Document Information

Date: 1978-09-07
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 6 (7 September 1978).
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Third Session
Thirtieth Parliament, 1977-78

SENATE OF CANADA

Proceedings of the Special
Senate Committee on the

CONSTITUTION

Chairman:
The Honourable R. J. STANBURY

Thursday, September 7, 1978

Issue No. 6

WITNESS:

(See back cover)

SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION

The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman

and

The Honourable Senators:

Argue
Austin
Barrow
Bosa
Bourget
Connolly
(Ottawa West)
Flynn
Forsey
Fournier
(de Lanaudière)
Godfrey
Grosart
Hayden
La fond
LangLucier
Marchand
Marshall
McElman
Olson
Petten
Phillips
Rizzuto
Robichaud
Smith
(Colchester)
Stanbury
Wagner
Williams
Yuzyk

(Quorum 10)

[Page 3]

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.”

Robert Fortier

Clerk of the Senate

[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, SEPTEMBER 7, 1978 (17)

[Text]

Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:09 a.m., the Deputy Chairman, the Honourable Jacques Flynn, presiding.

Members of the Committee present: The Honourable Senators Connolly (Ottawa West), Flynn, Forsey, Godfrey, Hayden, Lafond, Lang, Lucier, Marchand, Marshall, Olson, Robichaud, Smith (Colchester) and Yuzyk. (14)

Present but not of the Committee: The Honourable Senators Greene and Molson. (2)

In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel to the Senate.

Witness: The Honourable J. C. McRuer, O.C.

The Committee resumed its consideration of the subjectmatter of Bill C-60:

“An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”.

The Honourable Mr. McRuer made an opening statement and answered questions put to him by the Committee.

At 12:42 p.m., the Committee adjourned until 2:00p.m. this day.

AFTERNOON SITTING (18)

The Special Senate Committee on the Constitution met at 2:15 p.m., the Deputy Chairman, the Honourable Jacques Flynn, presiding.

Members of the Committee present: The Honourable Senators Connolly (Ottawa West), Flynn, Forsey, Godfrey, Hayden, Lang, Lucier, Olson and Smith (Colchester). (9)

Present but not of the Committee: The Honourable Senators Beaubien, Molson and Neiman. (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.

Witness: The Honourable J. C. McRuer, O.C.

The Committee resumed its consideration of the subjectmatter of Bill. C-60.

The witness answered questions.

In the course of the meeting, the Honourable Daniel Lang took the Chair as Acting Chairman.

[Page 5]

At 3:38 p.m., the Committee adjourned to the call of the Chair.

ATTEST:

Flavien Belzile

Clerk of the Committee

[Page 6]

EVIDENCE

Ottawa, Thursday, September 7, 1978

[Text]

The Special Committee of the Senate on the Constitution of Canada met this day at 10 a.m. to consider the subject matter of Bill C-60, to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters.

Senator Jacques Flynn (Deputy Chairman) in the Chair. The Deputy Chairman: Good morning, honourable senators. With us this morning is the Honourable James Chalmers McRuer. He is well known to you, but for the record I shall read a brief biographical sketch.

The Honourable James Chalmers McRuer was born in Oxford County, Ontario, and was educated at the University of Toronto and Osgoode Hall. He was called to the Bar of Ontario in 1914. He has also been a member of the Bar of British Columbia since 1926, and of the Bar of Alberta since 1942.

After serving overseas during World War I with the Canadian Field Artillery and with E. Battery, Canadian Anti-Aircraft, he returned to Toronto where he served as assistant crown attorney for the City of Toronto and the County of York from 1921 to 1925. He then resumed private practice and lectured at Osgoode Hall. He was created a King’s Counsel in 1929.

A Bencher of the Law Society of Upper Canada from 1936 to 1944, he was appointed to the Court of Appeal in 1944. Two years later he was appointed Chief Justice of the High Court of Justice of Ontario. He has been active in the Canadian Bar Association and was president of that association in 1946-47. He is also an honourary member of the American Bar Association.

The Honourable J. C. McRuer is widely respected for his long involvement in the study of civil rights issues. He was a member of the Royal Commission on the Penal System in Canada, 1936-38. Later, he was Chairman of the Royal Commission on Insanity as a Defence in Criminal Cases, and the Royal Commission on the Law Respecting Sexual Psychopathic Offenders. In 1964 he was appointed head of the royal commission inquiry into civil rights in Ontario. In that same year he was appointed to the Ontario Law Reform Commission.

In 1968 the Honourable J. C. McRuer was made an Officer of the Order of Canada. He also received an honourary doctor of laws degree from the University of Lava! in 1947, from the University of Toronto in 1964, and from Trent University in 1968, and an honourary doctor of common law degree from the University of Windsor in 1970.

[Page 7]

Mr. McRuer will deal with some of the topics dealt with in Bill C-60 and in the constitutional reform debate which is currently taking place. He will give his views on certain topics and then receive and answer questions.

[Translate]

I am very glad to welcome you and ask you to address the meeting.

[Text]

The Honourable James Chalmers McRuer: Honourable senators, I was greatly touched and honoured to be invited to come here to discuss the very important matters which you have under review. I certainly regard this as one of the most important matters in which I have had an opportunity to participate during my lifetime. Probably that is true for the rest of you also.

I propose to take the matter up by discussing the proposals concerning the Supreme Court of Canada, and then dealing with the entrenchment of the Bill of Rights. Then I shall go on to say something about the place of the monarchy in the Constitution of Canada. I shall necessarily make some reference— probably considerable reference—to the power of Parliament to enact Phase I with respect to the proposed House of the Federation.

I preface my remarks by saying a word or two about the philosophy of power. Sovereignty in a well-regulated democratic state must rest with the ideas of the people. I discussed that at some length, as you will observe, in the copies of the extract(1) from the civil rights report with which you have been furnished. I shall curtail what I have to say by simply referring you to that report. However, I wish to refer you to one quotation from that report where it deals with the sovereignty of the ideas of the people. We had discussed Dicey’s theory, Austin’s theory, and we had also referred to Jennings and Goodhart. Under the heading “The Sovereignty of the Ideas of the People” the report states:

Austin was wrong to consider that final power in the state at any given time must necessarily be both fully personified and fully concentrated on all conceivable subjects of law-making. In other words, he was wrong to consider that the social obedience of most of the people must centre most of the time on an actual group of superior official persons, persons who would therefore be themselves above the law. This error of the personification of final law-making power is dangerous to be rights of ordinary citizens. The truth lies elsewhere.

I emphasize the following:

It is certain organizing ideas for the relevant society and not certain official persons that are supreme or sovereign. The primary organizational ideas of a modern state are its fundamental constitutional laws. It is those primary doctrines, principles and procedures that are the

(1) The extract referred to is Section 3 of Report No. 2, dated September 15, 1969, of the Ontario Royal Commission Inquiry into Civil Rights. Entitled “A Bill of Rights for Ontario”, Section 3 appears in Volume 4 of the Report of the Commission, which was published in English only. Copies of this extract are available from: The Director, Committees Branch, The Senate of Canada, 140 Wellington Street, Ottawa, Canada, K1A 0A4.

[Page 8]

focus of obedience; they are supreme, not particular persons in office at particular times.

Then the first full paragraph on page 1487 reads:

Law is not primarily a matter of coercion and punishment, rather it is primarily a matter of setting standards for society and devising solutions for critical social problems that attract willing acceptance from most people because those standards and solutions offer some measure of the modern concept of substantial justice.

In quoting that, I refer honourable senators to the footnote, from which one will see that probably the real author is not myself but Professor Lederman.

With that background, let us consider what is the Constitution of Canada. It is readily admitted that it is not all in the British North America Act. That has become elementary and is accepted by those who have appeared before you. That is emphasized, to my mind, in a very useful way by Chief Justice Duff in the Alberta Statutes reference, as reported at page 100, (1938) Supreme Court Reports. There he was considering, as I interpret it, the place of free speech in the constitutional process. In that respect, he said:

Under the constitution established by the British North America Act, legislative power for Canada is vested in one Parliament consisting of the Sovereign, an upper house styled the Senate, and the House of Commons. Without entering in detail upon an examination of the enactments of the Act relating to the House of Commons, it can be said that these provisions manifestly contemplate a House of Commons which is to be, as the name itself implies, a representative body; constituted, that is to say, by members elected by such of the population of the united provinces as may be qualified to vote. The preamble of the statute, moreover, shows plainly enough that the constitution of the Dominion is to be similar in principle to that of the United Kingdom. The statute contemplates a parliament working under the influence of public opinion and public discussion.

And I pause for a moment to remind you of what I said about the ideas of the people:

There can be no controversy that such institutions derive their efficacy from free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counterattack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives.

That is a constitutional principle if we accept Chief Justice Duff as an authority.

[Page 9]

I am embarrassed in that we are discussing a proposed Constitution without any definite agreement as to how it may be amended. One is limited in considering a proposition for a Constitution unless one has a clear statement as to how it may be amended in the event that one goes wrong.

Bill C-60, as honourable senators are well aware, consists of two parts: that part which may or may not be effectively enacted by Parliament, and the part that can only be enacted by the Parliament of the United Kingdom. The two parts are eventually to become the Constitution, as I take it, subject to some amending formula. With that introduction, I shall now discuss the proposals for constitutionalizing the Supreme Court of Canada.

In the first place, it is suggested that there be 11 judges. Professor Lederman went somewhat further and suggested that there might be 15. While I agree with Professor Lederman on most things, I do not agree with him on this. To my mind, 11 judges would be too many. The Supreme Court of the United States consists of nine judges and it has been functioning for a long time at that level. It seems to me that if nine judges can function as the Supreme Court of the United States, surely nine is more than enough for Canada.

One of the difficulties with too many judges is in achieving some reasonable unanimity in difficult matters. In the first place, the Chief Justice has to convene the court. Is he going to convene a court of 11 judges? Such a court, in my view, would be unmanageable in the decision-making process. There is difficulty enough in that respect with a court of nine judges.

I sat on the Court of Appeal for the province of Ontario and I know some of the problems in arriving at a reasonably unanimous judgment in difficult matters. My suggestion would be that this is a matter that I would defer to the judgment of any of the judges or the Chief Justice of the Supreme Court. If there are 15, it would be open to the suggestion that the Chief Justice could control the composition of the court for a particular case in constitutional matters unless all 15 sat, and that, to me, is something that ought not to be permitted. I do not think the Chief Justice would want to be in the position of composing a court in an important constitutional matter where he had to assign the judges who would sit on the matter. It leaves it open that he could be criticized, probably quite unjustly.

The court, in my opinion, is big enough now. The reason for the suggestion that it be increased is to have constitutional distribution of the members of the court.

There is good reason for certain members coming from Quebec. With that, I would not quarrel. There is no doubt the civil law is different from the common law, and it is better to have judges who have been brought up in the civil law, and certainly a majority of the court that is deciding a matter of civil law should be from the province of Quebec. However, I heard an address in Toronto by the late Chief Justice Rinfret, the subject of which was the similarity of the common law to lhe civil law. He was a civil law man. The tenor of his address

[Page 10]

was that civil law lawyers have no difficulty with the common law, and common law lawyers have no difficulty with the civil law. However, I am not quoting his address as an authority. That is merely an interesting observation he made.

I ask the question: Why should the distribution of the judges into certain constituencies be written into the Constitution? We have had for many years a custom, if I may put it that way, of appointing judges of the Supreme Court of Canada from the different regions of Canada. In principle, that is a good thing, but there is an insidious suggestion in making it constitutional, and that is that in any constitutional matter they would look after the interests of their own constituents or their own area. That is an insidious thing to bring into our constitutional scheme and, personally, I do not like it.

I read in the newspaper that there was a demand that there be two judges selected from British Columbia. Why two from British Columbia? What we should have is the best men and women available. A distribution territorially can be accomplished, as it has been in the past—so be it—but to write it into the Constitution, I think, is unwise. It lends a flavour to the constitutional powers of the Supreme Court that has an unwholesome philosophy.

I feel I have had considerable experience in the courts, and I can say that never have we had as high a standard on the bench. I speak for Ontario and the Supreme Court. Never have we had as high a standard as we have today under the system that has been followed. The appointments have been outstanding.

I proceed to the matter of the procedure for nomination. In the last two lines of clause 105, the opinion of the Attorney General has been incorporated as a constitutional provision, and, by clause 104, territorial distribution should be “as nearly as reasonably may be”. I say those are poor words to be embodied in a Constitution. They are dependent on fact. There may be a question whether it is “as nearly as reasonably may be”? Giving the Attorney General’s opinion, constitutional status, bothers me.

With regard to clause 103 respecting eligibility for appointments, I do not understand some of the terminology such as “a barrister or advocate at the bar”. What does it mean? Does it exclude academics?

I am not proposing, in my discussion with you, to deal with the matter of draftsmanship. There are a great many things, I would respectfully suggest, to be desired in the draftsmanship but, from reading the record, I think you are conscious of that. It is principles we are concerned with.

Now we come. to clause 106 concerning the filling of vacancies. Subclause (2) says that where “the Attorney General of Canada is considering the nomination of a person … “—and

[Page 11]

it says “a”, the singular—” … for appointment from a province … he shall forthwith … “—and this is constitutional terminology—” … so inform the Attorney General of the particular province.” If the Attorney General of Canada and the Attorney General of the particular province agree in ten days—we have a deadline—the person may be nominated.

I submit that the ten days is an unwise constitutional provision. It sounds to me like the time you have to dispute a claim in the Small Claims Court. If they do not agree, the Attorney General of the particular province is given his election as to two forms of nominating council by the Attorney General of Canada. This is after they have made all reasonable efforts to agree. Whether they have made all reasonable efforts to agree is another question of fact, and I just pose the question: Is the validity of the nomination subject to determination of the fact that all reasonable efforts have been made before you proceed to the next step?

With respect to the right of election, the two forms of nominating council are (a) the Attorney General of Canada or his nominee, and the Attorneys general of all the provinces or their nominees; or (b) the Attorney General of Canada or his nominee and the attorney general of the particular province or his nominee, and the chief justice of the particular province or his nominee.

I will make two observations here. On the one plan, that of the nominating council of all the attorneys general of Canada, it seems a strange inconsistency that the judge to be nominated may come from Nova Scotia, but you have all the other provinces with a vote on whether he is the best man from Nova Scotia. I feel it is ill-conceived as a nominating council.

On the other hand, the attorney general of the particular province may choose the nominating council of three, with the chief justice of the particular province as chairman. That introduces the chief justice of the province into nominating members for the Supreme Court bench by a majority of this group of three. It might be that the chief justice of a province would be the best man to go to the Supreme Court, which happened in the case of the last appointment from Ontario. I want to be fair to the draftsman, but it seems to me that he did not realize what the judicial function is, and how it has to be kept so separate from any other appointment in principle.

Senator Godfrey: Some years ago the Chief Justice of Saskatchewan was appointed to the Supreme Court. It was Mr. Justice Emmett Hall.

Hon. Mr. McRuer: Quite right. It would probably be one way for the attorney general to exclude the chief justice by his election as to what sort of a nominating council he would have. If the attorney general does not make his election, then the Attorney General of Canada makes the nomination. There we have it.

[Page 12]

After the nominating council has been established the Attorney General of Canada submits not less than three names. Up until now we have only heard of his considering one name. He submits to the council “the names of not less than three persons qualified … to be appointed to fill the vacancy and about whom he has sought the agreement of the Attorney General of the particular province.

This is draftsmanship, but still, it is very serious draftsmanship. The Attorney General of Canada has sought agreement in regard to one person, but when he gets down to the nominating council he must submit three names. In the meantime, the Attorney General has asked for a nominating council on the one name that has been submitted. However, we have three names going before the nominating council. They may be three judges from the court of appeal; or one of them may be a judge from the court of appeal, one may be from the bar, one may be from the high court. Putting these judges in competition, so to speak, for nomination is, to me, unwise. I am using modest language.

Then, we see:

—the nominating council shall not later than fourteen days after the submission to it of those names recommend therefrom a person for such nomination; … and a recommendation of the majority of the council … shall constitute the nomination of the council.

You have three names; three members of the one nominating council. What is going to happen if they do not have a majority? What is going to happen if the chief justice says it should be A, the Attorney General of Canada says it should be B, and the Attorney General of Ontario says it should be C? However, that can be straightened out by draftsmanship, but it is the unworkability of the scheme that I am concerned with.

Then the nomination goes to the House of the Federation, and the House of the Federation has to debate it. I underline the word “debate”. They do not consider the matter, but debate it. This is a constitutional provision, that there has to be a debate.

Clause 107 (2) continues:

—if … the nomination is not affirmed by a majority of the members of the House of the Federation voting thereon, the nomination shall not be proceeded with— So the majority of the House of the Federation can turn back the nomination of all the attorneys general, if they should be the nominating council. Then:

—if the House of the Federation fails to vote on the nomination within the fourteen days … the nomination shall be deemed to be affirmed by that House.

I am going to discuss this. We are getting pretty close to the root of the whole procedure for nominating judges to the Supreme Court. I will come to that in due course. I don’t suppose they ever have a filibuster in the Senate.

[Page 13]

Senator Lang: Oh yes.

Hon. Mr. McRuer: If you don’t have, I am certain that you will have in the House of the Federation. Two or three filibustering members of the House of the Federation could cause the house to run out of time and then the nomination is affirmed no matter if the majority disapproved of it. This would be so simply because the 14 days had run out.

My comment on this whole process is that, by whatever name you like to call it, it is an election of judges for the Supreme Court, because they have to be voted on by a majority of the House of the Federation. It would be highly undesirable to have that written into our Constitution. In my view, it would affect the quality of the Supreme Court and cause its decline.

Distinguished members of the bar and of the bench—and I emphasize “the bench”, because I think it is highly desirable that members of the Supreme Court of Canada should, so far as possible, have experience on the bench before they come to Ottawa owing to the fact that judging is something you acquire as a talent by experience, albeit there are distinguished members of the Supreme Court of Canada who have been appointed directly from the bar. I may be prejudiced, but I think it is important even in appointing judges to a court of appeal to appoint men who have had experience in trying cases, who have met the public, who have had the duty of administering justice, if I may put it that way, in public, in trials affecting the individuals. However that may be, there are many distinguished members of the bar and of the bench who would simply say, “I am not going to allow my name to go through all that process and, in competition with three others, come before the nominating council and have. the stigma placed on me that I was turned down by the nominating council.”

You can say what you like. You can say that these discussions can be held in camera. They will be held in camera for about two days and then everyone will know. That is true even of the confidential discussions the Minister of Justice has in trying to get members of the bench to agree to come to Ottawa. And there are problems in that respect because they have their families to consider. In contemplating such a transfer from provincial duties to new duties and a new location in Ottawa, and the assumption of duties that are imposed on them here, judges have to consider their wives and families.

Well, all I can say is that I do not think this will improve the quality of the judges of the Supreme Court. Just as a personal view I will add that, ir the proceedings had been in effect a number of years ago—and it would be a long number of years ago—I do not think we would ever have had Chief Justice Duff or Mr. Justice Rand on the Supreme Court bench. I doubt that either one of them would have allowed his name to be submitted. As a matter of fact, both Chief Justice Duff and Mr. Justice Rand were found by other ways, and, undoubtedly,

[Page 14]

they are the two greatest jurists we have ever had. However, I think the whole scheme is unconstitutional.

It is one thing to say that there is no doubt that Parliament can create a Supreme Court of Canada, but there is no way that Parliament can create a Supreme Court that is dependent on the proposed House of the Federation for the appointment of its judges, because of the composition of the House of the Federation. I shall come back to discuss the matter of the House of the Federation and how far the scheme can be effected by a simple act of Parliament.

I have dealt with the Supreme Court of Canada but I want to say a word about section 36 of the bill, which reads as follows:

The administration and enforcement of the laws of the federal authority in and for Canada shall rest with that authority, and the administration and enforcement of the laws of each province or territory of Canada shall rest with it, except as otherwise provided by or pursuant to the Constitution of Canada or by any agreement or arrangement not inconsistent therewith.

Senator Godfrey: Mr. Chairman, on a point of order, was it not the intention that the members of the committee would ask the witness questions on his headings as he finished each of them?

The Deputy Chairman: My understanding was that this was related.

Hon. Mr. McRuer: Perhaps this is an opportune time to answer questions.

The Deputy Chairman: We are going to deal now with the Supreme Court. I recognize Senator Godfrey.

Senator Godfrey: The first question I should like to ask you deals with your not liking the constitutionalization of the regional representation on the Supreme Court by writing it into the Constitution, and yet you say it is a good idea and in practice that is exactly whathappens. Our constitution, as you pointed out, consists of it being partly written and partly custom, and so forth. I cannot follow why you feel there is some distinction between putting it formally in writing when it is already there in practice, and even in writing as far as the province of Quebec is concerned. I recognize that Quebec is a special case.

Hon. Mr. McRuer: The best man might very well be from Nova Scotia, and in searching him out everyone might agree that there is not a better candidate than this man from Nova Scotia. However, let us assume that there is already one member sitting on the court from the maritime provinces, a member from New Brunswick, and also let us assume that his term will be up in a couple of years. Why should they not take advantage of the opportunity to appoint this man from Nova Scotia to serve that area? As I said, putting it in concrete is not wise, and I do not think it is necessary.

Senator Godfrey: Do you mean to say, if there is a vacancy from the western provinces due to someone’s death or retire-

[Page 15]

ment, that a government would seriously say that there is a man from the Maritimes who is better than anyone from the west? From a practical point of view, do you think that would ever happen?

Senator Smith (Colchester): The senator does not know Nova Scotia.

Senator Godfrey: I have a son living there. He is completely converted to it.

Senator Forsey: Give him time.

Hon. Mr. McRuer: It could very well be that the situation might arise wherein the representative from New Brunswick is going to retire in six months or so, so they might appoint this man from the maritime provinces and look after the western provinces later on. There may be a good man from that region, but it might be already represented. The problem is that you cannot appoint two from the Atlantic provinces. One’s hands are tied. But, more than that, there is the suggestion—this has appeared in editorial comment—that the judges are expected to look after their constituencies in constitutional matters. That is an unwholesome thing to have in the Constitution. You will not find that in the United States.

Senator Godfrey: I thought the bill provided that there had to be only a minimum of one judge from the maritime region, one from Ontario and one from the western provinces and British Columbia. So, if there were 11 judges, there would be an opportunity to appoint more from provinces such as Nova Scotia.

Hon. Mr. McRuer: You may be right.

Senator Godfrey: You criticized the nominating council as being one made up of representatives from all of the provinces as an alternative. It occurred to me, if someone were being nominated from the Maritimes, that a third alternative made more sense—that is, to have a nominating council consisting of a representative from each of the maritime provinces. Simply because you are appointing a judge from Nova Scotia does not mean he will represent Nova Scotia only. The fact is that he will represent all the Maritimes.

Hon. Mr. McRuer: I think you are right. If there is going to be a nominating council, that is right. That is one criticism I have of the scheme. I don’t like to criticize the makeup of the council because I do not believe in it at all.

Mr. R. J. Cowling, Legal Adviser to the Committee: What is not worth doing at all is not worth doing well.

Hon. Mr. McRuer: When the Minister of Justice is considering an appointment from the Province of Manitoba, he will not take up with the Province of Saskatchewan or the Province of Alberta what they think about it. It is not fair to simply obtain the opinion of the Attorney General for Manitoba.

Senator Godfrey: I feel it is completely unnecessary to have this referred to the House of the Federation if one has to deal with this nominating council. In fact, I should like to see that cut out. You made the statement, as have others, that people

[Page 16]

would not go through this process, yet they have to go through a similar process in the United States before the Judiciary Committee of the United States Senate. I do not know of any evidence indicating that an outstanding person has refused to allow his name to be submitted because he does not wish to go before the Judiciary Committee of the United States Senate.

Hon. Mr. McRuer: It would be most difficult to obtain that evidence because one does not know how many have turned down the appointment. I do think it would be most unfair to ask a judge from, let us say, the Court of Appeal of Ontario to allow his name to go in with three other names for consideration, and then have the names put up for debate in the House of the Federation. The debate in the House of the Federation might have a wide influence on his judicial function after he is appointed, if we can assume he got in by only one vote.

Also, there will be a Hansard record of the debate which takes place in the House of the Federation. This particular judge may have tried some of the relatives of the members of that house. To have this debate put on record in the House of the Federation, and not give the man an opportunity to defend himself, is undesirable. That is the most modest way I can put it.

Senator Connolly (Ottawa West): We are greatly impressed with the good sense in the comments you are making. Your experience in the judiciary for so many years gives your evidence so much value to us that we simply cannot thank you enough for being here.

Hon. Senators: Hear, hear.

Senator Connolly (Ottawa West): However, the Chairman will be expressing our appreciation at another time.

Dealing with the appointment of judges to the Supreme Court, have you addressed the question of the wisdom of having authorities in the provincial jurisdiction given the power of appointment to an institution such as the Supreme Court of Canada which is in the federal jurisdiction? Is it wise for one jurisdiction to have authority to appoint to an institution in the other? I am thinking, for example, about the possibility of frustrating the appointment that must be made in the federal jurisdiction if its institution is to function properly.

Hon. Mr. McRuer: There are two sides to that question. The jurisdiction of the Supreme Court is a jurisdiction that extend to provincial matters as well as federal matters. With respect, I do not think there is much argument about the wisdom of what I shall call a consultation with the provinces, but it should not be written into the Constitution.

Senator Connolly (Ottawa West): Is it a sound constitutional principle where you have two jurisdictions, as we have in the federal state of Canada, one federal and one provincial, that the federal authority should not be completely sui juris so far as appointments to its own institutions are concerned? Is that a valid principle?

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Hon. Mr. McRuer: But the Surpeme Court of Canada is not an institution of the federal authority. It is an institution for Canada as a whole. I will be discussion that very problem in connection with clause 36 when we come to it.

I have no objection to a nominating council if it is felt that a nominating council of some sort is necessary to achieve some input from the provinces into these appointments, because the provinces are vitally interested in the constitution of the Supreme Court of Canada. It is not a federal institution. Far from it. Such a nominating council might be composed of three of the chief justices of the provinces.

In the civil rights report I recommended a judicial council to consider the appointment of Provincial Court Judges. I recommended that that council consist of the Chief Justice of Ontario as chairman, a judge of the Supreme Court of Ontario and the Treasurer of the Law Society. That recommendation was accepted. My purpose in making that recommendation was to achieve some method by which the best appointments possible would be made to the Provincial Court bench.

Senator Connolly (Ottawa West): For the sake of clarification, when you speak of provincial court judges, you do not mean judges of the high court?

Hon. Mr. McRuer: I am speaking of the former magistrates. My recommendation was adopted by statute. Before a Provincial Court judge is appointed, the Attorney General must submit his name to the Judicial Council, and the nominee must be approved by that council. Applications can be made to the Attorney General for appointment to the Provincial Court bench, but such applications have to be passed on by the Judicial Council. The result of that process, I am told by different members of the bar, has been to raise the qualify of the Provincial Court bench.

The Judicial Council also has the power to conduct an investigation and recommend that the services of a provincial court judge be dispensed with, and that in fact has happened. But they cannot make orders. They are merely an investigative body. The whole scheme of a council is there. It is under the direction and chairmanship of the Chief Justice of Ontario.

I would have an open mind to something of that sort, although I do not see that we need it for the Supreme Court of Canada. We did need it for the Provincial Court bench.

Senator Lang: I may be imputing something into your previous remarks with regard to the method of appointment to the Supreme Court. Clause 101 and following of Bill C-60, dealing with the Supreme Court, are not designated provisions. In other words, the government is assuming it has exclusive power to legislate in this area. In dealing with the appointing procedure set out in the bill, you said that in fact it was an electoral process imposed on the selection of the judges for the Supreme Court. Would you go so far as to say that by bringing in an electoral process for appointments to the Supreme Court of Canada, the government may be trying to enact something that is constitutionally ultra vires.

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Hon. Mr. McRuer: I would not want to give an offhand opinion on that. I have a considered opinion that they cannot confer on the proposed House of the Federation that power because they cannot create the proposed House of the Federation in the first place.

Senator Lang: Touché.

Hon. Mr. McRuer: I will deal with that if there are no other questions on the Supreme Court.

The Chairman: I think Senator Forsey has a question.

Senator Forsey: I just have one very short question arising out of the question Senator Connolly asked. Surely the principle he was laying down is a little extreme, shall I say, because, in fact, at present the Governor General in Council or the Governor General—I have forgotten the exact term in the act,—appoints the judges of the provincial courts, the superior, district and county Courts, with the exception of the courts of probate of Nova Scotia and New Brunswick, so there does seem to be there an interference, if I may use that word, of the dominion authority in provincial institutions. I am a little bothered by the sweeping terms of Senator Connolly’s question.

Hon. Mr. McRuer: There you are getting into another branch of constitutional law, as far as the judges of the Supreme Court are concerned. I shall refer to that later on, if I may, in another aspect.

Historically, judges of the Supreme Court have been the Queen’s judges. They are recommended for appointment, but the appointment comes from the Governor General by virtue of the prerogatives he exercises for the Queen. There is a lot tied up in that as to the prerogatives and powers exercised by the judges. I want to make some reference to that later on. I do not think that is the same thing because, under the British North America Act, undoubtedly the federal government has the power to create a Supreme Court of Canada. They did not have one at the time of federation, but they must exercise it under their own powers and not delegate their powers in the way that they are purporting to do.

Senator Godfrey: Before you leave the subject of the Supreme Court, I have one other point that I want to mention. You talk about the difficulty of confidentiality and the possible difficulty of allowing people to permit their names to be nominated. You are aware of the committee that the Canadian Bar Association has at the present time, and that the Minister of Justice refers nominations to the supreme courts of the provinces to this committee, which decides whether they are not qualified, qualified, or very well qualified. My understanding is that in many cases names are submitted without their owners knowing they are being considered.

Hon. Mr. McRuer: I am sure that happens.

Senator Godfrey: Secondly, I know of only one leak. I think the confidentiality has been pretty good over the years.

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Hon. Mr. McRuer: That is a very different thing from a constitutional nominating council. I have never heard that the Minister of Justice has consulted the committee of the Canadian Bar Association as to promotions from a court of appeal to the Supreme Court.

I was consulted by the Minister of Justice at the time I was on the bench. One minister asked me to send him the names of five who I thought would be eligible, and who would make good judges if they were appointed. I think one of them was appointed. He happened to be a Conservative, and he turned out to be a very poor judge. I thought he would be a good one from the way he handled matters in court, but he had other deficiencies that I did not know about, such as difficulty in making up his mind.

The Deputy Chairman: That is quite important.

Hon. Mr. McRuer: However, he is not living now.

Senator Marchand: He should have been a minister.

Senator Greene: In the Catholic Church.

Hon. Mr. McRuer: I said I wanted to speak, and I hope I do so concisely, with reference to the House of the Federation, and the power of Parliament to pass the bill without going to Westminster.

I have read what Professor Lederman said before both committees on what was said about conventions and usages. I want to say right now what I intended to say at the outset, and that is, I do not come here as a constitutional scholar. I am not a constitutional scholar. I have been engaged in the front line of attempting to apply law to people. Constitutional scholars are made in universities, and I respect them very highly.

I have this to say about the suggestion that Parliament, by virtue of section 91.1, can amend the constitution in the way that is suggested. In my view, the sponsors of this bill read into section 91.1 of the B.N.A. Act far more than is there. It is elementary, in considering a statute, that one must look at the whole statute and its purposes, and this is particularly true in considering an amendment to a statute.

When one examines the B.N.A. Act as a whole, and as a vehicle for conveying power to those in a position to exercise it, one finds schemes, (a) for the election of members of the House of Commons; (b) for the formation of an executive; and (c) for the call of certain members of the House of Commons to form a Privy Council. The scheme comprehends the appointment of senators to exercise the powers given them under the statute, and who may be members of the Privy Council but who may not sit or speak in the House of Commons. I think I am correct on that.

When power was conferred on Parliament to amend the Constitution—there are the exceptions under section 91—in my view it never was intended that this meant power to change the whole power structure of Parliament as it exists under the B.N.A. Act; for example, to construct the means by which the

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authority or ideas of the people could be made effective in the law-making process. I do not think it can be said that the power to amend the Constitution of Canada was intended to give to Parliament a power to change the fundamental character and nature of the House of Commons as long as the House of Commons did not continue for more than five years from the day of the return of the writs choosing the house.

Clause 91.1 of Bill C-60, on the arguments put forward for the power of Parliament, would create a scheme that might change the characteristics of the House of Commons. There is an exception made in clause 10, which reads:

The principles of free and democratic elections to the House of Commons of Canada and to the legislative assembly of each province, including the principle of universal suffrage for the purpose, are fundamental principles of the Constitution of Canada; more particularly no citizen of Canada shall, because of his or her race, national or ethnic origin, language, colour, religion, or sex, be denied the right to vote in an election of members of the House of Commons of Canada or of the legislative assembly of a province, or be disqualified from membership therein.

That is excepted from 91.1. However, it seems to me that if the arguments now put forward for exemption under clause 91.1 of the B.N.A. Act from the Parliament then established, there is nothing to prevent them from making a property qualification for members of the House of Commons, or a non-property qualification for members of the House of Commons, if you can get the votes to do it. I only use that as an illustration.

The point I am arguing is that when the British North America Act was passed and subsection I of section 91 was passed as an amendment, reading the act as a whole it did not contemplate that Parliament should have power to take apart the whole machinery of government. They should be able to repair the machinery and make amendments that will make it work, but when you come to the machinery of government, which was to consist of a Senate and a House of Commons created in the way outlined in the act, that was the machinery of the government contemplated for the exercise of the power conveyed by the people on those who are elected or appointed under the scheme. On a proper construction, Parliament cannot take the whole machinery apart and substitute another machinery with a power flowing from the people through another channel, which is what is being proposed here.

I come back to the philosophy of Chief Justice Duffs judgment, that people, through the electoral process, are conveying power to be exercised by legislation. This is the process. If they wish to go back to Westminster, all right, but I think it is too much to put into clause 91.1 what is beng attempted here. I am just putting that in now, because it is incidental to the power to appoint members of the Supreme Court by getting the approval of the House of the Federation, which I do not think they have power to provide for by mere act of Parliament. Are there any questions on that?

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Senator Greene: My Lord, accepting your thesis vis-à-vis clause 91.1, and presuming that prior to any election based on the new Constitution no one has taken it to the Supreme Court of Canada to have it declared unconstitutional, could an election held under the new Constitution be voided by anyone who wished to have the election declared null and void, if your thesis is correct, which I have no reason to disagree with?

Hon. Mr. McRuer: With due respect, I don’t see how you could have an election under a Constitution that did not exist.

Senator Greene: If Bill C-60 were passed by Parliament and no one then, incidentally or otherwise, had it declared unconstitutional, we would presume that at some time an election would be held under the purported aegis of the new Constitution as embodied in Bill C-60. My question is this: Would such an election be null and void at the behest of any citizen who wished to have it declared null and void because it was based on something that did not exist?

Hon. Mr. McRuer: It is difficult for me to see why an election would make any difference. If Parliament had not the power to pass a bill providing for the House of the Federation, if it went on and held an election, then it seems to me that you would have been having an election for a Parliament that did not exist.

As I said, I do not pose as a constitutional scholar, but it does seem to me that there is no power in Parliament to enact legislation which, when enacted, is ultra vires but which would become intra vires because there had not been an election following.

Mr. Cowling: May I put a supplementary to Senator Greene’s question? Could I approach it from a slightly different angle? Senator Greene mentioned an election, and I guess he was referring to an election of the House of Commons.

Senator Greene: Yes.

Mr. Cowling: May I put the question this way: if this proposal with regard to the House of the Federation is proceeded with by a mere act of Parliament and that is adopted and subsequently Parliament is called together and the House of Commons meets and the new House of the Federation meets and legislation is sent up from the House of Commons to the House of the Federation, if Parliament did not have the constitutional right in the first place to put that House of the Federation in place, would the consequence be that, in effect, Parliament had no power to adopt any valid legislation, and that with respect to the first piece of legislation that Parliament attempted to pass anyone could go to court and say, “Well, I don’t have to obey this legislation because it was not validly passed,” and the courts would strike down? Is that the consequence, shall we say, the important consequence of going ahead with something which may not be constitutionally sound?

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Hon. Mr. McRuer: All I can say is that you raise a very perplexing problem, and the best way to proceed is to make sure that you are going on the right path in the first place.

The Deputy Chairman: Indeed.

Hon. Mr. McRuer: That can be by going to Westminster.

The Deputy Chairman: Yes, Senator Forsey?

Senator Forsey: I was merely going to ask if the Chief Justice would apply the same argument to the position of the Crown, that this also could not be changed by a simple act of Parliament under the purported powers of section 9 I, head I.

Hon. Mr. McRuer: Well, to be frank, Senator Forsey, I have not studied that aspect of the bill in order to give an opinion. It may be that it follows naturally, but I kept away from that. I am going to say something about the monarchy in conclusion, but I do not want to get into what is now proposed to be referred to the Supreme Court.

They Deputy Chairman: Perhaps Senator Forsey’s question could be reworded in this way: Has Parliament the power to abolish the monarchy without going to Westminster, or without at least getting the compliance of the provinces? If they can touch it, in other words, can they go so far as to abolish it?

Hon. Mr. McRuer: I do not want to get into that constitutional argument, if you do not mind.

Senator Godfrey: Mr. Chairman, is there some confusion with respect to Senator Greene’s question? If the courts hold one part of this bill as unconstitutional—for example, that they have not the power to create the House of the Federation, that would not affect the constitutionality or validity of the elections to the House of Commons, surely.

Hon. Mr. McRuer: Not necessarily.

Senator Godfrey: I gathered not.

The Deputy Chairman: It would create a problem for passing laws.

Senator Godfrey: I realize that, but the actual elections to the House of Commons would still be valid.

Senator Smith (Colchester): Mr. Chairman, I wonder if I might venture to ask the Chief Justice whether he would consider the machinery which he spoke of to administer the power derived from the people to consist, under the British North America Act, of the Crown and the Senate and the House of Commons. Is that the complete machinery? Put it another way: Is the Crown an integral part of the machinery of which you spoke, which has been set up to exercise the power derived from the people?

Hon. Mr. McRuer: Well, it is, as the British North America Act is worded.

Senator Smith (Colchester): Thank you.

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Hon. Mr. McRuer: But again there may be answers to that argument. I have not considered the bill in all its aspects.

Mr. Lalonde says,”We are not changing anything. It is just trying to put into words what is there now.” I am coming to that later on and I would prefer to leave until then what I wish to say about the monarchy.

Senator Smith (Colchester): Thank you.

Senator Olson: May I ask a question about the difference between what is in Bill C-60, section 91.1 and what is in the B.N.A. Act under section 91.1? If this bill is passed and becomes the Constitution of Canada, what would happen insofar as the federal authority is concerned, if those sections of the B.N.A. Act are not either amended to conform with this act or repealed from the B.N.A. Act? In your opinion, would it be the B.N .A. Act in its present form or this act which would take precedence in respect of the courts interpreting the Constitution? Let me try to put it more directly. If there is a difference between what is written in this bill and what is in the British North America Act, which one would the courts rely on?

The Deputy Chairman: If they declared the bill unconstitutional in part or in whole?

Senator Olson: I suppose the way to fix it up would be to ask Westminster to change the B.N.A. Act to conform to all of this or repeal it. I am simply suggesting that there are some differences. Clause 91.1 is one, the substitution of the House of the Federation and all the detail related to that. The substitution for the Senate is a second one. There are others as well.

Hon. Mr. McRuer: I could ask this of those who have had an opportunity to study this in more depth than I. It is not suggested, is it, that Parliament could pass clause 91.1?

The Deputy Chairman: No.

Mr. Cowling: I think that is the answer.

The Deputy Chairman: There is an asterick on 91.1.

Senator Olson: But there is not one where it changes the Senate to the House of the Federation.

The Deputy Chairman: No. If it were declared unconstitutional, I suppose the former section would continue to have force.

Senator Robichaud: I have a brief question. Is there a possible way to change the Senate into the House of the Federation without a majority vote being taken in the Senate, a majority vote being opposed to it? In the past we have heard cabinet ministers and members of the House of Commons saying that they will abolish the Senate. How can it be legally done without a majority vote taken in the Senate?

Hon. Mr. McRuer: If I am right in my conclusions on the construction of section 91.1, they cannot. I know that has been

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talked about in the past for some time now. I think it was said that the Senate finally came to terms because they were afraid of being abolished. I do not know how much truth there is in that.

Senator Robichaud: This is what I am coming to. I know for a fact that on certain occasions we were opposed to some piece of legislation or some part of a bill submitted to the Senate and we were told we had better pass it or we would be abolished. How can that be done?

Hon. Mr. McRuer: If I am right in my construction of section 91.1, they could not. I think that is destroying the process of the exercise of sovereignty of the people through the powers conveyed under the British North America Act on members of Parliament to make laws. It is not members of the House of Commons, but members of Parliament. It contemplated a Parliament composed of the House of Commons and the Senate.

Senator Connolly (Ottawa West): And the Queen.

Hon. Mr. McRuer: That is right. Construing the whole act as I put it, there is not that power.

Senator Connolly (Ottawa West): As a supplementary question, may I ask you whether one simple way of putting it is this: the absolute veto power that the Senate now has under the British North America Act will apply to this bill if and when it comes before the Senate?

Hon. Mr. McRuer: I do not see any reason why it should not.

The Deputy Chairman: You can go further. The question put by Senator Robichaud suggests that even if you voted for the abolition of the Senate, your vote would be null and void.

Senator Forsey: On the Chief Justice’s instructions.

Senator Greene: We do not even have the right to self-immolation.

Hon. Mr. McRuer: I don’t think you can constitutionally commit suicide.

Senator Robichaud: Then our conclusions should be that if and when this comes before the Senate, and if we vote against it, we may tell the other people in the other place to go straight to hell.

Hon. Mr. McRuer: That is an indelicate way of putting it.

Senator Forsey: The Chief Justice would never use such language.

Senator Connolly (Ottawa West): There is this to be. said, though. If there should be a joint resolution proposed by the government and put before the Senate, which would, in effect, abolish the Senate, it would be required of the Senate to pass that before it could go to Westminster for approval.

Mr. Cowling: That is a convention.

Senator Godfrey: It is not in the Constitution.

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Senator Connolly (Ottawa West): The absolute veto power applies there, too.

Mr. Cowling: The point is, if the Senate refuses to pass the legislation, could the government go directly to Westminster? There they would be faced with the problem that convention says that a resolution of both the House of Commons and the Senate is needed. If the Senate refused to pass the act, presumably it would refuse to adopt the resolution, which is the necessary step before one goes to Westminster.

Senator Godfrey: I would suggest exactly the opposite. If the Senate did not adopt the resolution passed by an elected house, I think Westminster would be more liable—particularly if the provinces had all agreed—to ignore the Senate under those circumstances.

Mr. Cowling: I would agree with Senator Godfrey. It has been said that Westminster would probably listen to the federal executive, but even if it did, that could be brought into question before the Supreme Court of Canada. Professor Lederman would suggest that—and perhaps I am attributing too much to him, but if I read the tenor of his remarks correctly he is saying that the convention of having a resolution before one goes to Westminster has crystallized into the point of law and that the Supreme Court of Canada might look into that.

Senator Godfrey: I will put it this way: it is a debatable point. I would not rely on it too heavily.

Senator Forsey: May I put a supplementary point. I cannot say it is a question, but my strong recollection is that in 1871 the House of Commons of Canada adopted, without a dissenting vote, the principle that amendments to the British North America Act should be sought only upon an address of both houses. It is not merely that it has been a consistent practice, but that principle was affirmed without a dissenting vote by the House of Commons after the government of Sir John A. Macdonald had sent a simple request to the executive for an amendment and, in effect, it was rapped over the knuckles and no amendment was passed until the address had, in fact, been presented ex post facto. I am totally certain that is the fact, and it lends, in my judgment, extra force to the argument that this is an established convention.

Senator Connolly (Ottawa West): Could we take it a step further and say this: in view of the fact that the House of Commons can change a position that it had taken on another occasion, would it be possible for the house to wipe out that convention by another such resolution as was passed in 1871.

Senator Forsey: I would say not, because it has since been followed without exception. That surely would establish that this principle, which was not dissented from by the Senate at the time—I do not think the Senate pronounced upon it—was a definitive convention of the Constitution. It is merely a supplementary point.

Hon. Mr. McRuer: I think these are matters which I shall leave with you. They are matters on which I do not think I can be of much assistance.

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Clause 36 of the bill reads:

The administration and enforcement of the laws of the federal authority in and for Canada shall rest with that authority, and the administration and enforcement of the laws of each province or territory of Canada shall rest with it, except as otherwise provided by or pursuant to the Constitution of Canada or by any agreement or arrangement not consistent therewith.

To my mind, that is a highly undesirable provision. In saying so, I realize I am getting into a somewhat contentious issue from the point of view of the federal authorities. Carried through, this could establish in Canada the practice of having two systems of administering justice: the federal administering justice with respect to all federal laws, and the courts of the provinces administering justice with respect to provincial laws. Such a result would be very undesirable for Canada. It would put the profession into the position of having to determine which court to take their cases to. This is by no means new. It is an attempt to put into the Constitution some ideas that have been around for some time.

You may recall that when the Federal Court was established, the bill was drawn in such a way as to move into the jurisdiction of the Federal Court the matter of bills of exchange. That proposal would have resulted in actions arising out of promissory notes going before the Federal Court. As I recall it, that provision was dropped.

There has been a consistent expansion of the jurisdiction of the Federal Court. The powers of the Supreme Court judges to hear applications for certiori and mandamus were taken from them with respect to federal institutions. Those are now heard by the Federal Court. I simply put you on guard that it is undesirable to constitutionalize the division of jurisdiction of the court.

I am somewhat puzzled with respect to the power of federal judges to exercise all of the prerogative powers exercised by a judge of the Supreme or Superior Courts of the provinces. That is a large subject in itself.

Senator Hayden: If I might interrupt for a moment, the laws of the federal authority referred to in clause 36, I suggest, do not include the Constitution.

Hon. Mr. McRuer: But this would be in the Constitution, would it not? It is part of the Constitution.

Senator Hayden: Physically it would be, but is there any definition as to what would constitute the laws of the federal authority?

Hon. Mr. McRuer: That is a puzzling question.

Senator Hayden: The Constitution is not the sole holding of the federal authority.

Hon. Mr. McRuer: I am not suggesting that the Constitution constitutes a law of the federal authority. However, the laws respecting bills of exchange are. laws of the federal authority.

Paragraph 27 of clause 91 reads:

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The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.

There is a conflict between that and clause 36 as far as the constitution of the courts of criminal jurisdiction, and so forth. This suggests that the federal authority could establish its own federal criminal courts.

Mr. Cowling: On this very subject, I think that Mr. McRuer—and he tells me he likes to be called just Mr. McRuer—has brought up a very important point that has escaped the committee so far, and that is that there would appear to be a conflict not only between clause 36 and paragraph 27 of clause 91, but also with paragraph 14 of clause 92, which deals with the administration of justice in the province. It would appear to be an indirect—and indirect may be a modest word—way of amending the divisions of powers, which is something for phase II.

The Deputy Chairman: Clause 36 is part of the phase 11 proposals. There is no doubt that there is a direct contradiction as between clause 36 and paragraph 14 of clause 92. Certainly, it needs clarification.

Senator Greene: Under the authority of the Federal Court Act in particular, we have already run our present Constitution into a trend that disturbs some of us. I recall a recent episode with a maritime bill which gave the Federal Court the right to enjoin a provincial court from hearing a maritime action. This, again, I think is divisive and rather makes a garbage can of the Federal Court. This type of thing has been creeping in. I wonder if Your Lordship is suggesting that, under clause 36, this already present trend—which to many of us has been worrisome—would be enlarged, enhanced and deified into a constitutional concept which would be divisive of our to-date successful court system in Canada which has been one of the unifying factors of the country.

Hon. Mr. McRuer: I am not only apprehensive, but my own view is that that is what would happen with a trend that has been going on for some time. As Senator Greene has said, one of the great unifying factors of the nation has been the court system and the administration of the criminal law.

Senator Godfrey: I am not clear as to the effect of clause 36. Take, for example, bills of exchange, which come under federal authority. Just a cursory reading of clause 36 would seem to prevent an action involving a bill of exchange being tried in the provincial courts. I mean, it would have to be tried in the Federal Court, or it could be so interpreted that way.

Hon. Mr. McRuer: The way it struck me was that it would give power to the federal government to set up a court that would hear any matter of law or fact arising out of federal legislation, which would include a bill of exchange. Now, you have given another point of view and it may be there could be a strong argument put forward that it would exclude the

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provinces from setting up courts which could try matters relating to the Bills of Exchange Act, et cetera.

Senator Godfrey: It is just an argument.

Hon. Mr. McRuer: There is distinct conflict between it and sections 91 and 92 that has been overlooked by the draftsmen. But, with my sense of history, I do not think it has been overlooked in spirit.

Mr. Cowling: Could it also mean that the RCMP would replace the Ontario Provincial Police insofar as enforcement of the criminal code is concerned? It seems to me that that is a possible interpretation of clause 36 if it were to go forward as drafted.

The Deputy Chairman: Perhaps we will hear from the McDonald Commission on that.

Mr. Cowling: We could refer it to them.

Hon. Mr. McRuer: I am about to proceed to the entrenchment of the Bill of Rights. I have purposely asked that the Committee be furnished with certain pages from the civil rights report, which deals rather exhaustively with the subject, and it relieves me of speaking on it at great length.

I can say, concisely, that any bill of rights must consist of general words which have to be construed by the courts. Generality of language applied to specific cases must be limited to protect the public interest. This gives the courts very· wide legislative powers which the judges have no special qualifications to exercise and, in some cases, can be a denial of the protection of the rights of the individual.

It has been the history of entrenched bills of rights that the courts have distorted the language of such a bill to give it entirely different meanings. That has been true in the United States with the fifth amendment. I think the appendix to this section is copied there. For at least 30 years in the United States the legislators were denied the right to legislate on. hours of labour, on child labour, and on matters of that sort, because they interfered with the first amendment—the right of contract.

I do not think that judges are the best interpreters for the purpose of legislating what is meant by general language. “Freedom of religion”—what does that mean? To me, entrenchment does more harm to the rights of the individual that it does good.

I recommended that there be a bill of rights for Ontario, and there should be a better bill of rights than we have in Canada, but it should not be exposed to the final interpretation of judges.

I can give you an example of a simple case from my own experience. In Ontario they passed a law in which—and I thought in very clear language—they defined the rights of the adopted child. They said, “From the date this act comes into

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force, the adopted child shall have all the rights of a child born in lawful wedlock.” Now, that is pretty clear language, and when a case came before me, I said that that is what it meant and my judgment was not appealed. However, another case came up in which another judge followed my judgment. That case went to the Court of Appeal and to the Supreme Court of Canada and they said, “No, the child does not get any rights under instruments that were created and effective prior to the date of the act being passed.”

By judicial interpretation they cut away for all adopted children the rights that they might have had accruing under trusts, et cetera, that were set up for the children of a parent. At the very next session, after the Supreme Court judgment came out, the provincial legislature amended the act to say, “This is what we meant. We meant all the rights, not the rights that arose after the act came into force,” and that was simple. If that had been a constitutional right they would have been stuck; the legislature could not have it changed. It could only have been changed by a constitutional process of amendment. We don’t know what is suggested to be the process for amending this proposed Constitution. That is one of the unfortunate things of attempting to decide what is to be entrenched until you know how you can correct injustices that may arise by reason of the interpretation of the courts.

The freedom of the press is a very important matter in our whole democratic process. If it is entrenched and courts should put on it restrictions that are unsatisfactory to those who believe, as Chief Justice Duff has declared, that it is one of the fundamentals of our process, how are you going to change it?

I am sure that if the proposed Charter of Human Rights were adopted the provinces would lose large areas of their legislative power, and the provinces would be very foolish to consent to the entrenchment of the proposed bill. We do not know what social conditions will be 10, 15 or 20 years hence. I have seen social conditions change a great deal, and I have seen public opinion change a great deal. After all, we are a democracy, where legislative power is exercised by those who have authority to exercise it. It should not be delegated to the judges, who are not responsible to the people. When I say that I am not casting any reflection whatever on the integrity of the judges. All I say is that the legislative power should be in the hands of those who legislate.

I am quite sure that the present phraseology would provoke countless law suits. For example, clause 10 deals with the right to vote. There is a scheme in the bill that probably is intended to cover the free democratic process that everyone has the right to vote. What about insane people? They have not a right to vote now if they are confined. There is a difference between the Ontario act and the federal act as to those who are confined to mental institutions. I dealt with that in the civil rights report. There are a great many voluntary patients in mental institutions. Should they be barred from voting? Or

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should it be just those who are confined against their will? I think the Ontario act would bar them from voting if they are voluntary patients; the federal act would just apply to those confined against their will. That is my recollection.

Are prisoners in institutions to have the right to vote, or can it be said that because they have been convicted they, to that extent, while serving their sentences, have forfeited some of their civil rights?

Under the present charter I can see the suggestion that the court should be involved at all levels with constitutional arguments arising out of entrenchment. Those who favour entrenchment seem to have an idea that they would get better decisions from the courts if the rights were entrenched. Time and again it has been said that the way the Supreme Court of Canada has dealt with cases arising under the Bill of Rights has been unsatisfactory. It would be that much worse if they were entrenched, because if the Bill of Rights is not entrenched and is not satisfactory, amend it and get it right. But you then have the guidance of what the court has held it does not apply to. If it is in the public interest to correct the court’s decision, that can be done by Parliament or the legislature. My view is that an adequate and proper Bill of Rights is the proper selection, and entrenchment, especially without knowledge of the amending formula, would be an exercise in speculation as to whether it would be beneficial or detrimental to the rights of the individual.

In reading the proceedings of this committee I noticed that some senators, at least one or two senators, were concerned about the decisions in the Wray case and the Hogan case. I was concerned about the decision in the Wray case, I can assure you. We considered it in the Law Reform Commission of Ontario and we recommended there that there be amendments to the Evidence Act that would give the court power to reject evidence that had been obtained by means that were reprehensible to the good administration of justice.

There may be better formulae than that, but it can be dealt with by legislation and should be dealt with by legislation. I think, with due respect to the Supreme Court of Canada and the Court of Appeal, they could have dealt with it under the present law on the inherent powers of the court, but probably that was not argued.

Looking at the Hogan case, to me the court did decide that the police did not co-operate in getting counsel for the accused who was charged with impaired driving, but they said to him, “If you don’t take the test, we will have to charge you with refusing to take the test.” Well, the only thing that counsel could have told him was, “By law you are required to take the test, but if you don’t take the test, then they can charge you for refusing to take it.” It was not a momentous constitutional decision at all. However, if they were wrong, then it can be corrected by statute.

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That brings me to the end of the entrenchment of the Bill of Rights, except for questions.

Senator Hayden: I should like to ask this question. Section 24, to me, is a confusing section. It may be that it is intended to go so far as to give some authority to the judges to legislate where the rights and freedoms do not appear clearly to cover a particular situation. You will note there that they say, “Where no other remedy is available.” They then give the court, on an application, the right to define and to enforce whatever definition they work out. The Point is that, if an individual feels aggrieved and brings an action that his rights and freedoms have been interfered with, in that action one of the elements that the court would have to consider would be whether the provisions of the Bill of Rights go as far as to cover this man’s claim or assertion.

Therefore, in any action by an individual to asset his rights and his freedoms that he is entitled to, that question can be raised without any section 24.

Hon. Mr. McRuer: Well, Senator Hayden, I think section 24 is a procedural one. I think it would appear, at any rate to me, to give a procedural right to anyone to commence an .action for a declaration of his rights. Any individual may, in accordance with the applicable procedure of any court in Canada of competent jurisdiction, request the court to define or enforce any of the individual rights and freedoms declared by this charter.

As you say, it is confusing in its wording, but it seems to me that it would give any individual standing.

Senator Hayden: Yes, but the first question that has to be decided is that there is no other remedy.

Hon. Mr. McRuer: Yes. There would not be a remedy, if he did not have what we will call a lis before the court, but he wanted to bring this declaratory action. It bothered me when I read it. I want to tell you that.

Senator Hayden: Do you suggest that at the present time, without the benefit of section 24 becoming law, that an individual could not ask for a declaration of the courts as to the extent of his claim fitting into the rights and freedoms which the bill is supposed to give him?

Hon. Mr. McRuer: Well, I do not think that the court should entertain a claim for declaration in the abstract, so to speak. I want to know, for example, what my rights are with regard to freedom of religion—(and I am staying away from another section). So I go to the court and say, “Would it be unlawful for me to refuse to take a polio injection because my religious belief is against it?” In one way it seems to me to open up an action for a declaration before anyone is hurt; but he wants to know what his rights are under the charter.

That is contrary to the principle that one comes before the court with a lis—that is, something he wants determined; not an abstract declaration of law. For example, it may be that he

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is charged with an offence and the proceedings have been contrary to the Bill of Rights or that they are attempting to introduce some evidence that would be in violation of the Bill of Rights, if it were introduced. It would seem to me that one could apply for a mere declaratory judgment, but if you look at the last words, they may limit the right.

—by means of an injunction or similar relief, accordingly as the circumstances require.

On the other hand, it does appear that it would be open to apply for a mere declaratory judgment.

Senator Hayden: I agree it is undesirable to give judges the power to legislate. But if under clause 24 an individual takes the steps provided, and determines that there is no other remedy, the judges are given authority and the individual is given authority to ask for a definition. Depending on whether the definition is broad enough to cover his case, he may ask for enforcement of his right. Is that not an invitation to the judges to legislate to broaden the scope of the rights and freedoms?

Hon. Mr. McRuer: I think you have a good point. It not only is an invitation to the judges, but it is an invitation to members of the public to come in and ask the judges to legislate by a series of declaratory judgments when there is really no contest before the courts. They are just coming in to ask for a declaratory judgment.

Senator Godfrey: That is not legislation any more than the rights that the courts of equity used to give people. People came and they received equitable relief. Is that not what you are really asking for?

Senator Greene: You don’t need clean hands here.

The Deputy Chairman: It is now 12.40 p.m. On my list I see that I have Senator Greene, Senator Godfrey and Senator Forsey. If they are the only ones to proceed with this particular matter, we may proceed. Otherwise, we can adjourn until two o’clock.

Hon. Mr. McRuer: Before we adjourn, I wish to reply to Senator Godfrey.

I do not think there is any similarity between the powers of the courts of equity and these particular circumstances. They were confined circumstances. This here is a whole charter of rights. It is in general language and not easily defined as to what it means. I gave the illustration of freedom of religion. On freedom of religion the Supreme Court of Canada will be asked to say what is freedom of religion in a particular case.

They did not have a Bill of Rights at the time of the Jehovah’s Witnesses’ cases in Quebec, but they found ways of doing justice. Some people think it was justice and some people think it was injustice.

So, I do not think there is any similarity between the jurisdictions of the Courts of Chancery and the jurisdiction that would be exercised in interpreting an entrenched Bill of Rights. If I may quote Chief Justice Hughes, he stated: “The

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Constitution means what the judges say it means”. When they come down to the general language used for the charter of human rights, my point was that the final say should not be with the judges.

Senator Godfrey: You may have misunderstood my point. I was only referring to the question of remedy. I was comparing the judges looking for a remedy after they had interpreted. It was somewhat comparable to the remedies the courts of equity used to find.

Hon. Mr. McRuer: What bothers me about this is that they may give a declaration where there is no remedy asked for. It may be a mere declaratory judgment to guide other judges.

Mr. Cowling: It is like a reference.

Hon. Mr. McRuer: A reference by convention is considered to be binding now.

Senator Godfrey: I am not talking about the binding but the enforcing aspect.

The Deputy Chairman: Shall we adjourn now?

Senator Lang: Let us indulge the inclination of the witness at this point. He has been answering questions for two and a half hours now.

Senator Connolly (Ottawa West): May we ask the Chief Justice how long he might take to finish his presentation?

Hon. Mr. McRuer: I do not wish to finish it before lunch.

Senator Connolly (Ottawa West): We don’t want to burden you this afternoon, that is all.

Hon. Mr. McRuer: I would say about an hour and a half.

The Deputy Chairman: If we could set the target for 3.30, that would be convenient for some of the members who have flights to take.

Senator Greene: Senator Godfrey sneaked ahead of me, although my name was on the list. I may not be present this afternoon; may I ask His Lordship one question?

The Deputy Chairman: Yes.

Senator Greene: My Lord—and I apologize for not heeding the injunctions of our counsel who referred to you as Mr. McRuer, but at my age the habits of the years are hard to shed.

Hon. Mr. McRuer: You are just a young man.

Senator Greene: I take it that your premise is that to ensconce a Bill of Rights into a constitutional straitjacket will rather make those rights less flexible. With the progress of time, we do not know what human rights are going to be acceptable to the public in 10, 20 or 50 years, or however long this Constitution may last. Do you feel the flexibility should be left to legislation rather than to entrench it into a straitjacket, and in doing this might we not be limiting rights in the future by judicial interpretation?

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There is only one question I have. Your Lordship has referred to the fossilization via the American Constitution. Your Lordship also referred to the Hogan case. The Miranda decision very clearly would have made the Hogan case come out differently in Canada than it would have in the United States.

Some of the civil liberty decisions of the Warren Court surely enabled the rights of the minorities in the United States to be resolved where the legislative process could not, perhaps because of the fact that some of these things, like the rights of minorities, were too hot to handle politically. By judicial interpretation of the Warren Court, minorities achieved many rights which they otherwise might not have achieved.

Is there any reason why in the United States the Warren Court was able to do what it did? The Miranda decision became the charter in respect of the liberty of the individual as to how the police must handle his rights before charging him, whereas our courts have been loath to move in these directions. For instance, was there anything to prevent our courts from giving language rights rather than having to wait many years before the Official Languages Act could be passed by Parliament?

I see some inconsistency in your thesis. Judging by the American experience, the ability of the courts to step into the area of human rights, for example, through an entrenched constitution resulted in civil rights moving ahead faster than was politically possible in our country because of the lack of a bill of rights and because the courts could not become involved.

Hon. Mr. McRuer: In the first place, I think it is a very considerable reflection on our whole parliamentary system if we have to depend on those appointed to the bench to take leadership in the defence of human rights. I am not prepared to indict our parliamentary system in that way. I have great faith in our democratic system of legislation. That is the reason I recommended a bill of rights for Ontario. If the courts cut down what the legislators put forth, the legislators can soon correct it under the legislative system, whereas under the constitutional system it would require and amendment to the Constitution, and we do not know what that amending formula will be. We are talking very much in a vacuum at the present time.

The American courts do take a wide legislative power, a good example of that being the question of busing children to school, and court orders of a like nature. I do not think we want that kind of thing in Canada. To me, the paramount concern should be the protection of the rights of all the people, and I think that is achieved by the courts enforcing the legislation passed by the legislators and not attempting to legislate on their own behalf.

Certainly, arguments can be put forward that the American system has done a great deal of good in areas where there were

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political obstacles, but I think we have to find solutions for our political problems without asking the judges to solve them.

The committee adjourned.

The committee resumed at 2.15 p.m.

The Deputy Chairman: I understand Senator Godfrey has some questions about the entrenchment of the Bill of Rights.

Senator Godfrey: Mr. McRuer, you pointed out the dangers of entrenchment. I would gather from that that you do not really feel the Bill of Rights should be in the Constitution at all, or it should not be entrenched in the Constitution.

Hon. Mr. McRuer: Well, I would have thought that it would not be in the Constitution unless it were entrenched.

Senator Godfrey: Professor Tarnopolsky gave evidence, and he discussed the effect of the Drybones case and the subsequent cases in the Supreme Court of Canada. He pointed out that while the Drybones case held that the Bill of Rights has an overriding effect upon legislation that had been passed previously, it was not at all clear that it had an overriding effect upon legislation passed after the Bill of Rights; and that the advantage of putting the Bill of Rights in the Constitution was that it would have a stronger effect, and it would demonstrate it had an overriding effect.

I will just read part of his evidence given when he appeared before the committee on August 10. He said:

This brings me to the issue of entrenchment and the overriding effect. I do not think that entrenchment is crucial in determining the overriding effect of a bill of rights. The intent of the Bill of Rights and its constitutional status is much more important.

In other words, if it has a constitutional status, it has an overriding effect on other legislation.

Later on he said:

What becomes much more important is whether the courts will hold that legislation enacted subsequent to the Bill of Rights is still subject to its terms, and this is of course the pertinence of the question in the Drybones case, because the Drybones case, on its facts, does not go that far.

He went on to say:

Even before entrenchment, I have argued that entrenchment does not affect the constitutional position—

In other words, you can have a constitutional aspect of a bill which makes it stronger if it is part of the Constitution even I hough it is not entrenched. Have you given that any thought?

Hon. Mr. McRuer: I think that probably there are two things there. In the first place, the Bill of Rights, as an expression of the will of Parliament, could be given retroactive effect, so to speak, and govern the interpretation of all previous

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acts. It could lay down the interpretation of future acts of Parliament except insofar as they are stated to be “notwithstanding.”

I do not understand whether Professor Tarnopolsky was putting forward the suggestion that a bill of rights that is entrenched has a more authoritative status than a bill of rights that is not entrenched.

Senator Godfrey: He did say it did not matter whether it was entrenched or not.

Hon. Mr. McRuer: I think it matters a great deal.

Senator Godfrey: I mean as far as whether it had an overriding effect or not.

Hon. Mr. McRuer: The dispute that has arisen in the courts really arises out of the phraseology of the Bill of Rights and not out of any principle that is involved, except that a statute is not to be taken to be retroactive unless it specifically says so. I believe it is that principle that has given rise to the difficulties. It is also a matter of whether it is merely a question of interpretation or a question of specific protection of rights.

Senator Godfrey: Yes, that is in the drafting.

The Deputy Chairman: Limitation of the legislative powers.

Hon. Mr. McRuer: Yes.

Mr. Cowling: The Drybones case was obiter, but there was, I think, more than the suggestion, although it was obiter, although they were dealing there with a statute which had been enacted prior to the Diefenbaker Bill of Rights, that the same thing would have applied even if it had come after.

Senator Godfrey: Mr. Justice Ritchie said that.

Mr. Cowling: Perhaps I could just read from the same page you were reading from, page 12 of Issue No. 4 of this committee’s proceedings. Professor Tarnopolsky said:

The Supreme Court did, in the Drybones case, say that was the effect, but obviously one has to accept that part of their statement as obiter. That particular principle has been repeated subsequently in the Curr case, in which Mr. Justice Laskin, as he then was, on behalf of the majority of the Supreme Court of Canada, said that the Drybones proposition was one that applied to legislation coming before or after the Bill of Rights; and that certainly is the intention in section 5—

Then he goes on to talk about Mr. Justice Ritchie.

Hon. Mr. McRuer: There is just one thing that I wish to add to this discussion. On this Professor Tarnopolsky and I disagree. I think he is of the view that one parliament can bind its successors by legislation; and he relies on the Ceylon case. Now I am speaking from recollection and not from anything he said before the committee. I do not remember that he dealt with this before the committee, but he did mention the Ceylon case, and the judgment of the Privy Council. I dealt with this in the civil rights report and there my argument was: that a subsequent Parliament is elected by other electors, and the philosophy that I have been developing here today is that the

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ideas of the people are sovereign and they express . them through the election of their representatives. The ideas of the people, as expressed in the present Parliament, or the powers the present Parliament gets to give effect to the ideas of the people, cannot be binding on the successor Parliaments. It would be very dangerous to acknowledge the power of one Parliament to bind its successors by saying how an act is to be repealed—say, by a two-thirds majority, or something of that sort. The Parliament of the day derives its powers from those who elected it.

Senator Godfrey: I think Professor Tarnopolsky did point out, though, that if you call an ordinary statute a constitutional statute subsequent Parliaments are more reluctant to amend it, though they have complete power to do it. He referred to the Bill of Rights and the Act of Settlement in the United Kingdom. In effect, just psychologically, by the fact that it is called a constitutional statute it is not going to be so easily amended, although Parliament has a complete right to do so.

Hon. Mr. McRuer: Is there not a fallacy in that argument? It may be that they might be reluctant to change it in certain circumstances, but they do it repeatedly in the matter of distribution. You have the distribution of constituencies, and they say, “We don’t think they were right on that. We will redistribute them in another way.” However, if the professor acknowledges that the Parliament of the day is supreme, then we are at one.

Senator Connolly (Ottawa West): I do not want you to elaborate any more than is necessary, but this morning we talked about conventions of the Constitution, traditions and constitutional precedents other than propositions established in the British North America Act or other statutes of similar status. Would you think, sir, that our assessment of the value of these conventions in Canada is as high as it is in the United Kingdom? Can they be relied upon to the same extent in Canada as they are relied upon by governments in the United Kingdom?

Hon. Mr. McRuer: That is a difficult question to answer, and I do not wish to be too definite about it, except to say that I think we can build up our own conventions. What is constitutional law is a wide subject. For instance, the boundaries of the constituencies are all part of our constitutional law, but picked by Parliament and changed by Parliament. I would hope that the conventions that are built up over a number of years are not too lightly disregarded at any rate.

Senator Connolly (Ottawa West): Would you think, for example, that the convention, which I assume is now in place, that resolutions for the amendment of the British North America Act that are designed to be forwarded to the Parliament of the United Kingdom, and which by tradition of a long time—and perhaps more, as Senator Forsey has said—involve approval of both the Senate and the House of Commons, ia convention that is likely to be respected?

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The Deputy Chairman: By the courts?

Senator Connolly (Ottawa West): By the government, by the courts.

The Deputy Chairman: If by the government, there is no assurance.

Senator Connolly (Ottawa West): That is the question.

Hon. Mr. McRuer: I think that is not a Canadian convention, but a convention of the Imperial Parliament. “Imperial” is a misnomer, and I retract it. If the Parliament of the United Kingdom has recognized it as a convention that they will not act, that is their convention. When you ask whether it will be respected by the courts—

Senator Connolly (Ottawa West): The courts may not have a chance even to look at it. I think perhaps we could say that. But could it be expected to be respected by the executive of Canada?

The Deputy Chairman: Why?

Hon. Mr. McRuer: I would think, putting it in the context in which I am putting it, if it is a proposal to the Parliament of Great’ Britain that they should act, and the Parliament of Great Britain has adopted that convention, that it would be incumbent upon the executive of Canada to respect the convention that has been adopted by the Parliament of the United Kingdom.

Senator Connolly (Ottawa West): Thank you.

Senator Smith (Colchester): With respect to customs, conventions and usages, I am wondering if there is any significance, in Mr. McRuer’s view, in the words contained in clause 35, which read as follows:

The Constitution of Canada shall be the supreme law of the Canadian federation, and all of the institutions of the Canadian federation shall be governed by it and by the conventions, customs and usages hallowed by it, as shall all of the people of Canada.

It occurred to me that, although it speaks of the future—the conventions, customs and usages “hallowed” by the Constitution, which it is proposed to adopt—that it is a clear recognition that conventions, customs and usages are recognized as part of the constitutional law of the country and have the same effect as statutory provisions.

Hon. Mr. McRuer: What bothers me about that is the wording “and by the conventions, customs and usages hallowed by it”. Are those customs, conventions and usages hallowed by the Constitution of Canada, or hallowed by practices in Canada, or British customs and conventions that we have imported as part of our constitutional law? There are a lot of customs and conventions of the constitution of Britain that really are part of our constitutional law now. I think it is very unfortunate wording if they propose to incorporate into the constitutional law of Canada, as part of our Constitution, the customs and conventions which are recognized as the British constitution, which are many and complex.

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Senator Smith (Colchester): It did seem to me that the draftsman was recognizing that it is usual that a constitution consists not only of its statutory aspect but also of customs, conventions and usages.

Hon. Mr. McRuer: Stopped there yes, but he goes on to say “hallowed by it”.

Senator Smith (Colchester): I recognize the difficulty, sir. I am just asking whether or not the very fact that these words “conventions, customs and usages” are used by the draftsman do, in fact, indicate a recognition that such things do form a part of the Constitution.

Hon. Mr. McRuer: I would hope that clause 35 is intended for that. The words of the Constitution do not comprehend the whole Constitution, but it is not worded very well.

Senator Smith (Colchester): Thank you.

Senator Forsey: As a supplementary to that, may I ask if in the opinion of Mr. McRuer those words would make the customs, conventions and usages justiciable?

Hon. Mr. McRuer: With respect, I do not quite understand what you mean.

Senator Forsey: Well, would it mean that it would be for the courts to say what these were?

Hon. Mr. McRuer: Well, I think the court has to find out what they are, and determine if this is a convention that should be applied in a particular case.

Senator Connolly (Ottawa West): It would be a matter of evidence.

Hon. Mr. McRuer: Well, evidence and something the court takes judicial notice of are different things. More likely it would be the latter.

Mr. Cowling: But to which the court would give the force of law.

Hon. Mr. McRuer: Yes. I think we stated when we were dealing with it in the civil rights report that these are part of the law of Canada.

Mr. Cowling: You may be glad to hear, Mr. McRuer, that yesterday afternoon we had quite a discussion with the draftsmen on this particular section. I do not want to speak on their behalf, but I think it fair to say that they were beginning to ·have some reservations as to the way in which this particular clause was worded.

Senator Connolly (Ottawa West): This discussion may help them, then.

Hon. Mr. McRuer: Reading it as a whole, I would think that that is what they intended, that we take as the Constitution not only what is stated in this bill but the conventions, customs and usages all that goes with it that we have inherited from Britain. But I am not sure that the words say that.

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Senator Forsey: In the French version, of course, there is no translation of the words “hallowed by it” at all. It just says “customs, conventions and usages”, period.

Hon. Mr. McRuer: I don’t know what “hallowed by it” means.

Mr. Cowling: Neither did they.

Hon. Mr. McRuer: I do not think either putting those words in or leaving them out improves it.

Senator Connolly (Ottawa West): It may be what is called “purple”.

The Deputy Chairman: Unless there is a contradiction in the text of the Constitution, I think that is what it means. In the silence of the act I think those customs, usages and conventions would be recognized.

Senator Connolly (Ottawa West): They would prevail.

Hon. Mr. McRuer: I am now going to discuss a subject that I hope will be discussed without any hysteria or emotion, in an endeavour to determine what the real position of the monarchy is in Canada, and how it should be stated in the Constitution.

I do not wish to be misunderstood. I may say—and I will probably repeat it later on—that as a member of the bench of the Supreme Court of Ontario I was very proud to realize that I was one of the Queen’s justices, historically filling an office that is quite unique in the supreme and superior courts, and holding the prerogative powers they exercise on behalf of the Queen. Now, while saying that, I want to say also that there are things in the British North America Act that I do not like, having regard to the fact that we are an independent nation, one of the members of the Commonwealth of Nations.

Section 9 of the B.N.A. Act reads:

The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

To many Canadian citizens that is objectionable, and I cannot quarrel with them. I may say that I read it to a very eminent King’s Counsel who was quite against any interference with the position of the monarchy, and he said, “I didn’t know it was there.” The position of the monarchy in Canada has been changing since 1867 and it has been a gradual change.

One reads also in section 15 of the B.N.A. Act:

The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.

To many Canadian citizens that is objectionable, and I regard it in this way, that in a Canadian Constitution the place of the monarch should at least be stated in language that is consistent with reality.

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In the civil rights report at page 1484, et seq., we discussed at some length the concept of sovereignty and pointed out that Austin’s theory of sovereignty was that sovereignty rested with the group who, in fact, held power to give orders and enforce their execution. We discarded Austin’s theory and Dicey’s elaboration of it in favour of the more democratic philosophy of Jennings and Goodhart.

My concept of the monarchy in the Canadian democratic society is this: The Queen is a living, visible manifestation of the sovereignty of the ideas of the people of Canada in whom the sovereign political power rests, and those engaged in all processes of government derive the powers they exercise from the constitutional right of the people to effectively express their ideas by voting.

There are many unwritten prerogatives of the Crown that exist in Canada as part of our Constitution. Some of these prerogative powers are exercised through elected representatives, some by the Governor General and some by judges of the superior courts. It is of gravest importance that these prerogative powers are not disturbed by any provisions of a written constitution. It is most difficult to define in any clear and simple statement all the attributes and meaning of the monarchy in our Constitution, but I think it can be done and should be done. It is no compliment to the Queen to keep in our written constitutional scheme words with little meaning.

We must have a constitutional head of state through which the rule of law is safeguarded and the ideas of the people are safeguarded against any form of the exercise of non-democratic power. That, in my view, is the true function of the monarchy.

Justice is administered in the name of the Queen, and should continue to be. The Queen’s judges do not take orders from the Queen, but their orders are enforced in the name of the Queen. The legislative powers of Parliament and the legislatures are exercised in the name of the Queen, but the Queen gives no orders. All the acts of Parliament and the legislatures are tested in the name of the Queen. The legislation is enforced in the Queen’s courts, but the ultimate sovereign power rests in the people.

We have hundreds of years of development of principles, traditions, customs and conventions that should be quarded with vigilance as part of our nationhood. I would like to see delineated the true function of the Queen, and it made clear that the Queen exercises no authority in her own right over the Government of Canada but, at the same time, is the manifestation of the sovereignty of the ideas of the people. This may be idealistic, but I think it is realistic.

One may ask: Why the Queen of Great Britain? She is the Queen of the Commonwealth to which we subscribe as a partner, and therefore, I think, a natural person—and I say that not disrespectfully—in whom the manifestation of the sovereignty of the people shall be vested.

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The Deputy Chairman: May I put the first question on this point. If I understand your proposal it is that in a new constitution you would define the responsibilities and the prerogatives of the Governor General.

Hon. Mr. McRuer: I think it would have to be part of the whole definition.

The Deputy Chairman: If you would define the role of the Queen, at the same time you would have to, by inference, define the role of the Governor General. The same can be said about the Governor General, and his responsibilities and prerogatives not being defined in the B.N.A. Act. There are a great many words which mean nothing. We do not know, for instance, to what extent the Governor General can decide an issue in the midst of a crisis. If there were, for example, a government that forgot about the application of the Constitution, I wonder whether the Governor General could enforce the application of the Constitution.

We mentioned earlier in conversation the fact that an election would not be called. The British North America Act says that the house shall sit for five years, but it does not say that an election should be held within that term. It can be held later on. If a Prime Minister delayed calling an election, would the Governor General, in his role as representative of the Queen, intervene at that point and do something about it?

Hon. Mr. McRuer: As I said, it is something that is difficult to do, but I think it ought to be done. It has been said repeatedly, I think by both the Prime Minister and other ministers, that it is not their intention to change the position of the monarchy as it is. However, there is no clear definition of what the position of the monarchy is now. It is time that Canadians grew up and had some idea of what the real position of the monarchy is. It is not a question of downgrading the monarchy or anything of that sort. It is trying to define something that is very difficult to define.

Senator Forsey: I should like to ask Mr. McRuer what he would do specifically with clause 42 which provides that the Governor General shall exercise for the Queen the prerogatives, functions and authority belonging to her, and what he would do with clause 43 which states:

The executive government of and over Canada shall be vested in the Governor General of Canada, on behalf and in the name of the Queen.

And I wonder what he would do particularly with clause 56 which states:

There shall be one Parliament for Canada, consisting of the Governor General of Canada, an upper house styled the House of the Federation, and the House of Commons.

Hon. Mr. McRuer: I must say I do not want to be drawn into specific wording. I am talking on an idealistic plane, and trying to decide, unemotionally, what the position of the Queen is. I do not think it is showing any respect for the Queen to keep her name in our Constitution without placing any meaning on it. That is precisely where it is now, and the

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ped to the effect that the Queen does not exercise any executive authority in Canada. It may be that the Governor General, on her behalf, has certain powers in connection with dissolution, and so forth, but, as I said earlier, I do not pose as a constitutional scholar on all the powers of the Governor General as they are now. I do think that it is not unreasonable— and there are many citizens of Canada who feel that it is not unreasonable—to have some clear definition of what the monarchy does mean in Canada in 1978.

Senator Forsey: May I ask a supplementary? I am not contesting that, but I am asking: In the light of what Mr. McRuer said earlier about the Queen’s judges, the Queen’s this and the Queen’s that and the Queen’s the other thing, and prosecutions being brought in the name of the Queen, and so forth, is it appropriate to say that Parliament should consist of the Governor General and the two houses? If he does not want to answer, that’s fine. I thought it was legitimate to ask the question.

The Deputy Chairman: Certainly it is legitimate, but it is also legitimate for the witness to refuse to answer. In any event, I think he said no.

Hon. Mr. McRuer: I would rather hear argument on both sides.

Senator Forsey: A very fine judicial pronouncement, sir.

Mr. Cowling: You can plead the Bill of Rights.

Senator Godfrey: I think perhaps you have already answered this question, but I want to nail it down, if I may. I gather from what you said that the Queen would not exercise any of her executive rights as far as Canada is concerned. Can you visualize any occasion in the future on which she might exercise her prerogative rights independently of any advice of her ministers? The Governor General, of course, can take certain steps without the advice of the ministers, such as dissolving Parliament.

The Deputy Chairman: Yes, but that is not too clear.

Senator Godfrey: You are right.

Hon. Mr. McRuer: I think that gets us on to difficult ground. We do not have in Canada the same concept of the function of the monarchy as exists in England, and I do not think they have the same concept in Australia or in New Zealand. What I am urging is that we try to decide what it is today. That may be objectionable to many who feel strongly about the monarchy. Their preference would be that we simply let it stand and say nothing. But there are many citizens of Canada, myself among them, who feel that we should have a dear understanding of what the real power of the monarchy is. I am one who feels that the monarchy should have no particular power in that person; rather, it should be representative of I he powers of the people. It is a very good thing to have someone who is the real representative of the people to whom the people can look as visual acknowledgement that there is

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something more than those who may be exercising power for three, four or five years.

The Deputy Chairman: Your idea seems to be that we should define the monarch as the guardian of the Constitution whose purpose it is to ensure the proper application of the laws and the upholding of basic freedoms and rights.

Senator Connolly (Ottawa West): I think the real difficulty is the one you mentioned first, Mr. Chairman. I might say that Mr. McRuer’s views coincide almost identically with those of the great philosopher, Jacques Maritain, in respect of the place where the embodiment of the authority of the people resides. But the great question—and I do not think we understand it from this bill—is: Just what is the position of the Governor General? I think we have to define that very clearly.

Traditionally, we have felt the Governor General to be in a subordinate position to the Queen—and I think that is rightas an agent of the Queen; but in this bill it is proposed that he be a self-starting agent. What he does is not going to be impelled by some move from the monarch. He is going to be acting on his own in many respects, particularly those mentioned a few moments ago by Senator Forsey.

While we may be able to define the role of the monarchand follow your directions, perhaps, in doing so—we are going to have great difficulty in then deciding on the functions of the Governor General. Are they going to be considered as subordinate functions? Are they simply executive functions that are to be embalmed in a Constitution?

Senator Godfrey: Perhaps I may make just one comment. If the Queen arrived in Canada during a constitutional crisis, she would be well advised to take the first jet back to Britain. She just would not want to get involved.

Senator Forsey: As she refused to be involved in Australia.

Senator Smith (Colchester): Yes, but she would not take with her when she left the shores of Canada the prerogatives that are vested in her. They would still exist, and they would be exercised on her behalf by the Governor General.

The Deputy Chairman: Honourable senators, because I have to leave in a few minutes, I shall ask Senator Lang to take the Chair. Before doing so, I would like, on your behalf, to thank Mr. McRuer Jor being with us today and giving us such a useful presentation of views on the very important matters with which we are concerned in the study of Bill C-60 and the whole process of constitutional reform.

We are very grateful to you, sir, and I assure you that your views will be fully considered, fully studied, and certainly reflected in the report that we will eventually make.

Hon. Senators: Hear, hear.

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Senator Lang (Acting Chairman) in the Chair.

The Acting Chairman: Before I was asked to take the chair, Mr. McRuer, I was going to ask you, not as a constitutional expert or legal authority but as a man of many years’ experience and perception, a question, and it is: Do you think it is practicable today in Canada to transfer the symbolism that the Queen represents to the person of the Governor General, or some other person in that role but designated otherwise?

Hon. Mr. McRuer: I do not think that one could eliminate the symbolism of the person of the Queen from either our constitutional thinking or from our political thinking in Canada today, and tranfer that to a Governor General who would be either elected or appointed in some other way, because, after all, the concept of the Governor General is that he is appointed by the Queen. The new bill perpetuates that concept. There is a certain symbolism in it and, after all, symbolism should not be discarded in governmental affairs.

Senator Connolly (Ottawa West): A little earlier you said one thing relating to the concept of the Crown in the United Kingdom, that the application of the Crown to govern there is different from what it is here, and I think that is very true.

I read an article quite recently in a publication of the Commonwealth Parliamentary Association wherein the reform of the House of Lords was discussed. It said that if the House of Lords were abolished or made completely ineffective, then the will of the Commons would prevail and the people would be protected only by the constitutional right of an isolated Crown. That constitutional right to protect the people from an arbitrary executive imposing its will bythe whips on a House of Commons would have to be exercised, under this bill, by a Governor General appointed on the advice of that executive.

If a situation like that developed in Canada, would we look to the Governor General with the same authority as the British would with respect to the monarchy? Perhaps I should go on and ask: should there be another constitutional obstacle to the arbitrary imposition . of a view by an executive through a House of Commons which it controls?

Hon. Mr. McRuer: There is a difference between the control of the House of Commons and control of Parliament. The concept of two houses is maintained in this bill and, I think, rightly so. Whether the Senate is elected or appointed in some other way, there is the concept there of control of the Commons against the exercise of arbitrary authority. It may be one of the merits of the bill that that has been spelled out. There can ultimately be the overriding power of the Commons with the sufficient majority, which is two-thirds, I believe. There is a philosophy in there that I think is sound.

What I am concerned with in this discussion is the position of the monarchy, not the position of the Governor General. They cannot be disassociated entirely. I do think it is an unhappy situation. I read section 11 of the British North America Act, which says:

There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be

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Members of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from time to time removed by the Governor General.

It sounds as though the Governor General can fire the ministers at any time he likes, and that is too arbitrary to appear in our Constitution.

I am quite sure that I cannot be very helpful in working out my ideas, but I am equally sure that the powers of the Governor General and the Queen in Canada as they exist today require definition. It cannot be done by a hysterical approach; it has to be done by an earnest approach by conscientious men and women who will devote their time to solving an extremely difficult problem. I am sure it is not beyond the powers of those who are involved in it.

Senator Forsey: I see no objection to that.

Senator Godfrey: Could we have your help in one specific instance. You referred to section 15 of the British North America Act which provides that the Queen shall be the Commander-in-Chief, and this bill provides that the Governor General shall be. Which do you prefer?

Hon. Mr. McRuer: I do not think the Queen should be involved in directing our army. She has not been since time immemorial, and if she tried, there would be a revolution. Iis words of that sort in the act which are meaningless.

You will find letters to the paper from veterans who say, “I served under the Queen as one of the Queen’s soldiers, and I regard her as the Sovereign”, and so on. Now, whether the same veteran would feel offended if section 15 were changed, I do not know. As a matter of fact, when we served in the armed forces we were not commanded by the Queen for one moment; we were commanded by the officers who represented the civil authority.

Senator Forsey: We would not have been commanded by the Governor General either.

Hon. Mr. McRuer: No, that is perfectly true.

Senator Godfrey: Would you eliminate this completely, because nobody would suggest for a minute that the Governor General has commanded anything.

Hon. Mr. McRuer: I do not know any reason why it should not be made perfectly clear in our Constitution that the armed forces are under the direction of the civil government of the day. I do not know why there should be anything to indicate that the civil government did not have complete control of the armed forces.

Mr. Cowling: But they still might be called Her Majesty’s Armed Forces for symbolic value.

Hon. Mr. McRuer: For symbolic value.

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Senator Connolly (Ottawa West): Is it not easier to say H.M.C.S. Richelieu than G.G.C.S. Richelieu?

Mr. Cowling: “G.G.” sounds like a race track.

Senator Godfrey: There are the Governor General’s Horseguards.

Senator Smith (Colchester): I think there may be a considerable difference in the way members of the armed forces might look at the political head of the government and the symbolic head of the country. For instance, I can very well remember being present when a prime minister of Canada was roundly booed by the troops, and whenever he appeared elsewhere they had to order the troops to stand at attention so that they would not boo. When the King or the Queen, as the symbol of the country, Canada, came they, with a good heart, gave them three rousing cheers and such other welcome as they could. That seemed to me to illustrate what may very well often be nothing more than symbolism, and it is bound to be tied up with certain kinds of emotion towards one’s country. It illustrates the problem of having the person who is the political head of the government also the political head of the state, or seeming to be.

It seems to me that there is great value, however you do itwhether it is by a queen or some other person—in having the head of state completely above the field of partisan politics, so that all Canadians, since we are talking about Canada, might look to that head or person as really one who represents all of the people of Canada and not one who is exercising the powers of the position he holds supported by perhaps 40 per cent of the people and very much opposed by the other 60 per cent.

Hon. Mr. McRuer: I think, if tomorrow you read what I said at the opening, you will find that you and I are entirely in agreement.

Senator Smith (Colchester): Thank you.

Senator Forsey: I remember a song which was still heard in my youth, “We are the soldiers of the Queen, my lads.” I wondered how it would go if they had to sing, “We are the soldiers of the Governor General, my lads.” It wouldn’t scan very well for one thing.

One question I wanted to ask arose out of what Mr. McRuer said about section 11 of the British North America Act and the Queen’s Privy Council for Canada. He did not seem to like it very well. It seemed to me that all his objections to section 11 of the British North America Act would apply equally to clause 49(1) of this bill, except that instead of the Queen’s Privy Council, it is to be called the Council of State of Canada; and instead of “aid and advise,” it is “in whose name aid and advice” shall be given. Whether the passive voice is an improvement is, I suppose, a matter for some English-Canadian Flaubert to decide. It seems to me that every one of the objections that Mr. McRuer had to section 11 would apply to clause 4a(1) of the bill. That particular rose by another name would smell no sweeter.

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Hon. Mr. McRuer: I don’t quite grasp that.

Senator Forsey: You had certain objections, as I understood it, to section 11 of the British North America Act; you did not think it was realistic; you did not think it represented what actually was so. Do you think clause 49(1) of this bill is any better?

Hon. Mr. McRuer: It is the Queen’s Privy Council for Canada. I am not so much concerned with that as I am with section 9. There are also the concluding words of section 10, which I might as well read in total:

The provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

Those words indicate that the Governor General carries on the government of Canada on behalf of the Queen. I don’t blame those who have a strong opinion that the statute that governs the Constitution of Canada should not state in plain language that the Governor General carries on the government of Canada on behalf of and in the name of the Queen. That is what I am getting at. Except for those who don’t reason the thing out, I do not think there is much objection to altering this. But some people will at once say, “You are downgrading the monarchy.” I don’t think you are downgrading the monarchy at all. The Governor General does not carry on the government of Canada on behalf of or in the name of the Queen.

Senator Smith (Colchester): He certainly does it, does he not, in the name of the Queen?

Hon. Mr. Mc.Ruer: He does not carry on the government of Canada. The government of Canada is carried on by a very elaborate process. All he does is approve of the bills as they are presented to him.

Senator Connolly (Ottawa West): In the name of the Queen.

Hon. Mr. McRuer: Yes, but it is not the government of Canada that he is carrying on.

Senator Smith (Colchester): But if one takes some symbol, whatever it may be, as representative of the power of the people of the country, surely everything being done in the name of that symbol is just a short way of saying, “We are doing this in the name of the people of Canada.”

Hon. Mr. McRuer: That is what I would like to see more clearly expressed in the Constitution. It should be, I think, the Queen, not as the Queen of Great Britain but as the Queen of Canada, with the meaning of the monarchy properly defined.

Senator Smith (Colchester): Certainly; there is no problem about that.

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Senator Forsey: With great respect, Mr. McRuer has now raised a new point about the wording of section 10 of the British North America Act. I thought he had previously read the whole of section 11 and had objected to the terms that were used, saying they were unrealistic, and I wondered why he felt that clause 49(1) of the bill was an improvement. However, it is not worthwhile labouring the point. I just wondered, but I am prepared to leave it at that. I think there are other more important matters to get on with.

Senator Godfrey: I should like to make one comment, if we might go back to the commander-in-chief. It occurred to me, since I made the other comment earlier, that, in view of the importance of emphasizing that the armed forces come under the civil power, the combination of clause 47, saying “The command-in-chief of the Canadian Forces is hereby declared to be vested in the Governor General of Canada,” and clause 43, which says that the executive government shall be vested in the Governor General, serves the purpose of emphasizing that the armed forces are to come under the executive government.

Hon. Mr. McRuer: I think so, and combined with the advice of the Privy Council, call it by what name you will. I like the name Privy Council.

Senator Godfrey: So it does serve a useful purpose then.

Senator Connolly (Ottawa West): I think we may be using language which was appropriate 100 years ago but which is probably outmoded now. Mr. McRuer has made a point of that. It may not be necessary to say, for example, that the Governor General or anyone else is the commander-in-chief. I do not think it means anything to say that he is the commander- in-chief or that the Queen is the commander-in-chief, but I do think it means something to say that the military, the armed forces of this· country, are under the control of the civil power. That has a meaning for people and a meaning for the members of the forces as well.

It would be good if we could get rid of some of these concepts that seem to give to an office an authority which, in fact, is not exercised by that office but by some other office. We are not doing ourselves any service by using language like that.

Senator Godfrey: In other words, do it directly rather than indirectly.

Senator Forsey: The Americans make their President explicitly commander-in-chief, and that is their way of saying the armed forces are under the civil power, presumably. It seems to me that you have to have something to indicate who actually, in a particular situation, can call out the troops. In fact, now it is the representative of the Queen on the advice of the cabinet. I think there is certainly room for putting it in other language, but I do not think you can leave it out. You have to have something there quite definitely to indicate where the power lies; otherwise you may suddenly find that the commander-in-chief is vested in Mr. Barney Danson and he can do exactly what he sees fit.

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Senator Godfrey: We might have a General MacArthur in Canada.

Hon. Mr. McRuer: I would not suggest that it be left out. I think very specifically it should be in, but it should be very clear that the power is in the hands of the civil authority.

Senator Forsey: Beyond doubt.

The Acting Chairman: If there are no other regulations, I would suggest that we adjourn.

Senator Forsey: Mr. Chairman, I am not quite sure if I missed something, but I thought Mr. McRuer was going to say something more about the validity of Parliament alone to try to enact Phase I. Has he dealt with that sufficiently?

Hon. Mr. McRuer: I thought I dealt with that when I was dealing with the Supreme Court and the appointment of judges to the Supreme Court, and ancilliary matters. No, I purposely did not want to get into the arguments that were put forward, particularly by Professor Lederman, because I defer to his scholarship on the questions of consent of the provinces and the conventions, and so on. I have nothing to add that would help you on that.

Senator Forsey: Thank you very much.

Hon. Mr. McRuer: Before you adjourn, Mr. Chairman, I want to say to the members of the committee that it has been a great pleasure to have been invited here. I consider it a great honour to participate in this important discussion we have had today. If I have made any contribution that is of assistance to you, I am most happy to have done so: Thank you.

The Acting Chairman: I would just reiterate the remarks made previously by our chairman, sir. It has been an honour and pleasure to have you here. What you have said has been most informative for the committtee, and of great assistance in this whole constitutional process we are going through. Thank you very much.

The committee adjourned.

WITNESS

The Honourable J.C. McRuer, O.C.