Document Information

Date: 1978-09-05
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 30th Parl, 3rd Sess, No 9 (5 September 1978).
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SENATE
HOUSE OF COMMONS

Issue No. 9

Tuesday, September 5, 1978

Joint Chairmen:
Senator Maurice Lamontagne
Mr. Mark MacGuigan, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution
of Canada

WITNESSES:
(See back cover)

Third Session of the
Thirtieth Parliament, 1977-78

SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF TIIE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:

Senator Maurice Lamontagne
Mr. Mark MacGuigan, M.P.

Representing the Senate:

Senators:

Beaubien
Bird
Denis
Flynn
Forsey
Fournier (de Lanaudière)
Frith
Grosart
Langlois
McIlraith
Neiman
Petten
Roblin
Smith
(Colchester)—(15)

Representing the House of Commons:

Messrs.

Beatty
Blaker
Breau
Bussières
Caccia
Dawson
Gauthier (Ottawa-Vanier)
Goodale
Halliday
Knowles
(Winnipeg North Centre)
Lachance
Laprise
Lawrence
Lee
MacDonald (Miss)
(Kingston and the Islands)
McGrath
Paproski
Stanfield
Watson—(20)

(Quorum 18)

G. A. Birch
Patrick Savoie

Joint Clerks of the Committee

Pursuant to an Order of the Senate of June 27, 1978:

On Tuesday, September 5, 1978:

The Honourable Senators Nelman and Petten replaced the
Honourable Senators Lafond and Connolly (Ottawa
West).

Pursuant to Standing Order 65(4)(b)

On Tuesday, September 5, 1978:

Messrs. Whittaker, Guay and Collenette replaced Messrs.
Paproski, Goodale and Blaker.

MINUTES OF PROCEEDINGS

TUESDAY, SEPTEMBER 5, 1978
(15)

[Text]

The Special Joint Committee on the Constitution met this
day at 2:15 o’clock p.m., the Joint Chairman, the Honourable
Senator Lamohtagne, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Beau-
bien, Bird, Denis, Flynn, Forsey, Fournier (de Lanaudière),
Lamontagne, Langlois, MacDonald, McIlraith, Neiman,
Petten and Roblin.

Other Senator present: The Honourable Senator Lafond.

Representing the House of Commons: Messrs. Breau, Bus-
sières, Caccia, Collenette, Dawson, Gauthier (Ottawa-
Vunier), Guay, Knowles (Winnipeg North Centre), Lachance,
Lee, Miss MacDonald (Kingston and the Islands), Messrs.
Stanfield, Watson and Whittaker.

Other Members present: Messrs. Richardson and Pru-
d’homme.

Witnesses: Mr. Gordon F. Gibson, M.L.A., Leader of the
Liberal Party in British Columbia. Mr. Ronald G. Atkey,
Barrister and Solicitor.

The Committee resumed consideration of its Orders of
Reference concerning Constitutional proposals. (See Issue No.
1, Minutes of Proceedings, Tuesday August 15, 1978).

Mr. Gibson made a statement and answered questions.

Mr. Atkey made a statement.

At 5:05 o’clock p.m. the Committee adjourned until 8:00
o’clock p.m. this day.

EVENING SITTING
(16)

The Special Joint Committee on the Constitution met this
day at 8:10 o’clock p.m., the Joint Chairman, the Honourable
Senator Lamontagne, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Beau-
bien, Denis, Flynn, Fournier (de Lanaudière), Forsey, Lamon-
tagne, Langlois, McIlraith, Neiman, Petten and Roblin.

Representing the House of Commons: Messrs. Beatty,
Breau, Caccia, Collenette, Dawson, Gauthier (Ottawa-
Vanier), Guay, Knowles (Winnipeg North Centre), Miss Mace
Donald (Kingston and the Islands), Messrs. Stanfield and
Whittaker.

Other Member present: Mr. Richardson.

Witness: Mr. Ronald G. Atkey, Barrister and Solicitor.

The Committee resumed consideration of its Orders of
Reference concerning Constitutional proposals. (See Issue No.
1, Minutes of Proceedings, Tuesday August 15, 1978).

The witness made a statement and answered questions.

At 10:08 o’clock p.m. the Committee adjourned until
Wednesday, September 6, 1978 at 9:30 o’clock p.m.

G. A. Birch
Joint Clerk of the Committee

EVIDENCE

(Recorded by Electrotzic Apparatus)
Tuesday, September 5, 1978

The Joint Chairman (Senator Lamontagne): Ladies and
gentlemen, we have the pleasure of welcoming this afternoon
Mr. Gordon Gibson who is a member of the legislature in
British Columbia and the leader of the provincial Liberal
Party in that province.

Mr. Gibson has provided us with a long brief and with a
shorter onefand he intends to highlight the main sections of
the shorter brief. Mr. Gibson.

Mr. Gordon Gibson (MLA, British Columbia): Thank you,
Mr. Chairman and members of the Committee. I want to
thank you very much indeed and express my appreciation for
this opportunity to be here.

The work of this Committee is undoubtedly one of the four
major influences on whatever is going to come out the other
end of all this; I suppose the others being the task force and
the first ministers and the federal government with whatever
view it finally takes.

I have a brief here which, with your permission, I will not
read except for certain highlights and some additional com-
mentary. Perhaps, Mr. Chairman, if the Committee was
agreeable, it might be printed as an appendix.

The Joint Chairman (Senator Lamontagne): This would be
the shorter brief with the title “Submission to the Special Joint
Committee of the Senate and of the House of Commons on the
Constitution of Canada” and dated September 5, 1978.

Senator McIlraith: Just before you leave that, Mr. Chair-
man, it is being entered as if it were read, is it? Or as an
appendix?

The Joint Chairman (Senator Lamontagne): As an
appendix.

Senator McIlraith: Then perhaps he had better read it all. It
is the only way we are going to follow it. If it is not in the
proper place in the evidence, it is not much use to us.

Mr. Gibson: Well, I am in the Committees hands. It is a
somewhat lengthy document . . .

Senator McIlraith: I realize that.

Mr. Gibson: . . . and I have asides, as well.

Senator McIlraith: We could overcome it by appending it as
if it had been read, but to put it in as an appendix is not going
to be very . . .

Mr. Gibson: Senator McIlraith, I can undertake to you that
the points I make will be in the same order as in the brief and I
will read what will be the highlights. But I am in the Commit-
tee’s hands and l will read the whole thing, if you wish. What
is your view?

Mr. Caccia: Read it all.

An hon. Member: Why?

Mr. Caccia: Because it makes for better sequence.

Mr. Gibson: Mr. Chairman, just before starting to read l
might say there are some documents associated with it. Now,
the trouble is that my notes are all out of order.

Miss MacDonald: Is there not some way that we can resolve
this? Can we undertake to have it printed as if it had been
read . . .

Senator McIlraith: This is agreeable.

Miss MacDonald: . . . and then have Mr. Gibson go on to
give the summary?

Senator McIlraith: Yes, put it in the printed evidence so
that we can get it . . .

Some hon. Members: Agreed.

Mr. Caccia: Well, Mr. Chairman . . .

Senator McIlraith: I said perhaps it would be more agree-
able if we take it as read and print it in the evidence and then
go on with the remarks.

Some hon. Members: Agreed.

Mr. Gibson: What Follows is one perspective, and is in a
sense an “ideal”—it is not necessarily achievable in the politi-
cal circumstances of the day, which must be the final arbiter
of current constitutional questions. in keeping with the current
constitutional dialogue, it is entered in the spirit of seeking
results rather than taking positions, and i believe most Canadi-
ans are flexible and in readiness to take into account the views
of others.

It is my understanding that Bill C-60 was written in that
spirit and in that spirit I comment upon it.

This brief is essentially a summary, with the exception of
certain areas where my remarks have been somewhat expand-
ed as a result of testimony already put before the committee.
As attachments to this paper, I include material which should
be read with it, being my submission to the Task Force on
Canadian Unity (including a western perspective prepared for
a Harvard symposium, and research results from visits to the
Federations of Germany and Switzerland) and a popularized
commentary on Bill C-60 prepared for the Vancouver Sun.

The perspective of the writer is that of one who has served in
several capacities in the past fifteen years in the political life of
Canada; in government in Ottawa, in opposition in British
Columbia, in the executive branch, and now in the legislative
branch, in both the public service and in an elective position,
and finally, in both the federal and provincial spheres. My
summary conclusion, in brief, is that we have much of value to
preserve in our political arrangements, and important sectors
that we should rearrange.

1. Necessity

There are those who submit that constitutional matters are
not a particular priority in this country, and that we can
continue along with our current arrangements for some time to
come.

I believe that the latter part of the statement is true—we
can muddle along, I have no doubt. I strongly believe however
that constitutional reform should be a priority.

It is clear that such a view is now sufficiently widely shared
as to make it a political reality. I hope that the Committee will
say so. There is enough difficulty in the constitutional debate
without wasting time on obvious points.

The fact of the matter is that uncertainty about our
arrangements for living together is bad for our country, for our
economy, for our system of government. Instead of being
productive, we are being introverted. Instead of building on a
sound base, we are wondering what tomorrow’s ground rules
might be. Instead of our various governments working in
harmony, they are jockeying for position. Unnecessary uncer-
tainty is the enemy of achievement.

There are those who say, “fix up the economy, and things
will be fine.” No person in a marriage breakdown situation
would buy that—the economy (a new job? better pay?)—
won’t solve the problem. The fact is, constitutional problems
are hurting the economy, and must be cured first. The world
won’t end if we don’t solve our constitutional problems, but
Canada might possibly break up, we will probably all be
poorer, and we will certainly spend a lot of time fighting.

We could make things a lot better by intelligent and speedy
action on the constitution. This Committee knows that, of
course, but the public generally doesn’t. You should tell them.

2. Timing

In general, there should be a sense of urgency. This matter
has gone on long enough. It is unsettling and wasteful of
energy. A decade of the best production of some of our finest
minds and politicians has been used up in this process. We
Canadians have better things to do. The Committee is well
aware of the century-old debate on federal-provincial relations,
and the ten-year concentrated exercise on constitutional
reform. It had to be brought to a head. Bill C-60 has done this.

I agree in theory with those who say that there should be no
Phase 1 and Phase 2—that these things are all of a piece, and
should be tackled in that way. That would be fine if it were
possible. It is not. It has been tried and failed. So long as we go
the route of negotiations between the federal and provincial
governments, the delay will continue. Simply put, a conclusion
is not in the interests of the provinces. They have an excellent
current position in power terms, and hope, through the efflux-
ion of time, to improve it.

Thus the federal government had to make a move, and I
approve of that. The division into Phase 1 and Phase 2 is
clearly a tactical exercise, designed to force the pace of
conclusions, and that is good. .The provincial governments
went like it, but that is not the test of usefulness. The proper
test is, “Is it good for Canada?” In matters as important as the
constitution, neither the provincial nor federal governments
have the moral authority to say a final “Yes” or “No”. That
must be up to the people. But someone has to make a move to
get the question before them, and in the light of the long delay,
and the record of provincial stonewalling, the federal govern-
ment has a duty to move.

I disagree somewhat with Phase 1 content. I personally
would like to see patriation and the amending formula in the
first cut, in order to provide the machinery to resolve the
inevitable difficulties that will arise in the Phase 2 process.

3. Scope

The scope of the constitutional process is generally good, as
revealed by C-60 and the White Paper, but there are some
critically important omissions which must be addressed, or the
package will not be acceptable.

The existing scope is dramatic. It provides for the individual
in terms of a charter of rights and freedoms; it provides for
language groups, and for regions. It provides for the Executive
Government of Canada, and a revised federal legislative
branch. The Courts are given status, as is the State in the
person of Her Majesty and the Governor General.

There have been comments on the literary quality of the
Bill, in comparing it will the United States Constitution—
mostly, I suspect, by those who forget the turgid prose lying
beyond the United States preamble, or the opening lines of the
Declaration of Independence. One would not hire a Shakes-
peare to write a constitution unless they were looking for a
very active court docket to resolve exact meaning.

But there are exceedingly serious omissions. Of these, the
most critical is the lack of any provision for the institutions of
direct democracy. This cannot be overstressed. Every constitu-
tion must have within itself the means of improvement and
healing. Provision for direct democracy is needful for this.

Switzerland, of course, is based on direct democracy as to
constitutional reform. The same is true as to the important
American states. The Federal Republic of Germany is not, it is
true—but they started de novo, and drew an excellent docu-
ment without predictable near term need for popular improve-
ment. (Even so, I think they erred, but perhaps understand-
ably, after the experiences of the Wiemar Republic.) The
United States federal constitution has no such provision, but of
course there are current calls for such, after Proposition 13.
That document too was de novo, and moreover was an agree-
ment between the States and not among the people. In Canada
in 1978, we are talking about an agreement among the peo-
ple—and those who ratify must have the power to change. (In
addition, of course, the United States Congress is a permanent
floating “direct democracy”, as compared to the parliamen-
tary system.)

The Bill (C-60) omits most talk of the executive-legislative
balance, and makes insufficient provision for increased powers
for the legislative branch. I disagree with those witnesses who
have suggested the Bill increases the power of the Prime
Minister and Cabinet, but it doesnot decrease and control
those powers sufficiently.

The Bill makes no mention of Freedom of Information as a
basic right. I reluctantly concur with this, on the basis that we
are better to try the exact wording out in statute law first—but
only on the basis and understanding that we will have in our
constitution a way and means for the people to force such
legislation if any government refuses to put it into place in due
course voluntarily.

4. Patriation and Amendment

The constitution should not be patriated until some means of
amendment exist—some means short of provincial unanimity,
which is utter foolishness. (Canada should be a compact
between people, not provincial governments, and unanimity is
too severe a rule in any case.)

As to the amending formula, some variation of the govern-
mental route (i.e. appropriate regional government agreement
and so on) should of course be included and will probably be
the main path for most technical constitutional amendments.

However, it is essential that a popular route be included as
wellaa route that will make it clear that if some, or even all
governments oppose a given constitutional amendment, never-
theless the people acting jointly can impose it. Normally one
would expect that a popular amendment route would be
triggered by a government, appealing in a sense to the people,
but the possibility should be left open of a completely popular
amendment process with no government initiative of any kind.

5. Initial Validation

The new Canadian constitution—or the first two phases, if it
is to proceed in that way-should be validated by a popular
vote among all citizens. Only in this way will it achieve the
legitimacy necessary to resist the strains of time, and to
overrule residual carping by Premiers or others who suggest
any lack of legitimacy of the new law. Even Premiers and
Prime Ministers cannot argue against a clear popular vote, in
political terms. A caveat—a country-wide majority in favour
of a new constitution will certainly not be sufficient. It is
essential that there be affirmative majorities in each and every
of the five regions of Canada.

6. Interim Consultation

Constitutions are complex? The document finally passed by
Parliament before submission to the people should be the
subject of exhaustive consultation. We have had ten years. We
will now have the benefit of a Joint Parliamentary Committee,
a First Ministers’ Conference, and interest groups and persons
having the opportunity to present briefs to the Task Force on
Canadian Unity. Once we have had the results of those three
processes, and viewed in the light ofthc ten years, it is my View
that the consultative process will have been sufficient to at
least present a specific proposal to the final consultative pro-
cess, namely a popular vote on such a proposal.

7. Contents ofBill C-60

The Bill, in my view, is best analyzed as to how it tackles the
three major alienations in Canada today, viz. individuals from
their governments, the French and English linguistic groups,
and the regions from the centre.

With respect to the Charter of Rights and Freedoms, you
will have heard from many experts. I will not comment
further, except to say that I applaud the package. There have
been disgraceful legislative initiatives in my province and
others, of which I can give you examples, that would have been
stopped by a binding codification of such elementary rights.
Naturally, provincial governments will decry such a restraint
on their powers. Naturally, the citizenry should applaud such
restraint.

To those who fear the power of the courts in interpreting
such a Charter, I say, “look south”. The United States
Supreme Court, far more powerful than that of Canada even
after C-60, has always shown restraint vis a vis the legislative
and executive branch powers. They have, on the other hand,
not shied away from the basic enforcements of the rights of the
people.

I think that is sound. Those who object should object to the
specific language and proposed rights and freedoms, not to the
process. It is a proven one.

With respect to the sections related to the French and
English languages, I have no difficulty, and give you my
opinion that even stronger guarantees might be approved in all
regions of Canada, if required. The important thing here is
that these kinds of guarantees be embodied in a deal on which
we can all vote, and thereafter be removed from the political
arena, and put into the hands of administrations to carry out
and the courts to enforce. That, of itself, is a giant step
forward.

I might say that the Language of Education section, in my
reading, is not in any way at variance with the very advanced
language education policy of the current government of British
Columbia. The Bill, of course, gives provincial governments
sufficient power not to have to worry about impositions in this
matter in any case. It should, in my view, be strengthened.

The proposed procedures in the Upper House to deal with
linguistic matgers are unfortunate. There is a need, of course,
to give a sense of security to linguistic minorities-franco-
phones in much of Canada, and anglophones in the rest. The
“double majority” concept, however, is the wrong way to do it.
A better process is this:
—write strong basic law
—provide that changes may be made only by a specified
fraction—I would suggest 80 per cent—of the Upper
House. The result is a “blocking minority” of 20 per
cent, with the power to protect linguistic rights or
matters importantly supportive thereto.

I prefer this route because it is better not to label people (as
representing one language or another) as in the ‘double
majority’ approach if you can avoid it—it is divisive.

The third alienation—and to British Columbia the most
important—that a new constitution should address is that of
regional alienation.

We, plus the Prairies and the Maritimes, have too little
clout in the central apparatus. As a group we want a majority
In the Upper House. The House of Commons will always have
the initiative and the main power as the rdpresentation-by-
population chamber. In at least the Upper House, Outer
Canada wants to have an edge over Inner Canada, to give us
some bargaining power.

Let me be frank. We don’t just want it. We are very
insistent. (I speak here only for British Columbia, but I will
take any bets that are offered with respect to the attitude of
the Prairies and the Maritimes.) Ontario and Quebec control
the House of Commons. Outer Canada wants to control the
Upper House. That’s the crunch, that is the nub, for British
Columbia. No partisan consideration will separate British
Columbians from one another on that. I support two languages
as being basic to Canada, and I support five regions with the
same fervour.

8. The Upper House

This is the instrumentality of regional expression in the
central government. Therefore, it must be an institution that is
regionally motivated in its action. Nothing could be of greater
Simplicity. Therefore, the construction set forth in Bill C-60
Should be rejected. That institution would be terribly partisan,
because of the selection process for Members. There is nothing
wrong with that, except that it is inappropriate in a Chamber
designed to represent the view of the regions, rather than
parties.

Moreover, the C-60 Upper House would be powerless. A
sixty-day suspensive power is a joke. When it is exercised by
appointed people, it is a bad joke.

An Upper House must be:

—predominantly regional, rather than partisan, in
motivation

—powerful in the regional interest

—legitimate and respected

Therefore, in my view, it must be:

—composed of elected people (to balance the prestige of
elected people in the Lower House)

—have absolute blocking powers in matters of significant
regional importance

—relatively non-partisan in a House of Commons sense

The answer, in my view, is an Upper House that is com-
posed in some mix of provincial MLAs (all elected) and
directly elected Upper House representatives from the prov-
inces. (There might be a few federal appointees, to provide for
non-elected Ministers, and Upper House communication.) The
Provincial Legislature representatives should, in my view, be
appointed by the provincial government of the day, and should
normally consist of the Premier and an appropriate number of
Ministers.

But, however it is put together, the answer is clearly a
powerful and legitimate Upper House. Failing that, I see no
reason why British Columbians (or Westerners, or Atlantic
people, or Quebeckers) should support it.

I might add: however attractive an “all-elected” Upper
House might be in the directly elected sense—and I think it
will come to that eventually—I think that for the time being
there is much merit in provincial elected members—Premiers
and Ministers—being there. They can bring an enormous
amount of research and a very valuable point of view to these
deliberations. The process would become, in fact, a continuing
federal—provineial conference with clout!

The powers of the Upper House should be suspensive merely
in matters of general Canadian Law, and sixty days would be
sufficient for this.

In terms of matters of special linguistic significance, the
proposed demarcations are adequate, with the substitution of
the blocking minority concept for the double majority rule. lt
is in matters of special regional significance that the powers
suggested in C-60 must be greatly upgraded.

The right of approval of certain appointed high officials is
good, but it should be clarified and strengthened.

The Upper House should have the right of approval or
rejection of all federal-provincial agreements, including cost
sharing agreements, for such questions are important to all
regions.

The Upper House should have, in general, a right of veto
over any measures of the Lower House that are of special
regional significance. Only through such power will the Upper
House obtain real leverage in the regional interest.

The definition of exactly what is of special regional signifi-
cance is, of course, very important and exact language will
have to be drafted to provide guidance to the Speaker of the
Upper House, and in some cases the courts, in making inter-
pretations. That it can be done is not in question, however—
the German system has been functioning in this way for thirty
years. Under their rules, roughly 50 per cent of legislation is
subject to the blocking power of the Upper House, What
occurs in fact, of course, is that compromises are worked out in
conference. There is no problem with an Upper House being
obstructionist, as long as their motivation is to get the people’s
business done.

For those who would still express concern with such block-
ing power, the Lower House and/or the government of the day
could easily be provided with an appeal system to the public in
terms of a referendum, but the exercise of this right would
very rarely be required.

I do not suggest that this system will be convenient for the
government or the Lower House, but it will work, which is
essential and has been demonstrated in many other countries,
and it does provide for the better arbitration of regional and
linguistic interests, which is essential in a country like Canada.

The C-60 proposal of only 10 out of 118 Members for
British Columbia is, of course, completely unacceptable. We
are one region of five, and require one fifth of the seats as our
quota.

We might be willing to absorb into our quota, for the
purposes of the Upper House, the entitlement of the northern
territories, which would result in our British Columbia entitle-
ment being only slightly larger than Alberta—but we require
regional status.

To me, that is not a bargaining posture. We are discriminat-
ed against by the current Canadian federal arrangements. A
proper Upper House is an essential part of any package that
British Columbia could support,

9. The Executive-Legislative Balance

The executive branch holds too much power in Canada,
under our current system. The Americans go too far the other
way, We can learn from both.

At the moment, we have, in times of majority government,
what is in effect a four«year elected dictatorship in our prov-
inces and in the national government. The theoretical ascend-
ancy of the House of Commons requires the actual iron rule of
the Cabinet. No modern country can have a government
subject to the whim of an undisciplined legislature. What
could be more obvious? We must have responsibility and
continuity and coherence.

But, the other side of this system is an executive that runs
things totally. Why elect the peoples representatives if they
are just trained seals in legislative matters, rising on the call of
the Whip? The picture is overdrawn, but cannot fail to be of
some familiarity to any parliamentary person. The balance
needs shifting—towards the legislative, but enough to retain
leadership in the executive.

The new Upper House starts this process. It will not be a
“confidence” House—it cannot bring down the government.
Therefore, it will be free to be constructively critical, in a way
that the Commons, as presently constituted, cannot be.

Members of Parliameiit would not long stand for this dis-
tinction. They will demand freedom too. So they should. The
changes necessary to achieve this are not of much difficulty.
The first part the government has already suggested in Section
53 (3) of the new Bill—namely, that a government will fall
only on a specific vote of confidence. If this means what I hope
it does, the Commons will be set free to make important
changes in legislation (which is now very rare) without bring-
ing on an election.

Let us ask for more on behalf of the legislative branch. Let
it be free to set its own budget and to hire as many staff to
check the government as seems necessary.

Let there be fixed, four-year election terms, unless there is a
specific Lower House vote in favour of an election in the
meantime. People want that. They are sick and tired of playing
around with election dates. Moreover, the economy needs the
predictability that fixed dates provide.

Of course, you can’t change some things without compensat-
ing adjustment. These proposed amendments would take some
of the powers of leadership away from the executive. What if
there should be a standoff—a deadlock—of the sort President
Carter is finding on his energy package? We would need a way
of resolving it.

Charles dc Gaulle found the way in his 1958 constitution,
though it defeated him in the end. It is this: Give to the
executive branch the right to take a referendum to the people
on any specific issue over the heads of a recalcitrant legisla-
ture, if necessary, for the national good.

It is simple, devastatingly effective, and like the appeal
power from the Upper House, would not need to be used often.

The end result should be this: a legislature able to genuinely
call the government to account, and a government genuinely
able to exercise leadership under the strong guidance of the
peoples representatives. I do not pretend it would be comfort-
able for the politicians. It would be much less comfortable
than now. But we politicians are not paid to be comfortable.
People want a system that gives good government.

10. Other Matters

The government’s White Paper makes mention of the legiti-
mate rights of the native peoples. While this is not necessarily
a matter for Phase 1, a general statement as to how this might
be achieved would be of reassurance.

In particular, native spokesmen have expressed concern that
any new formulations must not be so construed as to diminish
existing rights, whether already recognized, or potential.

No mention is made with respect to any constitutional
recognition of local governments. I believe that that is a
mistake. Local governments are too subject to provincial gov-
ernments. They have virtually no bargaining power—and yet
this is the form of government both closest to the people and
generally the most responsive.

Clearly, local governments must remain under the general
superintendency of the provinces, but our new constitution
should recognize their place in the Canadian governmental
system. This subject has been so little examined that it clearly
cannot be dealt with in time for Phase 1, but in the negotia-
tions with respect to powers of levels of governments, the local
level should not be forgotten.

The government’s White Paper hints at an expanded use of
concurrency of powers as between levels of government. I
believe this is an initiative to be encouraged. All levels of
government have a legitimate interest in many of the areas
now assigned by law exclusively to one level or another.
Expanded concurrency could recognize this, with clear under
standing as to primacy to minimize confusion. The technique
of “skeletal law” (where the federal level has primacy) in
many of these concurrent areas could enable the federal
government to spell out general national guidelines, leaving
detailed law and administration interpretation to the
provinces.

Concurrency naturally brings with it the danger of duplica-
tion, and this must be recognized and dealt with. Canadians
already consider themselves the most over-governed people on
earth.

There is, I believe, a way to turn this concern into a strong
element of support, and that would be by committing the
federal government to the general concept of a unified public
service in the administration of concurrent jurisdiction and
skeletal law. In most cases—at least as practised in Switzer-
land and Germany—the unified public service in a given area
ofjurisdiction would be supervised by the provincial level, with
the federal staff primarily engaged in auditing and policy
development. The provincial public service would still be duty
bound to administer federal law as faithfully as provincial, but
it would be all done by one group.

This would work well in environment, urban affairs, hous-
ing, small business, agriculture, and communications and cul-
tural policy, to name but a few. And presumably it would
enable the federal authority to develop policy staffs in such
areas as education, while of course retaining the administrative
staff in certain other areas of concurrent jurisdiction such as
immigration, because of its external nature.

The details will be complex, but the principle would be very
clear to the public, if enunciated—namely an end to duplica-
tion, an end to visiting several offices, and remote
administration.

I believe that with this addition, the concurrence and skele-
tal law concept would be very well received.

Most of the discussion concerning federal-provincial rela-
tionships tends to be a one-way street, seeking more powers for
the provinces, but a federal system cannot work well unless it
is balanced as to public information, among other things.

There has been a curious item of imbalance in terms of
interaction between the two levels of government. The prov-
inces have a well-established position of demanding more
influence in Ottawa; the federal government has made no such
demands with respect to provincial activities that have a
consequential impact on federal responsibilities.

One need think only of the international bond market
operations of the provinces, or their industrial development
policies or resource or manpower policies, to understand how
important such interaction may be.

More generally, while the provinces have always had spokes-
men in Ottawa, (in terms of an Opposition anxious to ambar-
rass the government, if nowhere else)—thinking of
both the goverment and Parliament—has not had much of a
voice in the provinces, From my own experience, the most
outrageous things can be said by provincial governments, in
debate and in the press, day after day, without any satisfactory
rebuttal or putting of the federal side of the story. Provincial
opposition parties do not see this as their role, (for very good
electoral reasons), and federal Ministers are but fitful pres-
ences on the local scene, and are hampered in their comments
in any case by their desire to stay on good terms with the
provincial government in the interests of their province.

If the provinces are to have their own direct voices in the
Upper House, is there not a case for the federal government
having its own direct voice in each provincial legislature? Why
not ask for it?

Such a representative would not have a vote, of course, but
would have the right to speak on any matter that he deemed
required the expression of a federal view, or the placing on the
record of federal facts. This would do a very great deal to keep
provincial Ministers honest in their attacks on Ottawa. It
would also provide a focal point for the press in seeking
comment on the federal-provincial topic of the day.

Finally, under “other matters” I would refer briefly to the
question of electoral law. Unless a court could find something
in the Charter of Rights and Freedoms section, there appears
to be little in Bill C-60 to suggest that the results of elections
must be representative. I am certain that sufficient consensus
could not, atthis time, be obtained on any given electoral
system to entrench it, and in this context my main concern is
that nothing should be included to prevent changes to other
forms of voting (the alternative ballot or proportional
representation, for example) should any government wish to do
so.

I believe that perhaps sufficient consensus is available to
entrench the “one-man, one-vote” concept, if reasonably broad
latitude was given as to permissible variations.

11. The Queen and the Governor General

The debate on the impact of the provisions of Bill C-60 on
the monarchy in Canada has been very heated, and rather
unfortunate in that is has obscured and overshadowed other
matters of importance. The position of the monarchy is of
greatest importance, but if it is not changed in substance, as is
my reading of the facts, it is not a useful bone of contention. A
clear statement by the Committee one way or the other on this
issue, I believe, would be of great assistance to the constitu-
tional dialogue. We have enough differences in rewriting our
basic law, without getting into emotional arguments over
shadows that don’t exist.

With respect to the Governor General, there is little change
as well. I believe there should be one very important change.
At the moment, and under C-60, the Governor General is
appointed by Her Majesty on the advice of the government. I
believe this should be changed to provide appointment by Her
Majesty on the advice of Parliament. The practical effect of
this would be to require informal consultation on the matter
with parliamentary leaders, and through the new Upper
House, with provincial leaders. This process would guarantee a
very wide level of support, and remove any of the fears that
have been voiced with respect to the Governor General of the
day somehow becoming a tool of the government.

12. Instruments of Direct Democracy

In a modern society with an educated and intelligent elector-
ate, instruments of direct democracy are appropriate and
workable. They are not particularly beloved of politicians
because they, to some extent, can restrict and overrule govern-
mental powers, but they provide a terribly important safety
valve for the citizenry to let their representatives and govern-
ments know when they are getting serisouly out of line.

It has been objected that direct democratic techniques are
not suitable for a parliamentary system, and that is correct as
long as it is maintained that parliament is sovereign. Once it is
agreed that the ultimatepolitical legitimacy lies in the peo-
ple—as surely must be agreed in Canada in 1978—that objec-
tion disappears. However, the constitutional impediment
remains, and we have a certain amount of case law in Canada
that suggests that unless there is a clear authorization for
mechanisms of direct democracy in the constitution, at least
some of the techniques might turn out to be ultra vires of any
level of government. (The Manitoba initiative legislation was
ruled ultra vires, and the similar B. C. law was never pro-
cIaimed—though it had sufficient differences in approach that
it might have been constitutional.)

Accordingly, in my view, it is critical that our new constitu-
tion explicitly provide for the use of direct democratic mech-
anisms, subject to law passed to define their operation. The
techniques to be authorized should include at least:

(a) The Recall—permitting a sufficient fraction of the
electorate in any given constituency, by petition, to recall
the sitting Member and to force a by-election.

(b) The Referendum and Plebiscite—These instruments
should explicitly be capable of being actuated either by
the executive branch, or by the legislative branch, or by
the petition of a sufficient number of citizens. This,
among other things, would allow citizens to strike down
legislative measures concerning which there might be
wide-spread disapproval. One or two possibilities come
immediately to mind. In conditions defined by law, the
results of such votes should be the final authority.

(c) The Initiative—in which a sufficient number of citi-
zens, by petition, can initiate measures which, if assented
to at a popular vote, have the force of law. California’s
Proposition 13 is the current famous example of this type
of power.

Let me clearly state that there are problems with the
instruments of direct democracy that must be guarded
against—the potential tyranny of the majority, or inconsisten-
cy of policy demands, for example. That can be done in the
framing of the law regulating the use of these mechanisms.
The important thing at this point is to provide in the constitu-
tion for the authorization of such mechanisms, and of the right
of the public to have recourse to them.

13. In summary

Bill C-60 is, overall, a sound document. I believe, however,
that some very important additions and amendments are
required for it to be considered as satisfactory. The major of
these include:

—it is now time to bring the constitutional debate to a
head and set a method of validation.

—that method should be by popular vote, with a majority
required in each of the five regions of Canada.

—an amending formula should be included in Phase 1.
The amending formula should include, as one route, a
method of popular voting with regional majorities,
actuated either by governments or by voters.

—with respect to matters of special linguistic significance,
the “double majority” principle should be replaced by a
“blocking minority”.

—the Upper House must be given blocking power in
matters of special regional significance.

—the Upper House must provide for a majority of votes
from Outer Canada, treat each of the regions the same
in terms of numbers, and provide for British Columbia
(and the North) as a distinct fifth region.

—selection of Upper House Members should be through
a process designed to ensure regional motivation in
their decision making.

—the Upper House must be comprised predominantly of
people who have been elected, in some capacity or
other, in order to balance the legitimacy of the Lower
House.

—the effective powers of the Lower House should be
increased by providing for management of its own
budget, a highly restricted definition of “confidence”
questions, and fixed-term elections.

—in compensation, the executive branch should have the
right to appeal in a referendum to the public over
decisions of either of the Houses of Parliament.

Apositions should be developed on native rights, a place
for local government in the constitution, concurrent
jurisdictions and skeletal law, and a unified public
service.

—the federal level of government should have a non-vot-
ing spokcsman in each provincial legislature as a partial
reflection of the role of the provincial governments in
Parliament.

—the Governor General should be appointed by Her
Majesty on the recommendation of Parliament.

—the constitution should authorize and require the provi-
sion of instruments of direct democracy, as defined by
law.

Mr. Gibson: With the brief and no question of printing
them, are some associated documents, including the presenta-
tion of the Task Force on Canadian Unity which consists, first
of all, of an article called The Western Confederation which
was prepared for a Harvard symposium about one year ago on
this question, next, a survey of experience in some other
federal states based on sometravels and research work I did,
and finally some detailed proposals, some of which are more
detailed than what is in this document. As well, there is an
opinion page reprint from the Vancouver Sun which is essen-
tially a popularized version of the brief.

This particular statement today concentrates mostly on Bill
C-60, on the process that the government has suggested to
implement Bill C-60 or whatever takes its place, and what
seemed to me to be some rather serious omissions from the bill,
as well as matters in the bill that are both good and bad, in my
view.

I am very glad that this Committee is in existence because it
seems to me about the last remaining place for the expression
of imaginative views or remedies, the Task Force being over in
the public hearings and the premiers having a very specialized
viewpoint for their conference.

If I might be so bold, I would express the hope, just as a
citizen of this country, that out of the deliberations of this
Committee there might come a strong consensus, because I
would suggest that failing such a consensus what we will have
will be two or three or four strong voices from the federal level
and a virtually unanimous set of voices from the provincial
level. The problems that the premiums have at this stage are
much simpler. Their problem essentially at the moment is one
of being reactive and they have a community of interest in
their initial reaction to this bill, I think. So, speaking just as a
citizen, if I may be so bold, I think a consensus from this
Committee would be terribly important.

The first question I address in my brief is whether or not
there is a necessity for a new constitution. Some people say
that there is not, that we can muddle on one way or another,
and I have no doubt that we could. But the fact of the matter
is that uncertainty about our arrangements for living together
is bad for our country and for our economy, I believe, and for
our system of government. Instead of being productive as a
nation we are being intraverted, instead of building on a sound
base we are wondering what tomorrow’s ground rules might
be, and instead of our various governments working for harmo-
ny they are jockeying for position. Unnecessary uncertainty is
the enemy of achievement in this country, I believe. There is a
certain amount of federal-provincial friction that cannot be
avoided but I think we have a lot that could be avoided.

In respect of those who wonder whether there is a need for a
new constitution, I would submit that there are three tremen-
dous alienations in this country which must be addressed by
such a document. The first, the best known and the one that
has received the most action so far, is the linguistic alienation
between the two main language communities. Of equal impor-
tance, or perhaps I should not exaggerate, but certainly to
Westerners of great importance, is the question of regional
alienation, a second kind, which relates in part to regional
interests and in part to provincial government interest.

I make a distinction between those but both of them express
themselves in regional alienations as opposed to the central
apparatus. And the third kind of alienation in my view is the
alienation of the individual from government, whether it be the
federal level of government or the provincial level of govern-
ment. There is a great feeling in Canada today that govern-
ment is out of control of the citizen, that it is not serving them
well.

All of these things to me form a clear and present need for
urgent work on a new Constitution. Now we come to the
question of a timetable.

Mr. Knowles: It seems to me we are doing two things. We
have printed the brief as though it had been read. I agreed,
and Mr. Gibson has been saying things under the heading of
necessity which were not in the text. Are we going to have
both? Are we going to have both a full printing of the brief
and a full transcript of what he says?

The Joint Chairman (Senator Lamontagne): That has been
the decision so far as I understand it.

Mr. Knowles: So we are going to have both.

Mr. Gibson: I will try and at least be consistent as between
the two, Mr. Knowles.

The sense of urgency, I believe, is there in the sense that this
question is unsettling and wasteful of energy. A decade of the
best production of some of our finest minds and politicians has
been used up in the process and I think Canadians have more
productive things to do if we can get on with them. The
Committee is well aware how long this debate has gone on. I
think it had to be brought to a head and I support Bill C-60 to
the extent that it does that. Many parts of it I do not support.

I agree very much in theory with those who say there should
be no Phase I and no Phase II, that these things are really all
of a piece and should be tackled in that way. Nevertheless, I
sympathize with the position of the government. I am not sure
that would be possible. It has been tried and failed for some
considerable length of time. I fear that as long as we go the
simple route of negotiations between the two levels of govern-
ment the delay will continue.

My analysis of the tactical position is that conclusion now is
not in the interest of the provinces. They have an excellent
current position and they would reasonably hope, through the
affluxion of time, to approve that position. So I think the
federal government had to make a move, but I would also say
that the division into Phase I and Phase II should be a tactical
exercise designed to force the pace of conclusions. The provin-
cial governments will not necessarily like that, but that is not
the test of usefulness. The proper test is, is it good for the
country?

I submit, and will elaborate later, that in matters as impor-
tant as the Constitution neither the provincial nor the federal
governments have the moral authority to say a final yes or no.
I believe that must be up to the people, but someone has to
make a move to get the question before the people in terms
that they can act on. And in the light of the long delay I think
the current activities are correct.

I would also agree, however, that it would be completely
improper to move unilaterally on some of the matters set
forward in Bill C-60, failing the reasonable consensus among
the provinces, without having obtained the moral authority of
the electorate in terms ofa referendum.

With respect to the scope of the bill, it is wide but there are
omissions. Of these, to me the most important is the lack of
any provision for the institutions of direct democracy. In my
view this cannot be overstressed. Every constitution must have
within itself the means of improvement and healing.

In my view as well, an omission is a lack of a shift of power
from the executive branch to the legislative branch. Some
persons speaking before this Committee have suggested that
the bill in fact goes in the opposite direction. I am not certain
of that but it certainly does not transfer sufficient power to the
legislative branch, and that, as I hope to demonstrate, is a
necessary conclusion of an upper house, which is not a confi-
dence chamber.

Further, still speaking as to the scope of the bill, it makes no
mention of freedom of information as a basic right for Canadi-
ans. I somewhat reluctantly concur with this on the basis that
we are better to try the exact words of such legislation out in
statute law first, but I say that only on the basis and under-
standing that we would have in our constitution a way and a
means for the people to force such legislation if any govern-
ment in due course refused to put it into place voluntarily.

As to patriation and amendment, it seems to me clear that
there should be no patriation until an amending formula exists.
It seems to me that some kind of amending formula should
definitely form a part of Phase I, if indeed this matter is to go
through in two phases. I say that because without an amending
formula or at lease some means of resolving disputes in these
very contentious matters, it will have to be handled during
Phase II, and we are just building the way for a future great
deal of trouble for ourselves.

As to the various amending formulae that have been sug-
gested, it seems to me the general principle, the constitution
should strive for is that of a high degree of consensus both
among Canadians as individuals and among regions demarked
in one way or another.

There are three basic different categories suggested, and I
see no reason why all of them should not be provided in the
constitution as alternate amendment routes. One of them is
intergovernmental measures. The Victoria formula seems to be
the most popular though, as you know, there are distinct
objections of both my own province and of Alberta to the
Victoria formula.

The two that appeal most to me are a combination of the
intergovernmental process, be it the Victoria formula or some
other, with a provision for an appeal by referendum in case of
failure to achieve either the approval of one or more of the
regions or the approval of the national government, if the
matter has been initiated in some other way.

The third alternative which appeals to me and which I think
should be provided is that of a pure referendum, whether
government-initiated or popularly initiated. I think, in any
event, there should be a popularly initiated route for the
amendment of the constitution. This I expect will be a con-
troversial point. If anyone wishes to go into it, we might
canvass the Swiss experience in this area.

When we deal with amendments to the constitution, one of
the things that might lessen the fears and objections of the
provinces riiight be an area of reserved inalienable rights that
cannot be amended with the exception of the consent of the
province affected, if it is that kind of a measure, or the
unanimous consent of the provinces if it is that kind of a
measure. or perhaps some categories that would be just basi-
cally unamendable, as basic human rights are in the German
constitution.

Examples of things that might be entrenched in this way
seem to me to be provincial boundaries, certain linguistic and
cultural matters, senate representation or upper house
representation, at least as to minimums and perhaps with a
formula beyod that, and defined powers over natural
resources, which of course the provinces are very concerned
about as a result of the omission of Section I09 in the existing
BNA act from Bill C-60.

I am not as yet certain in my own mind that there should be
these two classes of things in the constitution, those which can
be only amended one way and those that can be amended more
easily, but I put it before you for your consideration.

In the initial validation of whatever document is brought
forward, be it a Phase-I document or a complete document, I
believe very strongly the new Canadian Constitution should be
validated by a popular vote among all citizens. Only in this
way will it achieve the legitimacy necessary to resist the strains
of time to overcome any residual carping by premiers or others
who suggest any lack of legitimacy of the new law. Even
premiers and prime ministers cannot argue against a clear
popular vote in political terms. I enter a caveat, a country-wide
majority in favour of a new constitution would certainly not be
sufficient. It is essential that there be affirmative majorities in
each and every of the five regions of Canada and some would
even argue that the degree of consensus should be as high as to
require a two-thirds affirmative vote.

When I mention regions, let me say that there are only two
points in this brief where I shall do so. I beleive the basic units
of Canada are the provinces, not the regions, and we have to
deal with the governments of the provinces and that is where
the boundaries are. But I do believe the concept of regions, and
five regions, is useful for organization of the Upper House and
for the question of the validation of nation-wide referenda.

Beyond that, the Constitution should in my view deal with
provinces, not regions.

Once the Constitution receives its initial validation, the
Committee might want to consider whether there sl1ould be a
built—in mechanism for automatic review after a certain period
of time to review and evaluate and propose needed changes if
any in light of experience with the new law. This would not
preclude earlier or later amendments by other routes, of
course, but it might be well to set up an assessment process.

I am as well happy to convey to you the recommendation, or
the thought at least, of a former colleague, John Reynolds,
when he was an M.P.—I was on his open-line show the other
day—and John was advocating the possibility of the Hawaiian
type of elected constitutional convention which every ten years
reviews the Constitution. I advance that for your interest.

Senator Forsey: With a hula-hula dance?

Mr. Gibson: It might enliven the debate, Senator.

About the contents of Bill C-60, I cannot tell you as much
as many people about the Bill of Rights or the Supreme Court
clauses and will not comment on them unless there are specific
questions you wish to ask.

In the clauses related to the English and French languages, I
have no difficulty with these and give you at least my personal
opinion that even stronger guarantees might be approved in all
regions of Canada if required. I think the important thing here
is that these kinds of guarantees be embodied in a deal on
which we can all vote as citizens and thereafter be largely
removed from the political arena and put in the hands of
administrations to carry out and courts to enforce. That, of
itself. in my view, would be a giant step forward.

I might say that the clause on language of education in my
reading, and I do not speak for the Government of British
Columbia obviously, is not in any way at variance with the
current very advanced education policy of the current govern-
ment of my province.

Treating this as a matter having to do with linguistic rights
rather than the Upper House for the moment, I think the
double-majority concept is an unfortunate one if it can poss-
ibly be avoided in treating questions of so-called special lin-
guistic significance. That process requires persons to put a
label on themselves in a way which might be considered
divisive and I wonder if the same ends might not be achieved
by stipulating that changes in matters of significant linguistic
significance would require, say, an 80 per cent majority; in
other words, you would have a blocking minority fraction of 20
per cent, which should be sufficient to offer the same kind of
protection. It might be argued that that very high requirement
would make reforms unnecessarily difficult; I can see that side
of the argument but I would certainly like to avoid the
double-majority concept if possible.

Referring now to the centrepiece of Bill C-60 as far as I
would say BritishColumbia is concerned, I refer to the Upper
House which I hope is continued and I hope however con-
tinued it remains called the Senate which, to many Canadians
indeed all over the world, is a name of great tradition and to
me would be preferable to House of the Federation or House
of the Provinces or anything else.

The question has been raised as to whether or not we require
an upper House. I noticed in the opinion of Mr. Broadbent to
the Committee, his I thought excellent idea that there might
be added to the Lower House a number of members to be
elected by proportional representation from the five regions of
Canada, thereby guaranteeing in the Lower House a better
reflection of regional political sentiment than is available
through the first-past-the-post system. As I say, I think that
may well be a very good idea for the Lower House to adopt
but I do not think it ends the need for an upper chamber in a
federal system. An upper chamber is traditionally for the
protection of interests and the redressing of grievances of
minorities.

One type of minority is linguistic and that is considerable
provided for in the question of special linguistic significance in
Bill C-60. The other type of minority is regional. One of the
parts of the regional minority is intrinsic. It relates to interests
identified with particular economic areas of the country, be
they tariffs or be they the distribution of federal expenditure
or be they transportation questions. The other part of the
regional interest and regional minority is governmental, the
provincial governments in the federal-provincial process and
the fact the provincial governments are ten and the federal
government is one.

In the Upper House, in my view, the coalitions of minorities
must be able to have sufficient voting power to protect their
interests and to block changes inimical to those interests.
Specifically as far as British Columbia is concerned, I believe
in this chamber, outer Canada, what I would call, should be
able to outvote central Canada to balance off the predominant
control of the Lower House and always the more powerful
House by central Canada.

It must be a truly regional house. This Upper House as I see
it is the instrumentality of regional expression in the central
government and particularly in the legislative branch as dis»
tinct from the so-called executive federalism.

Therefore, it must be an institution that is regionally moti-
vated in its action; nothing could be of greater simplicity as I
see it. Therefore I believe strongly the construction set forth in
Bill C-60 should be rejected. That institution would be, I feel,
terribly partisan because of the selection process for its mem-
bers. There is nothing wrong with that except that it is
inappropriate I believe in a chamber which is designed to
reflect the view of regions rather than parties.

Moreover, although opinion varies on this, I know, in my
opinion the 060 Upper’ House would be relatively powerless.
A 60-day suspensive power is a joke and when it is exercised
by people appointed in this particular way I think it is a bad
joke.

I will not comment a great deal further on the proposed
House of the Federation unless asked. I think I have made it
fairly apparent that something else is required and I will go on
to try to be constructive and say what I think might replace it.
I might say I do not criticize the government in suggesting
this. They had to put something forward at this stage and they
did in their analysis of the House of the Federation go through
the various possibilities.

In my analysis some of the other possibilities are better.
Looking at the criteria for an upper House as I see them, it
must be predominantly regional rather than partisan in its
motivation and acting in the regional interest it must be
powerful, and it must be legitimate and respected.

Therefore, in my view, it must be composed of elected
people to balance the effect of elected people in the Lower
House, and you understand why I say this when I say what
powers it must have. It must have absolute blocking powers in
terms of significant regional importance and it must be rela
tively nonpartisan, at least in a House of Commons sense.
Certainly the persons who sit in the Upper House will have
political feelings and belong to political parties. But one would
hope that their motivation would be predominately regional, as
a result of their means of selection.

My particular proposals for a new Senate, one might call it,
would be as follows. First, as to memberships, I believe the
members should all be elected persons. Half of those, I believe,
should be directly elected—definitely not at the time of the
federal election, because in that case their political coloration
would be affected by the federal events of the time, but either
on a fixed-term basis, which I prefer, or else at the time of a
provincial election. The other half, as I see it, should come
from provincial legislatures. They should be selected by the
governments and not the legislatures themselves and should be
comprised of the premier and sufficient government members
to form that province’s quota in the Upper House.

The obvious comment about this construction is that it is a
mixed-mandate Chamber. There are two distinct kinds of
members, and problems sometimes arise in those areas. The
old Montreal City Council is a famous example. The North-
west Territorial Council functioned, after a fashion, with
appointed members and elected members, but there were
always distinctions drawn. In this case it seems to me there
would not be a problem, because the legitimacy of each class
of member would be equal. They would both be there on the
suffrage of the voters. One class of senators would represent
voters directly, the other class would represent governments
which in turn represented voters. Perhaps eventually the Upper
House might, if it started this way, move to an all-elected
Chamber. I would not be surprised. That is what happened in
the United States and it is what happened in Switzerland.
Originally they were indirectly elected.

In the interim, I think there is a very strong case for having
provincial governments directly elected in the Upper Chamber.
There are very strong legitimate provincial-government inter-
ests in the activities of the federal government. Government
representatives can and will typically exercise a continuity of
policy, a consistency of policy, which is not ordinarily expected
of private members. Governments of course have greater
research depth, the enormous data base available to the pro-
vincial governments. And there is an understanding among
government representatives that the people’s business must be
done and there must be compromise. When I spoke to one of
the German premiers about the operation of the Bundesrat, he
said as much. He said: “We realize we must compromise with
the Lower House to get these things passed.” I also said to the
same premier: “Have you any problems with federal-provincial
relations?” To my great surprise, he said: “Absolutely none,
except we talk too much.” I suppose that is common in many
countries.

On the powers of the new Upper House, I would suggest in
matters of general law they should be suspensive. There might
well be some usefulness in the prior submission of proposed
government bills for the Lower House to the Upper House for
comment, particularly in federal-provincial relations. The par-
ticular change I would suggest would be, since special linguis-
tic significance is already provided for, in matters of special
regional significance. And there I believe the Upper House, if
constituted somewhat along the lines I have suggested, not the
proposed House of the Federation but something different,
should have a blocking veto by majority vote. If one Chamber
which is elected is to be blocked in some matters by another, it
seems to me a political necessity that the other must be
composed of elected people, which is why I put that condition
on it. And this blocking veto is what would give the Upper
Chamber real leverage in the regional interest.

The definition of what is of special regional significance
would obviously have to be carefully worked out and would,
one would think, be a proper part of the negotiations on
division of powers. But in addition to the general definition, it
seems to me the powers of the Upper House should include the
right to approve constitutional amendments, the right to
review the appointment of senior officials—and I might say I
believe the power currently contained in Bill C-60 should be
clarified, certainly by adding the names of certain positions or
perhaps by giving the Upper House the right to specify who
they wish to review, though that might be going too far. It
should have the right to review and approve of federal-provin-
cial agreements, the right to review and approve of cost-shar-
ing programs, the right to review and approve of use of the
spending power by the federal government, which of course is
always a very controversial area for the provinces; and—I have
a question mark after this—it might have some power for the
approval of treaties, if in so doing we could get around the
problems of the implementation of treaties which are entered
into by the federal government but which in fact must be
operated by the provinces.

I would put one restriction on the activities of the member-
ship of the Upper House in order that they might exercise
their powers more independently. I believe no member of the
Upper House should be entitled to hold federal executive
office, should be a member of the Cabinet, unless it was
thought wise to have perhaps one or two representatives there
for communications purposes. In general, I believe, that prohi-
bition should be there, because once you get into the executive
branch and the activities of the Lower House you start to
subvert the regional motivation of the members of the Upper
House, and as well, you start to subvert the role of the House
of Commons as the chamber of initiation and proper responsi-
bility to the electorate.

Commenting on the question of numerical balance, again I
do not speak for the B.C. government, but I think they would
agree with the proposition that 10 out of 118 is not acceptable
to British Columbians. The concept we have advocated for
many years is that of five regions of Canada. I think a person
must look at some realities in designing the numerical quanti-
ties in the Upper House. Ontario and Quebec must be the
same. British Columbia and Alberta, if not the same, must be
close to each other. The three large Atlantic provinces perhaps
should be the same—I am getting a long way from home here.
And there should be some reference to population.

In my submission to the Task Force on National Unity I put
forward a numerical proposal which contemplated a five-
region Upper House, each region assigned 20: 20 for the
Maritimes or the Atlantic provinces, broken down into three
6’s and 2 for Prince Edward Island; 20 each for Quebec and
Ontario; 5 each for Manitoba and Saskatchewan; 10 for
Alberta; 14 for British Columbia; and 2 for each of what I
expect in due course will be three northern territories. That is
one formulation. One can talk about numbers for a long time,
but what is essential to British Columbia, I think, is the
concept of fifth-region status for Senate organization and for
referendum approval.

I think it might be worth while wondering what would be
the organization principle of the Upper House. Even for a
House that would essentially be reactive, it is hard to see how
the proposed House of the Federation would organize itself to
do business. A Senate of the type I have proposed would
probably organize itself in some sort of a 20-plus person
steering and conference committee, probably with a member-
ship of the intergovernmental minister of each provincial
government plus perhaps the senior elected senator from that
province. Given the membership of the Upper Chamber, full
meetings would have to be occasional, because premiers and
ministers coplcl attend not on a weekly basis but perhaps on a
tri-weekly basis, with most of the work being done in commit-
tee meetings with the provincial delegations acting essentially
on the instructions of their own cabinets and working in
committee in the capital.

This arrangement, of course, is exactly what happens in the
Federal Republic of Germany and works very well with the
exception that there are no elected people.

As to practicality, there is only one novel element in this
proposed Senate construct and that is the mixed-mandate
element. We know that everything else works. The Australian
objection, I believe, does not apply because the government
can carry on perfectly well if there is a rejection by the Upper
House. It cannot cause nearly as much difficulty as the
Australian Senate can.

The House of the Federation, on the other hand, has, as far
as I know, no precedent in other parts of the world and ljust
do not think we have a reading on how it might work at all.

I might speak briefly on the executive legislative balance. I
do have a strong feeling—and perhaps many parliamentarians
do-that the executive branch has grown much too strong. My
perception may be based on sitting in the Opposition in a
provincial legislature, I do not know, but I do believe legisla-
tors cannot represent their electorate as well as they might if
they were not subject to so many executive pressures.

With a new upper House that was no longer a confidence
chamber, the Upper House would be set free in a sense.
Members of the Upper House would be much freer to amend
and tamper with and comment on government legislation. And
M.P.s, I think, sitting in the stronger chamber, would rightly
demand the same kind of freedom for themselves. And as a
personal opinion, I think they should have it.

Now, it could be—and this is subject to some interpretation
other people read it exactly the opposite way—it could be that
Clause 51(3) is a start towards providing this kind of freedom
in the sense of specifying that a defeat of the government in
amendment of the legislation is not necessarily a matter of
confidence.

I would suggest that the bill should be changed to go
further; in effect, to remove the Prime Minister’s flexibility in
timing elections. It seems to me that it would be very suitable
to the people of Canada if there were no dissolution possibility
at all without a specific vote of confidence or you might even
go as far as, again, the German system, and have effectively no
dissolution at all but rather when you defeat the government,
you must elect a new Chancellor in the same motion—perhaps
a bit far, again, for our system.

But this proposal of no dissolution except on a specific vote
of confidence amounts, in terms of Canadian history, to a call
for fixed-term elections. And, of course, if one had a vote of
confidence in between the fixed term, then you would start
your four-year time margin again.

But people could much better predict the course of this
country. I think that would be useful for our political system
and for our economy.

I would go further in terms of the powers of the legislative
branch. I think it would be wise to exclude from Clause 77 the
Crown control over the House of Commons budget so that
committees of this kind could have whatever staff it wanted,
for example. And, of course, it continues open-ended commit-
tee references year around.

All this would change the balance of power significantly in
this country. The executive branch has to be given security,
too; you could not expect them to resign if a bill were changed
or defeated, though we would have to give them that option, I
suppose, and hand over to someone else. It seems to me they
should have one other power to deal with a potentially recalci-
trant legislature because we have not had those problems in
Canada before. And that is the power that Charles de Gaulle
gave himself, whether wisely or unwisely, in his constitution of
1958 when he gavehimself the power to appeal to the voters in
a referendum. That was what defeated him in the end because
he said he would resign if he did not win. Nevertheless, that is
a useful balancing factor if you take some of those powers
away from the electorate.

I will refer very briefly to various provisions that are not
handled adequately in Bill C-60. The government’s White
Paper refers to the legitimate rights of native peoples and I am
unable to find appropriate provision in the bill. There is no
provision for local governments which, if the old saying is
correct, is the closest to the people. It is difficult to provide for
but I would suggest to the Committee that perhaps in the
constitutional document there could be a reference as to the
value and necessity of local government, a requirement that
provincial constitutions define certain matters concerning local
government, their powers and the way those powers would be
amended, their duties and their revenues, and a guarantee of
regular tri-level conferences, which would at least be a voice
for local governments.

In terms of the division of powers, again it is not a part of
C-60, so I argue again the means of resolving this inevitable
debate must be made a part of it. I would suggest that one way
of easing that debate would be an expanded use of concurren-
cy, with of course clear definitions of primacy. But each order
of government has at least some small interest in the powers of
the others. In areas of federal primacy there is a great deal of
usefulness in other countries in the enaction of so-called
skeletal law, which sets national standards, with the details to
be filled in by the provinces and the administration to be
carried out by the provinces.

There are dangers of concurrency without question. Concur-
rency brings with it the danger of duplication and that must be
dealt with. Canadians already consider themselves the most
overgoverned people on earth. There is, I believe, a way to turn
this concern into an element of support, and that would be by
committing the federal government to the general concept of a
unified public Service in the administration of areas of concur-
rent jurisdiction in skeletal law. In most cases, at least as
practised in Switzerland and Germany, the unified Public
Service in a given area of jurisdiction would be supervised by
the provincial level, with the federal staff primarily engaged in
auditing and policy development. The provincial Public Ser-
vice would still be duty bound to administer federal law as
faithfully as provincial, but it could all be done by one group.
This would work well in environment, urban affairs, housing,
small business, agriculture, communications and cultural
policy, to name but a few, and presumably it would enable the
federal authority to develop policy staffs in areas such as
education, while of course retaining actual administration in
certain other areas of concurrent jurisdiction, such as Immi-
gration, because of its external nature. The details would be
complex but the principles would be very clear to the public if
enunciated, namely an end to as much duplication as possible
and an end to visiting several offices in remote administrations.

A very brief point, retroactivity in Bill C-60, is treated in so
far as I can see only with respect to criminal law. I wonder if it
should not be treated in respect of general and civil law.
Electoral law is not provided for but perhaps, as Mr. Lang said
in his testimony, there is not enough agreement.

I wonder if there should not be provision for a federal
spokesman in the provinces, in the provincial legislatures.
There is an imbalance in public information in our federal
system. The provincial governments have a huge impact on
national matters, when you think of the international bond
market, industrial development policies, resource policies,
manpower. If provinces are to have a direct spokesman in the
new Upper House, if that happens, why should not the federal
level have one nonvoting voice in each provincial legislature? I
can assure you, from my experience in the BC. Legislature,
that that would help keep the debate accurate, and I think the
federal system for its good operation requires balanced infor-
mation from both orders of government.

I want to say something about the appointment of the
Governor General. My reading of the Bill is that the role of
the monarchy is not changed nor is the essence of the appoint-
ment of the Governor General, but I think the latter should be.
At present the Governor General is appointed by Her Majesty
on the advice of the Cabinet, and I wonder if it would not be
an improvement to that office to provide that Her Majesty
should be advised in that appointment by Parliament. The
effect of that would be that all parties would be consulted and
all provinces through the new Upper House would be consult-
ed. I think that would be an appropriate addition to the office
of the Governor General.

Mr. Chairman, my concluding point, and what I consider
perhaps the most important point, relates to instruments of
direct democracy in our country. As members know, we have
virtually none. There are sometimes provisions for referenda
on school budgets or the federal government has a proposal on
constitutional referenda which sounds as though it may be
rather narrowly drawn.

There are two initial hurdles which are related to the
general use of instruments of direct democracy: one is the
sovereignty of Parliament and the other is a court decision—
and there may be others—the particular case to which I advert
being a decision with respect to a direct legislation law passed
by Manitoba just after the First World War which was struck
down by the courts essentially on the grounds that it ordered
the Lieutenant Governor what to do, and that was not proper
under a British-type constitution.

To me, these instruments of direct democracy are the most
important route to, and they act as, a safety valve, to tackle
that problem of the third kind of alienation I discussed,
namely, the alienation of people from their governments, and
they give them a feeling and the fact of involvement in
specifics and not just which party they may choose to vote for.

Accordingly, in my view, it is critical that our new constitu-
tion explicitly provide for the use of direct democratic mech-
anisms, subject to law passed to define their operation, and I
refer to the recall, the referenum and/or plebiscite, including
those initiated by individuals and the initiative with which
members will all be familiar.

I appreciate their problems with instruments of direct
democracy that must be guarded against—the potential tyran-
ny of the majority or inconsistency of policy demands, for
example; but that can be done by the framing of the law
regulating the use of these mechanisms. The important thing
at this point is to provide in the constitution for the authoriza-
tion of such mechanisms and the right of the public to have
recourse to them.

I am winding up right now, Mr. Chairman.

A summary of these recommendations is found at page 18.
They are very wide-ranging. They are perhaps unrealistically
wide-ranging in the sense that it is too much at one bite for
any constitutional reform but I thought them worth putting
ahead because they amount, in my view, to a balanced transfer
of power from the executive to the legislative branch, from the
central authority to the regions, and from governments to the
people.

Bill C-60 itself goes some distance in these directions,
particularly with respect to language and human rights. I
believe that somethinglike this package would add a signifi-
cant compopent of provincial and political rights which, in my
view, would provide for better government of this country.

I have been lenghty, Mr. Chairman. I thank the members
for their patience.

The Joint Chairman (Senator Lamontagne): Thank you
very much.

As you know, we have only until about 4.30 to ask questions
of Mr. Gibson.

Mr. Collenctte.

Mr. Collenette: Thank you very much, Mr. Chairman. I
would like to thank Mr. Gibson very much for coming here
today. I believe he is the first provincial spokesman that we
have had and I think it is a reflection of his interest in the
whole process that he has come to Ottawa, and I am sorry that
perhaps the other provincial leaders, whether they be premiers
or party leaders, have been somewhat haughty in their attitude
towards the deliberations of this Committee and have not
chosen to attend. The one exception that I am aware of is
Premier Hatfield who will be coming here and I welcome. . .

Mr. Lee: The Province of British Columbia is coming.

Mr. Collenette: It is? Mr. Bennett is coming? Or perhaps a
representative of the government? Then I am very grateful to
those Qtwo provincial governments for sending people here
because I think it is crucial that the provinces not take a
haughty attitude and come to this Committee and discuss with
us very frankly their legitimate concerns.

Mr. Gibson had a lot to say and I was really trying to distil
his general trend of thought, and of course he is concerned
with the position of the regions in the country but I am not
very clear as to what kind of federation or confederation he
wants this country to become.

It appears from his arguments that he implies that the
provincial governments are not really interested in coming
together to form a new constitution. I think he said that, Mr.
Chairman, in his opening remarks, that it is not in the interest
of the provincial governments to agree on a new constitution;
that is why he welcomed this whole process.

I would like to know whether or not Mr. Gibson feels that
such people as Mr. Lee, who is here from his own province, are
adequate articulators of regional points of view in the central
Parliament; or are the only legitimate regional articulators,
those people who sit in provincial legislatures.

I would like to know, Mr. Chairman, his view of Confedera-
tion and the role of the regions who actually speaks for whom.
I am a member from the Metropolitan Toronto area and I
have no hesitation in feeling that I am elected to speak for the
interests of Toronto, of the province of Ontario, in the national
interests and I resent the accusations very often levelled
against federal members of Parliament that somehow we
really do not come from the regions. that we do not really
know what is good for a region, for a city, for a particular part
of the country.

I would like to know, first of all, Mr. Chairman—I am sorry
for the long preamble but my thinking is perhaps a little bit
woolly at this stage or at least my understanding of Mr.
Gibson’s position—where does he think the country is headed?
Is he in favour of a more decentralized country with the
provinces becoming semi-autonomous states? Much of what he
has said especially with reference to the Upper House implies
this.

Mr. Gibson: Mr. Chairman, I would not say a more decen-
tralized form of country, no; I would say a country with the
central apparatus made more legitimate by greater regional
control of it. You mentioned two other matters, and incidental-
ly I would like to see provinces have a much greater role and
the administration of the concept of a unified public service
implies that. Premiers are spokesmen for their provinces and I
believe generally speaking Premiers are elected for provincial
purposes rather than for national purposes but nevertheless
they have a very large and legitimate place in the debate on
the new Constitution because the new Constitution deals with
the relationship between the provinces and the federal govern-
ment. So they are very, very important in that dialogue.

Perhaps I was unduly gloomy in my opening remarks. I do
hope that at the upcoming First Ministers’ Conference or
whenever the Premiers will be able to agree on something. I
just said that in view of the history I am sceptical. With
respect to members of Parliament as representatives of their
regions, I suppose indirectly that is asking why do we need an
Upper House to represent regions, if that was the intent of the
question. It seems to me that members of Parliament predomi-
nantly have a responsibility to behave as supporters of their
party and when there is a conflict with a regional interest,
when it comes to the crunch and then voted in the House, it is
natural that members of the Lower House should vote along
partisan lines. An upper House, therefore, should be so
designed that when it comes to the crunch the motivation is
along regional lines for the balance.

Mr. Collenette: Mr. Chairman, I am glad that Mr. Gibson
has talked about this because I fail to see how we could take
the element of partisanship out of an upper House. I did not
really understand what he was trying to get at when he said he
wanted half the members, I believe, or a certain proportion of
the members of the Upper House, we will call it the Senate
because I agree with him that the name should be retained,
should be appointed by the provincial governments. The
implication was that if they were appointed by the provincial
governments they would somehow be more regional and less
partisan than if they were appointed by the provincial party
leaders in each of the provinces of which he is one.

Mr. Gibson: You might be interested in the experience
again of the Bundesrat in this particular area. The provincial
representatives which, of course, are actually the Premier and
the ministers do, in fact, on questions of general law or
national interest tend to vote on partisan lines and this, in fact,
makes for an interesting phenomenon, namely a backward
integration of the national political parties into the provinces.
But when questions arise that are of regional consequence then
they vote in the interest of their own land, their own province,
or the interest of their provincial government as the case may
be.

Mr. Collenette: Then, Mr. Chairman, how would Mr.
Gibson define “regional significance”? I think in his statement
he said that in talking about the Upper House he would see
that they would have an absolute veto over matters of special
regional significance and the powers suggested in Bill C-60
must be greatly upgraded. I would like him to define “special
regional significance”, because it appears to me that every
damned thing we do around here as members of Parliament or
as members of the House of Commons as a government has a
regional significance. How are you going to determine what is
regionally significant or what is not regionally significant?

Mr. Gibson: Well, I suggested that the definitive definition
should be left as a part of the negotiation for the division of
powers, but I gave specific examples, namely constitutional
amendment, the review of senior official appointments, feder-
al-provincial agreements, cost-sharing programs, approval of
use of the spending power, and perhaps treaty approval.

Mr. Collenette: Mr. Chairman, in conclusion—I am sure
my time is up—if you really looked at each of the examples
Mr. Gibson gave, we are probably talking about just about
every legislative action of the federal government.

I would like to conclude by perhaps editorializing and saying
it appears to me there is too much of a spirit, I would not say
in the land, that the country should become much more
decentralized with a view to improving the governments of
Canadians, and it appears that this is reflected in Mr. Gibson’s
statement this afternoon. It is something I reject, but perhaps
on a second round I could go more deeply into some of the
other things he brought up. Thank you.

The Joint Chairman (Senator Lamontagne): Mr. Knowles,
Mr. Breau and Miss MacDonald.

Mr. Knowles: Mr. Chairman, there is one main feature of
Mr. Gibson’s presentation I want to deal with, but before I do
so, I am afraid I cannot resist the temptation to point out that
Mr. Gibson keeps coming down on both sides of the issue. He
said, for example, that he does not like this Phase 1 and Phase
2 business, but he supports the bill, so he does come down on
one side. He says he does not like different degrees of non-
amendability in the Constitution, but then he proposes differ-
ent degrees. Well, which side is he on?

He does not want us talking about regions instead of
provinces, but he talks far more about regions than he does
about provinces. He does not like the double-majority concept
of voting in the Senate, but he comes out with an 80 per cent
majority, and that is more or less the same thing. He does not
want senators in the Cabinet unless it is deemed they should be
there. Well, this is fine for discussion purposes, but where does
he stand?

He wants direct legislation, but he realizes that there are
problems about it, as any government with the direct legisla-
tion in the proposals finds out.

But I want to deal with the rationale and the philosophy Mr.
Gibson proposes for the Upper House, and if I seem to be
saying things I have said before, I trust my colleagues on this
committee will forgive me. I might put it in a slightly different
way by saying that I have now spent literally half of my life as
a member of the Opposition in a Lower House. Therefore
when you talk about opposing governments, I am on that
wavelength. I have done my best to oppose the governments of
five different prime ministers.

Mr. Breau: Only five?

Mr. Knowles: That is right, only five. The first ten had gone
before I got here. I realize that some of my younger friends
like Herb Breau do not appreciate that. Mind you, opposition,
I just throw in as a parenthesis, is not simply trying to stop
governments from doing things I think are wrong. It consists
even more in prodding governments to do things I think they
ought to do.

That is just a preface to a statement I think I can make as a
member of the Opposition, that I still think we have to have
government. We have to have government that is effective. It
has to be a government subject to checks and balances, to the
democratic process and all of that. It has to be a government
that is responsible to a body such as the House of Commons.
But I think we have to have government and it has to be
effective, it has to have authority. Therefore, I am mystified by
the number of persons, Mr. Gibson being only one of a
succession of them, who come before this House and seem to
think that the role of the Upper House must be to block the
government, to block the Lower House. I appreciate what Mr.
Standfield has said two or three times, that it is hard for us in
the federal scene to see things from the provincial point of
view, unlike their seeing it from both points of view because
they have been in both Houses. But why all this concern to
establish an Upper House that is going to block the govern-
ment, that is going to bring things to a standstill? I think Bill
C-60 does it. I think the proposals we had last week from that
advisory group from Ontario would do it. We had proposals
the other day. Now I think Mr. Gibson boils his whole
proposition down to one sentence in the middle of page 9 when
he says:

The process would become, in fact, a continuing feder-
al-provincial conference with clout.

Now there is no doubt which side the clout would be on in
the whole rationale of this Upper House. It is an Upper House
which would have the ability to stop the government either on
a suspensive basis or arbitrarily, and absolutely in some cases.
I know a lot of people in Canada do not like the government
and they are waiting for a chance to say so, and maybe I am
one of them, but surely we have to have government. Why do
we turn this Committee into a place where we hear day after
day and week after week proposals for an Upper House whose
function will be to bring things to a halt? I said to my friend
sitting here a while ago something that they challenged me to
say out loud so I would rather say it. I am beginning to think
this whole thing is a plot, a plot to get me to come to the
defence of the Senate. Frankly, I would rather keep the Senate
that we have; it is useless and there are nice persons who are in
it.

Senator Neiman: We would miss you.

Mr. Knowles: The committees do some good work and that
sort of thing and they are nice people. They are nice to have
around here, and I like them. But they do not bring the process
of government to the halt. In fact, I would say that what this
Committee should be recommending is that we forget all these
new fangled notions about reforming the Senate and we decide
either to keep it, timeless as it is, or to do away with it
altogether.

So now, Mr. Gibson, I put the question to you. Is it because
you are in a provincial legislature that you cannot see the
national scene? Why does your whole motivation for your kind
of an Upper I-louse revolve around the idea of a continuing
federal-provincial conference with clout, which means clout in
the hands not only of the Upper House immediately but
indirectly clout in the hands of the Premiers and Cabinet
Ministers who would be in that House. Is this not another
version of Bill C-60 which is a way to bring the administration,
the regime here at the centre, to a halt?

Mr. Gibson: That is a very complex question, Mr. Knowles.
First of all, in respect of the meaning of the words, a federal-
provincial conference with clout, what I meant to imply there
is that the ordinary type of federal-provincial conference has
no ongoing enforcement capability. In other words, the first
Ministers may get together and decide to do thus and so with
respect to, let us say, sales taxes and then any province is
perfectly free to go back the next week and pass a budget that
does something else, whereas measures that are passed in the
Upper House, with the assent of the Upper House, and
therefore the assent of the provinces, would have a binding
effect on those provinces. So it gives some reality, some
meaning and some responsibility above all to the concept of a
federal-provincial conference. With respect to the question of
an Upper House blocking the Lower House, the blocking
power is only significant in so far as it is there to give some
kind of leverage, some kind of bargaining ability to the Upper
House, because without some kind of blocking power you have
nothing, you have got no real authority except whatever moral
suasion you might be able to operate with.

I think you will not find, at least to my knowledge, a
functioning federation in this world without an upper House
that has some pretty strong powers. Very few of them has as
many powers as the Senate of Canada and very few are
exercised as relatively little as that of the Senate of Canada.
But they all have significant powers of one kind or another
because without that they might as well not be there, they
might as well be a debating forum.

So in fact the blocking powers are only there to give a
bargaining position and in fact business gets done. Even in as
difficult and as fractious a forum as the United States Senate,
in the end the business gets done.

Mr. Knowles: Mr. Chairman, I suppose it is a matter of
judgment between us but it does seem to me that Mr. Gibson
has totally confused the two things that he talks about for the
Upper House. One is regional representation»! agree with
that as I do not see how you can get that to supersede party
points of view especially when you bring premiers and minis-
ters into the Upper House—he is confusing that with the idea
of an upper House that has power that can stop the govern-
ment, that can stop the Lower House. I just wonder why he
and the others that have been here seem to think that is what
the country is calling for.

The country is not calling for ways of stopping Parliament,
stopping the government from working; the people are calling
for a house that will work. I happen to think there is a good
deal of merit to Mr. Broadbent’s proposal to which he
referred, namely that the need to do something about the
regional representation could be achieved by getting some
more members in the Lower House and doing away with the
Upper House but I am not pressing that at the moment.

I am simply saying that I think you, and the others that
have come here, should address yourself not to ways of stop-
ping government and stopping the Lower House but to ways of
making it work more effectively. I do not think your proposal
does.

Mr. Gibson: Mr, Knowles, I think it would because I think
it would make a better regional representation in the central
government apparatus and I think it is certainly important to
my province. I think you will find when our Premier comes
here he will be saying certainly not exactly the sort of thing I
said but he will be following along with the proposals he
articulated before on a strong upper House with a strong
provincial government presence in it.

Mr. Knowles: There you are, Mr. Gibson; when I think I
have won my point that it should not be a house that drops,
then you emphasize the fact that it is a house of regional
representation. Well, you know, come down on one side or the
other. And as for the blocking aspects of your proposal, even
as an opponent of governments for a lifetime, I do not buy it.

Mr. Gibson: Just one thing though: I think if you go over
the transcript I have come down on one side of everything with
the exception of whether there should be inalienable rights in
the Constitution which could not be amended in any way; I am
not certain about that.

Mr. Knowles: But you were not certain which ones were
inalienable.

Mr. Gibson: No, no; I was trying to canvass the thing for
you.

The Joint Chairman (Senator Lamontagne): Mr. Breau.

Mr. Breau: Thank you, Mr. Chairman.

Mr. Gibson, I wonder if you could explain in greater detail
what kind of additional power you are talking about for the
House of Commons. You have mentioned some in your brief
but more specifically, for example, do you believe individual
members should have the right to present initiatives for appro-
priations of public funds and for taxation? Or, are you just
talking about, say, more liberty for—private members outside
of that?

Mr. Gibson: I think I should tread very warily in this area,
Mr. Breau; I would be willing to talk about my own legisla-
ture, I have some experience, but in so far as Parliament is
concerned . . . I will talk about my own legislature . . .

Mr. Breau: Well, okay, never mind what it is now. Do you
believe private members should have the right to initiate
appropriations and taxation?

Mr. Gibson: No, because if you went that far I think you
would lose the ability to hold a government responsible and to
co-ordinate their programs.

Mr. Breau: So really you are only talking of constitutional
power, about giving more time to private members. I hope you
are not one of those who has the popular misconception
that . . . well, yes, maybe you have because in your brief you
mentioned the words “trained seals” somewhere.

I think that is a popular misconception and it is really a
problem of perception, because I do not believe that members,
of any party in the House of Commons just do not have any
influence, any political influence, with regard to the interests
of their regions. You know, we do not need members of the
executive only in the House of Commons; we need them in
their offices, we need them in the constituencies—and so do
members of the opposition, of any party.

So, could you be more specific on that? Do you feel that the
system now in the House of Commons, just because of the
party whip situation, really takes away the initiative of House
of Commons members to effectively represent the interests of
their regions?

Mr. Gibson: Well, it is my theory, Mr. Breau, that the
executive branch has more control over the legislative branch
than it ought to do. That is my proposition. I stated, in giving
the analogy, that perhaps the picture was overdrawn; but you
are right: that is what people think.

It is my belief that there should be some modest transfer of
greater initiative from the executive branch to the legislative
branch. I would not go as far as the appropriation side because
then, as I say, you could not hold anybody accountable. But,
just as evidence: how many times—in either chamber for that
matter, but in the House of Commons-in a majority situa-
tion, is a government measure defeated? It simply is not.

Mr. Breau: Well, I would disagree with that. A lot of
government measures are changed, a lot of them are with-
drawn; sometimes because of pressures from opposition mem-
bers, sometimes because of pressures from the public, and
sometimes because of pressures from all parts of the House. I
could give you a list of legislation that has been changed
during the legislative process, even in the Senate, and I could
give you a lot of them that have been withdrawn.

Mr. Gibson: I agree that legislation is withdrawn because of
pressure from the public and from the media but . . .

Mr. Breau: And sometimes it can be expressed from mem-
bers from all sides of the House.

Mr. Gibson: But could you present a list of legislation that
has been withdrawn because it would have been defeated
otherwise?

Mr. Breau: Well, what difference does that make? If the
government feels at one point that politically a measure is not
going through and it backs off, it seems to me that that is some
kind of political power, to stop it from coming about.

Mr. Gibson: Well, I suppose if members of the lower House
are satisfied with the executive legislative balance it is not for
me to . . .

Mr. Breau: But I did not say that. I am asking you to clarify
your position; because just to say that we should have more
power—if you are not talking about more power for appropria-
tion and taxation, you are only really talking about changing
the standing orders so as to have more time for private
members’ legislation, because the House of Commons has all
the power now to do whatever it wants; except that one could
say that we put in the constitution that there shall be a better
balance between private members’ hour and government
legislation.

Mr. Gibson: Would there not be more operational power in
the hands of private members if, as a matter of fact, there
were fixed term elections and parliamentarians . . .

Mr. Breau: Yes, it would.

Mr. Gibson: Well, that is one of the things I suggested. And
if parliamentarians knew that they were free, over the objec-
tions of the government, to make amendments that the govern-
ment did not wish, it seems to me that that would be a very
important addition to the power without taking away that
essential initiative of the financial power. Then I made also the
specific suggestion of the management of the budget of the
legislative branch.

Mr. Breau: Okay.

In another part of your brief you mention “Outer Canada”,
and you put that in relation to “Outer Canada” versus “Inner
Canada? What makes you believe that those from “Outer
Canada” up your way would be aligning all the time with
those from “Outer Canada” out my way?

Mr. Gibson: Well, it is very possible that we might not be.

Mr. Breau; Let us take some specific examples. Do you feel,
for example, in the area of the establishment of DREE and
expenditures for equalization, that your region would align
with my region?

Mr. Qibson: Personally, I would have no difficulty, but
whether the region would or not, I do not know. But let me
take the example of tariffs: it is possible there might be some
common cause found there.

Mr. Breau: Yes, there could be.

Mr. Gibson: It seems to me that there would be changing
interests and alliances all the time.

Mr. Breau: Okay.

The point I want to bring to your attention, less in the form
of a question but maybe as a statement to conclude, is that
again I think there is a misconception here that the normal
political process in Canada, which is not only the House of
Commons and the Senate but which does include the political
reality of federal-provincial relations that are ongoing—that
this process does not represent the interests of the regions.
Surely just because Ontario and Quebec have more population
and more members in the House of Commons does not mean
that they have all the initiative.

I would point out that there have been some initiatives in
government over the last 20 years, the establishment of the
Atlantic Development Board under the former government,
the establishment of DREE, expenditures appropriated now of
about a billion and half dollars in regional development,
extension of French-language TV and radio outside Quebec
and Ontario—there are many things like this that have been
done in the interest of the regions to satisfy and to meet the
problems of alienation.

I would point out to you that while I am for a second
Chamber, I do not have the illusion that it would necessarily
be a better protector, that really there needs to be that much
change and that much more provincial input to make it a
better protector of the interests of the regions.

I think the normal political process in Canada has a lot
more than some people have said and a lot more than your
underlying assumptions seem to indicate to protect the inter-
ests of the regions, even if the greater number of members of
the House are from the Provinces of Ontario and Quebec.

Mr. Gibson: At the risk of the comment not being well
received, I find the perception of the satisfactoriness, if that is
the word, of the ordinary political process drops very quickly
as one leaves Ottawa.

Mr. Breau: I do not know what you mean by that.

Mr. Gibson: What I mean is that the further away you get
from Ottawa the less satisfied you are with the reponsiveness
of the national government.

Mr. Breau: I am not suggesting that one could write the
Constitution today or tofnmorow and everyone would agree
with It, and that necessarily would guarantee that everyone
would be satisfied next year. The political proces by nature is
one where there will always be problems. There will always be
exigencies or requests from many groups in many regions.
There is no structure that one could write or dream of today
that would guarantee that every one of us would be satisfied
tomorrow.

Mr. Gibson: I agree with you but I guess you are charged
with doing your best on that one.

Senator Forsey. Mr. Breau lives quite a considerable dis-
tance away from Ottawa pretty regularly.

The Joint Chairman (Senator Lamontagne): I believe I need
some directive from the Committee at this stage. As you will
have noticed, our program indicated that we should start to
hear Mr. Atkey at 4.30 o’clock this afternoon and, of course,
he is scheduled to go on this evening. But it is already past
3.30 p.m. and I still have eight names on my list.

Do you think we should stick to our schedule, or perhaps
postpone Mr. Atkey until 8 o’clock and allow all the members
who have asked to intervene to do so while Mr. Gibson is with
us?

Mr. Caccla: Mr. Chairman, in all fairness to those who have
come a long way, it would be preferable if all those who are on
the list be given an opportunity to ask him questions and that
we start with Mr. Atkey at 8 o’clock.

The Joint Chairman (Senator Lamontagne): Any contrary
view?

Senator Flynn: I would say a short recess of perhaps five
minutes and they could shorten their questions.

The Joint Chairman (Senator Lamontagne): We have
decided to allow ten minutes for each member of the Commit-
tee and I have tried to stick to that timing. So we will hear
from Mr. Atkey only at 8 p.m.

Miss MacDonald.

Miss MacDonald: We will see if we can shorten our ques-
tions. Mr. Chairman, I will see if I can set an example.

Mr. Gibson, you put forward a number of proposals here
which would have profound significance for our political
system if they were to be enacted. I think they would bring
about tremendous change. We are not at that point yet where
such changes as you propose, particularly with regard to direct
democracy, are about to be enacted. So I want to come back to
the things we have before us.

Do you consider that fundamental constitutional change in a
federal system requires the agreement of both levels of
government?

Mr. Gibson: By that you mean unanimity?

Miss MacDonald: Well, at least an agreement that would
signify the great, majority of provinces and the federal
government.

Mr. Gibson: It seems to me that if it is to be done by the
governmental agreement route only, it should have very sig-
nificant consensus, the Victoria Charter or something of that
nature.

Miss MacDonald: Right.

Mr. Gibson: But if that consensus is lacking, there could
very legitimately be an appeal mechanism over the heads of
the government. Suppose the provinces had put forward an
amendment that the federal government refused, or suppose it
was the federal government that had put forward an amend-
ment that one or more of the regions refused. There could very
well be an appeal route to the people in that particular area, be
it national or the provinces.

Miss MacDonald: Do you consider that anything within
Phase I of the government’s proposed legislation falls within
the description of fundamental constitutional change?

Mr. Gibson: I suppose you would certainly have to put the
charter of rights and freedoms in that area to the extent that it
becomes entrenched, and the linguistic areas. And certainly
the House of the Federation, if it were enacted, would be a
very important change.

Miss MacDonald: Then I take it that you would not see the
Phase I really being enacted without something along the lines
of the agreement of the Victoria amending procedure unless it
went the route, as you say, of an appeal mechanism. Would
you tell me how you see that appeal mechanism working
within the next six months? I may be out by a few months, but
before July 1 of 1979.

Mr. Gibson: I could not contemplate such an appeal mech-
anism working until such times as all voices have been heard,
this committee, the task force, the first ministers, and then as
many adjustments with response to those voices as possible had
been made and a further bill had been presented to Parliament
and debated. Only after that process had been gone through
could I see it being proper to take—and of course passed by
Parliament if it were passed. Only then it seems to me would
you want to take it directly to the people. And even then you
would require that process of regional majorities.

Miss MacDonald: You also have to put into consideration,
when we are dealing with the reality of this bill and that first
phase, the necessity for a general election within that time
frame, before July 1, 1979. Would you see the general election
as such being the appeal mechanism that you are speaking
about, or are you talking about a quite different and distinct
appeal mechanism that would not be related to other issues?

Mr. Gibson: I am talking about a distinct, specific, appeal
mechanism that would not be related to other issues.

I suppose that one could in a general election debate the
merits of that kind of appeal mechanism. But it seems to me
that a completely new constitution should receive specific
validation, and not just sort of maybe that is what they were
voting for.

Miss MacDonald: Would,you consider the July 1, 1979,
deadline to be realistic?

Mr. Gibson: Since I do not have the management of the
tactics in this, nor any insight into them, I think it might be
inappropriate for me to comment.

I do think it is appropriate to keep the pressure on this thing
because it has been going on for a very long time and it is
causing a lot of confusion in this country. You cannot resolve
it until you do it right. I agree, but let us keep the pressure on.

Miss MacDonald: Yes, but I think you have a view that you
are trying to maintain a federal system, and that you could
very severly damage the federal system by the wrong kind of
procedure.

Mr. Gibson: It would be very unfortunate ifthe result of the
process led to a deep-seated alienation between the two levels
of government, if that is what you are getting at.

Miss MacDonald: Let me just get a couple of other ques-
tions in here. I would like to ask you other things. but I want
to come back to the instruments of direct democracy that you
mention. I must say I have some difficulty with these.

You want to see these written into a constitution. You would
see both levels of government being able to initiate referenda.
Would there have to be an agreement by the two levels of
government on the wording of any questions that dealt with
basic fundamental change, or could one level of government do
it and thereby perhaps influence the outcome of the vote and
the way in which people would respond to it?

Mr. Gibson: You are talking about constitutional questions
now.

Miss MacDonald; That is right.

Mr. Gibson: I think the federal paper reasonably canvasses
the various possibilities on that. I do not think you can . . .

Miss MacDonald: I have some concerns about that federal
paper. That is why I am asking you.

Mr. Gibson: I do not think you can deny any level of
government the right to act in its own jurisdiction, and the
jurisdiction of any government, it seems to me. includes the
right to ask a question of its electorate. But again it would be
very desirable if they could work together.

Miss MacDonald: Let us take something that has to do with
the question you raised, the division of powers. Could you see
one level of government instituting or initiating a referendum
in the area of the division of powers getting a response or a
majority viewpoint and majority support in all regions that you
have described and then that becoming law? Is that the way you
see it, even though it would be counter to what the other level of
government would recommend?

Mr. Gibson: And you are positing that in this hypothetical
case there would be strong objection of a number of the
provincial governments?

Miss MacDonald: Yes. There might be total objection.

Mr. Gibson: I think that unless it were a position of in
extremis one would be unwise to follow that kind of route,
because it would . . .

Miss MacDonald: But you would put that power in the
constitution to allow for it?

Mr. Gibson: Somehow finally in all these things there has to
be a way of resolving an impasse, just as, for example, in
matters of general law the House of the Federation cannot be
thought of completely holding up government, so there is an
override provision in those areas. There must be an appeal
provision in the amending formula somewhere, but it seems to
me it should be like the enormous powers of a court, for
example, which are used with great discretion.

Miss MacDonald: The reason I am questioning you on this,
Mr. Gibson, is that I feel that the suspicion that that would
arouse in our federal system would do much to undermine the
system itself, as to how one level of government or another
would try to use it against the other.

Mr. Gibson: I think the point you mention is well taken, but
on the other hand I do think there must be ultimately an
impasse resolution mechanism, and fortunately, the way we
have it now, it must be negotiated; that mechanism itself must
be negotiated.

Miss MacDonald: Yes.

Mr. Gibson: So that the provinces will have a voice in its
formulation.

Miss MacDonald: I will pass, but I would have liked to know
what you meant by that recall and what you meant by “a
sufficient fraction of the electorate in any given constituency, by
petition, to recall the sitting Members”. For what reason?
Would you also define that in a constitution?

Mr. Gibson: I would put the right of the recall in the
constitution, yes. As you know, it is in the constitution of
numerous American states.

Miss MacDonald: Thank you.

The Joint Chairman (Senator Lamontagne): Mr. Lachance,
Mr. Lee and Mr. Caccia.

Mr. Lachance: Mr. Gibson, the position you made in front
of the Task Force on Canadian Unity in February last
impressed me, and I guess you still stand behind this document
and this presentation in light of what you said today.

In this document you outlined three possible ways to achieve
constitutional reform, which you say is very important to
achieve, and I agree with you, and those three possible routes
in February were ones which you explained today, that is to
say, a constitutional convention largely elected with major
governmental membership, to design a new constitution and
present it to Canadians for ratification in every region.

Then there is the second, which is the one more or less that
the government has followed, that is to say, that the govern-
ments themselves may agree to a new constitution which is
likely to be a rather conservative compromise in terms of
democratic reforms, which are badly needed, and I cite from
your own text:

. . . but will comprise the basic federal reforms necessary
to maintain the country as a single entity.

And the third, the central government in due course will
envisage to take unilateral action with popular support, which
is the referendum technique as you said before. We might add
a fourth, which came after you made your presentation, which
is a two-tiered system as presented by the federal government
in June last in the White Paper, followed, of course, by Bill
C-60 which is the first phase in the front of the bill.

I would like to say that I appreciate the fact that you have
raised those different techniques or routes because you are one
of the very few people that have taken the trouble to think a
little bit about this process. It is very nice to talk about
changes in the constitution but if we do not know how to do
them or how to go about those changes, we will be in a vacuum
in a sense because we will never know how to achieve those.
This is one of my main difficulties in the whole process on
which we are embarked now. I think it is interesting to discuss
those problems of the House of the Federation, declaration of
rights and aims of the federation but I am not sure at all if we
have yet decided a way to put them into effect in the short
term and I would like to see them put into effect in the short
term.

My question is this, Mr. Gibson: taking into account the fact
that the federal government has presented a two-tier system
and the comment you made that you would prefer a global
approach to constitutional reform, that is to say that all
aspects be discussed at the same time, and taking into con-
sideration the fact that this second route that you have pro-
posed is the one more or less that the government would like to
see, that is to say, discussions between the provincial and
federal levels of government to try to achieve this result, and
taking into consideration the fact that you have at the present
time a government in Quebec that is dedicated to the separas
tion of the province firstly and secondly is reluctant to propose
its own alternatives to the system we have now within the
federal system itself and for tactical reasons that are easy to
understand, and taking also into consideration the fact that in
Regina the provinces have in a declaration expressed reserva-
tions about the process itself as proposed by the federal
government, we seem to be in a sense in a deadlock as far as a
process is concerned.

What would you say is the alternative route that we should
follow from now on to try to achieve the result that we both
want to achieve, that is to say, a constitutional change in the
short term?

Mr. Gibson: It is very difficult for me to guess what may be
in the minds of the federal tacticians but it seems to me that
with the intfoduction of Bill C-60, firstly, something specific
was given to discuss, which I think was useful, and, secondly,
at least I would read it this way, notice was served in effect
that something should happen quite quickly. That being done,
there is a great deal of turmoil going on: this Committee is
meeting, the Premiers have met privately in August and their
officials are meeting now, and there will be a First Ministers’
Conference at the end of October and this will be, as I say,
under a great deal of pressure as to time.

At the moment, I think what we must do is hope that the
result of these three processes, the Committee, the Task Force
and the First Ministers’ Meeting, will give some common
ground, if not for precisely what the new constitution is
supposed to look like—l think that is too much in that time-
at least some common ground as to how it should be proceeded
with and some agreement as to timetable and some agreement
as to resolution. If that is not attainable after the First
Ministers’ Conference then, I suppose, the parties concerned
must simply re-assess their position and say. “Where are we
going to go now?”, and just decide whether or not public
support is available for one side to support their position or for
the other to support theirs. I think to be more speculative than
that now would . . .

Mr. Lachance: I interpret your comments meaning that you
still feel that the seven rules that you outlined in October last,
that is to say, agreement by all levels of government con-
cerned, is a route that still can be followed with success and
that the October conference is going to achieve meaningful
results, in your view.

Mr. Gibson: I think the attempt must be made. I would be
wrong to try and proceed without trying that route as hard as
possible.

Mr. Lachance: Now, assuming that this conference may not
achieve those meaningful results that you talk about, at least
to outline those areas that should be discussed further and
should be streamlined in some other process, I do not know
how exactly but assuming that it is a deadlock, do you feel that
then we would enter into the final resort stage that you have
outlined in your first route to be followed, and that at that
point, it we really believe in constitutional changes, we should
remove the potato from politician’s hands as far as possible
and give it to what you call a constitutional convention, or do
you feel, especially following Miss MaeDonald’s comments
that direct confrontation might be the major blow for the
federation itself between the provincial and federal levels, that
we still as a federal government, should try to impose our own
view of what the federation should be in the future?

Mr. Gibson: The constitutional convention route I think is
now not realistic. I think that probably none of the govern«
mcnts involved would want to inject that into the process now.
Conceivably they might agree that this was the lesser of all of
the evils,—do not know—if they came to that utter impasse,
but I have seen no hint ofit. That is all I can say there. If the
governments are not prepared to go for it, it is not going to
happen because only they could set it up. The third possibili-
ty—in a way one gets to this apocalyptic possibility that Miss
MacDonald was talking about. One does not like to visualize it
but if you get there, one would hope that there is at least a
certain amount of common ground between this Committee
acting for Parliament and the Task Force on National Unity
and at least some of the premiers to put forward a package
that would be a reasonable one to present.

Mr. Lachance: My last question, Mr. Chairman, if I may. It
will be very short. As a politician yourself and as a leader of a
provincial party, do you sense a will of the population of
Canada to move in this area and move fast?

Mr. Gibson: I think people would like to get this behind
them. Now, for what reason it is difficult to say. Whether they
are just tired of it all or bored with it all I do not know, but I
think people have heard about as much concerning the consti-
tution as they want to and that impatience is a little bother-
some, really, since it is so fundamental to us, but I sense that,
yes.

Mr. Lachance: Thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Mr. Lee.

Mr. Lee: Thank you very much, Mr. Chairman. A lot of
interesting remarks Mr. Gibson has made, some of which I
agree with and some of which I do not necessarily agree with.
The one thing that I do agree with in general, however, is his
statement with respect to British Columbia, obviously, that we
be accepted as a distinct region, different from the three
Prairie Provinces, I would like to ask Mr. Gibson to comment
on his feelings and perceptions. He travels to many parts of
British Columbia and he spends much more time there than I
do in looking at it from a provincial perspective. In British
Columbia you find many, many people thinking that this
whole issue of the constitution and national unity is a sort of
French-English or Upper and Lower Canada thing. I was
wondering if Mr. Gibson would care to comment on how he
perceives this whole issue of constitutional reform and national
unity, particularly from the point of view of a British Columbi-
an and a westerner?

Mr. Gibson: I agree with you that many British Columbi-
ans, probably many Canadians, tend to conceive of it largely in
the Quebec-Ottawa or the French-English context, which is, I
suppose, a reflection of the kind of publicity that that issue has
had, But I think there is a growing realization, particularly in
government circles in British Columbia—and I want to com-
pliment very much the work the Government of British
Columbia is doing on the constitutional question—that the
fluidity in the constitutional situation that has been occasioned
by the linguistic difficulties gives rise to the opportunity for an
examination of other aspects of our basic arrangements of
living together in this country and that as long as things are
being talkediabout British Columbia has some things to say
too. I think that. is the position of many political people in
British Columbia, although it has not filtered too deeply into
the public consciousness.

But there is, as you know as well as I do, a long-time feeling
of British Columbia alienation from Ottawa, that they are
3,000 miles away from us and you cannot do anything, all
this generalized kind of feeling, but there is not a particular
perception yet that anything can be done about it, except in
the government.

Mr. Lee: It is very difficult for people to relate to institu-
tional things, and that is why I find very interesting some of
your proposal with respect to the upper chamber, this feeling
of regional alienation. Your proposal, in effect, is very similar
to that which was proposed by the Ontario Advisory Commit-
tee. I do not know if you have had an opportunity to study it.
But, in effect, they were proposing or suggesting the House of
the Provinces, much like you suggesting the House of the
Provinces, much like you suggested in the bundestag in West
Germany. I am not so sure whether or not that is probably the
most appropriate vehicle, The presentation given by the
Ontario Advisory Committee got a very cool reception from
this Committee and I think today you in effect are probably
getting a somewhat similar treatment, very cool, about this,
and that is probably because we are federalists. I think the
question you throw at us is how we can best deal with this
problem, which is very intriguing. I find it very difficult to see
that a provincial premier or his representative, a particular
minister, could come down here to Ottawa and block in effect
any national proposal by a government elected on the basis of
a national vote. It has been interesting and rather intriguing,
and I think Mr. Knowles has pointed out how he feels about a
certain matter, In your paper you discuss the possibility that
federal people could represent themselves in provincial legisla-
tures. Why not go much further and say that these people also
have the right to go to their provincial legislature, similar to
what we have here, I guess I am sort of throwing this back to
you. Better yet, if you had this system of brokerage, which is
really in effect somewhat similar to the Senate in the United
States, which is an extreme departure, a profound change for
our government here in Canada, we would be moving more
towards an effective regional system of government, would you
do away with the Federal-Provincial Conferences?

Mr. Gibson: To answer the last question first, no. There is
always a question of executive federalism and administration
that will remain irrespective of the legislative arrangements
that are made, so I think there will be a continuing place for
that, as provided in Bill C-60.

You ask how could the premiers legitimately come down
and block things done by people elected for national purposes.
As an example, in some of the specific powers I outlined let us
look at the federal use of the spending power which for very
many years has been terribly controversial with the provincial
governments, especially the Province of Quebec but others as
well. Now, as long as that spending power is going to remain
in the Constitution, and I think it should, I think the provincial
governments have a right to say, we want some voice as to how
that is used or else you do have the opportunity in important
ways to subvert the division of powers. Look at the power to
approve federal-provincial agreements. I think it is only right
for other provinces to say now, look, that precedent that is
being set here in this particular agreement with this particular
province may have serious implications for the rest of us and
we want the right to examine it.

The same thing with cost-sharing programs. Actions in
respect of the appointment of senior official, people like the
Governor of the Bank of Canada or the head of the transporta-
tion commission or the CRTC, have important effects, region-
al effects of their actions as well as national effects, and I do
not think it is improper that such people should be examined in
advance to ascertain whether they are sensitive to their pro-
posed responsibilities.

Mr. Lee: I do not mean improper—obviously they have a
legitimate role, but they are elected on a provincial basis
whereas the House of Commons, or the lower chamber, is
elected on the basis of a national vote, or at least has a
national mandate to represent the people. Yet these people
would have the opportunity to come down and block which
they do not really have at the present moment—they can sit
around in Regina and they can debate back and forth. Yet you
say that there is really, from your point of view, still the need,
very much a need, for federal-provincial conferences.

My point is that if we went that far with your proposal—at
least, this how I interpret it—changing it so that it would be
somewhat similar to a congressional system, what is the
rationale or the need for federal-provincial conferences? I
know the President of the United States meets periodically
with the Governors but I understand, from what I have read
and from having spoken to some people in the United States,
that that is, in effect, more of a formality, in that really most
of the brokerages, as you suggest in some of your background
papers, is done in the Senate. Why not let us do that here in
Canada—carry your proposals one step further?

Mr. Gibson: Well, I suppose you could carry them one step
further. But it seems to me that a House selected for regional
reasons should restrict itself to regional questions.

Personally, I want to put as few checks on the lower
popularly-elected House as possible—only that minimum that
is required to represent the minority interests of linguistic and
regional particularities. So I would not be anxious to expand
the powers that far.

Also, in the United States, as you know, the executive
branch simply does not have that policy and co-ordination role
which is possible in a responsible government system, albeit
somewhat modified by the addition of a chamber that is not a
confidence chamber.

Mr. Lee: But that is the very difficulty that we are in
because we have a much different system of government, a
parliamentary system«-responsible government, as you say,
with an upper chamber which is to represent regional interests.
In the United States they have similar problems but they have
gone a much different route.

We could debate this at great length, I know but I would
like to thank you anyway for proposing, I think, some very
interesting things, although I do not necessarily agree with
them.

The final question I would like to ask you is: how do you feel
about the division of powers in a general sense? The predeces-
sor to this Committee suggested that there should be more
economic powers placed in the government—more centraliza-
tion; and that cultural and social powers would rest more in
the hands of the provincial governments. I am wondering if
you are in a position generally to comment on the division of
powers.

Mr. Gibson: I will make it very short, Mr. Chairman,
because I have not studied it sufficiently to give you a lengthy
answer. I think that the previous committee was working in the
right direction. I made my comments with respect to concur-
rency and skeletal law.

Mr. Lee: Thank you, Mr. Chairman.

The Joint Chairman (Senator Lamontagne): Mr. Caccia.

Mr. Caccia: Thank you Mr. Chairman, but the questions I
had in mind have already been asked by other members.

The Joint Chairman (Senator Lamontagne): Mr. Watson;
then Mr. Dawson, Mr. Gauthier, and Senator Forsey.

Mr. Dawson: Mr. Watson is not here.

The Joint Chairman (Senator Lamontagne): Mr. Dawson,
then.

[Translation]

Mr. Dawson: Thank you. You pointed out in your introduc-
tion, Mr. Gibson, that there were three levels . . .

[Text]

I will go in English.

There are three levels of alienation in Canada individual
towards the government; the regions towards the centre; and
the linguistic alienation. In the first two cases you mentioned,
you talk about the problem and you arrive at least at your
perspective of how they could be solved: participation, direct
democracy, et cetera.

In the third case, linguistic alienation, you start by rejecting
the double-majority concept, saying that it is divisive and that
it is unfortunate. But in your counterproposal, you do not take
into account in anyway the linguistic alienation of French
Canadians.

And you talk about an 80 per cent vote, I think, which
completely forgets the whole concept of linguistic alienation or
protection for a minority.

Mr. Gibson: It was my thought that the 20 per cent blocking
minority would provide those sorts of protections. If it is
judged they do not, and there are others perhaps than British
Columbians who should make those judgments in the end, then
one would accept the double majority as something you just
have to have. I am just saying I would prefer to find a way
around it if at all possible.

Mr. Dawson: Yes, but in that case you could probably say
that if 20 per cent is bound to represent the francophone
minority why should not 25 per cent represent one region
which thinks it is not being fairly treated by central
government?

I think you are forgetting the whole concept. For the same
reason that you would want your region to be represented, I
think French Canadians, if you are going to be having linguis-
tic problems, should have a sort of extra protection, by having
some representatives of the government here.

Mr. Gibson: I am suggesting that representatives of the
government of Quebec should be in the Upper House and on
questions of cultural and linguistic significance they or any
group of 20 per cent would have a blocking minority. But on
regional questions or provincial-type questions which apply to
all provinces, it does not seem to me that any single province
should have a veto but rather that that should be a 50 per cent
opposition situation.

Mr. Dawson: But even though you hope that that 20 per
cent of let us say Quebec members in that second House, in
the Senate, would probably say no to something, you take it
for a fact that 20 per cent will say it. What if there are, let us
say, eight francophone members and two anglophone members
and they finish up with 18 or 19 per cent? There is absolutely
no protection for the French fact. It could be the same thing
for the francophones in New Brunswick or the francophones in
Ontario. You do not recognize the fact that they need
protection.

Mr. Gibson: I would be very glad to see some other kind of
formula.

Mr. Dawson: That is what I was hoping I would get from
you.

Mr. Gibson: I came up with the best I could.

Mr. Dawson: Okay.

Mr. Gibson: But I would be glad to see anything else you
think is adequate.

Mr. Dawson: In a speech you once mentioned that the
seperation or independence of Quebec is illegal, Do you think a
new constitution should provide a mechanism for getting out of
the constitution?

Mr. Gibson: Personally, I do not think it should be in there
specifically. It seems to me my propositions on the instruments
of direct democracy would make it possible for the residents of
any given territory to express Very clearly their views on that
kind of question. But I do not think there should be specific
procedures laid down for that particular purpose.

Mr. Dawson: Okay.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Gauthier,
the member for Ottawa-Vanier.

Mr. Gauthier (Ottawa-Vanier): Thank you, Mr. Chairman.

I would like to discuss the linguistic issues. In your docu-
ment, Mr. Gibson . . . [Text] and I will
read it in English. You say on page 7:

With respect to the sections related to the French and
English languages, I have no difficulty, and give you my
opinion that even stronger guarantees might be approved
in all regions of Canada if required.

I am just wondering, would you put the language question
on a regional basis, Mr. Gibson, or rather on a provincial
basis?

Mr. Gibson; As to resolution of questions concerning it? I
think—and this returns to something Mr. Knowles said—I
probably several times used the word “regions” in this docu-
ment when I should have used the word “provinces”. As I have
said in other remarks, the particular places I see the regions
are for validation of national referenda and for the organiza-
tion of the Upper House. Other than that I think we must deal
with the provincial governments in place.

Mr. Gauthier: So you would put the language guarantees on
a provincial basis rather than a regional basis?

Mr. Gibson: To the extent that the provincial governments
are the administrations that handle all matters of civil rights,
education and culture within their boundaries, I think it would
have to be in their hands, yes.

Mr. Gauthier: Okay. And if we come to the Charter . . .
[Translation] which imposes certain obligations on the prov-
inces in their respective fields of competence, obligations
which will take effect only after adoption of the charter by the
province.

In other words, each province could choose to respect the
charter or not, and as I pointed out to Mr. Lalonde, this would
create a kind of inequality of language rights in Canada. Do
you agree with me on that point?

[Text]

Mr. Gibson: You have asked me a question on which I
would not feel competent to advance an opinion. I have not
studied those sections.

Mr. Gauthier (Ottawa-Vanier): The reason I bring it up,
Mr. Gibson, is that in your paper, on page 7, you say:

I might say that the Language of Education section . . .
that you read in the Bill C-60 . . .

—is not in any way at variance with the very advanced
language education policy of the current government of
British Columbia.

Now, you know and I know that British Columbia has no
policy on French-language education; absolutely none. It is the
only province in this country that has no languagcveducation
policy for minority rights.

Mr. Gibson: Oh, no, I should definitely say what the facts
are on that.

Mr. Gauthier (Ottawa-Vanier): Well, perhaps you can
enlighten me, because I am going on 71 and there are reports I
have and I could read you ad nauseam extracts of these
reports, which I will not do.

Mr. Gibson: As you can well appreciate, I am not in the
business of passing out compliments easily to the government
to which I am in opposition, but I must compliment them on
this. The Government of the Province of British Columbia has
established a linguistic policy which says in essence that in any
given area where l0 children requiring schooling in the French
language in the Province of British Columbia ask for it, it will
be provided.

Mr. Gauthier (Ottawa-Vanier): When was this passed?

Mr. Gibson: This was first enunciated about one year ago by
the Premier. A core curriculum has been devised, I believe,
and is being disseminated among the school systems now. The
government—and I questioned them on this in debate—is
intent on going forward with it. It is something you might
want to ask Mr. Bennett about when he comes here.

Mr. Gauthier (Ottawa-Vanier): I will.

Mr. Gibson: It is a very considerable advance for British
Columbia governments.

Mr. Gauthier (Ottawa-Vanier): I wonder if you could be so
kind as to send me a copy of that legislation.

Mr. Gibson: There is no legislation as yet, just a policy
statement, but I will send you the policy statement.

Mr. Gauthier (Ottawa-Vanier): That is what I am asking,
There IS a policy statement; there is no legislation on this. In
other words it is a privilege, not a right.

Mr. Gibson: Well, you can say that at this moment it is
being introduced by administrative directive.

Mr. Gauthier (Ottawa-Vanier): That is exactly the same
situation as in Ontario, and that is what I, as a minority,
experienced.

Senator Forsey: There is legislation.

Mr. Gauthier (Ottawa-Vanier): There is legislation in edu-
cation, Bills 140 and 141, passed in—I happen to know
something about that one. But I am trying to find from the
witness whether in fact there is legislation in B.C. concerning
French-language education. Now you tell me that there is a
cabinet document of some kind which sets out the policy, but
there is no legislation on this per se.

Mr. Gibson: At the moment it is being provided under the
general authority of the Public Schools Act and I will ask the
government officials responsible to send you the appropriate
material.

Mr. Gauthier (Ottawa-Vanier): Okay.

Mr. Breau: I wonder if you could send a copy to all the
members of the Committee, because I am interested in that
too.

I wonder, Mr. Chairman, if I could just ask clarification of
Mr. Gibson on that education policy?

When you say that there are 10 children who require
French-language education, is that totally in French or is it an
immersion course? It is totally in French?

Mr. Gibson: Totally in French is the policy that is being
evolved. They are working through the various levels. Quite
frankly, I think the Education Department is feeling its way in
this area. They have very little experience with it, but the
intent, I am convinced, is very genuine and very definite.

Mr. Gauthier (Ottawa-Vanier): You say you are in favour
of the Charter. I do not know if I could refer you specifically
to clause 21 on page 10 of the bill. This would be in keeping—
do you have the bill there, Mr. Gibson?

Mr. Gibson: Yes.

Mr. Gauthier (Ottawa-Vanier): In other words, you are
telling me that clause 21, per se, which covers Langue d’édu-
cation dans les écoles, is in effect being adopted by B.C. at
this time?

Mr. Gibson: I presume it would take some action of the
legislature to adopt that. Of course, it cannot be adopted at
this time because this is not law. Bill C-60 is not law.

Mr. Gauthier (Ottawa-Vanier): No.

Mr. Gibson: What the stand of the government might be on
making concrete its policy in adopting this clause I could not
tell you. But again, the Premier will be able to.

Mr. Gauthier (Ottawa-Vanier): Okay.

You somewhere said that Canada should be a compact
between people and not between provincial governments. I
rather appreciate that. I think that is the right way to put it.

I want to come to the questions of linguistic significance, the
ones that have a majority you do not like and I do not like
neither because it would be pretty hard for anybody to tell me
that I am not an hybrid, since my mother was Scotch and my
father was French, and I do speak both languages, with some
difficulties but I do speak them. You say you have had in your
studies some experiences where this was settled by consensus
prior to the legislation being presented. In other words, it was
the government’s decision, by consensus, that the contentious
sections of any legislation could be questioned by this review or
a second review or an overview committee, and that in your
experience it has never been a difficult situation in either the
bundestag or any other federation which has this overview
committee. I wonder if you could expand on that. What
countries have it? Do they have it in Belgium? Do they have it
in Switzerland? Do they have it in the United States?

Mr. Gibson: The only place I know of it being in existence is
in the Federal Republic of Germany There may be other
places. The law there is that a proposed government bill must
be submitted to the Upper House six weeks before its presenta-
tion to the Lower House.

Mr. Gauthier (Ottawa-Vanier): Before?

Mr. Gibson: Before.

Mr. Gauthier (Ottawa-Vanier): I see.

Mr. Gibson: And the Upper House during that period has
the opportunity of objecting. In cases of bills or particular
urgency that period may be shortened to three weeks. That is
my recollection. This is not the total review process of the
bundesrat. This is a preaudit, in effect saying do we see any
particular difficulties of presumably largely federal-provincial
relations in this bill, becausgrthey could raise any objections
they wish. The bill is then presented in one form or another in
the Lower House and then must, once passed in the Lower
House, come to the bundesrat in its finally passed form for
approval or suspension, if it is of that class, or a rejection and
then conference if it is in the other class.

Mr. Gauthier (Ottawa-Vanier): I have two short questions.
You mentioned local governments, municipal governments,
which are creations of the provinces, and you say,

No mention is made with respect to any constitutional
recognition of local governments.

I believe that is a mistake. I wonder if you could just give me
some enlightenment as to what you mean by “local govern-
ments are too subject to provincial governments and they have
virtually no bargaining power” and how you would give them
constitutional recognition?

Mr. Gibson: What I suggested in my remarks, if I can find
the notes, basically . . .

Mr. Gauthier (Ottawa-Vanier): Page 12.

Mr. Gibson: 1 had more elaborate notes on that section.
Basically, it was a recognition of the usefulness, a requirement
that in provincial constitutions the powers and duties of munic-
ipal institutions would have to be specified. This would be a
new requirement of provincial constitutions that would in
effect at least give people something to look at when they say,
“Now, what should be the rights of cities”.

Mr. Gauthier (Ottawa-Vanier): Okay. My last question is
concerning the federal spending power and the extent to which
the federal government has gone into the field of education, for
example, be it in manpower retraining, be it in many other
departments, research—I think I can probably enumerate an
awful lot of them. You say that this is a concurrency difficulty
or a concurrency problem which could be solved by a unified
public service, with the provincial public service superseding
the federal public service in matters of concurrency. Did I get
you correctly there?

Mr. Gibson: No, I suggested that concurrency would be a
useful technique in many areas, that primacy would have to be
defined in each and that the question of a unified public
service would only arise in the case of concurrent jurisdiction
where there was federal primacy, otherwise it would be natural
that the public service would be.

Mr. Gauthier (Ottawa-Vanier): But you said that in matters
of urban affairs, housing, small business, agriculture com-
munications and cultural policy, that would be matters for
concurrency and you also said, if I remember, and I am
shortening it here, that the federal public service would admin-
ister the policy end of it but that the provincial public service
would do the general administration.

The provincial public service would still be duty bound to
administer federal law as basically as provincial but
would be given the jurisdiction to supervise.

Mr. Gibson: This is in areas of federal primacy it was
decided should be administered by the provincial level.

The Joint Chairman (Senator Lamontagne): Miss Mac-
Donald.

Miss MacDonald: It could be other areas, not necessarily
those you mentioned.

Mr. Gibson: It could be. . .

Miss MacDonald: Yes.

The Joint Chairman (Senator Lamontagne): Mr. Watson.

Mr. Watson: Thank you, Mr. Chairman. I would like to
compliment Mr. Gibson on his very excellent brief today.

Your bias, Mr. Gibson, appears to be that we should move
towards a strengthening of a non-popularly elected Upper
House, although you have alluded to the Upper House eventu-
ally becoming elective. Presumably, if you strengthen the
Upper House, you are going to weaken, in reality, the Lower
House; it is at the expense of the Lower House. Now, on page
ll you make certain comments which i agree with fully. The
executive, you state, has in effect too much power; the legisla-
tive not enough. And you feel you can somehow with the
Upper House shift a bit more power towards the legislature.
As long as you have a nonelective Upper House, I see the
reverse being the case.

I would ask you, do you not feel that some measures we
could take here and now, for example, having automatic orders
of reference to committees of the annual reports of each
department, in effect taking this power out of the hands of the
House leader—these are the sort of things which I think could
be done under our present system and which would in effect
strengthen our legislature. Do you not feel that these kinds of
changes would make sense at the moment?

Mr. Gibson: I definitely agree with that, Mr. Watson. In
fact I alluded to it in my remarks: a continuing year-round
reference to committees and the internal management of the
legislative budget without the necessity of Crown recommen-
dation for the funds. However, I must have been misunder-
stood: I did not suggest that the new Upper House would not
be elected. Rather, I proposed that it should be completely
composed of people elected, half of those directly and half of
them indirectly in the sense of their being members of their
own particular legislative assemblies. And I went on to suggest
that this would probably, with a new Upper House being a
freer House and not a confidence Chamber, lead members of
the Lower House to claim the same kinds of freedoms.

Mr. Watson: Okay.

I did not detect any reference to the Supreme Court in your
remarks. At the last meeting of this committee I questioned
the Minister of Justice about the logic of increasing the
number of members of the Supreme Court from nine to eleven
and in his explanation of the logic—I do not know if the
remarks are available yet in minute form, but if my recollec-
tion is correct he assertcd that a major part of the reason was
the need to give British Columbia representation on the
Supreme Court. Has this been raised in British Columbia? It
is the first time I have heard the reason. But is this a reason
current in British Columbia? Is this something that has been
requested in British Columbia?

Mr. Gibson: I am not a lawyer, but my understanding is
that in at least some legal circles there is a certain amount of
annoyance that there has not been a Supreme Court judge
from British Columbia since, I think Mr. Lang said in his
written remarks, 1962 or something like that. I did not com-
ment on the Supreme Court clauses because I just do not
consider myselfcompetent to do that.

Mr. Watson: The final question, Mr. Gibson, is really-I do
not know how you are going to answer it. It seems to me we
should judge all proposals for change on the basis of whether
or not they are going to simplify or complicate the manner in
which Canada is governed in the future. Now for your proposi-
tions. Do you envisage that the adoption of your propositions
would tend to simplify or tend to complicate further the
manner in which we are governed?

Mr. Gibson: I must say to you in all honesty that I believe it
would complicate it. I do not think that is a bad thing if you
get better government as a result of it. The proposed House of
the Federation, for example, I think would complicate without
giving you better government. These are all judgment
thoughts.

Mr. Watson: Thank you.

The Joint Chairman (Senator Lamontagne): Senator
Forsey.

Senator Forsey: I have two questions, Mr. Chairman. First
of all, they both relate to the proposal for fixed dates for
elections, On which my old friend, the Honourable J. M.
MacDonald, commented years ago when it was put forward by
some zealous member of the Conservative Party, but I suppose
you realize you are simply asking for the end of responsible
government.

I want to ask two specific questions about this. First of all,
what would you do if you had a fixed date for an election and
your election resulted in a tie?

Mr. Gibson: The election resulted in a tie?

Senator Forsey: Yes.

Mr. Gibson: Well, presumably the Governor General would,
according to the then constitutional usages, summon whoever
was appropriate to head the government and see what
happened.

Senator Forsey: But my dear sir, if you have a tie you
cannot elect a Speaker and it becomes completely impossible
for Parliament to transact business. You cannot move a
motion because to move a motion you have to start off with
Mr. Speaker. If you have got a tie you cannot elect a Speaker.

If you tell me that this cannot happen, let me tell you it has
happened twice within the confines of what is now the Domin-
ion of Canada, in 1859 in Prince Edward Island and in 1908 in
Newfoundland. In each case the legislature proved totally
unable to elect a Speaker and the only way out was a fresh
election. But if you had in the constitution a provision that
there should be no election for four years except on the
passage of a vote of want of confidence, or whatever it is, they
would have been absolutely stuck. How would you deal with a
situation like that?

Mr. Gibson: I would think one would take your advice and
put a provision for that in there.

Senator Forsey: In other words, your proposal for fixed
dates for elections is “knobs on.”

Mr. Gibson: Not at all, no. There is no reason why there
should not be exceptional provisions, but I am saying that in
the ordinary course of events the Prime Ministers flexibility to
dissolve at any time should be circumscribed.

Senator Forsey: The next point. I am probably the only
person in this room who is old enough to have a distinct
recollection of the election of 1911, and I read something
about what brought it on. In July 1911 the House of Commons
was considering the proposed Reciprocity Agreement. It had
been debating it for some time. The Conservative Opposition
had been exerting its constitutional right to obstruct a very
valuable part of parliamentary government.

An hon. member: Hear, hear!

Senator Forsey: It is a right not to be lightly used. One can
apply to it what the Prayer Book says about marriage—not by
any to be taken in hand lightly, unadvisedly or wantonly, but
reverently, discreetly, advisedly, soberly, and in the fear of the
Lord.

In 1911 the Conservative Party, for what seemed to it good
and sufficient reasons, undertook discreetly, advisedly, soberly,
to oppose the Reciprocity Agreement. The Government of Sir
Wilfrid Laurier had been elected three years before. It had an
overwhelming majority but the Conservative Party, rightly
judging that the people of Canada did not want the Reciproci-
ty Agreement, obstructed and obstructed and obstructed until
they forced Sir Wilfrid Laurier to advise the dissolution of
Parliament at the end of three years and not at the end of four
or five, or whatever it might be.

Now there is a most important part of the principle of
responsible government, the possibility for an Opposition, alas,
now seriously—what is the world?—hindered by the new rules
in the House of Commons to obstruct and force a government
with a majority to go to the people on something on which it
appears highly likely that the people oppose the policy of the
government. How would you deal with that in your scheme of
fixed elections, fixed dates?

Mr. Gibson: It seems to me that these things are of a piece.
if you take one kind of power away from an executive, you
must supplant it with something else. The specific device I
proposed to look after a situation of that kind was the power of
the government to appeal the particular issue to the people in a
single-issue referendum.

Senator Forsey: Suppose the government did not want to
appeal to the people for a referendum and just said to the
Opposition, “Go to grass or go to Jericho or take a jump in the
Ottawa River”.

Mr. Gibson: In that case the government could not want the
measure very badly. If the government did not think it
could . . .

Senator Forsey: No, no; but the government would have the
majority, as Sir Wilfrid had a clear majority. He could not
push the thing through but thanks to the democratic right of
the Conservative Party to obstruct, he was prevented from
doing so and he had to appeal to the people. But under your
scheme I do not think he would have to appeal at all.

Mr. Gibson: It seems to me he would have to . . .

Senator Forsey: He just carried his measure right through
and I might add that he had a large and servile majority in the
Senate at the time.

Mr. Gibson: It seems to me he would have had the specific
appeal of a referendum or, whereas you point out, the rules
respecting House of Commons debate are now rather more
restrictive, it might be possible to loosen them if one had this
kind of alternate device.

Senator Forsey: But he would not have needed his referen-
dum. He could have pushed the thing through with a compla-
cent majority of the House of Commons and a complacent
majority in the Senate in the teeth of the popular will but he
was prevented from doing so, thanks to the fact that he could
be obstructed and forced to an election.

Mr. Gibson: But in that case—and I am sorry to keep
referring to other parts of the proposalswit would be com-
pletely open to those so violently opposed to it to have an
initiative referendum and suspend the action of that law until
the next election. Again, there are checks and balances.

Senator Forsey: You mean the Conservatives would have
initiated a referendum?

Mr. Gibson: Or any group of people with enough signatures
could.

Senator Forsey: But in this specific instance… l see; all
right, thank you.

The Joint Chairman (Senator Lamontagne): Thank you
very much, Mr. Gibson, on behalf of all members of the
Committee for having made such a long trip and for having
devoted so much work-in the preparation of your brief.

Mr. Gibson: Thank you very much.

The Joint Chairman (Senator Lamontagne): Just a minute.
It is only 4.35 pm. We usually adjourn at 5 p.m. I understand
that Mr. Atkey has a statement of about 20 minutes. I would
suggest that we should hear him now; however, before we
invite him to join us, I would like to submit a problem that we
have.

If you look at our program for tomorrow, Wednesday, the
Canadian Bar Association is supposed to appear for the whole
day. We have been told that Mr. Viau will not be able to come
because he had to go to Australia so we may have only Dr. La
Forest to represent the Canadian Bar Association. Dr. La
Forest also wants to appear before us in his own personal
capacity but as he will be alone in this kind of dual role, if we
were to give him the whole day on Wednesday, it would
certainly be quite a lot of time. Therefore. if we agree to this,
this would leave Thursday free as far as we are concerned at
the moment.

If you want to continue to work on Thursday—and that
would be my suggestion—l understand that Mr. Fairweather,
the Chief Commissioner of the Canadian Human Rights Com-
mission, and Mr. Yalden, the Commissioner of Official Lan-
guages, would be prepared to change their program and to
appear before us on Thursday. Is this agreed?

Some hon. Members: Agreed.

Mr. Breau: Mr. Chairman, on the question of the Canadian
Bar Association, I take it that Mr. La Forest, did you say,
would be alone on behalf of the Canadian Bar Association?
Are there no other officials?

The Joint Chairman (Senator Lamontagne): There is a
possibility that he might be accompanied by someone else.

Mr. Breau: If I recall correctly, Mr. La Forest may have
had a contribution that may have been different from the
position of the Canadian Bar Association and that was the
reason we had two separate meetings. in this case we would
have the Canadian Bar Association position . . .

The Joint Chairman (Senator Lamontagne): I presume that
if we proceeded this way we could hear him as the representa-
tive of the Canadian Bar in the morning and then in his own
personal capacity in the afternoon.

An hon. Member: Lawyers speak with forked tongue.

[Translation]

The Joint Chairman (Senator Lamontagne): Mr. Guay.

Mr. Guay: Will Mr. Laforest be delegate of the Canadian
Bar Association on Wednesday?

The Joint Chairman (Senator Lamontagne): Yes.

Mr. Guay: Very well.

The Joint Chairman (Senator Lamontagne): But I have
been told that he has some personal opinions which may not
necessarily be those contained in the Canadian Bar Associa-
tion brief to be submitted to this Committee.

[Text]

Miss MacDonald: As I understand it, he will be represent-
ing only the committee and by no means the Canadian Bar
Association.

The Joint Chairman (Senator Lamontagne): Yes, and prob-
ably report on what happened to the report.

Miss MacDonald: We know that. That is why I say he
should not be representing the Canadian Bar Association.

The Joint Chairman (Senator Lamontagne): So, is this
agreed?

Some hon. Members: Agreed.

The Joint Chairman (Senator Lamontagne): Mr. Lee.

Mr. Lee: We are going to vote on Miss MacDonald’s motion
tomorrow afternoon?

The Joint Chairman (Senator Lamontagne): Yes. Of course
this will give us more time tomorrow afternoon to consider
that motion.

Mr. Breau: Mr. Chairman, do you foresee that we will have
a debate on the motion or just vote on it?

The Joint Chairman (Senator Lamontagne): I am in the
hands of the Committee. I was not here last Wednesday but I
understand that the discussion on the substantive aspect of the
motion was not terminated last week, so I would be prepared
to hear members on that aspect of the motion before we vote.

Mr. Breau: It seems to me we should understand how much
time we will take to debate it. I have other things to do
tomorrow evening than just sit here and listen to that debate.

Miss MacDonald: Why do we not vote now?

Mr. Breau: I could vote now. I could have voted last week.

The Joint Chairman (Senator Lamontagne): We may find
that we will have enough time with Mr. La Forest tomorrow
morning and then devote the afternoon, or part of the after-
noon, to the discussion of the motion.

Mr. Breau: Could I make the suggestion that just in case we
do run out of time, we have a limit of one hour of debate and
then the vote?

The Joint Chairman (Senator Lamontagne): I suppose we
could delay this until tomorrow and see how it goes and then
you could propose a motion.

Mr. Atkey. Mr. Atkey is a barrister and solicitor, a former
M.P., and is with the firm of Osler, Hoskin & Harcourt in
Toronto. I understand that he intends to make a statement and
then we will adjourn until 8 o’clock.

Mr. R. Atkey (Barrister and Solicitor, Osler, Hoskin &
Harcourt, Toronto): Thank you, Mr. Chairman.

Mr. Collenette: On a point of order, I think you neglected to
point out, Mr. Chairman, in all respect, that Mr. Atkey is a
nominated candidate for the Progressive Conservative Party at
the next federal election.

Mr. Atkey: Mr, Chairman, Senators, Members, when I
appeared before the last special joint committee on the consti-
tution almost eight years ago, I had occasion to state what I
believe the Canadian constitution to be all about. Rather than
being merely the institutions and their interrelationships as
described by the British North America Act, I included in my
definition at that time such fundamental statutes as the
Canadian Bill of Rights, the Supreme Court Act and the
Statute of Westminster, as well as the many conventions,
practices, procedures and principles that have evolved in the
Canadian federation over the course of time.

My view then, as now, was that the Constitution of Canada
must be considered in the broadest sense, particularly when
one is considering the process for structuring meaningful and
effective reform.

Since June, it has become apparent that the Government of
Canada has rejected this broader notion of the constitution
and has seized on a narrower legalistic notion in order to
justify unilateral federal action in making basic changes to the
Senate, the Head of State, and the Supreme Court of Canada,
as well as the first phase adoption of the Canadian Charter of
Rights and Freedoms and all that goes with it under Clause
131.

In my opinion, some, if not all, of these changes, if made
unilaterally, will violate a basic constitutional convention in
Canada to the effect that fundamental institutions of the
federation, and their practices and powers, cannot be altered
without consultation and agreement of the constituents parts
of the federation. This proposed violation of a basic convention
of our constitution is so serious in my opinion that it will set
back, rather than enhance, the process of effective constitu-
tional reform which is so necessary if this country is to survive.

Now, in practical terms, the unilateral approach inherent in
phase one is simply had federalism. Already the antagonism
towards Ottawa in ten provincial capitals is more intense than
it has been since the mid-sixties. The sheer lunacy of threat-
ened unilateralism, if allowed to proceed, may well swallow up
and destroy many of the good ideas to be found in some of the
provisions in Bill C-60, resulting in the ugly spectacle of bad
process devouring good substance.

To me, this is a matter of profound regret and sadness, not
just because it is an impediment to constitutional reform and
the optimism of the late sixties and early seventies but because
I see the potential destruction of many of the important and
complex federal-provincial relationships that have developed in
recent times, the continuation of which would be so necessary
to a proper functioning of the federation under revised
arrangements.

Why has the federal government chosen bad process to
achieve substantive reform? We get a clue in the paper
entitled A Time for Action where the Prime Minister, at page
24, expresses concern that more than half a century of consti-
tutional discussion has elapsed, involving much energy but
without success, He is frustrated, I am frustrated, and I am
sure many are frustrated. And he wants a process: “capable of
inspiring confidence that success is possible within a reason-
able period of time”. Unfortunately, and I say this with regret,
his phase one deadline of July 1, 1979 has so far had the
opposite effect, and only hardened the lines. The proof is clear
enough from Regina on August 10 this year.

Now, that unworkable deadline is bad enough, but to sug-
gest that unilateral changes to basic institutions and practices
of a federation be meaningfully debated, let alone completed,
before federal proposals for distribution of powers are even on
the table for discussion with the provinces is, in my opinion,
totally unreal.

For some reasons the federal government seems obsessed
with the apparent legal latitude which it claims for Parliament
under Section 91(1) of the British North America Act, it is
almost as if the discovery of the potentially broad ambit of
unilateral power granted to Parliament by that section is now
considered the only hope of achieving constitutional reform
because it obviates the necessity for consultation and agree-
ment with the provinces.

The rush to unilateralism permitted by Section 91(1) is only
too evident when one looks at the provisions in Bill C-60
involving the provinces in the appointments to the House of
Federation and to the Supreme Court of Canada. Why else
would there be a subclause like 63(3) allowing the House of
Commons to select provincial members of the new House in
the event a provincial legislature defaults in making its selec-
tion within the required time? Why else would there be a
subclause like 106(5) allowing the Attorney General of
Canada to select all members of a nominating convention in
the event of the attorney general of a particular province
failing to make his selection? ls not all this really the tail
wagging the dog—preserving legal unilateralism as an option
at all cost regardless of the substantive impact on the Upper
House and the Supreme Court?

Now, I am aware that this Committee has had presented to
it an extensive legal argument by Professor Lederman, who is,
in my opinion, an eminent constitutional scholar, to the effect
that the basic changes in Bill C-60 concerning the Senate and
the Head of State require the concurrence of the provinces as
well as a joint address from Parliament before they can
become law.

As I understand it, Professor Lederman is of the view that
Section 91(1) does not give Parliament the right to make these
basic changes by ordinary statute unilaterally because they are
changes that involve:

“. . . rights or privileges by this or any other Constitution-
al Act granted or secured to the Legislature or the
Government of a Province . . .”

that which I described being one of the five exception clauses
to Section 91(1). At the same time he argues that that
exception should be read as synonymous with or equivalent to
the fourth principle of the Favreau White Paper of 1965 which
requires provincial consultation and agreement for an “amend-
ment directly affecting federal-provincial relationships”.

Professor Lederman has perceptively pointed out that the
current government in its recent White Paper on constitutional
amendment, released August 9, has made critical changes to
this fourth principle by referring to it as a mere observation”
and by omitting an important aspect of it. Professor Lederman
argues that the fourth principle of the Favreau White Paper of
1965 is in fact historical usage that has by now “crystalized
into full-fledged constitutional law”. With this argument I am
in full agreement. Professor Lederman goes on to argue that
the fourth principle as constitutional law should be recognized
and enforced by the courts. And he suggests a reference to the
Supreme Court of Canada on the point would be warranted.

Just last Thursday the Minister of Justice, Mr. Lang, tabled
a 16 page legal opinion. I had the opportunity of reviewing it
over the long weekend and I have these observations. First,
respecting the proposal to replace the Senate with a House of
the Federation, the Minister argues that procedures prescribed
in the bill for selection of one-half the members by provincial
legislatures or government do not impose an obligation on
them. He suggests that such procedures are merely optional
and if the provinces choose not to make such a selection, the
House of Commons may do it in their place under Clause
63(3). However, close examination of that clause reveals that
it is in effect merely a default provision, not an option.

Clause 63(1) and 63(2) clearly impose duties on the provin-
cial legislaturcs and therefore interfere with their rights or
privileges. Moreover, the regional representation of the prov-
inces and hence their governments guaranteed by Section 22 of
the BNA Act is also altered by Bill C-60, again constituting
an interference with the rights or privileges of the province.
The general nature of the interference both on grounds of duty
imposed and changes to regional representation is stated in
plain language in the federal paper “A Time for Action” at
page 23 and I quote:

Essential features of the new House would be the recogni-
tion of a role for the provinces in the selection of its
members, and provision for proportionatly greater
representation to the eastern and western parts of the
country, with substantial adjustment to ensure adequate
representation for western Canada which, until now has
not received a share commensurate with its growing
importance.

Respecting Supreme Court appointments, Clause 106 imposes
a duty on the provincial Attorney General of the home prov-
ince of the nominee, albeit with the default provision again,
which may well constitute an interference with provincial
government rights and privileges. The role of the Attorney
General is not optional in the’bill as the Minister of Justice
contends. The federal paper referred to above contemplates the
provincial Attorney General acting on behalf of the provincial
government of which, he is a part. That is the language in the
paper.

On changes to the head of state proposed in Clauses 42 and
43 of Bill C-60, the Minister of Justice argues that, and I
quote:

No one has yet demonstrated how the position of the
Crown in relation to provincial governments would be
affected in any way.

But if one reads the plain words of Clauses 42 and 43, it is
clear that the Governor General of Canada becomes the head
of state in Canada rather than the Queen and the press release
accompanying the bill states this specifically. These provisions
will mean a change in the relationship between the Queen and
the Lieutenant Governor in each province. The fact that the
Lieutenant Governor is not merely a delegate of the Governor
General who appoints him but is a direct representative of the
Queen for all purposes of provincial government was well
established in 1892 by the Privy Council in Liquidators ofzhe
Maritime Bank of Canada versus the Receiver General of
New Brunswick, cited 1892, Appeal Cases 437, where Lord
Watson said this, and I quote:

. . . “a Lieutenant-Governor, when appointed, is as much
the representative of Her Majesty for all purposes of
provincial government as the Governor-General himself is
for all purposes of Dominion government”.

Therefore, to change the relationship between the Governor
General and the Queen, as in Sections 42 and 43 of Bill C-60,
is in effect to change the parallel relationship between the
Lieutenant-Governor and the Queen, and is therefore a clear
case of interfering with rights and privileges granted to provin-
cial governments.

Another aspect of the changes to Head of State in Bill C-60
is found in revised section 91 where it is provided for the first
time that federal legislative powers are exercised in the name
of the Governor General of Canada, rather than the Queen as
at present. Schedule “A”, Number 5, in Bill C-60, relating to
amendments to the Interpretation Act make it clear that Acts
of Parliament will be enacted in the name of the Governor
General of Canada, and not the Queen as at present. By
implication, in considering the same parallel relationship that
exists between the Queen and the Lieutenant-Governor of a
province, it may well be that Acts of the provincial legislature
will have to be enacted in the name of the Lieutenant-Gover-
nor, rather than Her Majesty, as at present, by virtue of such
changes proposed in Bill C-60.

Apart from these purely legal arguments already raised by
Professor Lederman and discussed by the Minister of Justice
in his opinion tabled Thursday, I would draw to the Joint
Committee’s attention a further legal difficulty concerning the
Canadian Charter of Rights and Freedoms and the attempt to
implement it without provincial concurrence in section 131 of
Bill C-60. I raise this argument with some regret because, as
will be noted later, I strongly support efforts through federal-
provincial consultation and agreement to have an entrenched
bill of rights as part of our permanent Constitution. Subsection
131(2) is on shaky legal ground because it anticipates an
amending procedure not yet known, and which, indeed, may
come into conflict with what is specifically required in that
subsection. Subsection 131(3)(a), providing for the so called
disallowance trade-off upon provincial adoption of the Charter
is ultra vires in my opinion because it represents a change to
the present disallowance provisions found in sections 56, 57
and 90 of the B.N.A. Act, the disallowance power being as
much a part of the Provincial constitution being affected as
much as the power of the Constitution of Canada. With
respect to subsection 131(3)(b), this may well be an ultra vires
attempt to interfere with the Constitution of Ontario in respect
of its own decision as to whether it should print or publish its
statutes in English or French. Subsection 131(4)(d) of Bill
060 would also appear to be ultra vires in my opinion in that
it purports unilaterally to repeal Section 133 of the existing
B.N.A. Act relating to the use of the English and French
languages which is another exception from section 91(1), and
it repeats section 23 of the Manitoba Act 1870 which again is
an interference with provincial rights and privileges excepted
from Section 91(1). The constitutional defects in subsection
131(4) are surely not cured simply by making the operation of
such a subsection contingent upon entrenchment of the Chart-
er anticipated on shaky legal ground itself in subsection
131(2).

In summary, given the many (ultra vires) aspects of Section
131 as noted, and the fact that it is no interrelated with the
Canadian Charter of Rights and Freedoms so as not to be
severable, in my opinion, it may well be that the Charter itself
is ultra vires if Parliament proceeds unilaterally as contemplat-
ed in Phase one.

So much for the purely legal arguments, Professor Leder-
man has suggested that legal doubts in respect of the basic
changes to the Senate alone are sufficient to warrant a refer-
ence to the Supreme Court of Canada. I would suggest that
the additional legal issues that I have raised today further
underscore the necessity for such a reference. Despite the
reluctance expressed by the Minister of Justice to adopt this
procedure as expressed in his opinion last Thursday, I would
point out to the Committee that there are ample precedents in
Canadian legal history for the Governor-in-Council to submit
a reference to the Court even where a bill has received only
first reading and is stated to be for purposes of discussion only.
Indeed, Subsection 55(1)(d) of the Supreme Court Act con-
templates references on:

the powers of the Parliament of Canada, or of the Legis-
latures of the provinces, or of the respective governments
thereof, whether or not the particular power in question
has been or is proposed to be exercised;

Surely on a matter as important as basic changes to our
constitution, it makes sense to refer this bill to the Supreme
Court now so as to have these important legal questions settled
as soon as possible, hopefully in advance of the federal-provin-
cial meeting of the First Ministers in October. Given the July
1, 1979 deadline for phase one, it seems to me that these issues
are anything but premature.

I note that the Minister of Justice on Thursday, in refusing
to submit a reference at this time, implied that he regarded at
least some of these issues as more political rather than legal in
nature and, therefore, inappropriate for the court. This takes
me back to the beginning of my remarks where I indicated
what I thought the Canadian constitution was all about. You
will recall that I included certain basic statutes as well as the
many conventions, practices, procedures and principles that
had evolved during the history of the Canadian federation.
Might I suggest that if a violation of one of these conventions
or principles is inappropriate for the court because it is too
political, then it might be appropriate to go to Parliament for a
remedy. It seems to me that Parliament can find the violation
to be “unconstitutional” in the broad sense, or alternatively,
Parliament could make a decision that, in effect, modifies or
amends the convention, practice or principle involved. Indeed,
this is often how these areas of constitutional ”law” envolved
and are modified from time to time.

As a Special Joint Committee of Parliament, it strikes me
that you are in a good position to deal with this question of
unconstitutionality instead of going to the court, if that proves
unpalatable, by reporting back to your respective Houses your
views as to the validity or at least the propriety of the proposed
unilateral action respecting the Senate, the Head of State, the
Supreme Court and the Canadian Charter of Human Rights
and Freedoms. In so doing I would suggest that you need not
be intimidated by the legal opinion of the Minister of Justice,
for the reasons I have already stated. Besides, I would suggest
that a finding of unconstitutionality in the broader sense is
very much within the purview of this Committee.

To illustrate the nature of the decision as to constitutionality
I am asking you to make today, take for arguments sake a
hypothetical question for Parliament, perhaps referred to this
Committee, as to the validity of Her Majesty in Council
invoking her power to disallow an act of Parliament under
Section 56 of the British North America Act or, alternatively,
as to the validity of the Governor General in Council invoking
the power to disallow a provincial act under Section 90.

I have no doubt that the Department of Justice could
produce a learned legal opinion upholding the legal validity of
such use of disallowance. But, likewise, I would have no doubt
as to the legitimacy of a committee such as this making a
decision that in 1978 the use of disallowance was “unconstitu-
tional” in the broad sense, given the anachronistic character of
such power and the fact that the British government in 1929 at
the London conference undertook not to use the Royal power,
and the federal power of disallowance of course has not been
used since 1943. Likewise, suppose for argument’s sake a bill
was placed before Parliament to repeal the Supreme Court of
Canada Act, dismantle the court and provide that all judicial
matters that previously could have been heard by that court as
a right or by leave, including constitutional questions, be
referred to a Standing Committee of the House of Commons
comprised of nine lawyers. Again, I would have no doubt that
the Department of Justice could produce a learned legal
opinion upholding the validity of this measure under Section
101 of the British North America Act. But surely it would be
open to a Joint Committee of Parliament or Parliament itself
to determine that the measure was unconstitutional in the
sense that it was destroyying the central judicial institution of
the federation which had exercised the power of judicial review
1875 and as the final court of appeal in Canada since 1949.

Admittedly, these are extreme examples, but the point is
that a serious violation of a constitutional convention or princi-
ple may be as much a matter for consideration and decision by
a Special Joint Committee of Parliament as it is for the
Supreme Court of Canada. If the issues are too political for
the court then I would suggest that you have a responsibility to
make the decision yourselves.

In summary, I believe this Committee has a great responsi-
bility to get the process of constitutional reform back on the
right track by recommending to the government that it scrap
its two-phase approach and deal with all fundamental issues-
division of powers, individual rights and freedoms, institutions,
and amending formula—as part of one package. And I guess
in the end I really do not care how you achieve this necessary
reorganization of the process, that is, whether you use the legal
or the political approach, as long as you get it going again. The
two-phase unilateral approach, in my opinion, is unworkable
and may be conterproductive. Time in short; and the worst
thing, I submit, would be for you to do nothing.

Mr. Chairman, that completes the first section of my paper
dealing with process. I wonder if it might be a convenient
time—given that it is 5 o’clock—to deal with the substantive
matters in my paper after the supper hour.

The Joint Chairman (Senator Lamontagne): Agreed?

Some hon. Members: Agreed.

The Joint Chairman (Senator Lamontagne): The meeting is
adjourned until 8 o’clock.

[Translation]

EVENING SITTING

The Joint Chairman (Senator Lamontagne): Shall we begin
the meeting?

Mr. Atkey has a further statement to make.

[Text]

Mr. Atkey: Thank you, Mr. Chairman. To move now into
the substantive provisions of Bill C-60, I regard the Canadian
Charter of Rights and Freedogns as the single most important
aspect of this bill. I would urge its constitutionalization and
entrenchment by Parliament and all provinces at the earliest
opportunity.

The Charter contains all the features of the present Canadi-
an Bill of Rights, and together with certain features in the
Statement of Aims of the Canadian Federation found in
Clauses 3 and 4, extends the net of individual protections in a
way that admirably represents the fundamental values to
which most Canadians subscribe. Once the legal and political
difficulty of process discussed in the previous section is over-
come, I would urge that the Committee in its deliberations
give the Charter and its content the highest priority.

I have some specific comments which are not to be con-
strued as substantive criticism but more in the nature of
constructive suggestions for improvement. First and foremost,
I am very concerned about the all-embracing limitation clause
found in clause 25. To the layman reading the bill for the first
time, it appears that the important rights and freedoms grant-
ed under Clauses 6 to 10, 14, 16, 19 and 21 can be effectively
taken away by other laws considered to be

—justifiable in a free and democratic society in the
interests of public safety or health, the interests of the
peace and security of the public, or the interests of the
rights and freedoms of others.

The inference that what one hand may give the other may take
away is bound to breed public cynicism.

To the constitutional lawyer, Clause 25 is an open invitation
to the Supreme Court of Canada to water down through
interpretation, as indeed happened with the Canadian Bill of
Rights, the protection of the individual rights and freedoms to
perhaps an unwarranted extent. This may reduce the impact of
the Charter to little more than a statute of interpretation. This
is largely speculation at this time, because it really depends on
what the Supreme Court of Canada does with the Charter. I
know that many federal constitutions, such as in West Ger-
many, contain similar limitation sections respecting certain
rights and freedoms. Clause 25 is about the broadest l have
seen, applying to all the rights and freedoms in the entire
Charter. The judges of the Supreme Court already have
certain powers of limitation, adopting normal principles of
interpretation and through the development of various doc-
trines based usually on a test of reasonableness. There is no
such limitation section in the US. Bill of Rights and the
Supreme Court Justices in that country have not hesitated to
interpret the U.S. bill with some kind of limitation based
generally on reasonableness.

My preference therefore would be to remove Clause 25
completely and to place my faith in the judges of the Supreme
Court of Canada to do what is just under the circumstances of
each case. Professor Lederman probably disagree with me on
this point, as he feels Clause 25 warns people that they must
not take thesespecified rights and freedoms too literally; that
is, without qualification whatsoever, I am sympathetic to that
sentiment, but I do not feel the broad language of Clause 25 is
the answer. Judicial limitation through interpretation in the
Supreme Court of Canada is far more workable and can be
just as easily understood as the blunt instrument of Clause 25.

I have two other technical concerns with the language of the
charter, matters raised by Professor Walter Tarnopolsky of
Osgoode Hall Law School when he appeared before the Senate
Committee on August 10.

The first relates to the use of the words “and continue to
enjoy” at the beginning of Clauses 6 and 7, words which
possibly imply the frozen concepts doctrine which has been
employed by some judges of the Supreme Court of Canada to
limit the potential development of the Canadian Bill of Rights
through the use of the words “have existed and shall continue
to exist” in Clause 2 of that Bill. The easiest way to ensure
that individual rights and freedoms in the Charter are those
that evolve over time and not merely those that exist at the
time of the Charter’s enactment, constitutionalization or
entrenchment, is merely to remove the phrase “continue to
enjoy”.

The second point relates to the unfortunate wording of
Clause 23, which is the operative section to make the Charter
work functionally, As suggested by Professor Tarnopolsky to
the Senate committee, I think it should be revised to make it
clear that inconsistencies between any law or administrative
act and the provisions of the charter should result in that law
or administrative act being rendered inoperative and of no
effect. To confine the clause just to laws and not administra-
tive acts thereunder would be to exclude many low visibility
decisions in the administration of justice, particularly the
exercise of police powers, from the Charter’s protection, leav-
ing a major hole indeed.

As for the content of the various rights and freedoms, l have
no quarrel with the existing lists in Clauses 6 and 7 but would
suggest one addition to the list of political rights and freedoms
in Clause 6. Given the unfortunate tendency of governments
throughout Canada—and I emphasize the plural of the word
“governments”—towards unnecessary secrecy and the result-
ing cynicism which this generates among people and their
attitudes to and in dealings with governments, I would propose
that you consider adding a freedom of information provision to
the protected rights and freedoms along the following lines:

Access of the individual to government information other
than that related to national defence, international rela-
tions, federal-provincial relations, Cabinet documents,
policy advice, law enforcement, personal privacy, legal
opinions and commercial or financial information.

Now, the articulation of that right follows along the lines,
very specific lines, of the recommendations of the Standing
Joint Committee on Regulations and Other Statutory Instru-
ments which reported June 28 last, and is, frankly, a document
with which I am in full agreement.

The broad ambit of Clause 8 causes me some concern. This
clause would guarantee to every citizen of Canada, whatever
the place of his residence or domicile, to acquire and hold
property in any province or territory. This clause, if required to
be adopted in all provinces, would, in effect, overturn the
decision of the Supreme Court of Canada in the Morgan case,
decided in 1975, and effectively limit the right of a province,
such as Prince Edward Island, to restrict non-resident owner-
ship of land to a maximum of 10 acres in the interests of
restricting tourist or development lands from falling into the
hands of absentee owners, pursuant to local development
objectives of that province.

I note that the provinces, in their Regina communique of
August l0 were concerned over this section and its potential
interference with provincial legislation respecting land owner-
ship and other matters. Therefore I would urge you to have a
close look at Clause 8 in this light, In any event, I would offer
the legal opinion that Clause 8, without entrenchment, may be
ultra vires Parliament since it so clearly deals with property in
the provinces and seeks to overrule an existing decision of the
Supreme Court of Canada which has apparently settled the
matter.

Before moving on to the next clause, I would emphasize that
you should be under no illusion as to the practical effect of
constitutionalization or entrenchment of the charter in terms
of the exercise of real power under our constitutional system.
There will be, to a degree, a transfer of real power in the
protection of individual rights and freedoms away from Parlia-
ment and the legislatures towards the courts, particularly the
Supreme Court of Canada, and that is why there must be
extreme care taken in making adjustments to the Supreme
Court of Canada not only to preserve those aspects of it which
are working well but to ensure that it will be institutionally
equipped, both internally and in the public mind, to cope with
this new exercise of power which an entrenched charter would
bring about.

Now dealing with the Supreme Court, the draftsmen of
clauses 101 to 115 of Bill C-60 has made a valiant attempt to
accommodate a variety of competing interests. Ever since the
Victoria Charter discussions of 1971, provincial governments
have properly demanded the right to participate in the making
of appointments to the court. This demand was repeated in the
1976 proposals of the provinces and again in the August 10
Regina communique this summer. It is right and proper to
provide some mechanism for accommodating this provincial
involvement.

There have also been political criticisms of the Court that it
does not adequately represent regions of the country, a corn-
plaint coming particularly from British Columbia. In Quebec
there have been political criticisms that the court is a tool of
Ottawa and that three of the nine judges is an insufficient
representation, given the possibility of civil law appeals going
to the Supreme Court of Canada and on which some judges
trained only in the common law may sit.

In the face of all this, it must be observed, and I was pleased
that the Minister of Justice last Thursday pointed this out,
that the Supreme Court of Canada is functioning rather well,
and I agree with him when he stated that the court has
consistently demonstrated the highest integrity and has been
guided only by proper legal considerations in reaching its
decisions. I point out that it has achieved this high quality in
the face of a very heavy workload.

I am not as concerned as some lawyers by the proposal to
increase the size of the court from nine to eleven. If there are
other genuine reasons for increasing the size of the court, such
as permitting broader regional representation of giving Que-
beccrs greater reassurance that the special needs of the civil
law will be protected by an increase in the number of judges
trained in the civil law from Quebec, then I see little harm and
some possible advantage to increasing the size. I know that
some lawyers have argued that increasing the size may destroy
the collegiality of the court, thereby decreasing its quality as a
court. I note that the Canadian Bar Association Committee
has put forward that view, I would indicate that I do not share
that position. The same type of arguments were advanced, I
recall, when there was a proposal to increase the size of the
Ontario Court of Appeal from nine to twelve and then to
fifteen, including arguments that I heard from some of the
judges of the court themselves. Subsequently, the size of the
Court was increased over these objections, and I can say, as a
member of the Ontario Bar, that the quality of the Court of
Appeal in Ontario is at as high a level as it has ever been in my
experience. There is no question that the case-load of the
Supreme Court of Canada is going to increase it’ the Canadian
Charter of Rights and Freedoms is entrenched in the constitu-
tion. A move to eleven judges may well provide that extra
judicial manpower needed to manage the increased workload.
It would still be possible to have a full court of eleven sitting en
banc in important constitutional cases, although in other cases
one might have panels of three or five, as the case may be.
Also it would not be unreasonable to have constitutional cases
being heard by a panel of, say, nine judges from an eleven-man
court, allowing for the usual type of sickness or absence that
can arise from time to time, and of course is now the case with
the present Chief Justice.

Let me say a word or two about the notion of regional
representation in the court inherent in Section 104. This
concept need not detract from the principle of the indepen-
dence of the judiciary which is fundamental to the court’s very
existence. There is an informal regional allocation system
already in existence in the -present process of appointing
Supreme Court judges. While the three from Quebec are
stipulated by statute, the remaining six are broken down as
three from Ontario, two from the West and one from the
Atlantic provinces. This is pot written down anywhere; it is
simply constitutional convention and practice. To go one step
further and put this in the constitution is really a recognition
of existing practice. Is it not reasonable to expect that in as
diverse a country as Canada we appoint nine or eleven men not
only with the best legal minds available but whose lives and
experience derive from different parts of the country? If the
writing down of the convention or practices serves to reassure
people in various regions of Canada that there is this diversity
of experience, as well as legal excellence on the court, are not
the decisions of the court likely to have a greater legitimacy
and creditability across the country as a whole? Personally I
feel that the fears that judges appointed as representatives
from a region will become, in effect, political representatives
on the court for that region are unfounded. And I say that
having read the recommendation of the Committee of the
Canadian Bar Association.

Bill C-60 provides a complex mechanism by which the
provinces would be consulted before judges are appointed. In
the absence of agreement appointments would be made by a
nominating council. All appointments would be subject to
affirmation by the House of Federation.

This appointment process is definitely an improvement on
the present situation because to some extent it meets provincial
demands to participate. The affirmation process in the House
of the Federation removes some of the secrecy inherent in the
process and provides a further check against the potentiality of
bad or perverse appointments. However, given the fact that
both measures involve a substantial departure from existing
practice, I wonder if both are really necessary. Indeed, is there
not a bit of a trade-off in the sense that an affirmation process
in the House of the Federation may be necessary if the present
appointment practice is to be retained with all its deficiencies,
whereas if there are substantial improvements to the appoint«
ment process involving the provinces, the affirmation process
may not be necessary at all? There will always be some
lawyers and judges of lower courts who might be offended by
an open affirmation process in the Upper House, U.S.-style,
and as a result decline to let their names go forward. However,
I am inclined to think that younger generations of lawyers
would be less offended by the openness of the process and
indeed consider it as another adjunct of open government so
necessary to restore public confidence in the face of traditional
governmental penchant for secrecy.

Nevertheless, if I had to make a choice between open
affirmation in the Upper House and revisions to the appoint-
ment ‘process to involve the provinces directly, I would adopt
the latter, given present demands as I understand them.

The appointment process contemplated by Clause 106 of
Bill 060 is a start in the right direction, but the provinces
through their Attorneys General are still limited to minority
participation in the nominating council, and it is still the
Attorney General of Canada who places a name in nomina-
tion. I would prefer the method outlined by Professor Leder-
man to the state Senate Committee on August 9 where a
judicial nominating council has the power to seek out and
establish the list of persons eligible for appointment in the first
place, and then the Attorney General of Canada is confined to
appointing from the list. In this way you get real provincial
input into the originating of names entering the nomination
process, as well as making it possible to involve persons other
than lawyers and Chief Justices on the nominating council. At
the same time the Attorney General of Canada would still be
the person to make the ultimate appointment from the list
prepared by the nominating council.

In summary, I see direct provincial participation in the
appointment process as a primary reform required in this area.
Open affirmation in the Upper House, while perhaps desirable
sometime in the future, is not as pressing, and it certainly
would not be one of the central functions of that body as it is
conceived under Bill C-60. Accordingly it might best be left
for future consideration unless there is widespread public
demand for it. This should not arise as long as there is a proper
nominating process to ensure only the highest quality of
judicial appointments from each region of the country.

Now to move on to what appears to be a favourite subject
with this Committee, the Upper House. My comments here
will be brief.

Notwithstanding what I heard earlier this afternoon, I still
favour the proposals of the Ontario Advisory Committee on
Confederation which has already appeared here. These pro-
posals would involve members appointed by and representing
the provincial governments, serving at the pleasure of the
Lieutenant Governor in Council. I would not prohibit members
of the Upper House from being members in the legislative
assembly of a province, and indeed would expect a limited
number of individuals, including the Premier and Cabinet
ministers, to participate in appropriate debates, depending on
the subject matter and the timing.

I would differ from the Ontario Advisory Committee proa
posals only in that I would permit one third of the members of
the Upper House to be appointments of the federal govern-
ment, serving at the pleasure of the Governor General in
Council. As with provincial members, I would not exclude
members of the House of Commons, particularly Cabinet
ministers, from participating in appropriate debates.

I see no reason to change the name to either House of the
Federation or House of the Provinces. Keep the name “Sen-
ate”. It is known and respected throughout the country.

Under these proposals, both federal and provincial Cabinet
ministers participating in the Upper House would still remain
responsible to their respective legislatures. Their participation
in debates in the Upper House would not be unlike certain
aspects of existing federal-provincial conferences on certain
subject matters. However, these debates would not be a substi-
tute for the conference composed of the Prime Minister of
Canada and the First Ministers of the provinces as is described
in Clause 97 of Bill C-60.

Finally, there might be stipulated, or it might evolve as a
matter of practice, that say half the provincial and half the
federal members of the Upper House would be appointed for a
fixed term of say six years, to ensure a degree of permanence
and continuity in the Upper House, and with a further possi-
bility of such appointments being renewed for the same period
by the provincial or federal executive as the case may be.

Finally, deal with the beginning of Bill C-60, the Preamble
and Statements of Aims. In my presentation to the previous
Joint Committee eight years ago, I emphasized that a new
constitution should attempt to articulate the shared values of
the Canadian people. I indicated that this could be done in
some respects through an entrenched Bill of Rights but that it
also could be done through a preamble or merely a declaratory
statement of values in the body of the constitution itself. I
emphasized that this was necessary not only so that the
constitution would truly represent the soul of the Canadian
people but to enhance its educative value, particularly with
young people. And I suggested then that the Committee might
enlist the assistance of a poet or one of the Canadian literary
giants, rather than lawyers or politicians, if such a task were to
be undertaken.

I am delighted to see that the government in Bill C-60 has
adopted this recommendation in every respect except the last. I
am not suggesting that your Committee, either alone or with
literary assistance, make substantial revisions to either the
Preamble or the Statement of Aims, because I think the
draftsman has done a fairly good job on it as a piece of
legalese. It is easily, or relatively easily, capable of being
interpreted by the courts. While some may complain that the
language is corny and lacks inspiration, my own view is that it
does not harm and may do some good. Indeed it may even
point us in the right direction as a nation.

Thank you.

The Joint Chairman (Senator Lamontagne): Thank you
very much, Mr. Atkey. I think this is a rather unprecedented
night. We have received this afternoon a second message from
West Germany as to what should be our approach to constitu-
tional reform. And this evening we have received a message
from the Red Tory wing of a very important political party. I
will ask Mr. Breau to start the discussions.

Mr. Breau: Thank you, Mr. Chairman. First of all, I take it,
Mr. Atkey, that in the changes proposed for the Supreme
Court you agree with the principle that the judges from
Quebec would judge only on civil cases from Quebec?

Mr. Atkey: As a general proposition, at a very minimum, I
think the civilian judges should represent a majority of any
panel. I think, for example, if it were an important civil case
from Quebec you might have a panel of five, the four civilians
plus perhaps one judge trained in the common law, but always
a majority; and of course, if there were a panel of three, totally
a civilian panel ofjudges.

Mr. Breau: When you say a civilian panel of judges, are
there civil law judges on the Court who are not from Quebec?
Is that possible?

Mr. Atkey: It is possible, but there are none and it is highly
unlikely there would be any.

Mr. Breau: So you say you agree that only Quebec judges
could judge civil cases arising out of Quebec in the Supreme
Court?

Mr. Atkey: As a basic principle, subject to minor variations
I havejust stated.

Mr. Breau: Thank you.

Now, on the question of the Charter of Rights and Free-
doms, you have mentioned a few examples where you think it
could be unconstitutional. I take it you are awarevas I read
the bill, but I am not an expert in these things—that the
government has explained, and it was explained in the White
Paper, that there would be an opting-in mechanism. Even with
that opting-in mechanism, do you still think it could be ultra
vires? In the case of Prince Edward Island that you mentioned,
on property rights, as I understand it, that clause would not
come into effect unless a province would want to opt in.

Mr. Atkey: The difficulty that is created by Bill C-60 is that
as I read the words of Clause 131, the Charter would be
enacted as an ordinary statute of Parliament until the opting
in process took place. There are certain elements in Clause 131
that attempt to indicate the structure of how the opting in
takes place in a way which, I suggest, while it exists as an
ordinary statute of Parliament, would be ultra vires. Ultimate-
ly, when a province chooses to opt in and you have full
entrenchment, then, of course, the legal difficulty is removed.
My argument was directed in that sense, Mr. Breau.

Mr. Breau: Only in the period of time that it would be
passed by Parliament and not constitutionalized?

Mr. Atkey: That is right, because the proposal of Phase 1, I
understand, is to enact Bil C-60, all those sections without the
asterisks, and to have them as the law of the land by July 1,
1979. And my argument is only directed to the fact that if
Parliament does enact that alone, it creates an illegality.

Mr. Breau: You realize that in the kind of study we are
making here, we do not really have a normal reference of the
bill after second reading; that we have had referred to us a
broad order of reference, and any suggestion that we have with
regard to wording or that sort of thing, or any other process, it
has been said by the governnfient would be welcome. Supposing
we do enact a charter of rights and liberties and presumably
some provinces do not agreee to any constitutional reform.
How else can we have a charter of rights and liberties and
permit some provinces to opt in if they want to?

It seems to me that unless you say we should not have
anything done before we get unanimous agreement by the
provinces, there would be no possibility of having this charter.

Mr. Atkey: That is not the case at all. The Canadian Bill of
Rights and the procedures for passing that as an act of
Parliament is a pretty good precedent that you might consider,
and indeed, the extension of rights contained in the Charter
substantively could be included in an ordinary act of Parlia-
ment like the Canadian Bill of Rights. Where you run into
difficulty is when you try to finesse—if I can use that term-
you try to finesse the provinces through an attractive sort of
device such as is contained in Clause 131; that is where you
create the illegality for the reasons that I suggested in my
presentation. If you really want to enact a simple bill contain-
ing these rights and applying them to all federal laws, existing
and future federal laws, do that. But that certainly is not what
Bill C-60 does, particularly given the light of Clause 131.

Mr. Breau: All right. Now, you mentioned that you have
some concerns with the limitations provision, and I have read
your comments carefully. What happens if there are no limita-
tions, if it is completely open and the government just has to be
concerned, or Parliament has to be concerned, that somebody
could take the matter to court? Is that the balance that would
be there—in other words, we would leave it completely up to
the court to interpret at any given time what would be the
right recognition of some event that politicians in Parliament
will think is apprehended insurrection or state of war or some
kind of disaster?

Mr. Atkey: No. I think, if one studies the history ofjudicial
interpretation in this country, in Great Britain, in the United
States, just to give you three examples, that you will find that
the judges themselves, having the full power of judicial review,
which of course the bill envisages, in Clause 100, I believe,
they have a substantial discretion through the vehicle of
interpretation to not apply absolutely some of the protected
rights where it would be unreasonable to do so. All Clause 25
does is to attempt to provide statutory language for what is in
effect a reasonableness test. There is not such a limitation
clause in the Canadian Bill of Rights, and seeing how our
Supreme Court has in some respects watered down that
Canadian Bill of Rights, even in the absence of a limitation
clause, I am very hesitant to have a limitation clause in this
bill which in some respects might be regarded as an open
invitation to the court not to apply those protected rights and
freedoms in any meaningful sort of way. The judges are going
to exercise theifidiscretion which, of course, is their power and
their duty to do in a reasonable way.

Mr. Breau: What you are saying is that in effect, on a
case-by-case basis, the court would really provide the
limitation.

Mr. Atkey: That is correct. And I think that the judges are
capable, given the excellent judges we have in our Supreme
Court, of providing a reasonableness test that evolves over
time. I think it is more flexible and I think there will be
greater justice and therefore a greater utility to the system, if
you will, over time.

Mr. Breau: I would like to deal finally with another part of
your brief where you mention that the process that is proposed
by the government may not be constitutional. But you seem to
waiver there because you say on the one hand that it is not
constitutional, then you say it is bad federalism, which is a
political judgment, and then you say in the summary and
elsewhere that

The unilateral federal action proposed is “unconstitution-
al” in the broad political sense.

What is the difference between being unconstitutional in the
legal sense and in the political sense?

Mr. Atkey: Mr. Breau, this is a grey area where law tends to
overlap into political science, There have been scores of books
written on the subject and I think this is a classic example. I
can make a very strict legal case that some of the provisions of
this bill are ultra vires.

Mr. Breau: But you do not make this case here.

Mr. Atkey: Yes, I make this case and I suggest it as a first
position because there are clearly unconstitutional provisions
in a legal sense that is a matter for the court to determine and
I think, given the timing we have, the urgency of the matter,
the quickest way, the most thorough way, and the way of
allowing the provinces to participate through their attorneys
general is if there is a direct reference to the Supreme Court of
Canada. However, if some of you have trouble with that, and
it seemed to me after reviewing the Minister of Justice’s legal
opinion that he had a little trouble with that because the
questions tended to be a little political in nature, and to give
him his credit, there is a doctrine, particularly in the United
States and in other federal countries, that purely political
questions should not be submitted to a final court of appeal for
an advisory opinion, They are inappropriate for judicial deter-
mination. If some of you, like the Minister of Justice, have
that problem I would suggest then you can treat this in the
broader political sense as being unconstitutional in the sense of
being bad federalism and that this is the very function that
Parliament or a committee of Parliament should exercise.

Mr. Breau: You are not answering my question because
there is a difference between saying something is legal or not
and then making the blanket statement, which is a judgment,
that it is bad federalism. You may think it is bad federalism, I
may think it is good federalism, and I can make a political
judgment as well as anyone else. The point is you do not make
the legal case that it is unconstitutional, you make a political
judgment. Is that correct?

Mr. Atkey: I think there are both cases to be made. In the
first instance I think you should come to grips with the legal
question . . .

The Joint Chairman (Senator Lamontagnc): This will be
your last question, I am sorry.

Mr. Atkey: . . . and if you harbour serious doubts as to the
legality then you should urge the government to go to the
court. If, on the other hand, you were satisfied as a Committee
that there is no legal doubt then I would suggest still there
should be some small “p” political doubt based on existing
conventions and practices which I think are known to all of
you. I would suggest that this is a matter just not for poliical
judgment, it may be a matter for political decision in the sense
that this is a Standing Joint Committee of Parliament, and I
think your respective Houses have vested in you a certain duty
to look at these matters and to offer the best advice that you
cen, given the resources available to you. I have, as a witness
before this Committee, suggested a line that you may take,
that this, as a matter of political constitutionality, is invalid. I
am not suggesting that you scrap the substance of it for a
moment. I am suggesting merely that the Phase I unilateral
approach may be invalid and unconstitutional in the political
sense.

Mr. Breau: I would have many more questions but the
Chairman is in very bad humour this evening.

The Joint Chairman (Senator Lamontagne): Mr. Beatty,
Senator Forsey and Senator Neiman.

Mr. Beatty: Thank you very much, Mr. Chairman.

Mr. Atkey, I want to thank you for the excellent brief you
have presented. I apologize for the fact I was not here for this
afternoon’s hearing. I missed the first part of it. I have had a
chanc over the course of this evening to read it a bit though
and I certainly find the arguments you make very telling, both
in terms of the legality of the government’s proeedure—and
Certainly you argue that on Page 6, I draw to Mr. Breau’s
attention, at least one example—and in terms of propriety of
their action, and I think that your contribution would be very
valuable to our deliberations.

There are two other areas I want to touch on briefly if I
could, just to get some clarification. Your proposal with regard
to the House of the Provinces essentially endorses the proposal
that was made by the Ontario Advisory Committee on Confed-
eration who saw the House of the Provinces concept as being
one in which you would embody the principle that the mem-
bers of the Upper House should be the representatives of
provincial governments at the national level, and consequently
would change at the time the government changed in the
provinces.

I am wondering whether it is just a matter of clarification
that is required, or whether I misunderstood something. You
suggested on page 28 that it might be stipulated or it might
involve as a matter of practice that half of the provincial and
half of the federal members of the Upper House would be
appointed for a fixed term of say six years. Are you suggesting
that even if a government were overturned in the interim, a
member representing Ontario or representing Manitoba or
some other province would not be replaced by someone repre-
senting the new government?

Mr. Atkey: I put forward that proposal on the basis that
there was some concern about the absence of continuity and
permanence in the Upper House with the Ontario Advisory
Committee proposal. As I put it forward here, I would expect
whether it was by practice or actually written into the Consti-
tution that fifty per cent of the provincial and federal members
would continue to the end of their term. However, of course, if
there were a change of government in a province, the non-per-
manent members, if you will, would change, and of course
would speak for the government of the day in the debates in
the Upper House.

Mr. Beatty: I am just wondering where this leaves the
so-called permanent members, the six-year termers. Are you
saying that they would not be in a position, when a vote was
taken, that they could disagree with the official position taken
by their province by the provincial government, so they would
be effectively disenfranchised because they were appointed by
a regime of a different political stripe?

Mr. Atkey: I think you are making an assumption that
because there is a change of government in the province,
necessarily the substantive position is going to change.

Mr. Beatty: Certainly on some issues.

Mr. Atkey: On some issues it may not change. I think Mr.
Gibson’s presentation this afternoon clearly demonstrated that
despite the fact they are from opposing political parties, in
many respects his position is ad idem with that of the Premier
of British Columbia. I think first and foremost there would be
a duty to put forward the provincial position as a representa-
tive of the provincial government I do not think, given the
type of person I would like to see appointed to the Upper
House by the provinces, you necessarily have to assume that
they find themselves in this conflicting role.

I am looking frankly iriflterms of the permanent appoint-
ments for the very senior statesmen in each of the provinces,
persons who have a reputation and an ability that in some
cases can transcend traditional party lines. It may be an ideal
and altruistic position I am putting, but I would like to think
that is the sort of person ,who would come from the provinces,

Mr. Beatty: I have difficulty with the concept here in that I
can see it as ultimately being in conflict with the concept that
the provincial delegation from each province would be the
representatives of thepmvincial government. The words used
in the brief by the Ontario Advisory Committee on Confedera-
tion were that provincial delegations will be direct representa-
tives of provincial governments, and to me this implies that a
political judgment is made by the government of the day as to
what the position will be of that government and what the
position will be of that government spokesman in the Upper
House, and that every single representative of that government
would then toe the line.

I can see that, inevitably, there would be some areas where
there would be a difference of agreement, a difference of
opinion within the provincial legislature, and where people who
were appointed by a defeated government might very well find
themselves in opposition to the position taken by the new
government.

Mr. Atkey: That does not bother me particularly, Mr.
Beatty. In fact, I think it would be readily recognized as a
situation existing in the Upper House when that person spoke
in debates. Of course, ultimately their six-year term might
come to an end or they might choose to resign prematurely,
given the change of government. It is something I have not
worked out in detail, but I have put forward I guess what is a
modification of the Ontario Advisory Committee proposal
because I think there is a genuine concern about permanence
and continuity in the Upper House. I think there are ways of
meeting it and this is my suggestion. There may be others.

Mr. Beatty: I can understand that. I can also understand
that what you are talking about is people who would be above
the political fray. We have examples of that, I guess, in the
Upper House today, of people who are not impeded by parti-
sanship the same way as many of us in the Lower House. But
the difficulty would come with the question of where a person
had a difference of agreement. Would he be disenfranchised,
or would he be allowed to vote differently from the other
representatives of the province that he represented?

Mr. Atkey: I suppose, if it came down to that, he should be
given that right but it would be a minority vote from that
province.

Mr. Beatty: One other area that I wanted to just touch on
was the question of appointments to the Supreme Court. It is
an area in which my feelings are very mixed and I would like
your guidance on it.

I noticed that you argue that the fact that there would be
for the first time substantial provincial input into the appoint-
ment of Supreme Court Justices would not result in Supreme
Court Justices viewing themselves as delegates of a particular
province or region because it would be essentially formalizing
a procedure that has been followed in the past. But in the bill
itself, in clause 106 on page 50, line 34, it says:

(3) No person shall be nominated for appointment to
fill a vacancy in the Supreme Court unless the Attorney
General of Canada and the Attorney General of the
particular province agree to the nomination . . .

That would essentially, for the first time, give the Attorney
General of a province the right of veto over any candidate
from that province to the Supreme Court. Do you not feel that
the codification of this sort of a practice would change the
relationship between Supreme Court Justices and the govern-
ments in the provinces from which they come?

The Joint Chairman (Senator Lamontagne): This will be
your last question.

Mr. Beatty: I am sorry for the length of it, too, Mr.
Chairman.

Mr. Atkey: No. First of all, it is not an absolute veto. It is a
very limited veto. If the provincial Attorney General does not
agree, then you get into the nominating council procedure that
is envisaged in subclauses (4) and (5). So it is not an absolute
veto in that sense.

The fact of the matter is that this sort of consultation goes
on today and in many respects the appointments made to the
Supreme Court of Canada or the Courts of Appeal are agreed
on not only by the Attorney General of Canada but the
Attorney General of a province. We have, particularly at the
appellate court level in this country, been able to attract the
best legal minds and it seems to be one area where the two
orders of government are working together reasonably well.
And again, I put it to you that for the most part this is a
codification or a detailed spelling out of a proceeding which
exists now in an informal sense and therefore I do not see the
politicization giving rise to thejudges or the appointees looking
at themselves as regional representatives at all.

Mr. Beatty: Thank you very much.

The Joint Chairman (Senator Lamontagne): Senator
Forsey.

Senator Forsey: First of all, Mr. Chairman, I should like, in
my capacity as Senate Co-Chairman of the Committee on
Regulations and Other Statutory Instruments, to offer my
thanks to Professor Atkey for his kind reference to the report
of that committee on freedom of information.

Secondly, there are one or two questions I would like to ask
specifically about this business of the validity of phase one. I
do so with great diffidence as a non-lawyer in the presence of
not only a distinguished lawyer in the person of the witness but
ofa variety of other lawyers all of whom, I gather, think that I
am talking through my hat or have been talking through my
hat on the subject.

Nevertheless I had, shall I say, the good fortune to find
myself for once in the distinguished company of the Minister
of Justice and I appear, rather uncharacteristically for once, as
something of a defender of the government’s position in this
matter; because, with great respect I am looking new at page
6 of Mr. Atkey’s brief—with great respect, I cannot really see
how the proposals in the bill to give the provincial legislatures
or governments, or provincial leaders of the opposition or
whatever they may be, the power to make selections for the
House of the Federation come in any way within the exception
in Section 91(1) of the British North America Act which says
that Parliament cannot legislate, cannot amend the constitu-
tion, as regards rights or privileges by this or any other
constitutional act granted or secured to the legislature or the
government of a province.

It does not seem to me in here that the bill is dealing with
any right or privilege which has been granted or secured to the
legislature or the government of a province. It is merely
proposing to give the legislatures of the provinces certain
privileges, one might say, additional privileges beyond any-
thing they have guaranteed by any constitutional act, which
they may then exercise or not as they see fit. I cannot see how
it comes at all within that exception in subsection 91(1). And
the same thing seems to me to apply to the suggestion that
subclauses 63(1) and (2) clearly impose duties on the provin-
cial legislatures which interfere with their rights and privi-
leges. They may interfere with their rights and privileges, but
that is not what Section 91(1) says. It says:

—as regards rights or privileges by this or any other
Constitutional Act granted or secured to the Legislature
or Government . . .

And I cannot see that anything in this touches what are
already rights or privileges granted to the legislature or gov-
ernment of a province. I think this applies to a great deal
more, like the imposing a duty, as you say at the foot of the
page, of a provincial Attorney General in the matter of
Supreme Court appointments. I cannot see that it comes
within rights granted or secured.

Still more, it seems to me, it does not apply to the question
of the Senate. I think it is on page 9—or it may not be—where
you mention—no, I have not got the exact page. You mention
somewhere the Senate in this context and say, rights granted
to the provinces, and, therefore, to the provincial legislatures in
the matter of the Senate. I cannot see that the provincial
legislatures or the provincial governments have any right or
privilege whatsoever granted to them by this British North
America Act or any other constitutional act in regard to the
Senate. It has nothing whatever to do with it.

Now, I am not questioning what you call your political
point, and this may be a very bad way of proceeding. But I am
questioning very much whether it is an illegal way of proceed-
ing. And I think I have about ever lawyer in this room against
me on this; but this does not terrify me as much as it should. I
had this experience once before and the Supreme Court of
Canada finally came down on my side of the argument. But I
would like to have your opinion as to why you think these
things come within the very strict, limited terms of that
exception in subsection 91(1).

The Joint Chairman (Senator Lamontagne): Order, please.

Mr. Atkey: Senator Forsey, the key to the legal argument is
the fact it imposes a duty on the provincial legislatures. As I
understand The existing British North America Act, it states
now the rights and privileges and hence the duties of both
provincial legislatures and to a certain extent provincial gov-
ernments. That is in the existing B.N.A. Act.

Now we have Bill C-60 coming along and imposing a new
duty. It is not a privilege, it is a duty, as I read the bill, and the
obligation. And in all the expectations that have been raised in
the press releases and the explanatory documents about this
Bill, the expectation is that the provincial legislatures will
appoint these people. That is a new duty. The addition of a
duty in my opinion is an interference with the rights and
privileges granted by this constitution or other constitutional
acts. That is the basis of the legal argument, short and simple.

Senator Forsey: Well, that may apply to the first point,
although I think you could easily argue on the contrary that it
is a choice which is offered to them and which they may or
may not choose to exercise. and there is provision for an
alternative procedure if they do not choose to exercise it. Of
course, you say that is merely a default provision.

Mr. Atkey: That is fundamentally the issue where I differ
from the Minister of Justice. He says it is an optional proce-
dure. As I read the plain language of subclauses 63(1) and
63(2), they impose a duty and only in the event of the failure
to exercise that duty is there a default provision. In my opinion
there is a difference in law.

I would suggest to you that in matters of technical law there
is room where reasonable men can differ and I want to suggest
nothing more today. I do not want to give a definitive opinion,
merely to suggest there is this genuine disagreement among
lawyers or constitutional scholars as to what this does and I
think, given the importance of the matter and given the
determination of the government to move unilaterally, we
ought to ask those who are charged with the responsibility of
making the ultimate decision as to legality for an opinion.
That in my view is what the reference powers in the Supreme
Court of Canada are for.

Senator Forsey: I quite agree with that. I think there is
obviously sufficient doubt about it that it ought to go to the
Supreme Court. But what about the question of the Senate? I
do not think you are on even as possibly strong ground there as
you are on the other. What rights or privileges with respect to
the Senate are guaranteed by any constitutional act to the
legislature or the government of any province?

Mr. Atkey: I would suggest that my position on the Senate
is stronger than the Supreme Court of Canada because the
additional ingredient in the Supreme Court of Canada, of
course, is Section 101, which is a permissive section and which
is fairly wide open.

Senator Forsey: Yes.

Mr. Atkey: With respect to the Senate, the role of the
provinces is not as clear. There is a guarantee to the provinces
of regional representation in the Senate.

Senator Forsey: That is not the . . .

Mr. Atkey: I agree. That is different. Unless you treat it by
inference, that is different than guarantees, rights, privileges of
the government or the legislatures, but I suggest, and I go back
to my original position, that the rights and privileges now of
the provincial legislatures and governments are spelled out in
the British North America Act . . .

Senator Forsey: Yes.

Mr. Atkey: . . .as it now exists. This imposes a new duty
that is not contained in there. It is a duty that is imposed
unilaterally.

Senator Forsey: But you are getting back to the other point.
I amtalking now about the Senate. Show we anything in any
constitutional act that gives the legislature or government of
any province any right or privilege whatsoever with regard to
the Senate.

Senator Flynn: They say the province will have so many
members.

Senator Forsey: But not the legislature or the government.

Mr. Atkey: I would suggest that even if you are right, my
argument still is sustained in the sense that the existing rights
and privileges of the legislatures in the provincial government
in total are outlined in the existing . . .

Senator Flynn: Sure.

Mr. Atkey: . . .British North America Act. For a federal
Parliament to come along and impose a new duty and to raise
that expectation is an interference with what is already spelled
out in terms of existing institutions in the British North
America Act.

Senator Forsey: Well, we will see. Nous verrons.

The Joint Chairman (Senator Lamontagne): Senator
Neiman.

Senator Neiman: Mr. Chairman, Mr. Atkey, as a practising
lawyer—and you have been a practising politician and I am
sure you hope to be again here—I was a little curious in a
sense at perhaps the priority you placed on the resolution of
the question you have just been discussing with Senator
Forsey. If you were a member of this Committee today, would
you feel that it should in a sense abdicate its responsibility and
just, as I see it, ask the Supreme Court to make an adjudica-
tion on the questions that you have raised, which I consider
very valid and I may say that I agree with your arguments, or
do you feel that it is still the responsibility of a committee, of a
parliamentary committee, to make a decision and recommen-
dation in the light of not only the strict legalities of this bill
but of the customs and usages that may pertain to all the
clauses that are contained in it?

Mr. Atkey: My first choice would be to settle the legal
issues because there are two advantages. First of all, it can be
done reasonably quickly through the reference power, and
secondly, it has finality to it. No one is going to challenge a
decision of the Supreme Court of Canada on a matter such as
this, You see, you are not the only committee that has some
sort of authoritative basis looking at a new constitution. The
Robarts-Pepin Task Force has been charged with certain
responsibilities by the Government of Canada, The first minis-
ters will be meeting here in October. The provincial premiers
and their officials have been spending a fair amount of time on
this subject and we saw the evidence of some of their work on
August 10 in Regina. Each of you as a group, of course, have
your ultimate responsibility to your respective legislatures or
assemblies, as the case may be, and can make a decision, but
none of you have the degree of authoritativeness, if I can use
that term, of the Supreme Court of Canada. Given the urgen-
cy of the matter and given the fact that all these bodies are
considering these issues—and I think this is good; it is part of
the dynamic process, I think, to clear up the legal doubts early
is in the interest of maintaining the ongoing process—that is
why I offer a legal resolution of these matters quickly and
early, first.

And it is only in the event that you are unable to do that and
obviously the Minister of Justice, after having carefully con-
sidered what I thought were fairly reasoned arguments of
Professor Lederman, thought as of last Thursday at least a
reference was inadvisable for the reasons that he stated. Then
I suggest a second time of attack; take a stand and make up
your own minds as to, in effect, the political propriety of this,
whether it is constitutional. Of course, you, as a Committee,
cannot refer this to the Court. Your procedure is to report, as I
understand it, back to your respective Houses advising the
Governor in Council to submit a reference and it still remains
the ultimate discretion of the Governor in Council as to
whether the reference goes and in what language. Of course,
how one asks the questions is absolutely crucial.

Senator Neiman: Who would decide that? This is the point
that . . .

Mr. Atkey: The Governor in Council would make the
decision as to . . .

Senator Neiman: In other words, the federal government . . .

Mr. Atkey: The federal Cabinet would make the recommen-
dation. But I can say this to you, if the Special Joint Commit-
tee on the Constitution went back with the report to the
respective Houses and recommended that a reference be sub-
mitted, I would think it would be very difficult for the
Governor in Council to resist that recommendation.

Senator Forsey: Would the Committee even suggest the
form of the question?

Mr. Atkey: Yes. The decision, of course, is clearly that of
the Governor in Council in law.

Senator Forsey: Right.

Senator Neiman: You really did not seem terribly enthusias-
tic about all the attention that has been paid to this Upper
Chamber and the reforms of it. Where do you think the
emphasis should be placed in constitutional reform? Should it
be primarily on the division of powers or should we at the same
time be considering the essential role of Parliament and the
reform of Parliament, not just the reform of the Upper House,
it being a constituent of part of this reform?

Mr. Atkey: I think all the proposals have to be on the table
because they all interrelate, when you start tinkering with
institutions you may, in fact, on division of powers and vice
versa. In terms of priority, I put the Charter of Human Rights
and Freedoms at the top of the list and immediately following
that I put division of powers but you cannot talk about
divisions of powers unless you get an amending formula.

I think the institutions ultimately should be the last thing
you consider because the institutions are going to be the
instruments for the exercise of the powers that are ultimately
decided on. And sometimes what you do with institutions
depends on what sort of powers you want: for example, if you
were not going to have an entrenched charter of Canadian
Human Rights and Freedoms, that may lead to certain minor
changes to the Supreme Court of Canada. On the other hand,
if you were going to entrench a charter I think your institu-
tional changes may be different as a result. So, that is my
priority, in any event.

Senator Neiman: Thank you, Mr, Chairman.

The Joint Chairman (Senator Lamontagne): I have no other
names on my list.

Mr. Gauthier: Mr. Chairman, may I ask Mr. Atkey a few
questions?

The Joint Chairman (Senator Lamontagne): Mr. Gauthier.

Mr. Gauthier: We were told that the provinces could
through their courts of appeal question the validity or the
constitutionality of Bill C-60. Do you think this is possible as a
route to follow or do you think as a constitutional lawyer you
would not advise that?

Mr. Atkey: It is possible but not advisable. It has two
deficiencies. First, a technical one: there is some doubt in some
provinces, given the scope of the language of their reference
power in statutory terms as to whether one can refer prospec-
tive legislation or matters which are not yet law to the Court.
In Ontario, for example, it is possible but there may be other
provinces where it is not possible. But the real reason why I do
not think it is advisable is that you may have conflicting
decisions in different provincial courts of appeal. I think if this
thing is going tobe argued legally, there is only one place it
should be and that is the Supreme Court of Canada because,
you see, once the reference is submitted then notice must go
out to all the provincial Attorneys General as well as other
interested parties, and our Supreme Court has developed
pretty sophisticated rules for standing, and then you get one
legal decision, and it has that note of finality to it. So while it
is open to a provincial government to submit a reference to the
court of appeal and, indeed, out of frustration, if the federal
government fails to act, I can see some provincial governments
actually threatening that and indeed carrying it out, it is not
the ultimate solution and I would hope ultimately the thing
should go down the street to the Supreme Court of Canada,
where it should be in the first place.

Mr. Gauthier: Thank you.

Mr. Atkey: I may say, Mr. Gauthier, that even if a provin-
cial court of appeal were to receive a reference from a provin-
cial government and they make a decision, under the rules of
the Supreme Court the opinion, which is commonly called a
decision, would be appealable.

Mr. Gauthier: Of course.

Mr. Atkey: So it is going to get to the Supreme Court of
Canada anyway, but perhaps in a more narrow way than if it
were originally submitted to the Supreme Courts in the first
place.

The Joint Chairman (Senator Lamontagne): Senator
Neiman.

Senator Neiman: Mr. Chairman, I am sorry, I must be
thinking slowly at this time of the night, but I just wanted to
go back to something Mr. Atkey said in terms of his priority.

Do you not think, Mr. Atkey, that a charter of human rights
which we all believe in and I think we all would subscribe to if
we could get a federal charter, although it is essential in itself,
does not constitute a constitution. It could stand by itself. I
mean you could have a Canadian Charter of Human Rights
but that is not the constitution that we all are being concerned
with here.

Mr. Atkey: If you have a declaratory statute which is an
ordinary Act of Parliament and you call it a charter, you call it
a Canadian Bill of Rights, the provinces can do the same thing
within their own legislatures. No, that is not a constitutional
document in the formal legal sense.

When I say a Canadian Charter of Human Rights I am
talking about an entrenched document binding on both orders
of government, provincial and federal. That is the sort of thing
that was attempted in 1959 and 1960. As you know, Mr.
Diefenbaker was unable to obtain the consent of all the
provinces and so he did the next best thing. He enacted an
ordinary Act of Parliament binding only on the federal level of
government. I think that was unfortunate that we could not
achieve more at that time, but that was the way the cookie
crumbled in federalaprovincial relations at that time.

The Joint Chairman (Senator Lamontagne): Perhaps I
could correct the record and say that Mr. Diefenbaker never
tried to get that kind of an agreement.

Mr. Atkey: That is not my understanding of history, sir, and
I have read rather extensively in this area. I stand to be
corrected but I think Professor Tarnapolsky’s book on the
subject pretty clearly states that was attempted and requested.

Mr. Stanfield: Mr. Chairman, I do not want to prolong
things too much but I would like Mr. Atkey to comment just
on one aspect of the second chamber. Some who have come
before us, including the Ontario Advisory Committee, are
obviously concerned about regional tensions and using the
second chamber in a manner they consider more effective than
the present Senate to resolve regional tensions and to provide
some mechanism for working out more federal-provincial har-
mony. It is pretty clear from sitting around the table that
many, if not most, members of this committee are very con-
cerned about any such proposal on the basis that they believe
it would lead either to hamstringing the federal government by
setting up a rather hostile type of chamber and/or creating a
second chamber that is racked by a complete inability to see
the national interest.

You have endorsed a modified view at least of the recom-
mendation of the Ontario committee. Without taking all night,
what have you got to say about these concerns? Why do you
put this forward? Why are you not concerned about the
government being hamstrung, and why do you think the
second chamber of the sort you propose would really be in the
national interest?

Mr. Atkey: The basis of my proposal, and I suppose it to be
that of the Ontario Advisory Committee, is that somehow a
way has to be found to involve the provincial governments in
what goes on up here in Ottawa. I think, to a degree, the
government of the day is often hamstrung now by the provin-
cial governments; I think they are often hamstrung by provin-
cial cabinet ministers and premiers who find it very easy, in
the quietness and protection of their own legislative assembly
building, to fire bullets at Ottawa. I think federal-bashing, or
“fed-bashing” as it is called, is a very popular sport in many
provincial capitals.

I somehow feel that to have an institutional involvement of
these provincial cabinet ministers and premiers up here will
somehow bring them into the process in a way which will
arrive at a greater accommodation of interests with the federal
government rather than an exacerbation of existing conflicts. I
think it is one thing for a provincial premier, in the protection
of his own legislative building, to fire bullets at Ottawa, and it
is done all the time—it is too easy. i think that for that same
provincial premier to go down the hall in an upper chamber to
make those same arguments in the cold light of publicity, with
his other provincial counterparts and federal counterparts
sitting there with the national glare of television cameras on
him, will somewhat soften the positions he puts forward; and I
would suggest that the accommodations that can be achieved
will be far greater than the present situation.

It is my concern, having, I suppose, in the last few years,
spent a little bit of time around Queens Park, to see even that
legislature, that government, somewhat isolated from Ottawa,
even given the small distance involved; and if that is the
situation that exists at Queens Park, then I can imagine that in
British Columbia or in Nova Scotia or Newfoundland, the
situation is even worse.

It is to remove that alienation of the provincial governments
from the central institutions that I think we have to make what
are fairly radical reforms to the Upper House; and I do not see
the blocking of function as being any more serious than the
ability of the existing Senate to block legislation, quite frankly.

Senator Forsey: We have no clout!

Mr. Atkey: Well, you have a great deal of clout in some
respects, in terms of legislation coming from Parliament.

Mr. Stanfield: The present senators would perhaps say that
they do not have the motivation to block, whereas the House
you are proposing might have some motivation to block, I
presume, without putting any words in the mouths of the
senators present.

I sense that the prevailing opinion among House of Com-
mons representatives on the Committee in that they are quite
capable of representing their regions and the regional con-
cerns, and, among the senators, that they too are quite capable
of representing the regions for which they are appointed. Have
you taken the position that in our present Parliament, one does
not adequately reflect regional interest and/or is not capable
of consistently expressing these regional interests? Is that what
you are saying?

Mr. Atkey: Yes, I agree with that approach.

Mr. Stanfield: I am just asking you whether . . .

Mr. Atkey: Let me speak from a brief personal experience
as a member of Parliament.

I viewed my role, before I came here and as a result of my
experience here, as a national legislator. I was, I believe,
elected by the people of my constituency to come and do the
best I could on national issues, and on several occasions I
found myself taking positions that were in opposition to that of
my provincial government at Queens Park, and I did not see
anything wrong with that; and I suspect that there are many
members of Parliament who regard their function in much the
same way.

I do not think it is a proper role of the House of Commons
to represent regional interests in the political sort of way that I
am talking about, in putting forward a role of the Upper
House involving direct provincial government representation. I
think there is a very clear distinction. I think there should be a
healthy tension between national legislators, that is, members
of Parliament and provincial representatives of the provincial
government. I would be somewhat concerned if they always
agreed. That is part of the dynamic of federalism as I under-
stand it. So I think it is no answer to hold up the House of
Commons as capable, or indeed whether it is proper that they
represent regional interests in the way that I have put forward
for the Upper House.

Mr. Stanfield: Thank you, Mr. Atkey.

Senator Forsey: May I have a second round?

The Joint Chairman (Senator Lamontagne): Yes. Mr.
Whittaker, on the first round.

Mr. Whittaker: Mr. Chairman, l would like say first that I
thank the witness for his presentation. I think he has made an
excellent presentation. Having known him for at least six
years, I cannot subscribe to the red-neck connotation. If I do l
would not know what that made me, really.

Are you not really talking about responsibility, putting
people in places where they have a responsibility? In my
experience over the years, responsibility has been a great
leveler. You can sit, as the witness said. in ivory towers and
take shots at this and shots at that. You can also use innuendo,
anything you want, and really if you do not have that responsi-
bility it is meaningless, although it gets great publicity. it gets
wide coverage and a lot of people subscribe to what they are
talking about.

What I said here, and believe that you are saying, is that
you want to put people in places where they have a responsibil-
ity, and then they will act and do differently than what they
have been doing. is that not correct?

Mr. Atkey: Yes, I agree with that.

The Joint Chairman (Senator Lamontagne)z Senator
Forsey.

Senator Forsey: l just want to raise one question about what
the witness said about Clause 8:

Every citizen of Canada, wherever the place of his or her
residence or domicile . . .

and so on, has certain rights, and he referred particularly to
the statute in Prince Edward Island and the decision in the
Morgan case.

l, for the life of me, cannot see why he thinks that is ultra
vires because it seems to me that the point he made is quite
clearly covered by Clause 131, which seems to say quite
clearly in subclause (1):

Until such time as this subsection is repealed by subsec-
tion (4), the provisions of the Canadian Charter of Rights
and Freedoms as enacted by this Act shall be read and
construed as extending only to matters coming within the
legislative authority of the Parliament of Canada, except
as otherwise provided by the legislature of any province
acting under the authority conferred on it by the Consti-
tution of Canada.

Why does that not meet your argument about Clause 8 being,
in your opinion, ultra vires?

Mr. Atkey: If that is your interpretation of the effect of
Clause 131, Senator-Forsey, then Clause 8 is not worth the
paper it is printed on in terms that it has no impact or
importance whatsoever to the Canadian citizen. That may well
be the case.

Senator Forsey: Until it is adopted by the legislature con-
cerned, it does not seem to me to have any meaning at all.

Mr. Atkey: That is right, and accordingly, and this I know
does not meet your legal contention, it may be raising a false
expectation in the mind that citizens of Canada have these
rights when in fact they do not when Parliament passes this by
ordinary statute, and that is a danger.

In a legal sense I go one step farther. Given the difficulties
of Clause 131 which I have outlined in my formal presenta-
tion, that permeates Clause 8, in my opinion, because I do not
think Clause 131 is severable from the whole charter. I single
out Clause 8 for specific treatment because I think there is an
additional legal ground there, not just the invalidity of Clause
131, but the fact that it so clearly deals with property which is
so clearly a matter of provincial jurisdiction under Section
92(13) of the British North America Act.

Senator Forsey: Well, there are various things in connec-
tion, for example, with the limitations upon the power of the
provinces to change the length of their legislatures and that
sort of thing and franchise and so forth, which would clearly
be ultra vires if it were not for either 131 or some other
analogous provisions which say that they shall not come into
force until adopted by the legislature. But I should have
thought that covered the situation. However, I have raised my
question; you have answered it. That is all.

The Joint Chairman (Senator Lamontagne): Mr. Beatty.

Mr. Beatty: Thank you, Mr. Chairman. I shall be very brief.
Mr. Atkey, you caught my ear with something you were
saying to Mr. Stanfield about the role of a member of Parlia-
ment when you seemed to suggest that a member of Parlia-
ment’s chief responsibility is essentially national as opposed to
regional, that it would not be desirable to lay a heavy emphasis
upon regional functions on the part of MPs and that it is better
to find some other mechanism to provide that sort of input. I
wonder whether I am simply extending it too far.

Why then would you not make the argument in favour of
changing the basis of representation in the Lower House to
one of a proportional representation system? At the present
time there is no body in our government which is more
regionalized than the House of Commons is, with each
member of Parliament expecting to run individually in a
consistuency and represent some 85 or 90 or 100,000 people.

Mr. Atkey: Yes, that is part of the electoral process, It is the
basis of how each individual member of Parliament gets here.
Nevertheless, I think when one examines the duties or, as Mr.
Whittaker said, the responsibilities of a member of Parlia-
ment, in my experience they surely extend beyond merely
owing a duty to those 85,000-odd people who sent you here in
the first place. Your duty is to the country as a whole. And
certainly in my brief period here I found myself concerning
myself with national issues and considering legislation and the
national implications of the legislation; that surely is part of
the function. I think to go to a proportional system, like you
suggest . . .

Mr. Beatty: Oh, no; I am certainly not suggesting that.

Mr. Atkey: Well, you put that forward.

Mr. Beatty: I am saying it is the logical extension of the
argument that you make.

Mr. Atkey: Yes.

Mr. Beatty: It would remove from members of Parliament
any regional representative responsibilities they might have.

Mr. Atkey: That is right and that would move to the
absolute notion of national legislatures. I would not favour
that. I think we are not dealing here in absolutes, that a
member of Parliament has a regional aspect to his duties. I do
not think he is completely devoid of regional aspects and
obviously there is recognition of this too in the House of
Commons in terms of Cabinet responsibility; and it has been
fairly evident that it is a practice with modern governments in
Canada that there is a minister responsible for a certain region
of Canada. So to that degree you have the manifestation of
regionalism. And that is not a bad thing either.

I rather like the House of Commons as it is now put
together in an institutional sense; I think there can be proce-
dural improvements but I think the body functions reasonably
well or I would not try to come back here.

Mr. Beatty: Sure. The only reason why I picked up on that
point is that I would be inclined to go in the opposite direction
with regard to the House of Commons and by a loosening of
the requirements of caucus solidarity or party solidarity in the
House to enable members of Parliament to be much better
spokesmen than they have been in the past for regional
concerns. And I think it is a dynamic tension to be felt by
individual members having to justify in a very direct way on a
day-to-day basis the position they take on issues to their
constituents if they could not hide behind the argument that
this issue was critical to the survival of the government itself or
this issue that my vote could have resulted in the defeat of the
government.

May I just touch on another area? Obviously the suggestion
that the Upper House be turned into a House of the Provinces
is based very much on the Bundesrat in Germany and I just
wanted to follow up on that briefly. There are two questions I
want to ask you.

The first is that my understanding is that in the Bundesrat
in Germany legislation is introduced first into the Upper
House and then after there is a short period of time in which
the representatives of the provincial government are required
to take a position and to study the bill and pass it, and it then
goes to the Lower House. I want to ask you, firstly, do you feel
that this would be a desirable change for Canada so that the
question of federalism was dealt with first?

And, secondly, I am wondering whether you have looked at
another aspect of the system in Germany where the various
liinders have representatives almost like embassies in Bonn
which work very closely with members of Parliament in both
the Upper and the Lower House in pressing upon them
regional problems and ensuring that they have resource ma-
terial available to them relating to the interests of the people
they purport to represent.

I am wondering whether you feel that one of the ways of
improving provincial input at the central level of government
would be for provincial governments to establish this sort of a
system and to have in essence provincial embassies or provin-
cial diplomatic staff in Ottawa who would help to provide
resource material and backup staff for members of Parliament
from that region.

Mr. Atkey: Well, to take your questions in order, Mr.
Beatty, I would not favour the upper house having the power
to initiate legislation in the manner you describe. I think I see
it more as a reactive body. I think there are severe constraints
of time and energy. Many of the people will be active people
running a provincial government and I do not think they will
have the time or the resources or the inclination to undertake
that necessary first step. I think it is the reactive step that is
important.

With respect to your question on permanent staff here, I
think that might be a natural result if you had a House of the
Provinces, which I would still call the Senate, in the manner
that I have proposed. I think obviously each provincial govern-
ment will want to see that its representatives do a good job and
will see that they have the resources to do it, including the
people. I suppose to a lesser extent, a few years ago when the
Conference Centre across the street was first established from
the pre-existing railway station and certain rooms or areas of
the Conference Centre were set aside with names of provinces
on the door, it was hoped and contemplated that there might
be persons working there on a full-time basis to service the
federal-provincial conference, as the case may be. Unfortu-
nately, and I think this is symbolic of the state of federal-pro-
vincial relations, those rooms are empty most of the time
unless there is a federal-provincial conference going on. I
would hope that there might evolve this sort of situation that
you describe. I do not think I would go so far as to call them a
diplomatic corps.

Mr. Beatty: I think I would choose different words too.

Mr. Atkey: Mr. Levesque might be happy with that word
but I do not think there are many others in the country that
would.

Mr. Beatty: Again, thank you very much, Mr. Chairman.
Again, it is a very helpful presentation, Mr. Atkey.

Senator Forsey: Would that not involve dominion status for
the provinces and then ultimately ten mini-states?

The Joint Chairman (Senator Lamontagne): Mr. Collenette
and then Senator Langlois.

Mr. Collenette: Thank you very much, Mr, Chairman. I
would like to turn to this sort of loose philosophical discussion
we have been having. I share some of the concerns or opinions
that Mr. Stanfield and Mr. Beatty have expressed, and I
expressed them this afternoon but I am not sure whether Mr.
Atkey was here. But this whole notion of provincial govern-
ments, provincial legislators being the only legitimate articula-
tors of regional interests is one that I completely reject. I could
give lots of examples of how M.P.s represent regional points of
view if I gave away a few caucus secrets, which I am not
prepared to do. But in respect of the announcements within the
last week on the question of unemployment insurance you have
Mr. Stevens and Mr. McGrath of the Progressive Conservative
Party expressing opposite points of view basically, each really
reacting to the regional point of view. Certainly Mr. McGrath
is in an area with high unemployment, and I am sure that his
views are perhaps shared by some of the Atlantic members of
our caucus. But, on the other hand, Mr. Stevens comes from a
relatively prosperous area which is concerned with the
so-called decline in the work ethic, which I am familiar with in
some parts of my constituency, and I can see how he is
articulating that regional point of view. And both these gentle-
men have done it publicly. I am sure that there are examples
where people in our party have gone public in disagreeing with
the government’: stand or expressing a regional point of view.
I reject completely this notion that those persons elected in
provincial elections are the sole articulators of regional inter-
ests. I, as I said this afternoon, was elected to represent my
constituents, more generally the constituents of metropolitan
Toronto since my area is regionally typical of metropolitan
Toronto, and southern Ontario which has many similarities
with the Toronto region, in the national interest. And I would
submit that if you subscribe to this argument or proposition of
bringing the provincial premiers and perhaps their cabinet
ministers into this House of the Federation, it will eventually
end up destroying the country because the weaker provinces
would have no final arbiter, would have no Parliament to
moderate or level all of the attitudes within the country. And
you said, well, you would expose these people, they would
come to Ottawa and they would not be as parochial as they are
in their own legislatures. We know full well that what would
be said on the floor of the House of the Federation really
would not be the whole truth; the whole truth would be in
corridors of this House or this building, or in hotel rooms,
where essentially deals would be worked out between the
powerful provinces, the powerful provincial delegations, per-
haps at the expense of smaller provinces that absolutely
depend on and are vitally in need of a federal Parliament and a
federal government that must see the national interest.

My four years up here have been very difficult ones. It has
been a difficult period for the country because many of the
stands that have been taken by our party, for example, or the
government, perhaps have seemed somewhat illogical to some
of my constituents, I have to go back to them and say, well,
yes, that particular point of view is acceptable in metropolitan
Toronto, but you have to realize the tensions in Quebec or you
have to realize the economic conditions in the Atlantic region
of the country, or you have to realize the legitimate aspirations
of the Province of Alberta to control its own resources. It is not
easy to go back to constituents and say that. But it is the role,
I think, of a member of the House of Commons. We can
articulate this regional point of view.

I am sorry again I really have not posed a question, but I
am just trying to enter into this argument. Mr. Beatty, I think,
introduced a good point which I mentioned a few weeks ago:
this whole question of relaxing the Whips. You would have
much better regional representation in the House of Commons
if the Whips were relaxed.

The Whips, I am sure on the Conservative side and on the
New Democratic side it may be the same, but on the Liberal
side sometimes the Whips are exerted to ridiculous lengths. If
we are going to institutionalize a practice whereby govern-
ments can come back and seek a vote of confidence, then
would it not be better to allow the individual backbenchers on
the government side or even on the opposition side who
disagree, as the case may be, with Mr. Stevens and Mr,
McGrath, to exercise their own judgment and perhaps govern-
ment bills will be defeated? And if the opposition say, well,
this constitutes a major vote of confidence, let us take a vote of
confidence. I think this notion of relaxing of the Whips is one
we could look at to improve the regional input into the House
of Commons.

Certainly I have been one who has never been terribly fond
of the Upper Chamber and I think the government has done
about as well as it can in coming forward with what I consider
would be an ingenious proposal to invole the provincial legisla-
tors. Take for example the Province of Ontario, if the provin-
cial government in that province as at present constituted—a
minority government—could appoint the provincial members
of the House of the Federation, what about the more than 50
per cent of the people in the Province of Ontario who are not
represented in the Government of Ontario and who therefore
would not have their regional point of view articulated in the
Upper Chamber?

So I think there are a lot more questions that should be
asked and answered about this whole subject before we thor-
oughly define ourselves.

The Joint Chairman (Senator Lamontagne): A brief
response.

Mr. Atkey: Speaking about asking questions, I was about to
ask you what yours was.

Mr. Collenette: I said that was more of a statement and
reaction to what you had been saying.

The Joint Chairman (Senator Lamontagne): You can go on,
if you want to.

Mr. Atkey: I think, Mr. Collenette, you and I could agree to
ee. I think the role of the national legislator, the member
arliament, obviously is not devoid of regional consider-
as you have pointed out. There are practical examples
on all sides of the House, Nevertheless, we have a cabinet form
of government; the Whips have been and will be applied where
necessary in order to sustain a government in office; that is
part of the system. That does not mean that a member of
Parliament on the government side must become a trained seal
as is often suggested from time to time. There are many
functions as a national legislator, particularly in an investiga-
tive sense, that can be performed by a member of Parliament.

But the fact of the matter is that under our existing consti-
tutional relationship, the provincial governments each have a
major responsibility for a given region of their country, called
a province, and they must assert that view: that is the basic
scheme of the British North America Act. So far, those
constituent units of the federation, under present arrange-
ments, feel alienated from the centre to an extent that I have
never seen, certainly in my short period of observing practical
politics in this country, and therefore I try to come to grips
with the problem by doing something about it through an
institutional change.

The proof of the pudding is in the eating. The premiers in
Regina, when they said that the House of Federation as
proposed is unworkable, and they said that unanimously. that
was not just some kowtowing to Rene Levesque or any
Machiavellian motive for ulterior purposes: that is a deeply-
held view virtually in all the provinceswit will not work; and
frankly, I would rather take the view of provincial govern-
ments, representing all parties, covering the nation from sea to
sea, in an assessment of an institutional change.

It will provide, of course, minotiry party representation in
the House that my proposal would not. But I am talking about
a provincial or regional representation related to constitutional
or legal responsibilities in that region, and it is the government
of the province that has the responsibility to govern and has
the responsibility, in my view, to get along with or treat with
the federal government, not the minority parties in the legisla-
ture. So that really is the philosophical or political basis of my
proposal.

[Translation]

The Joint Chairman (Senator Lamontagne): Senator
Langlois.

Senator Langlois: Mr. Chairman, on the same matter, I
would like to refer to a statement which was made tonight by a
member of this Committee, a statement which declared that
members of the Senate might not have as much motivation as
members of Parliament concerning regional interests. It sup-
ports what was said earlier by our colleague, Mr. Knowles,
who last week said that the senators do not have the necessary
moral authority to block the government.

I presented last week before this Committee, statistics which
show that during the last three sessions of this Parliament, 373
amendments were made to government bills, notwithstanding
the bills which had been returned to Cabinet, and which were
not brought back before the House of Commons or the Senate,
because we had amended those bills excessively! Among
others, I might mention the Aircraft Registration Act which
was completely rejected by the Senate Transport Committee,
because the provinces had not been consulted on this subject,
and because this bill would have affected the implementation
of provincial laws on mortgages in Quebec, and on the chattel
mortgages in the anglophone provinces of the country.

Moreover, on the same subject, could the witness tell us if he
agrees that representatives under the plan proposed by the
Ontario Advisory Committee, or the provisions of the bill now
under study, that would be named by the provincial legislators
or other provincial parties, would be more independent, more
aware of regional needs, of regional interest in all parts of the
country than are presently the six former provincial premiers,
the nine former leaders of the provincial oppositions, the
twenty former provincial members of legislative assemblies,
the nine former mayors, and eight former aldermen or munici-
pal councillors which presently sit in the Senate? Is the fact
that in the future the members of the Upper House will be
appointed by provincial governments going to ensure that they
will lose all their political attachments, that they will become
totally independent from one day to the next, and that they
will be here to represent regional interests before the interests
of their political party? That is my question. Must we set aside
the expertise which we now have on hand and risk replacing it
with people who will be here as the spokesmen of Mr. Leves-
que or other Canadians?

[Text]

Mr. Atkey: Senator, in the first instance, dealing with what
I call “the sober second thought” function, the review function
of the Senate, I for one think the existing Senate has per-
formed that function reasonably well, and it is with that in
mind that in my proposal I have suggested that a portion of a
third or a quarter of the members of the Upper House be
appointments of the Governor in Council. And I would hope
that the same type of appointments as we have had to our
Senate would continue to be federal appointments and they,
together with the permanent continuing members appointed by
the provinces, would continue to perform that function as well
as the investigative function, which has been a bit of a
tradition with the Senate from time to time with committees in
the same way that it has in the past.

With respect to the regional representation function in the
existing Senate, I would suggest, with all due respect to
Senators who now supposedly represent regions or are former
premiers or former ministers of cabinets and provincial gov-
ernments, the difference between that existing situation and
my proposal is that those persons, while they have historically
had a regional responsibility, today under our constitutional
setup do not have that current legal responsibility to that
region. They are not new office holders or representatives of
office holders in those particular regions, and there is a very
great difference, because first there is the effluxion of time and
secondly, the changing of political parties. So while we have a
degree of regional representation in the Senate today, I do not
think it is sufficient to satisfy the regions who are making the
demand for representation at the centre. Most important, and
this goes back to my original thesis, it is not a sufficient vehicle
to give the provincial government a role to play at the centre,
which in my view is necessary to keep this country together.

Senator Langlois: Well, very good. I am in my thirty-fifth
year in Parliament here in Ottawa, time which was equally
divided between the House of Commons and the Senate, and I
can guarantee that my attitude in the Senate has not changed
from the attitude I had in the House. I have voted against the
government in the House and I have voted against the govern-
ment in the Senate and I have done that repeatedly. Nothing
has changed me because I am appointed now. That does not
change my attitude and my wish to help my former constitu-
ents. And in speaking of the representation of regional inter-
ests, you must not lose sight of the fact that in Quebec we
represent electoral districts in which we must be qualified. We
must own property in the district that we represent. Quebec is
divided, as you know, into 24 senatorial districts. When I was
a member of the House of Commons, I lived in Quebec City
and I represented the east end of the province, Gaspé and the
Iles-de-la-Madeleine. I had no residence, no qualification
whatever there. I figure that now I am representing much
more the senatorial district for which I have been appointed
than I was when I was a member of the House of Commons,
especially in this particular situation which exists in Quebec as
far as senator appointments are concerned. Of course this does
not exist outside Quebec because senators are appointed at
large in the other provinces.

Mr. Atkey: But, Senator, you are not suggesting for a
moment that you represent the Government of Quebec, are
you?

Senator Langlois: No, not at all. Why should I? If you paid
me to represent it, I would say no.

Mr. Atkey: Well, that perhaps is where there is a vacuum in
the Upper House, sir.

The Joint Chairman (Senator Lamontagne): Miss Mac-
Donald.

Miss MacDonald (Kingston and the Islands): Thank you,
Mr. Chairman. I would like to just perhaps enter into this
philosophical debate that Mr. Collenette has suggested that we
have going with regard to the second chamber. I have to ask
myself when changes are proposed, what is the rationale for
any projected change.

It seems to me that there is a bit of argument or discussion
going on here that is based on perhaps a false premise, the idea
that members in the House of Commons are not regional
representatives or that present appointees to the Senate would
be better regional representatives or new appointments to a
second chamber would be better regional representatives. I
really think that is quite apart from the recommendations that
you are making as I see them and I want to present what I see
and perhaps stand corrected.

No member of Parliament surely states that they are not
representative of regional interests but regional interest in
certain specific legislative responsibilities. I would think I
would come here to the House of Commons as a regional
representative for my own constituency and in the general area
of the Province of Ontario in which I live, in eastern Ontario,
but the regional representation that I would voice would be in
those matters that come under federal jurisdiction.

There are a number of matters that come under provincial
jurisdiction, that I would feel no onus or responsibility to speak
to in a federal House, but they are matters that greatly affect
the working of the federal system and they relate, of course, to
the division of powers.

As I see any second chamber, whether it is one that you are
proposing or one that the Ontario Advisory Committee is
proposing, that would include the representation of provincial
governments, the rationale would be to try to take the level of
government and the policies that are formulated by that other
level of government, the provincial governments, and which
often have caused needless dissension in the country when two
levels of government are in conflict over the division of powers
or over the way in which their separate powers conflict with
one another, and it would be to take representatives from that
other level of government, that other order of government, and
place them into some kind of representative capacity here
which would perhaps initially seek to avoid conflicts that had
developed in the country in recent years or, on the other hand,
inform the federal government as to how better they could
improve their legislation of a federal nature.

But equally I would suggest that would bring together
representatives of provincial governments who are formulating
policy for their areas or regions so that there is a forum in
which representatives of the Government of Nova Scotia can
be better apprised of the legislation and the need for certain
legislation in the Province of British Columbia, and every
other province likewise better apprised of what is going on in
each province, and how federal legislation then bears on that
and vice versa so that what we have in the long run is a forum
which helps the better working of the federal system.

I see the difficulties that have arisen in a constitutional
sense in recent years as being far more a conflict between
levels of government and no proper forum in which to reconcile
those conflicts and the second chamber having the capacity to
do that. I wonder whether you would comment on my analysis
of what you are putting forward to find out whether or not we
are on the same plane.

Mr. Atkey: I do not think we are that for apart. As you
spoke I tried to extend your notion of jurisdictional respon-
sibilities into practical subject matters so that we might talk
about responsibilities of a member of Parliament, responsibili-
ties ofa member ofa provincial government, to see where they
dovetail.

Now just for argument’s sake I would suggest that any
member of Parliament—Mr. Collenette, when he goes back to
Toronto—is concerned about federal matters as they relate to
his riding and city. He is going to be concerned about the
criminal law; he is going to be concerned about unemployment
insurance, as he mentioned; he is going to be concerned about
old age security; the railways; and penitentiaries, to the extent
they are relevant. Those are all federal matters. Consumer
protection is a federal area. His provincial counterpart or
provincial minister has other jurisdictional responsibilities, and
I may name a parallel list of six. Obviously he is concerned
with education, medical services, roads, hospitals, day care,
and consumer protection.

I have chosen those as a sample of the sort ofjurisdictional
responsibilities that each order of government may have. Obvi-
ousiy some of them, both through the interrelation of the
spending power and the fact that the subject matters tend to
overlap, are going to involve conflict and are going to involve
governments working out operational relationships, Clearly
both orders of government claim a jurisdiction, and that is why
I put in consumer protection because I think there is a
provincial consumer protection interest and a federal one.

if I interpret your remarks correctly, you are saying that the
Upper House, as I have conceived it, may offer the opportunity
to provide the practical resolution of how government services
in these areas—the practical matter to be provided to the
citizens of an area in an efficient and inexpensive and mean-
ingful sort of way . . .

Miss MacDonald: More than that.

Mr. Atkey: working out the rationalization of policy
between the two orders of government that is in the better,
long-term interests of Confederation as a whole.

Miss MacDonald: I would go much deeper than just the
administration, working out the reconciliation of administra-
tive contlict. I am talking about policy conflict.

Mr. Atkey: The policy and legislative concepts have to be
worked out in the first instance.

Miss MacDonald: Yes.

Mr. Atkey: Obviously that is the role of a legislative House,
which the Upper House would be. in the narrower sense at
least.

Miss MacDonald: Right.

The Joint Chairman (Senator Lamontagne): Mr. Col-
lenette.

Mr. Collenette: Mr. Chairman, it is getting to be late in the
evening but I think we are onto an interesting debate. If one
accepts the argument that Mr. Atkey has put forward, and
Miss MacDonald, especially where you talk about concurrent
powers, I do not have on the tip of my tongue all of the
concurrent powers, but I would think justice is, where the
Criminal Code is formulated nationally and is administered
through the provinces. We can say justice ia a concurrent
power.

Agriculture, for examplevif we accept the argument that
the provinces, the provincial governments, should be heard at
the national level and have a legislative voice, would it not
therefore be logical to argue that those persons elected nation-
ally, i.e., members of Parliament, should have some kind of
legislative authority within the bounds of their own province in
those areas of concurrent powers?

I give you one particular example. Recently we have been
dealing with this whole question of language. The Ontario
government, through its Premier, has taken a position that the
language bill proposed, I guess, by a couple of the Opposition
members—l think Mr. Roy of Ottawa East—would not he
proceeded with by the government or would not get the
support of the government.

This position by the Premier was presumably supported by
the two provincial Conservative members in my constituency.
But I was elected by the same people that these two gentlemen
were elected by, and I completely disagree with the whole
attitude of the provincial government in Ontario on the ques-
tion of minority language rights. Surely if we are talking about
minority language rights, guarantees across the country, if we
are talking about opportunities in education—and it could be
argued that there is obviously a national argument, there is
obviously a provincial argument—then surely l, as a legislator
representing that constituency as I described earlier, that city
or that region, in the national context should have some say in
the provincial legislature or the provincial deliberations. Does
this not follow from the kind of argument that you are trying
to sell to us with your concept of the House of the Federation?

Mr. Atkey: In the first instance, the easy answer, Mr.
Collenette, is that if you want to concern yourself with that
provincial government policy and, in fact, change it in the area
of the administration ofjustice or of how the schools are run,
as the case may be, you should run for the provincial legisla-
ture and get yourself elected in your district.

Mr. Collenette: And likewise federally. You have answered
the question exactly.

Mr. Atkey: That answer is too easy and it is not fair. I think
it actually makes the case for some of the sorts of things an
Upper House would do. I daresay that it is one thing for a
provincial premier or his government to take a position on
language rights within his area ofjurisdiction, provincial juris-
diction, in his province. He has, of course, the constitutional
right to do that in the absence of an entrenched Charter of
Human Rights such as you have proposed. It may well be that
that would be a subject of debate in the Upper House and it
would be interesting to see a premier of a province or an
attorney general taking the same position down the hall here
before his other provincial counterparts and before his federal
counterparts. I would like to think institutionally the Upper
House as I have conceived it may provide a vehicle for greater
accommodation than has been achieved in the past, as a result
of having a premier or an attorney general make that policy
pronouncement or take that position on a national stage, if you
will. I would suggest that your example is a good one and it
makes the case for an Upper House.

Mr. Collennette: You still really have not answered my
question. To come back and tell me or tell anybody that it
expresses the kind of view that I have, if you have a particular
interest in education or whatever then you should run for
provincial office: surely you are trying to have it both ways.
My four years up here have been marked by continual attacks
and shots taken by provincial members within the Province of
Ontario, not always of your Party but say, for example, the
provincial Liberal Party or the Provincial NDP. They have a
field day in attacking us. But then when we come back and
start attacking them or start trying to get involved as I did
once in my newsletter with the whole question of property tax
and how the federal taxation power could be used to alleviate
the burden of education financing and therefore the burden on
property tax—to be told by those persons such as yourself, that
is none of your business.

I say it is fair game. If we are talking about concurrent
jurisdictions—and so much overlaps today—then I as a federal
member of Parliament have every right, and the federal gov-
ernment and ministers have every right, to make statements, as
did the Secretary of State, as did the Minister of Federal-Pro
vincial Relations in criticizing the actions of the Ontario
government on the Essex school question or the particular
language bill. We have every right to say those things. It is one
thing to be given freedom of speech, but in what you are
saying you are going further. You are saying, give us the
power; and I am saying does it not follow logically that if you
are going to give the power in one direction you should give it
in another?

Mr. Atkey: I agree with you. Do not misunderstand me. I do
not for a moment quarrel with your right to take shots at
anyone you choose to. Indeed, I would suggest for every time
someone has taken a shot from Queen’s Park from whatever
party at you as a federal member of Parliament, or you and
your colleagues, that you have responded rather well in kind.
That is your right to do. That is part of the political dynamic
in our federahprovincial system. There is nothing wrong with
it. It is a healthy thing. Sometimes one level listens to the
other. That is an informal sort of way. It seems to me that if
you extend that to a formal institutionalization of the process,
if you will, we can institutionalize the taking of shots, if you
want, in an Upper House in a way that might be a little more
dignified and productive. I think ultimately, of course, in terms
of protecting the language rights that I think you want and
that I want, we are forgetting a whole other institutional
arrangement which is very much on the table in this debate
and that is the relevance of the protections in the Charter of
rights and freedoms. And, of course, there the remedy you
achieve is not necessarily in the House of Federation or the
Upper House, it is not in Parliament necessarily or in the
provincial legislature, it is in the courts, once you have that
entrenched constitution. And that is a very real protection.
You do not have to be even a member of a political party to go
to court and, hopefully, our judges will apply those protections
in a way that is meaningful and it permeates the system, and
will ultimately force governments, if need be, to a better
practice, as you or I may see it.

Mr. Collenette: Mr. Chairman, to conclude, and you have
been very lenient with me and I am very grateful, I accept
what Mr. Atkey is saying and I understand his point. But if
you are bringing them together in the House of the Federation
or the Senate, you are dealing with federal legislation. It may
deal with concurrent powers but you are dealing with federal
legislation. But what about acts that are passed by provincial
legislatures or Order in Council pronouncements at the provin-
cial level that have a direct bearing on the national interest?
And I will give you one example, the unilateral action for
political reasons, as is their right, of the Ontario Government
to cease the provision of roads and infrastructure for a second
Toronto airport, which incidentally I happen to oppose. But
the fact is that the provincial government in that sense made a
decision which will have an impact upon air transportation
throughout the country by its unilateral action, and the federal
government had no recourse whatsoever.

Mr. Atkey: I can think of no better subject for a debate in a
House of Provinces such as I have envisaged, and I think you
would have far more information and understanding out in the
open to assist the public in making up its mind that was
actually the case. That of course was a debate in which I
participated. I am not sure that the institutions that provided
the vehicle for the carrying on of that debate necessarily did a
complete service to the people of Toronto or the people of
Canada. I can throw out another example in that instance.
Suppose Ontario Hydro, for example, as an agent of the
Ontario Government, was to engage in a massive debt financ-
ing in the New York markets which was seen as very inconsist-
ent with federal monetary policy. That is the sort of thing that
should be debated in the House of the Provinces, and I think it
is quite an appropriate subject of debate. Now, it may be that
the premier of the province may not want that sort of subject
on the agenda because they say, you know, it is our internal
business, but nevertheless that may be something that he
cannot avoid. And that again goes back to what Mr. Whittak-
er mentions, this notion of responsibility. You create the
institution, you may create new responsibilities, and that is a
good thing.

The Joint Chairman (Senator Lamontagne): As the Joint
Chairman, I ought to thank our witness, Mr. Atkey, very
much. Since I am in the other House, I do not even dare to
wish you success in the next elcction, whenever it is held.

WITNESSES

Mr. Gordon F. Gibson, M.L.A., Leader of the Liberal Party
in British Columbia;
Mr. Ronald G. Atkey, Barrister and Solicitor.