what is it?
Mr. Strayer: I think it is the latter possibility, Mr. Cowling: that the province could prescribe some of this by statute, if it wished to, or it could leave it all to the rules of the house.
Mr. Cowling: It would be up to the province to decide.
Mr. Strayer: Yes.
Mr. Cowling: How would they make that decision—just by acting in one way or the other?
Mr. Strayer: I suppose it would depend upon the practices of any given province as to how it dealt with these matters.
Mr. Cowling: If a province adopted rules, then it would be presumed that it had opted to go for rules rather than for legislation, and vice versa.
Mr. Strayer: Yes.
The Chairman: Excuse me, but does that mean that one province might decide to make it an element in a provincial election—in other words submit a public list and have the parties run on the basis partly of the list of people, as they do in Germany, let us say, representing the parties? Another province might decide to do it quite privately among the party leaders.
Miss MacDonald: It has to be approved by the legislature, so how it led up to the actual selection by the legislature could be varied according to the province, but the final selection must be by the legislature.
Mr. Strayer: Any system they put in place could not derogate from the rules laid down here whereby the legislature makes the final selection.
Mr. Cowling: I suppose the question is, how much room for manoeuvring is there in the way these rules are drawn up? Do many conceivable variations occur to you?
Miss MacDonald: I think the rules are procedural. I do not think that it matters if there are slight variations from province to province.
Mr. Cowling: You mean one province could decide to have a rule that said the nomination list must contain at least twice as many names as there are vacancies. Is that the kind of thing you are thinking of?
Mr. Strayer: I do not see why not. I should think that if they wanted to do it that way, they could do so. The main thing is that they end up with the result consistent with clauses 64 and 65.
Senator Hayden: This is another “if.” It would appear from the attitude of the provinces at this time that any differences, even in procedure as among the different provinces, might be criticized and objected to. Have you thought of that? That is just as likely to occur as what you say.
Mr. Strayer: Might be criticized by whom, senator?
Senator Hayden: Miss MacDonald suggested something about this being a procedural matter, and that if there were differences in procedure among the various provinces there would not be any objection. I do not think we can make that assumption.
Mr. Strayer: I am not sure what situations you are suggesting, so I find it difficult to comment on the proposition.
Senator Molson: I suppose this is a policy matter, but there is no way in which an independent can find his way into the House of the Federation.
Miss Desjardins: I would say there is. If in the province there has been a vote which reflects the independent vote, then among the list prepared by the various leaders of the political parties someone must reflect the vote of the independents.
Senator Molson: I think that is good in theory, but in practice I have serious doubt.
Senator Godfrey: Who is the leader of the independents?
Senator Molson: Leaders of independent parties are hard to come by.
Senator Lucier: Dealing with the territories again, I see that in clause 62 there will be one member from the Yukon and one member from the Northwest Territories. I suppose it is intentional that the elected people of the territories, again representing two-thirds of Canada’s land area, will have no say in appointments to the House of the Federation. You make that very clear further down in that clause where it states:
—members of the House of the Federation from the
Yukon Territory and the Northwest Territories shall be selected by the Governor General in Council not later than the end of the first thirty sitting days—
So the intention is that the Governor General in Council will make the decision as to who will represent two-thirds of Canada in the House of the Federation. There will be no say at all from any of the elected people or other people of those two territories.
Mr. Strayer: The provisions with respect to the appointment of members to the House of the Federation from the territories are set out in clause 63(1 ). At the end, as you mention, it says that they are appointed by the Governor General in Council. In clause 64(1) at line 49 on page 24 it states that such appointments are not to be made “except following consultation … by the Commissioner of that territory with each of the members of the Council thereof.”
Senator Lucier: The commissioner of the territories is an appointee of the federal government. It only says that he has to consult with them. He can go to them and say, “This is the person we want to put in.” They can say to him, “We dont’t want him.” Then he will say, “Thank you very much.” After that the Governor General in Council can appoint him.
Mr. Strayer: Clause 64(1) only speaks of consultation with leaders in the House of Commons or the legislative assemblies.
Senator Lucier: That is like saying your prayers are answered and the answer is no.
Seriously, though, there is absolutely no provision for any elected official to have any meaningful input into the appointment of a member to the House of the Federation for the representation of two-thirds of Canada. It may not seem very important to you, but it is to me. Again I go back to Prince Edward Island for an example. They have four members and they will have the choice of appointing two. I do not wish to take anything away from Prince Edward Island, but I think
that we should be getting something more substantial than we are getting. Would it be that difficult to add one member to each of the territories so that the people from the territories could have a meaningful input into the selection of the appointment to the House of the Federation? This seems to be the whole objective of changing the Constitution. We seem to be going to great lengths to make sure everyone’s rights are being protected. Could we not go just a little further and see that the rights of the people from the territories are protected?
Miss MacDonald: Perhaps I can answer that. First of all, the consultation is to be with leaders of the federal parties and leaders of the provincial parties and members of the council. I think the government would have to face the political consequences if what came out of the consultations was not followed. Another thing to remember here is—
Senator Lucier: Who has to take the political consequences?
Miss MacDonald: The government.
Senator Lucier: Are you suggesting that the federal government is going to be concerned about the political consequences of …
Miss MacDonald: If it caused a public outcry in the Yukon Territories or the Northwest Territories, I think they would not want to face that sort of situtation.
You stated that it would be simple to double the members. There is a principle in the B.N.A. Act which is carried forward in the bill. That principle is that the members of the House of Commons shoud never be fewer than the members in the Upper House. There is one consequence in this particular bill in relation to Newfoundland when otherwise on the basis of the normal distribution of seats in the House of Commons there would be one member less for the House of Commons than for the House of the Federation. Because the bill provides, as does the B.N.A. Act, that there must always be at least equal representation in the House of Commons, the allocation of eight members of the House of the Federation from Newfoundland automatically increases its number in the House of Commons. If two extra members were to be added, particularly one to the Yukon Territories, the Yukon Territories would have to receive an extra member for the House of Commons. Again, it comes back to being a policy decision.
Senator Lucier: That would hold true in the Yukon but not in the Northwest Territories, because the legislation has recently been changed in respect of the Northwest Territories to provide for representation by two members of the House of Commons. It is not practical to have one member representing the whole of the Northwest Territories. So, if you are really looking for meaningful representation in the House of the
Federation, you almost have to provide for two members from the Northwest Territories as well.
I hate to be arguing their case at the expense of my own, but either you are serious about this or you are not.
The Chairman: Again, I think that is a matter of policy which we will have to take up with the ministers involved. At this stage we can make sure that the bill as drafted, to the extent that it is intended to give representation to the territories, expresses that clearly. As you pointed out earlier, there were some elements of the drafting which made it impossible to do what was the clear intention of other clauses of the bill. These are the points that we should be discussing with these witnesses.
Senator Lucier: As the bill is drafted, the Governor General consults with the commissioner as to whom to put in. The commissioner then consults with the elected members, but he does not have to listen to what they say.
There must be some means of drafting this in such a way that the commissioner accepts the advice he gets.
Mr. Strayer: Certainly, there is a way of drafting it to achieve that if we are so instructed.
Senator Godfrey: If you want to give the commissioner complete authority in the matter, you change it from a federal appointment to a territorial appointment. This is a compromise between the two. Would you rather have the appointment made locally or by the federal government?
Senator Lucier: I wouldn’t, but I think that is the way it should be.
The Chairman: Senator Marshal!.
Senator Marshall: Under clause 62, Newfoundland would have eight members of the House of the Federation. How was that number arrived at? I am certainly not objecting to having the representation increased to that number, but what was the formula whereby it was established that the Province of Newfoundland required eight members of the House of the Federation?
Mr. Strayer: I am not sure how completely I can answer that. I think it had something to do with the size of Newfoundland and that of the other Atlantic provinces. For historic reasons, Nova Scotia and New Brunswick have always had 10 senators, or have had at least since Prince Edward Island entered Confederation, and Prince Edward Island has had four. In looking at the distribution, I think the feeling was that Newfoundland, with six senators, had disproportionately fewer members in terms of population. In looking at a revised house with revised representation, it was thought that within the Atlantic region the Province of Newfoundland was somewhat shortchanged in terms of membership in the upper house.
Senator Marshall: What about its membership in the House of Commons? It would have more senators than members of the House of Commons.
Mr. Strayer: That will not happen because of the other provision.
Senator Marshall: Following the next census, it will have eight members in the House of Commons.
The Chairman: Mr. Cowling.
Mr. Cowling: What significance do lines 19 to 23 have on page 25 of the bill? It is a lengthy subclause. I could not see what those lines added other than to confuse the issue. Am I missing something?
Mr. Strayer: I think I understand the point you are raising. I think this was discussed in one of the earlier sessions of the committee.
Mr. Cowling: It led me into a wrong interpretation of how the thing would work, and I am just wondering if I missed something.
Mr. Strayer: I think the troublesome words were “including those who are to be selcted at that time.” The reason for including those words is the fact that there could be appointments to fill vacancies occurring between elections. If a vacancy is being filled because of death or resignation between elections, the political preferences exhibited at the last election would have to be taken into account. If, for example, the House of Commons is filling a vacancy for a federal appointee, it has to take into account the results of the last federal election in making sure that once the individual is appointed, the ratio will remain close as possible in accord with the popular vote at the last federal election.
Mr. Cowling: So, it is really to cover the matter of vacancies?
Mr. Strayer: That is right.
Mr. Cowling: Is there a provision in the bill dealing with the filling of vancancies?
Mr. Strayer: Yes, subclause 63(5).
Mr. Cowling: Dealing with clause 67(a)—
Senator Godfrey: Perhaps before you go into that, I might put a question relating to clause 65.
Clause 65 deals with the powers and duties of the Speaker, selection of the Speaker, and so on, but it does not say anthing about the length of term that the Speaker shall hold office. Is that an oversight, or is that by implication?
Mr. Strayer: I would have thought it was by implication, but we had better take another look at that.
The Chairman: Does the House of the Federation dissolve with the dissolution of Parliament and, if so, does it have to be reappointed following the election?
Mr. Strayer: I do not think, strictly speaking, the house would dissolve in the sense that even the federal members would continue until their replacements are appointed following an election.
Mr. Cowling: They would not be able to do anything after dissolution, surely. All it means is that when Parliament was
resumed, they would take their seats in the House of the Federation.
The Chairman: The situation would prevail in much the same way as it exists now in respect of the Senate.
Mr. Cowling: That is right.
Mr. Strayer: I suppose this is where the question about ratification of nominations to the Supreme Court may arise. We talked about this earlier. If the situation was that they were in effect prorogued until the House of Commons was re-elected, then the provisions of subclause 107(3) would apply with respect to the confirmation of nominations. I do not know what parliamentary practice would dictate. Perhaps they could undertake committee work, and that sort of thing. I am not sure whether they would have to be prorogued in that sense or not.
Mr. Cowling: I wonder if you could give an example of what is meant by the last few lines of clause 67(a):
… without any motion to reintroduce the Bill in an amended form in the House of Commons having been agreed to by that House.
Mr. Strayer: I take it this covers a situation where the House of Commons has passed a bill and the House of the Federation has refused to pass it, and the time has elapsed which is 60 days and not more than 120 days. And that, perhaps, in spite of efforts to reach some compromise, the House of Commons has not been willing to pass a motion to reintroduce a modified bill.
That is in contrast to the situation found in clause 67(c) where the House of the Federation has dealt with the bill and amended the bill.
Mr. Cowling: Would there be any difficulty in determining whether it was an amended bill or really a new bill altogether, or would this be provided for in the motion introducing the amended bill? I am thinking of the case where you might have quite a different looking piece of legislation. In that case would it qualify as the bill in amended form?
Mr. Strayer: Well, I am open to correction on this, but would have thought that if there were a motion to reintroduce the bill in an amended form, then the time starts to run all over again. That is, once the House of commons deals with the bill, then the House of the Federation would again be faced with the decision of whether they wanted to refuse it, pass it, amend it or whatever.
Mr. Cowling: If an amended bill is reintroduced, then it has to go to the House of the Federation?
Mr. Strayer: Yes, I would think the whole process starts again.
Senator Olson: You may have dealt with this matter, Mr. Chairman, while I was absent. Is there any provision in the bill where the House of the Federation could meet other than Parliament being called, which would include the House of Commons? I know you said it would not be dissolved. On the assumption that there are still some members, therefore, it is
not a dissolution. However, with dissolution, the House of Commons or Parliament does not sit until the whole of Parliament is called. Can the Speaker of the House of the Federation, prior to the House of Commons meeting or the rest of Parliament, deal with such things as ratification or concurrence of appointments to the Supreme Court, or does that go into a state of suspension until Parliament itself is called to meet?
Miss MacDonald: I think that the situation would continue as at present. The House of the Federation would not sit formally during a time when Parliament was prorogued.
There is provision for the Governor General to summon both houses of Parliament. Clause 57 says:
the Governor General of Canada shall from time to time, by instrument under the Great Seal of Canada, summon and call together the Houses of the Parliament of Canada to meet in Parliament assembled.
Senator Olson: But there is no provision for the House of the Federation to be called separately.
Miss MacDonald: No, I think the bill continues with the present practice and at present there is no situation where the Senate would be called separately from the House of Commons.
Senator Olson: The House of the Federation is going to have some different functions. I understand the provision about concurrence in appointments to the Supreme Court and other provisions that are in there. Presumably those appointments would be suspended until the whole of Parliament met following an election.
Mr. Strayer: I think we have been debating this issue this afternoon. It is Parliament that is dissolved. However, in the case of the House of the Federation, the members would continue to be members of the house until their successors were selected or they were reappointed.
Senator Olson: I do not have any problem understanding that, but would they be helpless or unable to deal with appointments until the whole of Parliament was called?
Mr. Strayer: You are speaking of Supreme Court appointments?
Senator Olson: Supreme Court appointments, and I think there are also National Energy Board matters.
Mr. Strayer: I believe they all follow the same procedure. I think that the best answer is that they would be unable to deal with those matters until Parliament was recalled.
Senator Olson: If the government wanted to make an appointment, is there any way that they could, in fact, achieve that by having it deemed to have been passed but the House of the Federation would, in fact, have no capability to deal with it?
Mr. Strayer: It would only be when the House was adjourned or prorogued that the deeming provisions would apply and, in that case, of course, the members could ask for a debate. As I read the bill, if Parliament were dissolved there would be no way to put an appointment through until Parliament was reassembled and the House of the Federation was sitting and had an opportunity to deal with the matter.
Senator Olson: Is there anything in the bill that says that they would have to suspend any of these nominations or appointments?
Miss MacDonald: The nomination or the appointment would go through if not more than I 0 members asked for a debate. Presumably, if more than 10 members asked for a debate, you have an alternative—either the matter would be in abeyance until the house could debate it or the government would start over again.
Senator Molson: What happens if the Speaker calls the House of the Federation back from an adjournment?
Miss MacDonald: I do not think that the Speaker has that power under the present Constitution.
Senator Olson: There are three categories: adjournment, prorogation, and dissolution.
Miss MacDonald: Yes.
Mr. Strayer: If he did that, then they could debate the matter.
Senator Olson: It is pretty clear that in either the prorogation or the dissolution of the House of Commons there is no way the House of the Federation can deal with appointments until the whole of Parliament has been recalled.
Mr. Strayer: I believe that is correct. If during prorogation a notice was sent to members of the House of the Federation that the Attorney General of Canada was nominating an appointee to the Supreme Court, and if I 0 or more members asked for a debate, then the whole matter would have to await the summoning of Parliament so that that debate could take place.
Senator Olson: Do you think that applies to the situation when the House of Commons is dissolved, because that is not technically prorogation?
Mr. Strayer: As I read clause 107, in the case of dissolution nothing could happen until the house was reconstituted, because basically clause 107 requires the opportunity for debate of the nomination in the House of the Federation. Clause 107(3) provides for an exeption to that where the house is prorogued or adjourned, where, if fewer than 10 object, it can go through. But that exception does not extend to the situation of dissolution, so that if the House of the Federation is dissolved it seems to me that there is no way of dealing with the matter until the House of the Federation is re-assembled and has the opportunity to debate it.
Senator Olson: So the effect would be that the government could not proceed with· any appointments until they have called Parliament after an election.
Mr. Strayer: I think that is correct.
Senator Olson: Does it say that, or is that just an assumption?
Mr. Strayer: That is the effect of the provision. That particular proposition is not spelled out in so many words, but if one follows the requirements of the bill with respect to the opportunity of debate in the House of the Federation that is the result.
Mr. Cowling: Mr. Chairman, we come now to the famous provisions that deal with whether a member of the house is French-speaking or English-speaking, subclause (8) of clause 69, found on page 30. Rather than try to pick away at the subclause with questions, I wonder if I could ask the wtinesses as a general question to exaplin in layman’s language how that works, because even the lawyers on the committee have, I think, had some difficulty in following exactly how that procedure would work.
Miss Desjardins : If I understand this provision, the French-speaking members must notify their belonging to the French language and, in the event of a dispute between English and French, i.e. in case of controversy, the matter will be decided by the Speaker.
Senator Hayden: Mr. Strayer, this provision does not recognize that there would be a government side and an opposition side in the House of the Federation.
Mr. Strayer: It doesn’t deny it.
Mr. Cowling: What puzzles me is this. I will try a specific question—
Senator Hayden: No answer?
Mr. Strayer: I said the bill does not deny that there will be a government side and an opposition side. It just says that on a particular kind of measure there has to be a double majority constituted in a particular way. Whether or not that cuts across party lines is not dealt with by the bill.
Senator Hayden: No, but in subclause (2) the test is “a majority of its English-speaking members voting thereon and a majority of its French-speaking members voting thereon.” A member of the opposition may be opposed to the measure. If he votes and he happens to be French-speaking, how does his vote count?
Mr. Strayer: It is counted as an individual, and it would be within the number of identified francophone members.
Senator Hayden: So even though he votes against a bill he may be counted in the majority in favour because he is French?
Mr. Strayer: No. If he votes against the bill his vote is subtraced from the number of French-speaking members voting for the bill. If enough French-speaking members voted against the bill so as to make it impossible to get a majority of French-speaking members voting in favour of the bill, then the bill is lost.