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Proceedings of the Special Senate
Committee on Bill C-110

Issue 1- Evidence

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Ottawa, Monday, January 22, 1996

[English]

The Special Senate Committee on Bill C-110 met this day, at 9:00 a.m., to organize the activities of the committee.

Mr. Timothy R. Wilson, Clerk of the Committee: Honourable senators, before we begin, I will explain the procedure this morning.

Pursuant to the order of reference the committee received on December 15, 1995, the committee must report no later than 9:00 a.m., February 1, 1996.

It was felt that, in order to kick-start the process, it would be good to have an informal meeting. A telephone conference call was held on December 20, at which time the necessary decisions were made to start the work of the committee to enable staff to contact witnesses over the break. Those decisions will be ratified at the formal meeting this morning, since telephone conference calls do not qualify as meetings of the committee.

I will now accept motions for the election of a chairman of the committee.

Senator Carstairs: I nominate Senator Kinsella as chairman of the committee.

Senator St. Germain: I second that motion.

Mr. Wilson: It was moved by Senator Carstairs, seconded by Senator St. Germain, that Senator Kinsella be elected chairman of this committee.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Mr. Wilson: Carried. I invite Senator Kinsella to take the chair.

The Chairman: Thank you, honourable senators.

The next item of business is the formal election of our deputy chairman. I will entertain a motion now.

Senator Beaudoin: I propose that Senator De Bané be deputy chairman of the committee.

The Chairman: It is proposed that Senator De Bané be elected deputy chairman. Is it agreed?

Hon. Senators: Agreed.

The Chairman: The motion is carried. Senator De Bané is the deputy chairman.

The third formal item is the election of our Subcommittee on Agenda and Procedure. We need a motion for a steering committee composed of three members; namely, the chairman and two others.

Senator Meighen: I nominate Senator Murray.

Senator Carstairs: I nominate Senator MacEachen.

The Chairman: It has been moved that Senators MacEachen, Murray, and the Chairman constitute the Subcommittee on Agenda and Procedure. Is there agreement on that motion?

Hon. Senators: Agreed.

The Chairman: The motion is carried.

A copy of the hearing schedule is before you. This was prepared over the Christmas and early January period by Senators Murray, MacEachen and myself. I should like to review it now.

Our plan in terms of days is to meet every day this week, Monday, Tuesday, Wednesday, Thursday and Friday. On Friday, we should complete our work over the noon hour period. If there are no additions during the week, we will conclude our work and not sit Friday afternoon.

Our colleagues in the Liberal caucus have a national caucus in Vancouver the early part of next week. We have been able to organize the work that is outlined here in a manner so that it would not be necessary for this committee to sit on Monday, January 29. We will come back Tuesday morning, January 30. We have two witnesses confirmed for that date. Whether or not we will add to that list is a decision we can make during the week.

We were able to organize the hearing so that we will hear from over 25 witnesses to help us in our deliberations. It will not be necessary to hold hearings into the evenings. Unless the questions go on and on, we will be sticking to that schedule.

We were wondering whether or not you would be interested in hearing from two particular witnesses on Friday: Professor Schwartz, who was nominated by Senator De Bané; and Mr. Milne from Prince Edward Island. I would ask the clerk to review the situation.

Mr. Wilson: These two witnesses are willing to appear and have been suggested by members of the committee. To hear from them, however, we would have to sit Friday afternoon. That decision is up to the committee.

Senator Carstairs: Before we make a decision on that, are we talking about Mr. Brian Schwartz from the University of Manitoba?

Mr. Wilson: That is right.

Senator Carstairs: Who are we talking about with regard to P.E.I.?

Mr. Wilson: Professor David Milne.

Senator Carstairs: Is he from the University of Prince Edward Island?

Mr. Wilson: That is right.

The Chairman: We could reflect on this and make a decision later on in the day.

Senator Murray: That is a good idea.

Senator Beaudoin: I would suggest that we think about it for two or three hours.

Senator Carstairs: Yes. I have not taken an absolute look at this schedule, but do we have any other witnesses from either of those provinces?

Mr. Wilson: No.

The Chairman: In selecting from the number of potential witnesses, the steering committee wanted to choose those who it felt would be of assistance to senators in meeting the responsibility to examine this bill.

A number of associations have asked to appear before the committee. We took the decision not to invite any association. We were very specific and strategic, given the limited time that we have. However, one association is still expressing an interest to appear before us. Would you speak to that, Mr. Wilson?

Mr. Wilson: The Equality Party in Quebec has been quite insistent upon appearing. I just received another fax from them this morning, after receiving two faxes last week. They referred to the rally at McGill yesterday and said that there was a great interest there. They were present at that rally and they feel that they should also appear here.

In all fairness, if we hear from the Equality Party, we should also hear from l'Association des communautés francophones et acadiennes du Canada, who have been contacted; and l'Association des franco-albertains has also expressed an interest in appearing before the committee. Potentially, you have three more witnesses if you decide to hear from the Equality Party.

Senator Beaudoin: I do not see how we can open it for one group. It is absolutely impossible. You will then have to open it for more than one. You have referred to three other groups. There is also the Canadian Unity Council, which held a very successful meeting on Friday. The Equality Party went to the meeting yesterday. If you open the door, you must open the door to at least five or six groups. I do not see how we can select only one group.

The Chairman: Are there any other senators?

Senator Meighen: I agree as well.

Senator MacEachen: We discussed this issue during the informal meeting of the steering committee. We agreed that we had a representative group, given the limited time to hear witnesses. Therefore, we closed the list. If we decide to hear one group, you must hear all of them, and that will extend the hearings.

Senator Murray: I agree. If I may modestly say so on behalf of the steering committee, we have done fairly well here. We have six or seven official organizations - that is, governments, aboriginal associations - and I count at least 13 other witnesses, or outside experts, who have a particular perspective to offer. We agreed to report the bill on February 1, and we need some time to prepare our report. I really do not think we can squeeze in much more.

I have thought from the beginning that it was important to have quality rather than quantity and to allow ourselves, in most cases, an hour and a half with outside witnesses, to have an opportunity to hear their views and have a real dialogue with them. That being the case, I do not see how we can add very much to the list we already have.

Senator St. Germain: If we are to have hearings and we are to hear from government people, the politicians from the regions, and so on, there is no time left. Numerous groups are in the process of forming right across this country as a result of concern that has been building since the October referendum.

Since we are here anyway, there is the possibility of hearing from these people in the evenings. We could hear a few select groups so that at least we will not be accused of keeping those who are not in the academic or political circle out of the debate.

The Chairman: Perhaps this matter can be decided in terms of the recommendation of the steering committee, that we have our list and we should stay with it.

Senator Meighen: Mr. Chairman, is there any reason not to suggest that people who are not able to get on our list of witnesses could send in a written submission?

The Chairman: Yes, that is possible. If that is your desire, it will be done. Do we have a motion?

Senator MacEachen: I so move.

The Chairman: Is it agreed?

Hon. Senators: Agreed.

The Chairman: Carried.

The next item is a motion to print the committee's proceedings.

Senator MacEachen: I take it that the report of the steering committee is adopted?

The Chairman: Yes.

It is suggested that 500 copies of the committee's proceedings be printed. We need a motion to that effect.

Senator Carstairs: I so move.

The Chairman: It was moved by Senator Carstairs that the committee print 500 copies of its proceedings. Is it agreed?

Hon. Senators: Agreed.

The Chairman: Carried.

The next item is research staff from the Research Branch, Library of Parliament. Mollie Dunsmuir, Law and Government Division; and Jack Stilborn and Brian O'Neal of the Political and Social Affairs Division, are available to the committee.

Item No. 7, concerns the authority to commit funds and certify accounts. The motion is to the effect that, pursuant to section 32 of the Financial Administration Act, authority to commit funds be conferred on the Chair or, in his absence, the deputy chair; and that, pursuant to section 34 of the Financial Administration Act and guideline 3:05 of Appendix II of the Rules of the Senate, authority for certifying accounts payable by the committee be conferred on the chairman, the deputy chairman and the clerk of the committee.

Senator Gauthier: I so move.

The Chairman: Is it agreed?

Hon. Senators: Agreed.

The Chairman: Carried.

Item No. 8 deals with travelling expenses of witnesses. Pursuant to rule 103, reasonable travelling and living expenses may be paid to witnesses invited to appear before the committee.

Senator Gauthier: I so move, but first I want to ask a question: Does "witnesses" mean one individual or a group of individuals?

Mr. Wilson: Sometimes committees restrict the number of representatives from each organization. In this case, we only have two organizations that have more than two representatives and I do not think it is a problem here. We do not have that many witnesses appearing.

Senator Gauthier: For purposes of clarification, when you invite associations to appear, how many people are they allowed to bring? The number can have an impact on the budget and on the time.

Mr. Wilson: To my knowledge, there is one association appearing that has four representatives who will require reimbursement of expenses; another one has two representatives, and the rest are individuals.

Senator Gauthier: Concerning the one that has four, which one is it? Where do they come from? Are they from B.C.?

Mr. Wilson: It is the Congress of Aboriginal Peoples. They have regional representatives so people are coming in from four different parts of the country.

The Chairman: Further discussion? If not, is it agreed?

Hon. Senators: Agreed.

The Chairman: The motion is carried.

Are there any other matters that honourable senators would like to raise?

A small budget of $5,000 has been prepared by staff. We think that that will cover the expenses of the committee. With your approval, an application for budget authorization will be submitted to the Internal Economy Committee.

Senator Beaudoin: I so move.

The Chairman: Is it agreed?

Hon. Senators: Agreed.

The Chairman: Carried.

If there are no other matters to be raised, our hearings will begin in room 505 at 9:30 with the Minister of Justice as the first witness.

The committee adjourned.

[Translation]

Ottawa, Monday, January 22, 1996

The Special Senate Committee on Bill C-110, An Act respecting constitutional amendments, met this day, at 9:30 a.m., to consider the draft legislation.

Senator Noël A. Kinsella (Chairman) in the Chair.

The Chairman: This Senate committee was struck to consider, following second reading, Bill C-110, An Act respecting constitutional amendments. This week, the committee will examine the draft legislation and hear from several witnesses, in fact, from over 25 witnesses who will assist us in this task.

[English]

Honourable senators, our first witness this morning is the Minister of Justice, the Honourable Allan Rock. Welcome, minister. We understand you have some introductory remarks, to be followed by discussion and questioning from honourable senators.

Mr. Minister.

[Translation]

The Honourable Allan Rock, MP, Minister of Justice and Attorney General of Canada: Mr. Chairman, I am very happy to appear before the committee today to discuss Bill C-110. During the referendum campaign, the Prime Minister made a number of undertakings to the citizens of Quebec on behalf of all Canadians.

Among other things, the Prime Minister made a commitment to make no constitutional changes affecting Quebec without the consent of Quebecers.

[English]

Bill C-110 is the legislation that has been enacted by the House of Commons in fulfilment of that undertaking. I appear here this morning to urge this committee to recommend to your Senate colleagues its adoption by the full Senate.

During my opening statement, I will, with your indulgence, touch briefly on four matters that will, no doubt, be of interest to honourable senators as they consider this legislation: First, I will focus on the nature of the measure itself, what it is and what it is not; second, I will examine how the bill fits within the framework of constitutional amendment provided for in Part V of the Constitution Act, 1982; third, I will deal with the constitutionality of Bill C-110 on its own merits; and, fourth, I will touch upon the concerns of aboriginal peoples as they were expressed before the House committee December last.

First, then, may I put this single piece of legislation in context, and tell you what it is and what it is not? It is a practical, effective and serviceable way to fulfil the Prime Minister's commitment to deliver on a promise, in a tangible way within a short period of time, and to keep faith with those men and women in the province of Quebec who may have voted in favour of Canada on the strength of the Prime Minister's undertaking. It is not the full extent of this government's response to the referendum, nor the sum total of our strategy or our plans in the matter of national unity.

Together with the distinct society resolution and the realignment of governmental responsibility on worker training, contained in the employment insurance legislation, Bill C-111, this bill simply constitutes tending to unfinished business arising from the referendum campaign.

[Translation]

Distinct society recognition is only one of the initiatives that the Canadian government is presently considering with a view to initiating the process of reconciliation among all Canadians and to striking a better balance, in terms of effectiveness and cohesiveness, between the actions of the federal government and those of the provinces.

From this perspective, Bill C-110 is a practical, pragmatic way of addressing, at least initially, the concerns of Quebecers.

[English]

Bill C-110 is not, obviously, a constitutional amendment. It relates to but does not change the amending formula in Part V of the Constitution Act, 1982. Bill C-110 is a legislative expression of the policy of the Government of Canada on the circumstances in which we will participate in constitutional change, a policy that provides, very simply, that no such change should occur in the absence of regional consensus in its favour. In that respect, it reflects the long-held conviction of the Prime Minister who, while outlining a nine-point plan on constitutional change in 1991 as the then Leader of the Opposition, spoke in favour of an amending formula that reflects a Canada of regions.

Bill C-110 is not necessarily the final word on the structure of the amending formula or how it should work. It need not be permanent if a more durable approach can be agreed upon by all provinces at some future date and embodied in the Constitution itself through amendment.

Finally, Bill C-110 is not designed or intended as a measure to address the constitutional aspirations of all parties. It does not satisfy those aspirations, as legitimate as they may be, because it is not designed or intended to do so. Its purpose is more modest, although every bit as important, and it achieves that purpose without impeding the continuing efforts of those other interests toward the achievement of their goals.

I suggest that is what this bill is and is not. Against that background, may I venture a description of its relationship to Part V of the Constitution Act as a whole? I first invite your attention, Mr. Chairman, to the amending formulae as found in Part V. There are three key formulae: The unanimity approach; bilateral arrangements; and the general amending formula.

For amendments under the first two, the consent of the provinces affected is already assured. Unanimity as provided for in section 41 guarantees that the consent of the provinces is in place. In relation to the bilateral approach in section 43, once again where an amendment applies to one or more but fewer than all provinces, the consent of the provinces affected is assured by that mechanism.

The general amending formula in section 38 applies to two categories of general amendments. One includes a number of changes to the institutions of the national government and expansion of existing provinces into the territories or creations of new provinces. The other covers all general amendments that cannot be made under another formula, such as changes to the division of powers or to the Charter of Rights and Freedoms.

[Translation]

Under the existing amending formula, the only veto that a province has is the right to dissent from an amendment that diminishes its legislative powers or rights. As such, provinces can block an amendment from applying within their boundaries.

The provinces can, however, be bound by a general amendment which they have not all endorsed through the 7-50 formula. This bill will protect them from this type of general amendment from which they do not have the right to dissent by conferring on them a regional veto. Briefly, at present, only the House of Commons has an absolute veto over virtually any change to the Constitution. This bill extends to Quebec, Ontario and British Columbia as well as to the Atlantic and Prairie regions a general veto over all constitutional amendments in areas in which they currently enjoy neither a veto nor the right to dissent.

[English]

So in the context of the 7-50 formula, the bill commits the federal government to ensuring, before it decides to seek the consent of the House of Commons and the Senate on a resolution for amendment, that the proposal enjoys the requisite degree of consent from every region of Canada.

Mr. Chairman, may I turn to the third of the four points I wish to address briefly in my opening, which has to do with the constitutionality of Bill C-110. In this connection, there are three principal issues which must be considered. The three most prominent concerns, perhaps in descending order of merit, are these: first, that the bill constitutes an attempt by the Canadian government unilaterally to alter the present constitutional amending procedure; second, that the bill represents an unconstitutional constraint on parliamentary sovereignty; and third, that it violates a constitutional norm of the equality of the provinces.

First, Bill C-110 does not interfere directly or indirectly with the existing Part V amending formula. The Houses of Parliament remain free to perform their constitutional role in relation to constitutional amendment, giving the federal consent that the constitution requires. The bill simply sets out conditions that the Canadian government will look to in determining whether it will propose certain types of constitutional amendments to the House of Commons or to the Senate.

Clearly, Part V cannot be amended except with unanimous consent. This bill does not amend Part V; it simply applies to certain amendments made under the general 7-50 formula in Part V without amending it. Indeed, it applies and operates separately from it. The 7-50 formula must still be satisfied, federal consent is still required, and it must still be expressed through resolutions of the House of Commons and Senate. This bill merely sets out the conditions that the government will look to in determining whether to participate in the process. To that extent, it is akin to those statutes in British Columbia and Alberta which have established provincial referenda as requirements before those legislatures will themselves participate in the amendment process.

The second argument has to do with the submission that the bill fetters Parliament and interferes with its sovereignty; that its unconstitutionality derives from the fact that it forecloses the powers or the options of Parliament. In truth, Bill C-110 is an expression of Parliament's unquestioned authority to establish conditions or procedural requirements, in this case, binding ministers of the Crown in well-defined circumstances and for sound policy reasons.

The third argument based on the constitutional aspect has to do with the contention that the bill abrogates some norm of equality among provinces. May I suggest that there is little support for the existence of any such norm or convention. The Constitution itself contains no such express principle, nor are there sufficient grounds to suggest that such convention has developed. Indeed, there are a number of constitutional provisions which point away from provincial equality. Some provisions apply only to one or two provinces. There is representation in the House of Commons which is proportionate - not strictly equal - for the provinces. The 7-50 formula itself, because it imports a population aspect, favours or weights the larger provinces. Senate seats are allocated equally, but on a regional rather than provincial basis, except for Newfoundland, which - it could be argued - has a constitutional foothold for a regional-based approach.

All of this demonstrates, surely, Mr. Chairman, that strict provincial equality is not an established constitutional principle.

On the subject of constitutionality, obviously no one can pronounce an absolute opinion, except, of course, the Supreme Court of Canada. There will, no doubt, be attractive and perhaps forceful arguments against the constitutionality of this legislation. However, all things considered, in my respectful opinion, the better view is that the legislation is within the constitutional powers of Parliament and is valid as an enactment.

Before I conclude, I will touch briefly on the fourth item that I mentioned, which is the degree of concern expressed by the aboriginal peoples of Canada with reference to this initiative. Representatives of aboriginal peoples appeared before the House of Commons committee. I know they will be in this room on Wednesday of this week to express their disquiet.

First, to the degree to which the bill fails to express their aspirations for constitutional change generally, I emphasize that it is not intended for that purpose. They are being addressed in a different way. The government has adopted as a policy on which it is proceeding the assumption that the inherent right to self- government is already a fact and enshrined in the Constitution. We are now at work negotiating its implementation as a practical matter in aboriginal communities across this country.

Second, if the concern is that the effect of the bill is to exclude aboriginal peoples from the amendment process, I emphasize that Bill C-110 not only does not weaken, but does not touch at all the significant protections that are already in the Constitution in sections 35 and 35.1 to provide assured protection for the aboriginal perspective.

Section 35.1 requires that Canada's aboriginal peoples be consulted concerning any amendment to section 91.24 of the Constitution Act, 1867 or to section 25 or Part II of the 1982 Constitution Act.

May I ask the committee to bear in mind as well two other matters. First, Bill C-110 ensures that amendments which would diminish aboriginal rights can themselves not be adopted except with the very regional consensus provided for in Bill C-110. So it furnishes additional protection. Second, as the nation works towards a more durable enhancement of the amending formula in the months and years ahead, the aboriginal peoples will participate in that process, and nothing in Bill C-110 inhibits the federal government or any others from initiating, promoting and participating in that process of discussion with the aboriginal peoples.

I therefore conclude by asserting that Bill C-110 is a valid federal enactment; that it is consistent with the constitutional framework of this country; that it can operate effectively separately from but in a manner that is complementary to the Constitution; that it achieves desirable policy objectives by assuring a high level of regional consensus before constitutional change; and that it does so without diminishing and without imperiling the constitutional protections already in place in the document that governs the country.

With that introduction, I would be pleased to take any questions senators may have.

Senator Murray: Mr. Chairman, I hope the minister will be back here on January 30 as our final witness because I expect that between now and then there will be arguments made to which the government will want to respond. Certainly, there will be witnesses who will want to engage the minister in a discussion of the doctrine of the equality of the provinces.

Mr. Rock, I do not disagree with what you have said this morning on that point. However, I think you will find that those who brought in the 1982 act, certainly at the provincial level, thought that they were striking a blow for the doctrine of the equality of the provinces. Specifically, the doctrine is to be found in section 38(3) of the amending formula which sets out the right of dissent. That section sets out that no province is required to surrender any of its powers, proprietary rights or legislative jurisdiction. At any rate, that would seem to lend some support to the idea that the doctrine of the equality of the provinces is in our Constitution.

Minister, I want to ask you some questions concerning the scope of the bill, after which I wish to ask you a couple of questions concerning policy. On the question of the scope of the bill, it exempts from the political process it creates amendments under sections 41 and 43, as well as amendments in respect of which there is a right of dissent. Without going through the whole Constitution, I want to explore what potential amendments would be subject to this process. Would you prefer that I put these questions to you now or wait until your officials are here, as I gather they will be at 10:30?

Mr. Rock: I would be pleased to do the best I can now, senator.

Senator Murray: Let us start with the Canadian Charter of Rights and Freedoms. A layman would conclude that various provisions of the Charter would be subject to amendment under section 41. For example, linguistic rights pertaining to one province would be subject to amendment under section 43, while quite a few others would be subject to the right of dissent by a province. How much of the Charter would be exempt from this political process that you are putting in place?

Mr. Rock: It is difficult to answer such a general question. I will sound like a politician, but I do not mean to when I say it depends on the proposal. As you have observed, senator, if the proposed change to the Charter touched upon a matter governed by section 41, then, obviously, unanimity would be required.

Senator Murray: I presume, for example, that amendments to the language provisions of the Charter as they relate to institutions of Parliament and the Government of Canada would require unanimity, would they not?

Mr. Rock: That is right, because of section 41.

Senator Murray: If someone were to propose that the notwithstanding clause be removed from the Charter, that would fall under the right of dissent set out in section 38(3), would it not?

Mr. Rock: I would like to give that one more consideration than I am able at the moment, senator. However, I can say that, generally, changes to the Charter are influenced by the general amending formula.

Senator Murray: As well as the right of dissent insofar as they affect the powers of the provinces, is that right?

Mr. Rock: Yes, if they are said to fall under section 38(3).

Senator Murray: When Ms Dawson appeared before the House of Commons committee, one of the aboriginal organizations proposed an amendment. She responded to that by saying she wanted to think it through somewhat further as to whether most, if not all, of the provisions relating to aboriginals were covered by the exemptions in Bill C-110. Is that your position?

Mr. Rock: Fundamentally, the position is that there is no legal need for any exemption or distinction for aboriginal peoples in Bill C-110. The point I made in my opening comments is that Bill C-110 does not relate to, diminish or imperil in any way the safeguards for aboriginal peoples that are already in the Constitution. The question as to whether there should be some additional words in Bill C-110 to repeat that is rather more a political question than a legal one.

Senator Murray: I wish to refer specifically to a couple of sections of the Constitution Act of 1867. I should like to start with section 93 which deals with denominational schools in Ontario and Quebec. Could that section be changed by section 43, the bilateral formula?

Mr. Rock: In what way, senator?

Senator Murray: Let us suppose that Ontario or Quebec wanted to do what Newfoundland intends to do. Under section 43, could Queen's Park and Ottawa remove the references to the denominational school system of Ontario in section 93, or would it take some wider amending formula?

Mr. Rock: Again, with a caveat, it might depend upon the very words of the amendment.

Newfoundland is a good example of the fact that it is important to pay careful attention to the words of the proposed amendment in determining whether it is properly a bilateral arrangement or whether a broader agreement is required. It is somewhat risky to answer your question without knowing the precise terms that are proposed. For present purposes, I think that it is likely a section 43 arrangement, provided it affects only what is going on in the province, has to do with the administration of the schools and does not affect a language right nationally.

Senator Murray: Let me move to language rights under section 133 of the 1867 act. Insofar as section 133 applies only to Quebec, the legislature of Quebec and courts emanating from Quebec, could these Quebec-specific provisions be removed using section 43?

Mr. Rock: I think it would be less than useful for me to speculate on that point because it is really rather a technical matter. I am certainly more comfortable talking about the principle of the bill and its purpose. However, a technical opinion on whether a specific change to a named section falls within or without is something which deserves the respect of further study.

Senator Murray: I may ask the officials when they are here, Minister. It is important because the bill makes certain exemptions under sections 41, 43 and 38(3). I am trying to get at what potential amendments would or would not be covered under your process.

Mr. Rock: The reason it makes those exemptions is that the bill, although it has been described as a veto bill, is really a consent bill. It is intended to assure that there is consent broadly in Canada before constitutional changes take place. The exemptions are intended to recognize that Part V already requires consent for those matters within sections 41, 43 and 38(3), and that it extends the principle of consent to the regions for all other matters. That is why those regions are there. It is not to set up a technical test but, rather, to send a substantive message that broad regional consent will be required before constitutional change takes place.

Senator Murray: I appreciate that but we have to consider the scope of the bill. It is difficult to know what potential amendments are covered and not covered unless we can get some statement on these matters from the Department of Justice.

Mr. Rock: I think that a statement from the Department of Justice can be fairly expected if it deals with a principle to be applied. However, as to technical opinion in hypothetical cases, that may require more work. Officials are here. I am sure they would be happy to take the requests on board and do what they can to work them through.

As a matter of principle, the purpose of this legislation is to ensure that consent is there where it is not already provided for in other parts of the Constitution.

Senator Murray: Closer to home, in the question of Senate reform, abolition of the Senate would require unanimity, would it not?

Mr. Rock: Yes.

Senator Murray: It is clear from section 42 that the powers of the Senate, the method of selecting senators, the number of senators per province, and residency qualifications of senators are under section 38 and therefore subject to the process outlined in Bill C-110.

Mr. Rock: Matters governed by section 42 are to be changed with the general amending formula. To the extent to which that formula does not engage the provisions of subsection (3) of section 38 in its application to a particular case, then Bill C-110 would apply.

Senator Murray: What about sections 26 and 27 of the 1867 act, the appointment of extra senators?

Mr. Rock: It would be worthwhile to spend some time on giving you an initial answer. We would be happy to take that question under advisement and give you a considered response, because it would not give justice to your question to offer a reflexive response.

Senator Murray: Have you considered section 29(2) concerning the retirement age of senators? Is it the same answer?

Mr. Rock: I have considered it, but in a different context.

Senator Murray: With regard to sections 22 and 23 of the 1867 act, which stipulate that there must be a senator for each of Quebec's 24 electoral divisions of Lower Canada and that the senator's property qualification or residence must be in that electoral division, could those provisions which relate to Quebec only be amended without Quebec's consent?

Mr. Rock: If it was not a matter that required unanimity under section 41, if it was not something that was bilateral within the meaning of that concept in section 43, if it was caught by the general amending formula and did not derogate from provincial powers, then it would be governed by the general amending formula and Bill C-110 would apply.

Senator Murray: Do you not think that the general amending formula concerning the residency qualifications of senators is subject to section 43 because of the Quebec-specific nature of those provisions of the 1867 act?

Mr. Rock: I would need to consider the matter. A technical analysis would be required to do justice to your question.

Senator Murray: Does the government accept the position of the Honourable Gordon Robertson, to the effect that, as matters now stand, the secession of a province could only be effected by unanimity; that is, through section 41?

Mr. Rock: Such speculation is generally left to the commentators, and commentators as insightful and experienced as Gordon Robertson add value to any public discussion of such matters.

Speaking for myself, I would say that Part V, as we have just been discussing, would have us determine the degree of agreement required based on the nature of the change. It depends on what separation entails.

I can say that the learned authors seem to be divided on the question. For example, Professor Hogg, in the third edition of his book, states that separation could be provided for with the 7-50 formula, but his footnote quickly snatches back any certainty that might be derived from that assertion. It is a matter that depends on what is being discussed, what you mean by separation, and what constitutional change is proposed, and then you try to read Part V and apply it based on what it is before you.

Senator Murray: Does the government not have a view on the question?

Mr. Rock: The government definitely has a view on the Constitution, but the answers depend upon the questions being asked. At the moment, I am not sure what is being asked.

Senator Murray: Let me ask it again. According to Mr. Robertson and others, the secession of a province from the federation could only be achieved through the unanimity formula in the Constitution, section 41. I do not have his piece in front of me, but he advances a number of reasons why this is so. I am sure you are familiar with his argument.

Mr. Rock: I am familiar with it. I am saying that we are in the realm of speculation. Furthermore, because the determination of the degree of unanimity or agreement required depends on what is being proposed, I would like to know what the assumptions are here, what is being proposed, what are the changes to institutions, and what changes to the present Constitution does one mean when one says secession or separation. Once you determine that, then you know what amending formula applies.

Senator Murray: The secession of a province would certainly have an effect on the amending formula itself, any change to which requires unanimous consent.

Mr. Rock: Again, this is a degree of speculation which is far afield from Bill C-110. If Gordon Robertson's view is to be preferred, Bill C-110 would have no application because it is already exempted by the terms of Bill C-110.

Senator Murray: If the Government of Canada wanted to constitutionalize the recognition of the distinctive character of Quebec on which we have just passed a resolution through Parliament, this would be done under the 7-50 rule, under the general amending formula?

Mr. Rock: Again, that depends on the wording of the amendment. You would have to look at the words.

Senator Murray: You have words in the resolution that has just passed Parliament.

Mr. Rock: Are you speaking of that very resolution, senator?

Senator Murray: Yes. What if you wanted to constitutionalize it?

Mr. Rock: Based on that, there are those who suggest that a distinct society amendment might be a section 43 matter. There are those who say it is a 7-50 matter. I would have to look at the words of any proposed constitutional amendment and consider the matter.

Senator Murray: As an interpretive clause in the Constitution?

Mr. Rock: Is that what is proposed?

Senator Murray: That is what I am asking you, yes.

Mr. Rock: As I say, I would like to look at the wording and consider the matter before expressing a view off the top of my head.

Senator Murray: Let me ask you a couple of questions on the policy. You quoted the Prime Minister, and I have his statements here from the Verdun speech of October 24 and his television address to the nation on the 25th. On the 24th, he said that any change in the constitutional jurisdiction for Quebec will only be made with the consent of Quebecers, and, on the 25th, that no constitutional change that affects the powers of Quebec should ever be made without the consent of Quebecers. Then he made what I consider quite a different commitment or a different statement when he spoke in the House of Commons a month later, that his commitment had been not to make any constitutional change that affects Quebec without Quebec's consent. Do you see a difference between those statements?

Mr. Rock: I see throughout them a common theme which is represented by Bill C-110. In those matters of constitutional change that are not already provided for in terms of consent through unanimity or bilateral arrangement or opting out, that consent should be there, and that is exactly what this bill achieves.

Senator Murray: The first two statements seem to offer Quebec something it had and that all provinces have, that is, the right to opt out of any change to their jurisdiction or powers. These statements were not off the cuff. They were prepared and delivered. The first two were talking about powers. In the third one, he took a much broader approach, changes that affect Quebec. Do you see no significance in that?

Mr. Rock: I see that the substance of the matter is that the Prime Minister said throughout, at least as I heard him, that he wanted to ensure an approach which put in place the consent of Quebec where it was not already required by the Constitution, through unanimity or bilateral arrangement, and that is exactly what Bill C-110 does.

Senator Murray: Between the time he made his statement in the referendum campaign and his statement in the House of Commons, did the government receive any protests from any other provinces concerning the commitments he had made to Quebec during the referendum campaign?

Mr. Rock: I am not aware of any, senator.

Senator Murray: What consultations took place between the government and the provinces to determine how best to implement the Prime Ministers' commitment?

Mr. Rock: I know that the Prime Minister was in communication with the premiers, but I will leave it to him to elaborate upon his discussions with the premiers.

Senator Murray: There does not seem to be much support for the bill among the provinces now. If I am wrong, would you correct me and identify the provinces supporting this bill?

Mr. Rock: They have been invited to appear here.

Senator Murray: We invited all of them. Only British Columbia and the Territories have agreed to come. We certainly know British Columbia's position now. My point is that the government could have brought in a resolution or a bill to honour the specific commitment made by the Prime Minister to Quebecers. Why did you not do so, instead of resurrecting the Victoria formula, which has such little support among the players? Did you have any reason to believe that a Quebec- specific bill would be opposed by the other provinces?

Mr. Rock: I am not aware of any such reason. I can say that this is not necessarily the Victoria formula, as you have described it.

Senator Murray: A system of regional vetoes.

Mr. Rock: I prefer to think of it as the Beaudoin-Edwards approach.

Senator Beaudoin: Which was the Victoria formula.

Mr. Rock: I will leave that to you to say, senator. It reflects a policy resolution adopted by the Liberal Party of Canada at its 1992 biennial policy convention. It also reflects the Prime Minister's view expressed in 1991, that there should be an amending formula consistent with a country of regions.

Senator Murray: It was one of several options.

Mr. Rock: The Victoria formula has survived for 25 years in different contexts and different forms. It is no longer just the Victoria formula.

Senator Murray: I would argue that it has not really survived. I do not think it has a chance of being implemented at your 1997 conference.

[Translation]

Senator Rivest: Minister, in your opening statement, you said that in so far as the distinct society resolution was concerned, this bill was part of the federal government's overall plan of action in response to the Quebec referendum.

Could you elaborate further on the components of this overall plan of action? Have the details been made public and where can we find out more about them?

Mr. Rock: We got down to work after October 30. The Prime Minister struck a special Cabinet committee chaired by Mr. Massé and Mr. Goodale and assigned to it a mandate to consider changes and proposals respecting national unity as well as jobs and the economy.

We worked diligently during the months of November, December and January to develop proposals that we could submit to the Prime Minister, who is just now back from his trip to Asia.

We also consulted with the caucus which next week will meet for two days in Vancouver to discuss the federal government's strategy in this area. Cabinet is also scheduled to hold a two-day meeting next week.

During his trip, the Prime Minister had an opportunity to discuss issues directly with the provincial premiers.

In recent weeks, we have held public meetings. Mr. Spicer and Mr. Barrett have made suggestions to us. All of this has taken place openly and we have had an opportunity to weigh all of these proposals.

After caucus and Cabinet have deliberated, we will be in a position to unveil a comprehensive, overall strategy for dealing with national unity issues.

I must emphasize again that Bill C-110, the distinct society resolution and changes in the area of worker training are only one part of this strategy.

Senator Rivest: However, at this time, there is no possible way for members of the House of Commons and the Senate and for the Canadian public to evaluate the scope of these specific initiatives without knowledge of the overall plan. As you mentioned, the government will be finalizing this plan in the coming weeks or months.

Therefore, the details of the plan remain a mystery. We must take these initiatives at face value, since we do not know how they tie in specifically with the government's plans and policies.

Mr. Rock: You are right. In a few weeks' time, the government will be announcing specific details and clarifying its position. For the moment, and notwithstanding the details of our overall strategies and objectives, we believe that these particular initiatives are very important, firstly because they meet the commitments made by the Prime Minister during the referendum campaign and secondly, because from a policy standpoint, they are very prudent initiatives.

These changes are aimed at increasing the effectiveness of the amending process.

Senator Rivest: The government has printed a pamphlet which has or is now being delivered to all households in Quebec. The cost of this initiative has been pegged at approximately $600,000. I do not know whether the principle of provincial equality is being respected here because it would appear that the other Canadian provinces will not be getting copies of this pamphlet.

What would happen if Bill C-110 failed to pass in the Senate? Do you think the government is acting appropriately by printing pamphlets advertising bills and government initiatives when the legislative process is not yet completed? In your opinion, is this appropriate behaviour?

Mr. Rock: I think it is very important to look at what we said exactly in these publications. We said that the Prime Minister has kept his commitments and that he has tabled resolutions and a bill in the House of Commons. We did not say that this was the end of the process.

As you indicated, another phase of the process is Senate consideration of Bill C-110. We merely stated that the Prime Minister has kept the commitments he made during the month of October and that he has moved forward with these initiatives in Parliament. That is all.

Senator Rivest: Specifically, the aim of Bill C-110 is to prevent constitutional amendments from being adopted or proposed without the consent of the provinces, because...

Mr. Rock: Of the regions.

Senator Rivest: Regions or provinces. The reference in the bill is to Quebec, Ontario and British Columbia. To proceed in this manner would be patently wrong.

Throughout Canada's constitutional history, there has been only one instance (at least, I cannot think of any others) where the Canadian government, acting with the consent of a certain number of provinces, but without the consent of one province in particular, proceeded to amend the Constitution. For many, the merits of acting in this manner were obvious, and I am thinking here about the Charter of Rights and Freedoms, but for one Canadian province, the end result was diminished legislative powers, particularly with respect to education and the language of instruction.

By now saying that this will no longer happen, are you trying to avoid making the same mistakes again? Is that why the Prime Minister made this undertaking or why the bill was introduced?

Mr. Rock: As far as I am concerned, the future is the most important consideration. Care must be taken to ensure that in future, the Constitution is not amended without the consent of the regions. You mentioned that Ontario and Quebec were provinces. Of course they are, but within the framework of this bill, they are regions much like British Columbia, the Prairie provinces and the Atlantic provinces.

We have to ensure that no amendment will be adopted in future without the consent of these regions. In my view, it is more important to look ahead to the future than to look back. There are many interpretations possible.

Senator Rivest: I understand. However, when the Honourable the Prime Minister of Canada addresses Quebecers in this manner and says that there will be no recurrence...

As you know, at the time of the referendum, there was a very good reason why the federalist option was floundering. I understand that we should look to the future rather than to the past. However, Quebecers have a motto, "Je me souviens" and they remember what happened in 1982.

One of the biggest problems with the federalist option, one which Mr. Chrétien, Mr. Johnson and the others had trouble overcoming, was the memory of the events of 1982 and of the subsequent demise of the Meech Lake Agreement which attempted to redress the situation.

Would the Canadian government not be more forthright and constructive as far as the future goes if it acknowledged very clearly that the process followed in 1982 (a process which did not have a direct impact on the powers of all provinces, but only on those of one in particular, namely Quebec) was flawed and that it will not make the same mistake again?

Is that not the obvious lesson that the Honourable Prime Minister should draw from the past? To build the future, one must have a sound understanding of the past as well.

Mr. Rock: I disagree. I consider both the bill and our approach to be forthright. As I said, our aim here is not to revisit the past, but rather to secure the future.

You implied that this bill was somehow introduced to redress the situation as far as Quebec and the events of 1982 are concerned. This bill does not only concern Quebec, but the other regions of the country as well. The objective is to ensure that in future, the consent of each region is obtained.

Senator Rivest: Nonetheless, when Senator Murray earlier quoted statements by the Honourable Prime Minister to the effect that Quebec's powers would not be diminished or affected, he was speaking specifically to Quebec.

As Senator Murray pointed out, the bill was introduced only later to lend a broader Canadian perspective to the situation. However, when the Prime Minister said to Quebecers that there would be no repeat of 1982 and no unilateral reduction in the powers of the Quebec National Assembly, he was thinking about Quebec and speaking to Quebec. Is that not the reason for Bill C-110?

Mr. Rock: Yes, but as I said, the bill is now aimed at all regions and the focus is on the future. We have not concerned ourselves solely with Quebec since we have included the other regions of the country.

Senator Rivest: I agree and I have no objections in any case. However, I would have preferred to see the government opt for the Meech formula, which was far more comprehensive and more acceptable to all regions of Canada. Instead, it chose the Victoria formula. Other colleagues will certainly want to discuss other concerns that they have.

I have a specific question. In the bill, what do you mean by the words "Quebec" and "Ontario"? Are you referring to the Government of Quebec and the Government of Ontario, or to the Quebec National Assembly and the Ontario Legislative Assembly? Or, are you referring to the people of Quebec and Ontario?

For example, the bill says that amendments must be consented to by a majority that includes Ontario, Quebec, British Columbia and so forth. Do you mean the consent of the Quebec National Assembly or that of the legislative assemblies of British Columbia or Ontario? Do you mean the consent of the people obtained by way of a referendum or some other process? Or, do you simply mean the consent of the government? What is this not made clear in the bill?

Mr. Rock: The use of the word "province" and the requirement of provincial consent lends a measure of flexibility to the process. The consent of the provinces can be voiced by the legislative assemblies or perhaps even by the government currently in power, or still yet by the public in a referendum.

Senator Rivest: How is it then that with respect to the amending formula, the sections which you quoted in the current Canadian Constitution deal with unanimity? For example, legislative assemblies must authorize constitutional amendments by way of a resolution. That is very clear. Why is this question not addressed in this bill?

Mr. Rock: Firstly, this bill is not an amendment to the Constitution and therefore, it is not necessary for us to use the same wording. Secondly, by using the word "province" and by requiring the consent of the provinces, we are ensuring some flexibility.

As I said, consent can be expressed in one or more ways.

Senator Rivest: Can we assume then from your comments and from the choices you have made that when a constitutional conference is convened in 1997 to review the amending formula, you will be proposing, in keeping with this bill, that among other things, the Canadian Constitution be amended in such a way that legislative assemblies or the Parliament of Canada are stripped of their exclusive, recognized authority to adopt constitutional amendments and a broader, more open formula is adopted for amending the Constitution? Under this new formula, constitutional amendments would henceforth require either the consent of Parliament or, in some cases, that of the legislative assemblies, or such consent could be sought in a referendum. Perhaps it could be as simple a process as having provincial governments issue a decree.

If you make some provision for amending the Constitution in this bill, there are those who will argue that it reflects the government's position on constitutional reform. As a Quebecer, I would say to you (and this is my personal opinion) that in a federal system such as ours, it has been impossible since 1867 to change the constitutional provisions respecting the division of powers or the constitutional rights of the legislative assemblies without the explicit consent of the individuals elected to these legislative assemblies and to Parliament.

By failing to make things clear, and for the reasons given, I believe this bill has the potential to cause even greater uncertainty in Quebec and no doubt elsewhere in Canada about the constitutional process. This is one aspect of the bill (my colleagues will be bringing others to your attention) which in my view complicates matters further instead of resolving them by way of a simple resolution.

Mr. Rock: You have not really asked a question, but rather stated your opinion. I respectfully disagree with you.

Let me simply repeat that this bill is not really a constitutional amendment. The bill has to do with the Constitution, but does not amend it. In my opinion, we have allowed ourselves a certain amount of flexibility. I have no doubt that in most instances, provincial consent will come from the legislative assemblies. That is certain to be the case for most provinces.

Why say in this bill that we will always proceed by way of agreement? There may possibly be some other way of securing the consent of a region or province.

Senator Rivest: Quebec is very concerned about such matters. Let us assume for a moment that we are faced with a constitutional amendment. The door has been opened. I merely want to make you aware this morning of the level of uncertainty that prevails.

I submit the following, purely hypothetical situation for your consideration. Let us assume that for one reason or another, Canada decides in a national referendum that owing to current economic constraints, education should come under federal jurisdiction. A decision is made to hold a national referendum to seek support for the constitutional amendment.

What would happen then to Quebec's rights? Would it be necessary to hold a national referendum in addition to referendums in each province?

In other words, Quebec's constitutional rights (I am talking here specifically about Quebec since I am more familiar with this province and much more aware of the climate there, although the situation would also apply to the other provinces) have always been protected by the National Assembly. This is ingrained in the culture and political thought process. With this bill, you are introducing an additional element of uncertainty.

Every possible hypothetical situation involving Quebec's constitutional rights could be perceived. Some commentators will certainly see this unexpected bill as an opportunity to speculate, because it has been introduced without our knowing what the government's overall plan will be or the exact details of the distinct society concept. Quebec would be very pleased to be recognized as a distinct society, but clearly because of the lingering feelings about Meech in the rest of Canada, this is an expression that really should be avoided.

This is the reason why very sincere and honest Quebec federalists in virtually every field of endeavour are worried about the Canadian government's reaction to the referendum outcome. In my view, this kind of improvised action does not address the seriousness of the situation in Quebec. We are no longer dealing with a handful of annoyed separatists, but with 50 per cent of the Quebec population, and maybe even with 60 per cent, if we make some distinctions. We have a serious situation on our hands.

When I see the government introduce bills such as this one which complicate matters and create even more constitutional uncertainty for Quebecers, quite frankly I have to wonder if it is acting in the best interests of federalism and Canadian unity in which we all believe.

I think the government could have acted far more responsibly.

Senator De Bané: I find Senator Rivest's observation rather paradoxical, considering that he served as an adviser to a government that promoted the Charlottetown Accord and then caved in when Quebecers rejected it. The real question we have to ask ourselves is this: with whom does the decision regarding sovereignty ultimately rest? With the elected representatives or with the people themselves?

Similarly, in the case of the Charlottetown Accord, even though Senator Rivest advised the government that promoted the accord, he too ultimately bowed to public opinion.

Senator Rivest: I agree. I would merely like to ask the minister if sovereignty is really an issue that can be put to the people in a referendum and dealt with in the form of a constitutional amendment? If that is the case, then the government should say so and not imply, as the minister did earlier, that in some instances, the people would be the ones to decide and in others, it would be the government. For this reason, I do not think the bill promotes the cause of Canadian unity.

I am not opposed to it. Ever since the referendum on the Charlottetown Accord was held, it is a widely held view in Canada that it is now very difficult for governments to makes changes to the Constitution without holding a referendum. Instead of introducing draft legislation which does not even reflect reality or resolve the issue, the government should give some thought to the matter before referendums become part of the constitutional amendment process. This issue has not been resolved. We need to ensure the safety as well as the political and constitutional stability of the country. In that sense, I regret this action.

Senator De Bané: I can easily imagine a situation where an amendment is not contentious and where a referendum would be superfluous.

Senator Rivest: Totally.

Mr. Rock: I would like to respond very briefly to Senator Rivest's comments. He used the word "improvise" to describe the government's initiatives. We did not resort to improvisation when we decided on these three measures following the referendum. We announced these initiatives to uphold the commitments made during the referendum campaign. You should not judge this government's overall national unity strategy solely on the basis of Bill C-110 or on the distinct society resolution.

Senator Rivest: What do you suggest we judge it on? These are the only initiatives we have.

Mr. Rock: As I said, after the October 30 referendum, the Prime Minister set up committees and took steps to develop a comprehensive, effective strategy. We are continuing to work on this global approach. I mentioned the work being done by Cabinet. In the coming weeks, we will be making some announcements. However, you should not judge this government's efforts solely on the basis of this bill. It is but one component, albeit an important one, of our overall strategy.

[English]

Senator Beaudoin: Mr. Minister, I would like to come back to your affirmation that Bill C-110 is constitutional.

[Translation]

I have to admit that I certainly have my doubts about that. We will be putting questions to experts. There is an amending formula in the Constitution based on the general 7-50 principle. You are saying that the federal government, when it has a veto, which is quite often the case, will, before tabling the resolution in Parliament, seek the advice of the five regions. If only one region expresses opposition, the government will not exercise its veto and will refrain from tabling the resolution. At the very least, we can say that Bill C-110 means very little, if anything. It is unconstitutional in that it tacks a formula onto one that already exists.

Suppose a minister argues that Bill C-110 is preventing him from introducing a resolution because both Quebec and British Columbia are opposed. He introduces the resolution, but one of the five regions is against it. He nevertheless goes ahead with the resolution, because the federal government has a veto, despite Quebec's and British Columbia's opposition. This would contravene Bill C-110.

What if the amendment were adopted? Clearly, the court would recognize the primacy of the Constitution. The Constitution cannot be amended by a simple piece of legislation. It would override it and the government amendment would be valid even though British Columbia and Quebec opposed it.

Bill C-110 is either of little consequence, nothing but window dressing, or it has some fundamental meaning.

Fundamentally, this bill is unconstitutional because it discounts the amending formula. No provision is made in the amending formula for four vetoes. I am not criticizing the vetoes as that is not my concern here. What does concern me is the manner in which the bill is drafted which in my view, is unconstitutional. I have discussed this subject with many experts. Some have no doubt that the bill is constitutional, while others hold the opposite view.

If ever this bill is adopted and some doubts persists, it will only be transitional in any event. The whole issue will have to be revisited in April 1997 because the government is obligated to hold a constitutional conference to review the amending formula.

Nevertheless, I have some serious reservations because indirectly, you are grafting a second amending formula onto the first one. You say that you are not changing the amending formula, only adding to it. If you are not changing it, then the ministers can do as they please. If you are strengthening it considerably, then indirectly, you are amending the Constitution.

Mr. Rock: You have expressed quite clearly the views of those who believe the bill is unconstitutional.

[English]

With your grasp of constitutional principles, senator, you have put the case very well. I do not disagree with what you have said, except with your suggestion that it is not constitutional.

I ask you to consider the legislation in Alberta and British Columbia which obligates those governments to conduct a referendum before they participate as a legislature in giving consent to a proposed constitutional amendment. It might equally be said of those statutes that they are unconstitutional because they fetter the process of constitutional change and because they add a gloss for which the Constitution itself does not provide. What would happen if the legislature went ahead without reference to its own law in Alberta, passed a legislative resolution in favour of a change without holding a referendum, and the matter went forward and resulted in a constitutional change? Either it means something or it means nothing. The analysis for those provinces is the same as it is for the federal government. The federal government has an entirely proper and valid exercise of legislative jurisdiction.

[Translation]

We will be taking part in the changes or amendments to the Constitution.

[English]

In the future, if we are asked to take part, we will have regard to the following factors before deciding.

For example, if the Prime Minister were to make a speech committing his government to that course, would some say he was acting unconstitutionally? Not at all. To take the next step and have the House of Commons and the Senate legislate that policy so that it binds the government as long as it remains in force, is no more unconstitutional than a policy statement.

The reality in Canada in 1996 is that it is very difficult to conceive of constitutional change, which is affected by Bill C-110, in the absence of consensus by the regions identified in this bill. Is it suggested that a change to the Constitution within the amending formula which does not engage the opting out provisions would be accepted even though British Columbia, as a region of this country, was against it? That is highly unlikely as a political reality.

This bill is not a fetter on the sovereignty of Parliament because it can be changed or repealed. It does not change the amending formula. The 7-50 formula in legislatures must still be achieved. The Canadian government is allowed to detail the tests and the criteria it will use in determining whether to participate. We have done that, and we have chosen to do it in a legislative form.

No doubt people in this chair in the coming week will take a different view. It is impossible to be absolute about matters of this kind. With great respect to you, senator, I simply say that in looking at the component elements of your analysis, I come to a different conclusion on the validity of the bill.

Senator Beaudoin: I accept that. I know this legislation is controversial. Many have doubts. Perhaps they do not have certitude. On balance, many will say that they may let it go. I understand that perfectly.

I am glad that you raised the issue of the referendum. If a province enters into a referendum that is purely consultative, it does not change the amending formula. However, if a province has a referendum - it is not the case in Quebec - which is not only consultative but binding, that is another story.

A Privy Council case from 1919 relates to this referendum issue. If you leave the last word to a referendum, you go against our parliamentary system.

In this case, the Parliament of Canada is legislating. However, Parliament is not supreme; the Constitution is supreme. The validity of Bill C-110 does not rest on the supremacy of the Canadian Parliament; it rests on the Constitution of Canada. That statute purports, at least indirectly, to add something to an amending formula that is already in the Constitution. However, we are adding another level, a legislative one, to a floor that is constitutional. Do we have the right to do so? I think that is doubtful.

I have the greatest respect for those who do not think that way. The reason I say that is, if a minister is going against Bill C-110 and an amendment is passed contrary to Quebec, B.C., Ontario, two provinces in the West and two provinces in Atlantic Canada, the amendment is still valid. Why is it still valid? Because it is based on the Constitution, and Bill C-110 means nothing at that time.

Mr. Rock: It will have a political consequence.

Senator Beaudoin: Well, of course. I agree.

Mr. Rock: That should not be underplayed in this dynamic. We are talking about a commitment by the Canadian government not to participate, except if certain conditions are achieved.

I fully agree with you that the Constitution, in its supremacy, would produce the result that the amendment would be valid. However, it is inconceivable to me that a federal government would proceed contrary to a law on the books. If it wanted to proceed, it might repeal or amend Bill C-110. We will find out in the future if that ever happens.

The fact is that there is a political aspect to this bill, political in the sense that the government has given a commitment that it will not proceed unless there is regional consent. That commitment is embodied in the legislation.

As to the Alberta and B.C. statutes for referenda, I am familiar with the referendum reference of 1919. However, the B.C. and Alberta referenda acts provide that if more than 50 per cent of the validly cast ballots vote the same way on a question stated, the result is binding on the government that initiated the referendum. They have said as a government that, while they may agree in discussions to a constitutional amendment, they will put it to a referendum before giving their full support. It is not provided for in the Constitution. It is one of our own statutes. If they vote it down, we will withdraw the resolution from the house. We will not proceed.

Senator Beaudoin: However, you are not obliged to withdraw.

Mr. Rock: I am not certain of that. I have a briefing note which says that the government may be obliged to withdraw the motion for a resolution, let it die, or convince the members of its assembly to defeat it, according to a reading of the Alberta statute. I am not certain of that.

Perhaps the analogy is not perfect. I do not want to get into a discussion about Alberta legislation, but I use that analogy and others as practical examples of legislatures laying down, in advance, conditions that will govern the exercise of their judgment about whether to take part in the constitutional amendment. I say that Bill C-110 does nothing more at the federal level.

Senator Beaudoin: If this bill is adopted because of that argument - and there may be others - it may be only a transitory remedy. Everything will have to be studied again within a year. Why do we not try right now to do something? You have said yourself that constitutional reform will not be restricted to distinct society and the veto. We voted in favour of distinct society because it is so factual. However, in my opinion, I see a little problem there. I raise the matter because it has been raised in the newspapers and everywhere else in the country. I understand your stand on this issue, but I wish to express a doubt on the technique used in Bill C-110.

Senator Rivest: Why not just a commitment? It is sufficient.

Senator St. Germain: Thank you, Mr. Minister, for appearing. You seem to have very, very complex issues put before you time and time again.

Mr. Rock: Purely involuntarily on my part.

Senator St. Germain: You should keep your hand down in cabinet meetings.

My question goes back to a question raised by Senator Rivest regarding the pamphlet that is being circulated in the province of Quebec. You say that only the House of Commons has passed Bill C-110, yet the brochure makes reference to a new law. Is it not correct that a new law must be passed by both Houses and receive Royal Assent? Based on that premise, do you not think it is a bit of an affront to this institution? Perhaps you want senators right across the board to retire early, and maybe we should.

Having said that, I am being asked this in my region: What is going on? Why are they doing this? Why are they being this presumptuous? As has been put to me, do you hear the hue and cry from the media, which I am surprised we have not heard to date, that something as presumptuous as this would take place within our institution? I would like your comment on this, sir, if you would.

Mr. Rock: First, the brochure was not meant to be presumptuous, nor was it in any way intended to display any disrespect to the Senate as an institution or its members as honourable participants in the legislative process. The very sentence that talks about the new law speaks in the future. It says there will be no changes without the consent of Quebecers. It is very prospective in its description of the result. When there is a reference in the brochure to the process in Parliament, it is limited to the House of Commons, which has passed the legislation.

Senator St. Germain: I am not a lawyer, but I beg to differ with you, because the brochure states that with this new law, there will be no constitutional changes without the consent of the Quebecers. I do not want to belabour the point but it is really upsetting because we are supposed to be doing this for Quebecers. Correct me if I am wrong, but as I heard the debate, the Prime Minister is keeping his commitment to Quebecers, while the person who initiated the whole distinct society issue during the referendum campaign was Daniel Johnson, who is being cited now, not by yourself, but by members of your cabinet, sir, for being inept and not doing a good job during the referendum. One of your ministers went so far as to say he should be replaced. On television a few days ago, another one made reference to the ineptness of the campaign.

If we are trying to build esprit de corps and cooperation with Quebecers, while we are taking on the person that saved this country, theoretically, along with others, I question whether we are really working in the spirit of bringing Quebecers on side as opposed to alienating them by taking pot-shots at the leader of the Liberal Party in Quebec, Daniel Johnson.

Mr. Rock: Getting back to the brochure, we recognize that this is a process which has not yet been completed. I think what was intended was simply to express where matters stand at the moment by reporting on what has happened in the House of Commons.

In terms of Quebec, I do not think it is useful for me to get into a discussion of personalities. I do know that we will work closely with our federalist allies in Quebec to make sure that Canada does prevail and is strengthened by this process.

Senator St. Germain: I have a question relating to my province and the entire question of regions. Initially, the province of British Columbia had no representation on the unity committee, which is disturbing. However, I understand how cabinet sometimes works.

The question is: How do you determine what are regions?

We have established these various regions: The Atlantic region, Quebec, Ontario, and then this western region. We British Columbians have always considered ourselves the Pacific region, in spite of the fact that it was only after a great hue and cry that we were added to Bill C-110 as a region. I look at the populations. I look at Alberta. I hear comments from people in the region I represent, which also encompasses Manitoba and Saskatchewan, where the people are very distraught because the fact is that they are two provinces which really will not have a veto. There is confusion in the minds of people as to exactly how you determine what is a region. Why is Alberta not a region? It has 2,545,553 people. It was decided, no, we will lob them all in together. Then they take out B.C. Now we have these three together. Then we have a special deal with P.E.I. where, if two provinces oppose a given proposition it cannot go forward.

I ask you, sir, just how did the government determine what the regions would be?

Mr. Rock: I remind the Senator that as long ago as 1971 there were references to regional participation in the constitutional process. That was repeated in Senator Beaudoin's work with Mr. Edwards, in their report which referred to different parts of the country that could be recognized usefully and practically for the purposes of constitutional amendment. My own party did some policy work which went in the same direction, and the Prime Minister has spoken in the past about the usefulness of regions, always with reference to Atlantic Canada, Ontario, Quebec, and the west.

The point that emerged after Bill C-110 was tabled is that British Columbia has indeed emerged as a region as changes have occurred over the years since 1971, taking that year as a point of reference. The unique attributes of British Columbia, which I need not detail here, compel the conclusion that, for these purposes, it should be respected separately as having a regional perspective.

Senator, maybe in the fullness of time, over the next hundred years, this country will come to the process of unanimity in everything it does, so that each province will be considered separately. However, for the moment, for practical purposes, building on the trends of the last 25 or 30 years, this government has done the best it can to identify a way in which we can ensure that there is a broad consensus across this country when changes to the Constitution are proposed.

You referred to Prince Edward Island. That is a separate but related matter. Prince Edward Island is not a region within this statute, of course, but what happened with Prince Edward Island and the other Atlantic provinces, is to me a good illustration of how well this federation works. Speaking together, conferring directly about concerns expressed by P.E.I., the premiers of those Atlantic provinces have worked out an arrangement which ensures that P.E.I. has a pivotal role in the process of amendment. It is not something that Ottawa prescribed or invented. That is something that the premiers of those provinces worked out for themselves, a very practical approach to this process.

So what is a region? Over the last 25 years, that question has been answered by work that has been done by people from time to time. Why is British Columbia a region? Well, we learned a lesson. We tabled a bill that did not include that province as a region. We heard strong protestations. We listened carefully, we evaluated the strength of their case and we decided they were right and we were wrong, so we changed it.

Why is Alberta not a region? Well, I think the trend has been to regard the prairie provinces as a region. Alberta obviously has a strong voice in that region and, as you know, because of its population, can determine unilaterally whether the 50 per cent threshold is reached. However, at least for the present, as this country evolves and develops, the regions, for political and practical purposes, in the judgment of this government, are those that are set out in the bill.

Senator St. Germain: Mr. Chairman, the number one issue is a united Canada, and we have to work toward that end. I am not here to browbeat you, Mr. Minister, or to try to take away from something that is nation building in terms of keeping Canada united. However, I am distraught by the fact that your caucus and your cabinet are being consulted while others who have a real interest in this matter, including members of the business, academic and aboriginal communities, are not. I hate to use these words, but that looks like a knee-jerk reaction to the near loss in the referendum. We have to do better than that. I am prepared to do anything and everything humanly possible to keep this country together. However, we will not be able to do it if we start making decisions and if people are carping at you because they are not being consulted. I am not referring just to the Senate but to all Canadians in all walks of life, whether they be groups which have formed as a result of the referendum or unity groups, some of whom I see here today and whom will appear before us.

The people I represent are saying that you people are not listening and not consulting. You are taking the route of the past when 12 men in dark suits made decisions which upset everyone. We ended up a whisker away from destruction at that time.

Mr. Rock: I appreciate your constructive offer of participation, senator. Let me also say that you have described the process very unfairly. What we are dealing with in Bill C-110, the distinct society resolution, and in Bill C-111, the worker training elements, are measures to comply with commitments made during the referendum campaign.

I have also made clear, Mr. Chairman, that on the broader subject of unity and this government's approach to it, I do not think we should be assessed on the basis that these measures are an attempt to address unfinished business arising from the referendum. Let us look at the sequence of events. The referendum was held on October 30. Within 10 days of that date the Prime Minister had created two committees of cabinet with mandates to look at strategies for the future. Those committees have been at work since that time.

To the contrary of what the senator has suggested, there has been significant consultation right across this country with business leaders and others on options for the future and on directions and approaches. In my respectful view what is needed now as we work toward the resumption of Parliament, the Prime Minister's decisions with respect to cabinet and how we proceed from here is a combination of leadership, which means setting direction, and public involvement to ensure that direction is well-rooted in public support. That is exactly what this committee, Senator St. Germain and the country can expect from the government of Prime Minister Jean Chrétien.

Senator MacEachen: Mr. Chairman, you will have to provide some guidance at this point in time because I understand that this portion of the meeting is about to terminate. You will have noticed that it is after 11:00 and no one on this side of the chair has been recognized. I would suggest that in the future you might follow the tried and true principle of alternation so that there is a balance in the opportunity given to members of the committee.

Having said that, I found the questioning interesting and valuable, as were the answers. I want to turn to the minister's category of what Bill C-110 is and what it is not. The minister tells us it is a statement of policy. It is a statement which defines the behaviour the Government of Canada will follow in the future in dealing with constitutional amendments. He argues that that in itself stands on its own feet.

One could envisage the government setting out these principles of behaviour in a policy document, saying, "We will stand by that." However, the government has gone further, and I can understand why, and put these policy prescriptions in a bill which it has presented to the House of Commons and the Senate, which, of course, gives it political support and political weight that it would not have otherwise.

I understand that this bill does not confer any power on the Parliament of Canada that it does not possess at the present time. It does not give the government any power to do anything it could not do at the present time.

I was intrigued by Senator Beaudoin's question as to what would happen if a government introduced a constitutional amendment that contravened this policy prescription. For a number of reasons I believe no government could do that without amending Bill C-110. In my opinion, it would not be possible, even from a procedural point of view, for a government to succeed in introducing and passing through Parliament a bill which is in contravention of an existing bill. What governments do is amend in the new bill what they have stated in the previous bill.

I further take the view that, as the minister has pointed out, this policy prescription, now put in the form of a bill, could be repealed by a new government. If a new government wished to do so, it could do that, if it wanted to take the political heat over it, something which may or may not exist.

I wonder what recourse a citizen or a province could take if, in the future, a minister were to introduce legislation in contravention to Bill C-110. Would a citizen have any recourse to the courts? I do not know. Could redress be sought against a government that is acting in this way? When Senator Beaudoin described this bill as window dressing, which I think was a term of respect, the nearest parallel I can find is to Mr. Diefenbaker's Bill of Rights.

The Bill of Rights was an affirmation of principles. Those in the opposition said, "This is real window dressing because you are not changing the Constitution. You cannot, through this bill, protect the freedom of speech," and it could not. It was simply a declaration of principle. Some say that even though it was not a constitutional amendment in any way, shape or form, it did have an impact. In deciding a particular case the Supreme Court looked to this legislative enactment as having constitutional force of some kind. That is in the back of my mind.

I do not know whether the minister used the expression "a bridge" in his presentation today. It could be argued that Mr. Diefenbaker's Bill of Rights was a bridge to the Charter.

In any event, those are some of my comments about the bill. I think it would be a mistake to over do it and to say that it is something it is not. Certainly, whatever it is, it can be looked at and breached again by Parliament at any time, whether it be this Parliament or a new Parliament. If it wished, the Senate could bring in an amendment to this bill, if passed, next month. However, we will follow that up later.

If the minister has any comments on what I have said, he can give them, but I want to hear about the consequences if the Prime Minister had failed to respond or had failed to act on his undertaking. Would there be any consequences?

The bill does not seem to be applauded for its positive virtue. The Prime Minister has acted. He is living up to a commitment which he gave in a very critical moment in our history and which he thought would have an impact on the outcome of the referendum. I would like you to deal with that aspect, because there may be many reasons for passing this bill, but the principle one is a political one. It arose out of a very sensitive situation in Quebec, the outcome of which, as you say in your presentation, may have been affected by the declaration of the Prime Minister. You said there were citizens who may have voted for Canada because of this commitment.

Mr. Rock: That is right, senator.

Senator MacEachen: Have you any reason to believe that? What is your reason for thinking that the undertaking by the Prime Minister had any impact in the referendum?

I want to know also what you think would be the consequences if the Prime Minister had done nothing but said, "I will do this in 1997." Would it be just a matter of indifference?

Mr. Rock: Hardly.

In response to your first question about whether the commitment may have made any difference, I can tell the committee that I stood with thousands of others in the auditorium in Verdun on October 24 last to listen to the Prime Minister when he spoke and expressed this commitment. I participated with tens of thousands of others in a rally in Montreal on October 27, and I saw for myself the mood of the moment, the stakes that were engaged, and also the terms that were being discussed.

I do not think we can underestimate the significance of the Prime Minister's commitments. They attracted very considerable attention. They were said by some, even on the other side of the question, to be tangible evidence of a preparedness to change and a demonstration of flexibility. A great deal of attention was paid to them.

In answer to your second question, senator, not speaking of this government politically but speaking of Canada, the consequences for Canada and its future would be terribly grave if those commitments were not respected and honoured. For that reason, the Prime Minister acted immediately to ensure that they were respected. That is why he tabled this bill within weeks of the referendum, why he tabled the resolution on distinct society, and why he ensured that the worker training provisions in Bill C-110 were before the House before Christmas.

By way of rhetorical question, I invite the committee to consider what the atmosphere would be as we try to go forward from here in the absence of compliance by this government with those commitments. They had to be respected quickly, they had to be respected first, and they had to be dealt with before we proceeded further. In the absence of that decisive action, it would have been extremely difficult to make further progress.

The position in which we find ourselves is that some critics are suggesting that the immediate action to fulfil these commitments represents the sum total of our response to what is a crisis in the nation, and that, of course, is not so. We are proceeding methodically, first fulfilling these commitments and making sure the population of Quebec knows that we are fulfilling these commitments, and then proceeding more globally with an approach and a strategy to the question overall which will have many parts and which will become public in the coming weeks.

That is my response to the senator's question. It is a political matter. It is the fulfilment of a commitment, and it is imperative that that commitment be fulfilled.

Senator MacEachen: Can you comment on what recourse a citizen has if a government fails to respect the provisions of this bill?

Mr. Rock: I would think the appropriate procedure would be for such a person to apply to the court for a declaration as to the unlawfulness or the inconsistency between the government's conduct and the legislation. It would be a declaration, as we have already observed, which would be of little usefulness from a legal sense because the supremacy of the Constitution would require us to treat as valid any amendment adopted under the 7-50 formula, notwithstanding Bill C-110. Again, I must emphasize that we have, in a sense, gone through the looking glass, because it is inconceivable to my mind that a government would act in defiance of legislation on the books.

Senator MacEachen: Or that a speaker would permit the law to be put to a vote.

Mr. Rock: As you have observed, senator, the more customary approach is for a government to amend or repeal legislation rather than abrogate it.

Senator MacEachen: I am just laying the groundwork.

Senator Andreychuk: Mr. Minister, there were many questions I wished to pursue, and some of my colleagues have already put parts of what I wanted to say to you. However, in light of the time, I want to stand back.

You tell me that this is absolutely necessary in light of the events surrounding October 30 and that we must move quickly. I do not think there are many citizens who would disagree with you. We must do something and reach out.

What concerns me greatly about Bill C-110 is that you say it is a bridge, that it is a measure for the interim until we get to the Constitution, because the Constitution is where citizens' rights are vested. In other words, as a Canadian citizen, my rights are in that Constitution, and I look to that.

If that is the case, why would you put in the Constitution this whole notion of regions? If the imperative was Quebec, why did we not deal with it? Why do we go back to a concept that has not been debated, has not been tested, and, in my opinion, is looking backwards? You say you want to look to the future by putting in regions. Saskatchewan was part of a region that had four provinces. All of a sudden, I am in a region of three provinces. It seems to be driven by numbers only and not many other aspects.

I know what my rights are under the Constitution as a citizen of Canada and a resident of Saskatchewan. You add Bill C-110. Quite frankly, what does it mean to someone in Saskatchewan?

It causes me great difficulty in trying to understand why, as you try to bring someone up, you would bring someone else down. You are saying that someone in Saskatchewan perhaps now is not part of a whole province but part of a region. I have no idea what it means. It lends uncertainty, and it gives cause for concern for those of us who live in those regions.

There has been no public participation on the issue of regions today. Therefore, I would suggest that we are setting up another scenario where politicians make determinations, and they seem to be acceptable because there has been no adverse effect.

I would suggest most Canadians do not know what the effect will be, and I am not sure that you have taken the time to explain to them what the effect will be. You have said that it is only a bridge, but, as you and I know from negotiations, once something is given, it is hard to take it away.

Mr. Rock: It is a bridge in the sense that the process of discussing constitutional amendment continues and is eternal. As a matter of fact, the Constitution itself requires that, by next April, a conference shall be held on the very amending formula that is under discussion. That conference may or may not result in agreement; it may just be a way station in the continuing process of discussion. I do not think we should build up expectations that April of 1997 will provide some magic formula that will solve all our constitutional problems.

Let me address the senator's concern about uncertainty. First, we have been at pains to emphasize that the Constitution and its protections remain unchanged by this bill. The Charter of Rights is not imperiled. Distribution of legislative authority is not touched. Even the amending formula itself remains the same. There is still unanimity for the matters required. The prospect of bilateral change through agreement still exists. There is an opting-out section if provinces do not agree with a measure which would derogate from their powers, and there is compensation in certain circumstances if that occurs.

All this does is elaborate on the circumstances under which one government, the Canadian government, will take part in the general amending process.

As to uncertainty, it is my hope that, at the end of this very public process of house and committee hearings and public discussion, a general understanding will exist about what this bill does and does not do, as I said at the outset. I hope we can deal with any uncertainty there just by having public discussion.

In terms of the regions, the allocation of participation in constitutional amendment to the recognition of regions is not a new subject. It has been around for a couple of generations. It has been expressed in various forms. As to the people of Saskatchewan or Newfoundland or British Columbia, I would hope, again, that this public discussion makes clear what it means for them.

In Saskatchewan, for example, I would be inclined to point out that the approach of Bill C-110 enhances the position of Saskatchewan. In the past, with the pure 7-50 formula, the views of the provinces and the prairies could be disregarded even though they were three against it, if the seven who were for it prevailed and had 50 per cent of the population.

The approach found in Bill C-110 enhances the position of Saskatchewan by permitting it to combine, for example, with Alberta, to block change, or to combine with Alberta to express consent, or to combine with Manitoba to impede change and prevent it because two of the prairie provinces would be opposed.

In fact, the operation of Bill C-110 brings to a higher level the prominence and importance of Saskatchewan's participation in constitutional change to which Bill C-110 refers. As to uncertainty, I do not think there is a great deal of uncertainty in the land as to the importance of regional consensus when we discuss constitutional change.

Senator Andreychuk: Mr. Minister, I respectfully disagree with you that it enhances Saskatchewan's position. It does if you look at regions as being geographic in interest and being the only like-minded groupings one can find. I have gained assurance in the past from the fact that a province like Saskatchewan could combine with Quebec or with the Atlantic area or with B.C. This bill necessarily says that only those who live next to us have anything in common with us and we are a region.

Mr. Rock: The 7-50 formula still exists, so you can still combine.

Senator Andreychuk: May I suggest that, although this concept of regions has been around a long time, it has not necessarily been accepted by the populace. It has not seen the light of day. We are still talking about a Victoria amendment which never came to be part of the Constitution.

Mr. Rock: There was agreement on it. However, the point is that nothing in Bill C-110 prevents Saskatchewan from combining with Quebec and Newfoundland to encourage a defeat of the 7-50 formula for constitutional change. That remains exactly as it has always been. This simply adds another dimension, a regional dimension. It does not make it the exclusive consideration; it makes it a consideration. That is all.

Senator Andreychuk: It gives me some concern that you could not answer Senator Murray's questions on factual situations. Most of us work on the basis that, while the law is there and it sounds good, it is in the application to and the administration of factual situations that the law proves its benefit and usefulness.

You are asking me to buy into a regional concept for what reason?

Mr. Rock: For the reason of ensuring strong regional consensus before a non-veto type of constitutional change occurs. As to Senator Murray's questions and your comment about certainty, surely it would be foolhardy for a Minister of Justice to give answers off the top of his head to hypothetical questions dealing with technical, prospective changes in the Constitution. I am happy to answer those questions but only once the answers have been considered. That is only responsible.

It is important for this committee's work, in my opinion, that the principle of Bill C-110 be understood and debated. The principle of the bill is not to derogate from Saskatchewan's 7-50 rights in amendments. That remains unchanged. It is to recognize that, before any change takes place, there should be strong regional consensus in its favour. That is all.

Senator Andreychuk: When, in fact, will Bill C-110 be utilized?

Mr. Rock: That brings me back to my opening statement. Regarding changes that do not require unanimity, that are more than section 43 bilateral arrangements, that are governed by the general amending formula and where there is no right to opt out, and as to whether this particular change or that one falls within that category, I am happy to look at those questions and give them due attention. However, the mere fact that we cannot produce instant answers to technical hypothetical questions does not discredit the principle. The principle remains important and highly relevant.

Senator Andreychuk: I have a follow-up question on participation.

Section 35 of the Constitution talks about aboriginal rights and the need to consult. You say you are dealing with the aboriginal agenda with regard to their rights elsewhere, but the question of consultation means bringing the aboriginal people to the table on the basis of trust basis.

What consultations were undertaken with the aboriginals before Bill C-110 was put in place to assure them that their rights would not be abrogated or changed in any way by this legislation?

Mr. Rock: Senator, it is important not just to refer to the constitutional obligation to consult with aboriginal peoples but to refer to the whole of the sentence, because the Constitution requires that there be no change to section 35, to section 25, to Part II of the Constitution Act, 1982 without consultation with aboriginal peoples. That is the constitutional requirement. This bill does not touch any of those constitutional safeguards for aboriginal peoples and therefore that constitutional requirement was not engaged.

We are conducting continuously, through the Minister of Indian Affairs and Northern Development, consultations with aboriginal people about the implementation of the inherent right to self-government. This government treats that inherent right as a fact and we are acting on it. Consultations are continuous; they exist for the very purpose of bringing to life what we say are the constitutionally entrenched rights in favour of aboriginal peoples.

Did Senator Meighen have a question?

Senator Meighen: I want to follow on principally from concerns raised by Senator Beaudoin and others, and maybe concerns that you, yourself, have raised. I do not mean to be in any way disrespectful, but it seems to me that the best one can say about this piece of legislation is that it is better than nothing. In the circumstances, something had to be done.

At worst, though, as Senator Rivest suggested, it could muddy the constitutional waters and render constitutional change even more difficult and cumbersome. It might even be unconstitutional, although I am not suggesting we get back into that debate.

You said the 1997 conference may be just another way station along the path. It seems to me that 1997 is a seminal point in the process. In my view, if we as Canadians do not come to grips with the fundamental issues and produce real change, the future of the 1997 constitutional conference and the future for the country will be bleak.

Others do not share my view, but I think that 1997 is "put up or shut up" time. If there is some validity to that notion, in an effort to emphasize that fact, would there be any validity to putting the participants' feet to the fire in 1997. In an effort to unmuddy the waters, perhaps this bill should have a sunset clause whereby it becomes defunct when the constitutional conference gets under way.

Mr. Rock: I said earlier that I am not sure it is wise to put all of our expectations on one conference. We have seen in the past 10 or 15 years in this country how even agreements among premiers can fail to result in constitutional change. I also wonder whether it is wise to proceed on the assumption that the only thing that will save Canada is major constitutional change. Changes other than constitutional ones can occur that can improve circumstances as well.

The senator suggested that this bill is better than nothing. That is really damning with faint praise. The reality is that the elaborate and magnificent Meech Lake Accord resulted in nothing. The reality is that the sweeping changes of the Charlottetown agreement amounted to nothing. All of that labour, all of that anguish, all of that controversy, and nothing was produced.

Another reality is that by this legislation, the Prime Minister and the government have provided a means by which we can fulfil an important commitment some regard as extremely significant - namely, a veto for Quebec and other regions in a practical, serviceable way within the short term. It is not intended to be permanent. A more durable solution may well be worked out eventually through the Constitution.

If this bill is enacted and becomes law, credit should be given for the fact that uniquely, among governments since 1982, this one has produced something which has a practical significance by acting upon one of the concerns expressed by Quebec. I think it is far better than just "better than nothing". Indeed, it is significant. As to muddying the waters, that is a matter of debate.

In response to the thrust of the senator's question, I would not be inclined to oversell 1997 and constitutional change in 1997. What would happen if discussions occur, proceed constructively, and the process does not conclude in agreement until 1998 or 1999? Does that mean it is a failure? Of course not.

Senator Meighen: "Constructively" is the operative word.

Mr. Rock: We have a provincial government in Quebec which says it has no interest in constitutional change. We have to keep that in mind. We must deal with what we can and do the best we can.

Senator Meighen: It may well be that the views of the government of Quebec do not correspond with those of the majority of Quebecers, but that is another debate.

In terms of the Meech Lake Accord, which you dismiss as being a lot of work and effort amounting to nothing, could it be that the process was at fault more than the substance? If that is so, might we not have something to learn in this particular instance from the failure of the process of the Meech Lake Accord?

Mr. Rock: That was the theory going into the Charlottetown discussions. Instead of the Meech Lake Accord behind closed doors, there was a methodical, prolonged, public process of getting people into public meetings, generating grass roots consensus and having discussions. What would arise would be a structure supported from the bottom up. We know what happened to that.

I will leave the judgment of history with respect to the Meech Lake Accord to others. All I can say is that some may regard Bill C-110 as modest, but if it becomes law, it will have achieved something tangible and important - a veto for Quebec over constitutional change. That is "not nothing"; that is something. It is a fulfilment of a commitment. We will be very proud of that.

Senator Meighen: Too bad it is not in the Constitution.

Mr. Rock: Maybe some day.

The Chairman: Mr. Minister, you have been more than generous in staying with us for well over two hours. On behalf of my colleagues and members of this committee, I thank you for your testimony. I see Deputy Minister Dawson here and other officials who perhaps can carry on our discussion.

Mr. Rock: Mr. Chairman, perhaps I could address one matter before I leave: At the outset, Senator Murray expressed the hope that I would be able to come back on January 30. I will be in Vancouver on January 29 and 30, next Monday and Tuesday. I am returning to Ottawa on Wednesday. I will not be able to appear at the end of the hearings. That is disappointing to me because I want senators to know what a pleasure it has been for me to attend this committee hearing. You can assess that from the number of times I have been before your committees.

I have testified for over two hours this morning. I testified before the House committee at length. Officials from the department will follow me. You may find it useful to hear from departmental officials at the end of your hearing.

Senator Murray: It is always up to the minister concerned, but I think we make it a practice to offer the government the first words and the last words when there is a government bill before us. If you cannot attend, I guess we understand. You may wish to have officials or a colleague attend at the end of our hearings.

Mr. Rock: I am grateful for the invitation. Usually I underline my desire to come back, as I have on all previous occasions, but in this instance, I will be at the other end of the country. It will not be possible for me to attend.

The Chairman: Thank you, Minister.

Honourable senators, our next group of witnesses are officials from the Department of Justice. Perhaps the deputy minister could introduce her colleagues.

Ms Mary Dawson, Associate Deputy Minister, Department of Justice: Mr. Chairman, if I could introduce my colleagues, with me is Warren Newman; Louis Davis; Thomas-Louis Fortin. We are all officials from the Department of Justice.

I have no introductory remarks, of course. I am just here at your disposal.

The Chairman: Perhaps I might turn to our colleagues on my right for questions.

Senator Carstairs: What was the reasoning of the department, during the preparation of this particular bill, in the change of formula from Victoria formula to this one. I am thinking specifically about the fact that in Victoria, as I understand it, there was no 50 per cent quotient for the Atlantic region. There was one for the western region because of the predominance of British Columbia. I am wondering why, when the amendment was made, the 50 per cent rule was not eliminated, because it was no longer necessary for B.C., as B.C. became a new region, and in my view it was never a particularly good idea for Atlantic Canada. Perhaps you could give me the rationale for that approach.

Ms Dawson: I am afraid I cannot really give you a total rationale for that reasoning. It was not a Department of Justice official's decision. It was a policy decision taken by the government. However, I know there was a desire to have symmetry between the way the western provinces were handled and the eastern provinces, and that is about as far as I can go.

Senator Carstairs: Senators got into considerable discussion with the minister, in which I did not participate, and they talked as if the idea of regions was some unique concept. As I understand the British North America Act, the first time we talked about regions actually had to do with the Senate. Senate seats were established on the basis of regions, and that is what senators are supposed to represent; not provinces.

So I was surprised at the amount of debate and discussion that went on as if the idea of regions had come out of the Victoria formula in 1970-71, as if this was a birth of some kind 25 years ago. From your background and knowledge, can you tell us a bit about the evolution of the idea of the use of regions between 1867 and the Victoria formula, and was it the use of the regions in the British North America Act of 1867 that actually led to the concept of regions as a means to modify or amend the Constitution as proposed in Victoria?

Ms Dawson: I think you hit the main issue, which is the Senate, but it is an extremely important and obvious one on the face of the Constitution, the regional breakdown with respect to the representation. I cannot, off the top of my head, think of another example in the Constitution. As you say, it was certainly discussed in the 1970s and 1980s in the context of an amending formula, such as the Victoria formula, but I do not have another constitutional example.

Senator St. Germain: When we talk about regions, the regions in the Senate are a different issue. When we break this down, as we are doing now, and give my province of British Columbia a veto, I think it discriminates against Saskatchewan or Manitoba, to be honest. The original concept of regions, from my understanding from reading Senate history, in which I am no expert, is that there would be 24 senators from Quebec, 24 from Ontario, 24 from the Maritimes and 24 from the west, and six Senate seats were given to Newfoundland in 1949, so I do not think that is a fair comparison.

Do you not agree that the way this legislation is formulated really discriminates against Saskatchewan and Manitoba? That is a tough question to answer because, as the minister pointed out, this is a political decision. If you cannot answer, just say so. I respect your role in such matters.

Ms Dawson: It is a political decision, but I think the thing to notice is that the numbers have changed, particularly over the last 20 or 30 years. The distribution of the population in Canada is changing and I think that is the explanation for the special treatment of British Columbia, but it is a judgment call and that is not in the bureaucratic domain.

Senator Beaudoin: I should like to come back to this question of regions. I am one of those who think that it arose right away in the BNA Act in 1867. There is no doubt in my mind, having read the debates leading to Confederation, that it is Cartier who said that even if Quebec is less populous than Ontario, Quebec and Ontario should have the same representation in the upper house. Then the two Maritime provinces at that time - P.E.I. did not enter Confederation in 1867, even though the representatives met first in Charlottetown - said that if Quebec has 24 senators, Nova Scotia and New Brunswick must have 24, and after that, the numbers were adjusted. In 1915, the Constitution was amended to they say that from now on there will be four divisions in Canada: Quebec; Ontario; the Maritimes, because Newfoundland was not there until 1949; and the west.

Even in 1982, if they had said in the amending formula that seven provinces had to agree, then, of course, it would have meant that all provinces were equal. However, they added "representing 50 per cent of the population." As far as I remember, it is a bit different from the United States formula of amendment which is two-thirds and three-quarters, but they have added that.

Of course, it favours Ontario and it favours Quebec and B.C., the provinces that are much more populous than P.E.I., for example. As to the responsibility of the Senate, and it is not particular to our country, it should represent regions, in the opinions of the Fathers of Confederation.

The United States, of course, is different because it has two senators per state. In Germany, again, there is the regional concept. So I do not think we can go further than that.

However, as to the amending formula, when the proposition was put on the table in Victoria, they followed the same pattern as for the Senate, but I agree that we may distinguish one from the other.

Senator De Bané: That formula was approved by the 10 provincial premiers in 1971, including the premiers of Saskatchewan and B.C.

Senator Beaudoin: Quite right.

Senator Rivest: Not the premier of Quebec.

Senator De Bané: The premier of Quebec was against it, Senator Rivest?

Senator Rivest: No, he did not agree. He reserved his opinion to discuss the matter with his cabinet.

Senator De Bané: Are you suggesting he had reservations about the amending formula of 1971?

Senator Rivest: Not on the amending formula, but on the whole package.

Senator De Bané: I maintain that the amending formula of 1971 had the concurrence of the 10 provincial premiers, including Saskatchewan and B.C.

Senator Beaudoin: Yes.

Senator Carstairs: I want to deal with a hypothetical question. I am glad Senator Beaudoin raised the date of 1915 because that is what I was looking for. I think there was mention of it earlier, and I had forgotten.

As you know, there has been a long-held desire on the part of western Canadians, and I include British Columbians in that definition, for Senate reform. If this bill were to become the amending formula in 1997 - so we are really thinking hypothetically here - in your view would that justify British Columbia having 24 senators?

Ms Dawson: I do not think so. Again, these are policy questions. One of my colleagues just whispered to me that, although we have no other examples we can think of in the Constitution on a regional approach, conventionally, the Supreme Court is appointed somewhat regionally. In fact, the same is true with respect to cabinet representation whose members are also chosen regionally to some extent.

Senator Murray: Mr. Chairman, the amending formulas are now going on 14 years old. Ms Dawson, I know you have been there all that time. You were closely associated with the act of 1982, as well as with the several amendments that have been made to the Constitution under these amending formulae and with the processes of the Meech Lake and Charlottetown Accords.

With a view to getting a better idea of what potential amendments would be subject to the Bill C-110 process, I asked the minister some specific questions, some of which he answered. With respect to the others, as we would say in parliamentary terms, he took notice of them. I hope that, perhaps, you will be able to help me on some of those.

To sum up, I hope I am correct in recalling that the minister thought that the provisions of section 93 of the 1867 act, which deal with the denominational school systems of Ontario and Quebec, could be amended by section 43.

I also asked him about section 133 of the 1867 act as it pertains only to Quebec, the legislature, the records, journals and courts emanating from Quebec. Insofar as section 133 relates only to Quebec, could that be amended? If you need a more specific amendment, in your view, could the National Assembly of Quebec and the Parliament of Canada remove, by amendment, the references to Quebec only in section 133?

Ms Dawson: I think probably they could.

Senator Murray: With regard to the Senate, there were a couple of questions with respect to which the minister took notice. One dealt with sections 26 and 27, which deal with the appointment of extra senators. To abolish those sections, if that were a desirable thing to do, would that be a section 41 amendment or something less than that?

Ms Dawson: The Senate ones are probably the most difficult ones to figure out in the Constitution. Correctly, the minister was nervous about stating something categorical with respect to the Senate.

With respect to general amendments relating to the Senate, for example, when you went as far as abolition, that would probably fall under section 41. That is so more because of the context in which the whole amendment would be done than the precise amendments we are talking about. The amendment procedure with respect to aspects of the Senate referred to in the Constitution is set out in section 42. That is why it is so important to be aware of the particular amendments and the package in which they are being proposed before one gives an opinion as to what the actual amending formula would be.

Senator Murray: I mentioned specifically sections 26 and 27 which deal with the appointment of extra senators and which the Mulroney government invoked in 1990, if you recall.

Ms Dawson: I think there is a Governor General overlay with respect to those sections. It would probably fall under section 42. However, that is one question to which one would want to give careful thought because there may be some question about the office of the Governor General. Thus, it is one to which you cannot give a categorical, off-the-top-of-your-head response.

Senator Murray: I am curious about section 29(2) which deals with the retirement age of senators. It was acted upon in 1965, which was prior to the amending formula of course. That action was taken unilaterally by the Parliament of Canada in an address to Westminster. I am not aware that there was consultation with the provinces on the matter, although perhaps there was.

Senator Beaudoin: Is it not a pure federal statute?

Senator Murray: That is what I want to know.

Ms Dawson: Our thought is that it "probably" falls under section 44. Again, all these things are "probablies", Senator Murray.

Senator Murray: I appreciate that, but let us have a word, because I think it is important, about sections 22 and 23 of the 1867 act which stipulate that there must be a senator for each of Quebec's 24 electoral divisions. The senator's property qualification or residence must be in that electoral division. Could those provisions, which relate to Quebec only, be amended without Quebec's consent?

Ms Dawson: Personally, I do not think so. However, that is something with respect to which, I am sure, you will get different opinions from different people.

I think there is a possibility that for some amendments you may have to look at two overlapping amending formulae, the conditions of which will have to be met.

Senator Murray: It would be 7-50 as a general rule but, in order to change sections 22 and 23, you might need Quebec's consent?

Ms Dawson: Yes. Again, that is something about which one would like to think instead of just answering quickly. Certainly, there is a residence aspect in section 42 of the amending formula. There is also a Quebec aspect set out in section 43. Just how you come down on those two factors is quite complex. My answer is that it is one or the other or both.

Senator Murray: If it were both, the situation that we face is that, while seven provinces with 50 per cent of the population and Parliament could bring about an elected Senate, a Senate with different powers and one which is equal, Quebec would always have to have 24 senators.

Ms Dawson: That is right. I would say this is in the realm of very detailed legal opinion.

Senator Murray: We will hear from some outside experts in due course, and we will put those questions to them.

You may decline my next question if you wish. I am not sure whether Mr. Rock declined it because he wanted to think about it or because he just did not want to think about it at all. I refer to the question of Gordon Robertson's view on the secession of a province.

It is clear that secession means a province leaving confederation. Mr. Robertson's view is that, as matters now stand, section 41 on unanimity would have to be used in order to bring that about.

Ms Dawson: With respect to secession, the proof would be in the detail. There is no provision in the Constitution expressly dealing with the secession of a province. There could be a line of thinking which would suggest, therefore, that it falls within the general amending formula, because there is no specific provision.

However, if you think through what would be involved in a secession, it is hard to imagine a successful secession without hitting some of the matters which are listed in section 41, the unanimity provision. You could also argue that the content for secession is so fundamental that you need not rely on the features in section 41.

It would seem evident that a secession would involve at least the 7-50 formula. Personally I am having trouble imagining how you would achieve an effective secession package without getting into a unanimity formula provision. The precise package being proposed would be relevant to determining the ultimate course of action.

Senator Murray: With regard to the constitutionality of Bill C-110, Senator Beaudoin has raised various matters. There is just one question I have, and it is this: The hurdle that is created by Bill C-110 is 7 provinces representing, not 50 per cent of the population but perhaps 90 odd per cent of the population. In terms of the arguments on constitutionality, does it matter that the hurdle that Bill C-110 is creating is a higher hurdle than the amending formula of 7-50?

Ms Dawson: I do not think it matters. It is a different hurdle. There may not be a complete enveloping of the 50 per cent within the 92 per cent, but maybe there would be. I am not sure how that works. In any event, I do not think that has an effect on the constitutionality.

Senator Murray: If, instead of the regional consensus on unanimity that the government has provided for in Bill C-110, they had brought in some version of the Meech Lake formula, would that make the bill less constitutional than it is presently?

Ms Dawson: I do not think so. As Minister Rock said, this is an overlay which does not go into the constitutional realm. It is an overlay which the government is imposing on itself, and I do not think the details of what the overlay is would affect the constitutionality.

Senator Murray: There was some reference when the minister was here to "subletting" the consent in the Maritime provinces. Do you have any correspondence or any documentation on that arrangement between Nova Scotia and New Brunswick on the one hand and Prince Edward Island on the other?

Ms Dawson: No. As far as I understand, it was an arrangement between those three provinces.

Senator Murray: If you owned a house, rented it and your tenant sublet it, would you not want to have all the information on what is being done?

Ms Dawson: I think it is the practical effect of what happens. The western provinces may do the same sort of thing without writing it into an agreement.

Senator Murray: There is an infinity of mischief that could be done here.

Ms Dawson: The rules are set out in Bill C-110. If they are met, they are met. If they are not met, they are not met. Whether there is an agreement between P.E.I. and the other provinces, it seems to me, does not matter.

Senator Murray: Suppose a province decided they would be governed in their decision on whether to give assent by consultation with some outside body, or suppose Alberta, which is the dominant player in the prairie region, announced that it would make a deal with the Tory government of Manitoba but would not make one with the NDP government of Saskatchewan. Would the Government of Canada not look askance at what was being done?

Ms Dawson: I do not know. Those things happen all the time, as far as I can see, and the way the 7-50 formula works the same thing can happen.

Senator De Bané: First, to Senator Andreychuk and Senator St. Germain, the reason the federal government and the provinces took over 100 years to find an amending formula is because the federal government resisted, for a long time, the idea of an amending formula that would imply the consent of every single province.

All countries have stringent conditions to amend their Constitution. If you say that for every matter you need unanimity, of course it would be impossible to amend the Constitution. That is why the federal government resisted for so long and did not accept that unanimity rule in all cases, and that is why, finally, all the governments settled on the Victoria formula in 1971.

On the question of secession, I respectfully submit to the witnesses that in order for it to work it must be legal. In order to be legal, it needs the unanimity. There is a reason for it needing unanimity.

Let us talk frankly about the separation of Quebec. You will have 2.5 million people making a decision that will have extraordinary consequences for the remaining 30 million people. No one can overestimate the consequences if Quebec separates. Last week, the president of one of the banks expressed some of those consequences.

For that reason, in my opinion, unanimity is essential if a province wants to secede, and it cannot secede unless it is done legally. Otherwise, you would have chaos, with all the resultant legal consequences.

Senator St. Germain: Mr. Chairman, since the minister cannot return, is it appropriate to ask the officials to return to clarify legal aspects that may arise as a result of the discussions that will be taking place in the hearings we are conducting? Perhaps that is a matter for the steering committee.

The Chairman: There will be meeting of the steering committee and I will raise the matter with them.

Senator St. Germain: Coming back to these regions, perhaps the political aspect to what I am about to ask will prevent a response from your level, but I do not want to preempt your answer either.

You made reference to the Supreme Court of Canada and the Senate being regionalized. However, in this situation of change, having now added British Columbia, would you agree that we are changing the existing conventions between these other bodies? By its addition, a new region changes the whole scenario for the established regions. Do not the populations of Saskatchewan and Manitoba as individual regions have the same rights in the new scenario as British Columbia?

Ms Dawson: That is a policy question, rather than a legal question. I can only repeat that the demographics of Canada are changing. From a policy point of view, it seems legitimate to ask whether the groupings contemplated 20 or 30 years ago are the right ones. However, these are policy questions, not legal questions.

Senator St. Germain: If passed, do you see this bill as impinging on any future negotiations over the concerns of Quebec and the rest of Canada from a constitutional point of view?

Ms Dawson: The question of whether B.C is a region has been on the table for some years. There are many things on the table and many different suggestions for the amending formula. One should not over-estimate the impact of one particular foray into that realm. Certainly it has been given a certain level of credibility; however, I do not think it has closed any doors at all.

Senator St. Germain: I am not speaking solely about B.C. now. I am speaking of the whole constitutional picture.

Ms Dawson: There have been many suggestions on the table. The federal government was a party to both the Meech Lake and Charlottetown Accords; neither of which had this particular formula on the table. It was taken quite a long way in a variety of resolutions. There is a lot on the table at the moment and this should not foreclose any number of different options.

Senator St. Germain: If this bill became a reality in a constitutional amendment, how would it affect the addition of provinces? For example, what would happen if the territories wanted to become a province?

Ms Dawson: It is an overlay. The addition of provinces is under section 42, which is subject to the 7-50 formula, and one to which this overlay would apply because it does not fall under sections 41, 43 or the opt-out provision. It would have an effect at the practical level with respect to how the Government of Canada proceeded with any such amendment. It would apply.

Senator St. Germain: In other words, if Bill C-110 became part of the Constitution, in theory we would -

Ms Dawson: I am sorry, I thought you meant if Bill C-110 passed. Do you mean if Bill C-110 became part of the Constitution, instead of the current Constitution?

Senator St. Germain: That is correct. What if it became an actual amendment to the Constitution?

Ms Dawson: It would depend upon its intended application. If you had it apply to the Constitution the way that this bill applies, it would change the formula to this formula, which would require the support of 92 per cent of the population, or whatever.

Senator MacEachen: Mr. Rock talked about the Parliament of Canada as having a virtual veto on constitutional change. I take it that the government will impose upon itself, through this act of Parliament, limitations on the exercise of that veto. In other words, its veto potential will be less after this bill is passed.

Ms Dawson: Except that a veto is a negative thing, and Parliament still would not be forced to act, even if all the conditions set out in Bill C-110 were met. In other words, if the Government of Canada itself did not want to proceed with a particular amendment, there is nothing in this bill that would force it to act, even if it had the requisite consent under Bill C-110.

Senator MacEachen: I understand. Would you list for me those areas in which the government would now be unable to act as a result of this limitation it has imposed upon itself in this field?

Ms Dawson: It would be "restrained" from acting.

Senator MacEachen: You say it would be "restrained from acting" by the law of Parliament, from acting in the following areas?

Ms Dawson: That is right.

Senator MacEachen: Presently it could act in those areas?

Ms Dawson: Yes. Parliament would be restrained from any amendment under section 42 or 38 which had no opt-out overlay on it. In other words, it has not included any rules with respect to sections 41 or 43 because those are excluded from the ambit of the bill. Subsection 38(3), which is the opt-out provision, is excluded from the ambit of the bill. That leaves section 38 without the opt-out and section 42 as the domain of activity where the government has set up this restraint.

Senator MacEachen: Can you explain why these choices were made?

Ms Dawson: Yes. The choices were made because each province already has a veto under section 41, because it is unanimity and the affected province already had a veto under section 43. There is a sort of quasi-veto under section 38(3) in the sense that any province can opt out of an amendment that is described in section 38(3). Those provisions are already in the Constitution to give every province a protection from a constitutional amendment that they do not want.

Senator MacEachen: We can look at this as a sort of power possessed by the federal government and which it has now given up, right?

Ms Dawson: Yes.

Senator MacEachen: Does it mean that the Government of Canada, through the Parliament of Canada, has less or more or equal power to the province of Ontario in the field of constitutional amendment? Has it now become equal to the provinces?

Ms Dawson: No. It is a self-imposed limit which, as I was saying, is a negative limit. However, there is nothing that forces the federal government to go forward even if all the conditions of this bill are met. I am not sure if I am getting the proper drift of your question?

Senator MacEachen: The federal government has said in this bill, "We will not exercise certain opportunities which are presently available to us."

Ms Dawson: That is right.

Senator MacEachen: One might use the term "opportunities" or "power", but the federal government will have less opportunities when this bill passes.

Ms Dawson: That is right.

Senator MacEachen: The federal Parliament, if it follows its own rule, will have less latitude.

Ms Dawson: That is right. It is a self-imposed restraint.

Senator MacEachen: Would the opportunities of the federal government then rate as less, greater or equal to those of Ontario? Has the federal government now put itself in a subservient position to a single provincial legislature?

Ms Dawson: It has certainly limited its scope of action below what it has without Bill C-110. Ontario, Quebec and British Columbia are named as having a veto on moving forward.

Senator MacEachen: Would it be safe to say that the legislature of Quebec has as much power now over the Constitution as the Parliament of Canada?

Ms Dawson: By dint of a parliamentary act in those areas that the act covers, yes.

Senator MacEachen: I know that is happening, but I want you to give me a judgment as to whether the Parliament of Canada is on the same level or a lower level than the legislature of Quebec or Ontario - a self-imposed level, mind you - or is it at an equal level?

Ms Dawson: I find that a difficult question to answer. It is on a self-imposed, equal level in areas that have been set out. The only one that is a little odd is section 38(3).

Senator MacEachen: The areas that have been set out are areas where the federal government is stepping in.

Ms Dawson: Yes, and potentially going over the provinces to do so.

Senator MacEachen: Yes.

Ms Dawson: They are putting on the restraint.

Senator MacEachen: They are carrying the ball for the provinces.

Ms Dawson: It is the word "equal" that bothers me a little bit.

Senator MacEachen: It is a political word and this is a political business.

Ms Dawson: They have equalized the playing field through their own -

Senator MacEachen: The legislature of Ontario now has as much authority or more by virtue of what we have voluntarily given up as the Parliament of Canada. I am saying "equal", "less", or "more". It is more. Senator Murray - he is certainly an expert - says more. Quebec has more power than the Parliament of Canada; is that right?

Ms Dawson: I cannot say that.

Senator MacEachen: I know why.

Ms Dawson: The Parliament of Canada has imposed its own rules, so it is hard to talk about equals.

Senator MacEachen: I regard that as a question and an answer that has not been conclusively settled.

Senator Murray: If nine provinces plus the Government of Canada wanted to go ahead with an amendment, to which this bill applies, and Ontario objected, then the Government of Canada could not proceed. In a way, then, each region has the upper hand over the Government of Canada.

Ms Dawson: The trick is that there is a difference between the Parliament and the government or the legislative assemblies and the government. Parliament has put a restraint on the government, not on the House of Commons and the Senate.

Senator MacEachen: I understand. The government has recommended and Parliament will now possibly accept these self-imposed rules. However, at the end of the day, the situation has been changed so that if Parliament now lives under its own prescriptions, it will be a weaker body. The power will have flowed from the federal Parliament to the provincial legislatures.

Senator Meighen: Until it decides otherwise.

Senator MacEachen: Of course. We have gone through that. I am asking to be corrected if my understanding is incorrect.

Senator Andreychuk: You are correct.

Senator Meighen: Nobody is correcting you.

Senator Carstairs: Senator MacEachen has opened a very interesting avenue. On the one hand, in this bill we have clearly said that the government will limit the use of its veto power. We have less power than we had before, provided they accept the prescribed legislation. On the other hand, we always maintain our veto power. If, for example, all 10 provinces wanted to do something that the federal government did not want to do, the federal government could still use its own veto power to not introduce the legislation in the House of Commons and in the Senate, which would mean the legislation could not take force and effect. It is a bit like the chicken and the egg, is it not? We have said that we will agree to be more equal; but, on the other hand, we maintain our blunt instrument should we need that blunt instrument.

Ms Dawson: That is right. We are using our veto to accommodate other people's desires to stop the movement of a particular proposal. However, I do not think one can ignore the fact that the limitation is imposed on the government, not on Parliament. There is a distinction there, and there is a distinction with respect to this equality issue and our maintaining a "super-veto" even if everyone wanted to go ahead.

Senator MacEachen: On the issue of a "super-veto", the point made by Senator Carstairs is that no matter what happens, we could still step in. However, if we stepped in in certain areas, we would have to amend Bill C-110.

Ms Dawson: That is right.

Senator Murray: That is, as far as the government is concerned. Suppose seven, eight or nine provinces agreed to an amendment. Failing the consent procedure, a minister could not place that resolution before the House of Commons, but suppose we took it through the Senate. A resolution to amend the Constitution that is initiated by the Senate arrives in the House of Commons. It does not need a minister. It arrives there and will be on the Order Paper. Have you thought about that?

Ms Dawson: I am aware of that possibility, but I think the answer to that question is that the philosophy of this piece of legislation is that the government will not support a resolution. The government normally has the power to control whether or not it passes the House of Commons.

Senator MacEachen: Agreed, but all of that is washed out with minority governments. We have had plenty of those in my time in Parliament.

Ms Dawson: It is a strong prohibition against the government initiating a resolution.

Senator Andreychuk: The government is limiting its authority, and it is doing so because it thinks it is in the best interests of a certain cause. If an aggrieved party feels that the government should not be limiting its constitutional mandate, what recourse do they have?

Ms Dawson: If the government does not think it should comply with the bill?

Senator Andreychuk: Not the government. If a certain segment of the population felt that the government was not exercising its constitutional authority appropriately because of Bill C-110, what course of action would be open to them?

Ms Dawson: I think it would be like any other piece of legislation that the people of Canada did not support. Sooner or later it will be repealed. That is a question of process. The act would be on the books until a government saw fit to remove it.

Senator Andreychuk: Could you not utilize the provisions of the Constitution to force the government to exercise its full authority, thereby saying that the Constitution overrides Bill C-110?

Ms Dawson: I think the normal course would be to remove the bill and then proceed in that situation.

Senator Beaudoin: I wish to come back to a question raised by Senator MacEachen this morning when he asked the Minister of Justice what would happen if a minister of the Crown ignored Bill C-110 for one reason or another and a constitutional amendment were to be adopted by resolution. Perhaps it is not likely, but in theory it is possible. I believe that in a case like that we just apply section 52(3) of the Constitution Act of 1982 which says:

Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

The Minister of Justice says that it is not a constitutional amendment but a statute. Suppose that Bill C-110 is violated by a minister. In that case, perhaps we should come back to section 52 which says that the Constitution of Canada is the supreme law of Canada. It is not Parliament that is supreme; it is the Constitution, and any law that is inconsistent with the provisions of the Constitution is, to the extent of that inconsistency, of no force or effect.

I am inclined to conclude that in a case such as that, Bill C-110 would be declared inconsistent with the Constitution, and to that extent -

Senator MacEachen: Senator, if I may make the interjection, Bill C-110 will be the law of Parliament and it will govern until there is a constitutional amendment accepted to become part of the Constitution. If Bill C-110 is a law of Parliament, a constitutional amendment proposed by a minister would have no more status than any other law until it is enacted, then that section would come into effect. Before that, I think it would be stopped.

Senator Beaudoin: Stopped by whom?

Senator MacEachen: By the Speaker and a wise government.

Senator Beaudoin: I have raised that point often in the Senate and the Speaker of the Senate has said that there is a rule that we do not rule on legality and constitutionality.

Senator MacEachen: It will be a procedural question.

Senator Beaudoin: Suppose the minister disregarded Bill C-110, that he or she proposed a resolution and the amendment is accepted, contrary to Bill C-110.

Senator MacEachen: It is tainted.

Senator Beaudoin: Tainted in what way?

Suppose we pass the amendment and a private citizen goes before the court with a declaration of unconstitutionality and says that we have violated a statute. In my opinion, the court will say that Bill C-110 is only a statute and not a constitutional amendment.

Senator MacEachen: If it reached that stage; if the minister had succeeded to the point where he had a constitutional amendment in the Constitution, of course he has won the day. He has hijacked Parliament.

Senator Beaudoin: To that extent, Bill C-110 is inoperative, because the Constitution will prevail.

Senator MacEachen: That is a big "if".

Senator Beaudoin: Well, we have had big "ifs" at times in our history.

Ms Dawson: I am not sure of the question I am left with, but as a general comment, I think the bill can stand as constitutional. It would not be struck down under section 52 because the bill is consistent, not inconsistent, with the Constitution of Canada. It is a prohibition against ministers of the government, not against the House of Commons and the Senate passing resolutions. It is directed at the government and, as Minister Rock said this morning and as several of you have observed, if a minister did proceed with a proposed resolution, it would be open for someone to take him before the courts and get a declaration that he had not complied with this particular act of Parliament.

Senator MacEachen: There is a gaping hole in the provision because all the government would need to do is get a private member or a senator to introduce the bill. You gave the judgment that it applied to ministers.

Senator St. Germain: It says "no minister", right in the text.

Senator Beaudoin: I accept that. It is a very interesting suggestion. Suppose a senator presented the resolution in the Senate. The senator is not bound by Bill C-110. Or suppose it is presented as a private member's bill in the House of Commons.

Senator Carstairs: Think how rare it is that a private member's bill introduced in the Senate or in the House of Commons is passed.

Senator Beaudoin: At that time, I would say to Senator MacEachen, "At least there is no strict violation of the statute if it is a senator or a private member" - strictly speaking.

I have not been in the cabinet, but it is difficult to imagine that the government would not be involved in a resolution amending the Constitution of Canada, with which the two houses have to deal.

Senator MacEachen: The government could always oppose it if it did not like it. If you posed the resolution in the Senate and it got to the Commons, the government could muster all its forces to defeat your resolution. If it had a minority, it would do its best and maybe lose it. Yet it would have complied, would it not?

Senator Murray: One question which is quite important concerns the various provisions of the Constitution relating to aboriginal peoples. When you were before the House of Commons committee, you expressed the tentative, or preliminary, view, as I understood you, that those provisions probably fell under the exemptions in Bill C-110, but said that you would have to think it through.

We will be hearing from the aboriginal organizations and they may again be proposing an amendment in that light. Have you given further thought to whether the sections of the Constitution Act of 1867 and 1982 are exempt from or affected by Bill C-110?

Ms Dawson: I am not quite sure what the context was, but the question was probably whether, if there were additional aboriginal rights being proposed, would they be caught by this bill. The opinion would have been, I think, that because there is an opt-out provision under 38(3) for anything that derogates from the rights, powers, et cetera, of the provincial legislatures, the bill would not cover those particular circumstances. If it was a diminution or something like that, then it would be covered by the bill, but it depends on the content of the amendment.

Senator Murray: You saw the amendment that was proposed, did you not?

Ms Dawson: Yes. There was some confusion because what was in front of me was not what was in front of the members of the committee. Therefore, whatever I said in that context was a little bit suspect, although I think they were all going in the same direction. It was a bit confusing.

Senator Murray: We may have to have another go at this after we have heard from them.

The Chairman: Ms Dawson, would your department keep an eye on what is unfolding in this committee with a view to later answering questions on which we may want some clarification?

Ms Dawson: Yes. I understand that January 30 is the date you are looking at.

The Chairman: Yes.

Honourable senators, we will reconvene at two o'clock.

The committee adjourned until 2 p.m.

Upon resuming at 2:00 p.m.

The Chairman: Our first witness this afternoon is Mr. Peter White. It is our practice, Mr. White, to hear your introductory remarks first, and then we will have some questions for you.

Mr. Peter White, Council for Canadian Unity: It is a pleasure for me to be here, and I thank you for the opportunity.

I should like to begin with some very brief remarks about this morning's discussion concerning the whole idea of the amending procedure in general, especially with a view to the 1997 conference. As in all constitutional matters, we should attempt to reach agreement on basic principles before we try to agree on specifics.

Senator Carstairs: As much as I do not like to interrupt Mr. White, I thought that, according to our rules, television cameras were not permitted in the committee room.

Senator St. Germain: They were in the meeting room this morning.

Senator Carstairs: Yes, but they left before the witness began to speak.

The Chairman: You are correct, Senator Carstairs. The Leader of the Opposition, Senator Lynch-Staunton, approached the Leader of the Government in the Senate, requesting that television cameras be allowed during the hearings. It would have taken the consent of both sides for that to happen. Otherwise, an order of the Senate is required, and there is none. Under those circumstances, the television cameras must leave.

Senator St. Germain: What you are saying, Mr. Chairman, is that the government side refused to allow this important matter to be exposed, via television, throughout the country.

Senator Carstairs: That is not what he said, Senator St. Germain. If you think you will get away with that one, think again.

Senator St. Germain: That is what you have done. If you have not, say so.

Senator Carstairs: Nothing ventured, nothing gained!

Senator Beaudoin: Is that on the record, Mr. Chairman?

Senator Gauthier: If that is to be on the record, I want to put something on the record also.

The Chairman: Let me clarify the matter: The rules of the Senate provide that before television cameras may cover committees, there must be an order to that effect. There was no order to that effect made by the Senate when this committee was struck. However, the committee did receive advice from the clerk's department to the effect that if the leadership of both sides agreed to allow television cameras to televise the proceedings of the committee, that decision would be valid; that is, if there was unanimity on both sides, it could then be confirmed afterwards by the Senate.

Senator MacEachen: That would be totally irregular. I think whoever gave that advice from the clerk's department was quite beyond their jurisdiction. This is another way of saying, "The Leader of the Government in the Senate stopped the television cameras." That is not true.

Senator Gauthier: That is what Senator St. Germain said. Can I just add to this interesting conversation? Indeed, there are no provisions at this time that would allow us to have televised proceedings. First, we do not have the installations in this room to do that, unless you want to allow television cameras in here to take camera shots of Senator St. Germain sleeping, for example, whilst we are talking about this very important subject. I do not think we want that.

Order requires that there be a certain amount of discipline, and discipline must first be set in place. We do not have any room that I know of which is equipped with the connections and all the lights required for televising the proceedings of this meeting. If televising our meetings must be a Hansard, then let it be a Hansard, but not a half-measure of allowing cameras in here to take shots of anything.

It is a reasonable point to make that we do not have an order. That is an oversight, I admit, because I would like to have had the hearings televised. However, we do not have that discretion right now because we cannot do it without an order of the Senate.

Senator St. Germain: In the past, though, certain hearings of the Senate have been televised. We could possibly have gone to other facilities, for example facilities that are part of the House of Commons, had the will been there to have these hearings covered as I felt they should be covered. Regardless of who is to blame, for the current situation, I feel that such coverage is important. Many Canadians are watching these events very closely as a result of the October referendum.

Senator Gauthier: Absolutely.

Mr. White: It is certainly not the witness who will complain about the absence of television cameras.

The purpose of a well-conceived amending formula is two-fold. First, it must permit amendments that are generally desired, or are in the general interest. Second, it must prevent amendments that negatively affect the interests of any party to the Constitution, unless the affected party consents.

We should be very careful about imposing any new requirement for unanimity. We should remember that there is no necessary or logical connection between the requirement for unanimity, on the one hand, and the requirement for the consent of the affected party, on the other hand. Unfortunately, both of these very different procedures are often popularly known as a veto, which tends to confuse the public debate.

There is a huge difference between giving one party the right to veto any amendment, even one in which it has no vital interest - which Mr. Manning, for one, seems to think that Quebec might do out of pure spite - and the right of a party to veto an amendment affecting its own vital interests which are not shared by other parties. It is necessary to clarify the two uses of the word "veto": one good, one bad.

The unanimity requirement has sometimes been proposed - unwisely, in my view - as a device effectively to grant a veto to individual parties on matters that are essential to them, and perhaps only to them. This tends to lead to constitutional paralysis. A better approach is to entrench a requirement for the consent of the affected party to any amendment that may affect its vital interests.

Unanimity is only useful if every party is already completely happy with the constitution, and there are no unsettled issues. Unanimity is problematic if one or more parties want change, and the others do not.

I think it would be a useful exercise for each of Canada's 11 governments and legislatures to define publicly the interests which they feel to be essential to each of them, and which they would like to entrench, unless they were to consent to an amendment. This could be done before 1997.

Perhaps there should be a separate and distinct amending procedure for matters affecting the language, self-government, and the cultural and representation rights of Canada's two historic national minorities. It must be made clear who has the right to speak for each national minority of Canada and to represent their interests in constitutional matters.

I will now read the statement which I believe you have, and then we can move on to questions. I also distributed earlier another document entitled, "How to avoid the coming breakup of Canada" to which I will not refer.

Canada faces both a grave crisis and a great opportunity. If we are to seize the opportunity, leadership is crucial. The Confederation of the four original provinces in 1867 occurred only because of the enlightened and determined leadership of John A. Macdonald and George-Étienne Cartier, with the cooperation of George Brown and other provincial leaders. Without similar leadership today on behalf of Canada to oppose the strong and determined leadership of those who would break our country apart, Canada will not survive. Without such leadership, the opportunity will be lost, and it will not come again.

Leadership should come from the elected governments of Canada, and especially from our first ministers. However, the Constitution provides for a possible independent role for the Senate of Canada, if the Senate deems this to be necessary under the circumstances. Section 46(1) of the Constitution Act, 1982, allows the Senate, acting alone, to initiate the procedure for constitutional amendment. I believe that the Senate should seriously consider this course of action if the House of Commons and the provincial legislatures fail to act quickly, or if their actions are judged insufficient, for some form of constitutional amendment will eventually be necessary to keep Canada whole. It will take time for a consensus to develop concerning particular proposals for such an amendment.

The key to avoiding the break-up of Canada is achieving the full recognition and respect within Confederation of the legitimate linguistic rights and self-government needs of members of Canada's francophone national minority everywhere in Canada, and particularly in Quebec. The only way to convince most Quebec francophones that their linguistic security and their rights as a people will be fully recognized and respected within Canada is to enshrine the necessary rights in the Constitution so that they cannot be diminished or altered by the majority without the minority's consent.

If the central issue that will determine Canada's survival is the recognition, respect and protection of the equal rights of Canada's francophone minority, we must recognize that this can only be done effectively and convincingly by laws, and that to be secure, such laws must be entrenched in the Constitution. This protection is illusory, and of little value, if these laws can be changed without the consent of the minority whose rights they are intended to protect. It is largely for that very reason that the federal form of government was adopted in 1867 with its unique constitutional division and entrenchment of sovereign powers, and its unique capacity to entrench essential minority rights. Therefore, the requirement of the consent of the minority to such changes is an absolutely essential feature of any viable Canadian Constitution.

Bill C-110, while clearly a step in the right direction, is an inadequate recognition of this essential fact because it does not constitutionally entrench the requirement for the consent of the minority to constitutional changes that may affect their vital interests. The existing procedure for amending the Constitution of Canada provides, in section 38, a general procedure for amending the Constitution potentially without the consent of the National Assembly of Quebec, save in the five matters listed in section 41 that require unanimous consent, while entrenching the right of a provincial legislature to prevent certain specified amendments from taking effect in that province.

In addition, section 42(1) enumerates six specific matters in relation to which the Constitution may potentially be amended without the requirement of an authorizing resolution of the National Assembly of Quebec. You are all familiar with what those matters are. I will not read them. Clearly, some of them are of vital interest to the position of Quebec in Canada and to the position of francophones in Confederation.

Since the Quebec National Assembly is the only one of Canada's 11 legislatures, constitutionally empowered to adopt an amending resolution, whose electorate and membership are francophone in the majority, it follows that that legislature is the only one on which francophones can rely with any certainty to represent their vital interests in such matters. Therefore, in these six matters, and potentially in others, it is today possible for the Constitution to be amended without the consent of the francophone national minority of Canada, even though their legitimate interests as partners in Confederation may be affected by such an amendment. This is wrong, and repugnant to the necessary requirement of inviolable constitutional protection of the essential rights of Canada's francophone national minority, and of the National Assembly of Quebec.

From the point of view of language rights and opportunities for self-government by members of the largest of Canada's two national minorities, Canada today is extremely asymmetrical and unequal, even more so than in 1867. Consequently, it is inherently unstable. In 1867, out of four provinces and governments there was one that was francophone in the majority. Today, there is one out of ten. In 1867, francophones constituted about one-third of Canada's population and held about one-third of the seats in the House of Commons and in the Senate. Today, the equivalent figures are about one-quarter, in each case. As in 1867, members of Canada's national francophone minority have self-government rights only in Quebec. Therefore, only those francophones resident in Quebec can benefit from these rights. In addition, the full language rights of francophones are recognized only in Quebec. By that I mean that although they are legally recognized in New Brunswick, New Brunswick does not have the right of self-government by francophones to the extent that Quebec does.

Our constitutional arrangements have therefore resulted in the perpetuation and aggravation of an unbalanced, unequal and asymmetrical situation whereby francophones can enjoy full language and self-government rights only in one province, despite their many attempts since 1867 to achieve full linguistic equality throughout all of Canada. These arrangements have resulted in many Quebec francophones concluding that they will never have full equality, recognition and respect within Canada outside of Quebec, and that their only hope for linguistic security and self-government lies in an independent Quebec, despite the immense risks and costs that independence would entail.

The only way to restore stability to Confederation is to remove, or at least greatly reduce, the asymmetry and inequality in these areas of Canada's Constitution. This requires the constitutional recognition that Canada's francophone peoples form a national minority within Canada and, as such, have the right to full linguistic equality everywhere in Canada, and to the self-government rights in Quebec and elsewhere that they judge to be essential for the protection and promotion of their language and their interests as a people within Canada. Thus far, the rest of Canada has failed to agree to these essential constitutional measures.

If Canada breaks apart, it will be largely because of the refusal of non-francophones in Canada to recognize and respect the legitimate rights and needs of francophones in Quebec and throughout Canada. While some substantive changes are required, declarations of principle and sincere symbolic gestures are just as important, sometimes even more so. One of the most important and effective of such gestures in convincing francophones that they are truly welcome throughout Canada would be the timely declaration by provincial legislatures that English and French are official languages in each province, especially in the province of Ontario which is home to half a million francophones, the largest francophone minority in any province in Canada.

We cannot continue to base the language and related self-government rights of francophones largely on territory as Canada's Constitution now does. Insofar as is possible, these rights must be equal to those of anglophones everywhere in Canada. All constitutionalized discrimination by the state against Canadian francophones must end.

To this end, I propose that we consider a new preamble to the Constitution of Canada, setting forth the fundamental characteristics on which our country and our Constitution are based. The proposed preamble is drawn largely from existing elements of the Constitution, or it makes explicit what I believe to be implicit principles that should be clearly enunciated for the understanding of all Canadians. The preamble is divided into six parts. They are the founding principles of Canada, the two official languages of Canada, the two historic national minority communities of Canada, provincial and territorial minorities, the Canadian Charter of Rights and Freedoms, and equalization and regional disparities.

Finally, I propose a new section 16(4) of the Charter itself concerning the fundamental right to individual freedom of choice in matters involving Canada's official languages, subject to the Charter's existing reasonable limits clause.

Proposed Preamble to the Constitution of Canada Declaration of the Fundamental Characteristics of Canada

The first part is excerpted from the Constitution Acts, except for the square brackets:

[I The Founding Principles of Canada]

[Canada is] a union of provinces, federally united into one Dominion under the Crown, founded upon principles that recognize the supremacy of God and the rule of law, [and the desire of the citizens and peoples of Canada to live together in equality and mutual respect, with government powers distributed under a federal constitution providing] for the peace, order and good government of Canada.

The Constitution of Canada is the supreme law of Canada, and amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

[II The Two] Official Languages of Canada

English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada, [and] of the legislature and government of [every province and territory where it is so provided by law].

Then a new section:

The Parliament of Canada and the legislatures of the provinces and territories have the right and the responsibility to protect and promote both official languages and their respective language-based institutions throughout Canada.

III The Two Historic National Minority Communities of Canada

The Constitution of Canada is founded upon principles that recognize (a) the presence in Canada of members of two historic national communities who are in a minority in Canada: the aboriginal peoples of Canada, and the francophone peoples of Canada; (b) the inherent self-government and other rights of members of Canada's two national minorities as specified in the Constitution of Canada; and (c), the requirement, in order that these rights shall have equality of status with the equivalent rights of other Canadians, that they be entrenched in the Constitution of Canada so that they cannot be diminished or altered without the democratic consent of the minority concerned.

The Constitution of Canada recognizes that the National Assembly of Quebec, as the only sovereign legislature in Canada whose electorate is composed of a majority of members of Canada's national francophone minority, has a particular right and responsibility to support and promote the French language and francophone institutions in Quebec and Canada, as well as the constitutional rights and good government of members of Canada's francophone peoples generally.

The Constitution of Canada recognizes that the Legislative Assembly of Nunavut, as the only legislature in Canada whose electorate is composed of a majority of members of the aboriginal peoples of Canada, has a particular right and responsibility to support and promote the constitutional rights and good government of members of the aboriginal peoples of Canada generally.

IV Provincial and Territorial Minorities

Both the Parliament of Canada and each provincial and territorial legislature have the right and responsibility to promote and protect the constitutional rights and good government of members of Canada's official-language minorities and of members of the aboriginal peoples of Canada in the province or territory concerned.

I will not read the last two sections. They are merely excerpts from the Constitution Act, except for the square brackets, which in the first case are simply for editorial purposes, and in the second case I have added a final phrase under the equalization and regional disparities clause which refers to the use of the official language of the recipients' choice.

Finally, there is a proposed new section 16(4) of the Canadian Charter of Rights and Freedoms which, as I said, would be subject to the general limitation clause of the charter.

Wherever in Canada similar services are available in English and in French from one or more institutions of the Parliament or Government of Canada, or of the legislature or government of a province or territory, everyone has the right to choose from time to time the official language in which he or she wishes to receive such services.

[Translation]

Senator Rivest: Thank you for your articles and comments in the aftermath of the referendum. They were received with a great deal of interest in Quebec, by both federalist and sovereignists, who understood your desire to provide a contribution and leadership suited to the gravity of the constitutional situation we find ourselves in, when the very existence of our country is at stake.

You are right to place the emphasis in your submission on the equality of the two great founding groups, which along with the interwoven threads of aboriginal peoples and Canadians of other origins, make up our country. Linguistic duality does exist, nevertheless.

You will recall that Prime Minister Mulroney and his colleagues made efforts within the Meech Lake and Charlottetown Accords to make this linguistic duality one of the fundamental characteristics of the country recognized in the Constitution. There are clauses in the Charter guaranteeing the future of the two languages, which I feel is vital.

This morning, the Minister of Justice has left the door open within the bill itself for future constitutional amendments to be adopted by decisions by either the Parliament of Canada or the legislatures of each province, and the referendum process - in other words a direct appeal to the people - is not excluded. He did not wish to go any further than that, but his bill's lack of definition of Quebec, Ontario and British Columbia leaves us with unanswered questions.

Your main concern was that constitutional amendments must ensure the linguistic security of the country's two main cultures. The referendum process is attractive at first glance as a way to decide major questions, but it is probably the least suitable way of dealing with language rights, that is to say determining the nature of relationships between a majority and one or more minorities. The reason for this is that it could be risky to ask Canadian citizens as a whole to define the linguistic status of the minority. Minorities would have very serious concerns about language rights being guaranteed by a simple majority vote in a referendum.

The purpose of having constitutions, and Canadian constitutional order, is precisely to ensure that decisions on minority rights will not be left to a majority, no matter how well-intentioned that majority may be. It is therefore totally inappropriate, in matters specifically relating to language, to allow the issue to be decided by referendum. One could not, for instance, in areas where there is a linguistic duality, as there is in Quebec or New Brunswick, ask the majority, francophone in the case of Quebec, to determine the rights of its minority, anglophone in the case of Quebec. This is not the way things have been done since the country began.

Very stringent language rights were put into the Constitution-which cannot be changed via referendum-with respect to the minority in Quebec, which was anglophone and protestant at the time in relation to the Quebec National Assembly, the public service and education. These were part of the Constitution.

Do you not find it a matter of concern that Bill C-110 permits the use of a referendum on language rights? One that would allow the majority to determine the nature of the rights of the minority, contrary to our constitutional practice and to the guarantee of security to which a linguistic minority is entitled.

This morning, the Minister of Justice has left the door open to that. The bill may contain some very serious dangers or concerns, not only for Quebec francophones but also for francophones outside of Quebec, who are justifiably calling for greater recognition of their rights and status. As you have indicated, your concern is one of the key areas in which you demand political leadership from the Prime Minister of Canada and the present government.

Mr. White: Senator Rivest, I would like to begin by commenting on your remark concerning the possibility of entrenchment of this or any other proposed amendment.

I acknowledge, along with all of the senators in attendance here, the great difficulty of getting amendments to our country's Constitution adopted. We have experienced some very difficult problems and, as Senator MacEachen has observed, our lack of success could have done more harm than good.

To start with, I am very much aware of the danger of trying to entrench amendments in the Constitution. There is a heavy symbolic value to Quebecers and other minorities in Canada in submitting proposed amendments, even if they know that they will not be able to be adopted in the near future.

There is no harm in getting a Parliament or legislative assembly to pass legislation aimed at some future amendment, if it is willing to do so, even if immediate entrenchment is not possible.

Proposed amendments must be put on the table for public debate, in the hopes of reaching consensus.

Senator Rivest: Focussing, therefore, more on the substance than the process.

Mr. White: Yes, that would be my approach. Now for your specific question on the referendum. I am totally in agreement with you. We who have followed these debates for years have found that the majority is not in a position to understand the problems of the minority.

Generally, their reaction is "So, what is your problem? Why can you not be like us? Why do you need special rights?" Really this is a big problem everywhere in the country.

I will now quote from a speech made by Richard Pound the other day in Montreal. He said:

[English]

I want my fellow Quebecers of all backgrounds to understand that, as a matter of human nature, some of the things that matter deeply to them are simply not perceived as important to many others in Canada. This does not mean that these Canadians do not like Quebec. It is just that because the concerns of Quebec are not something that the others face on a daily basis, they occupy none of their thoughts, and they genuinely do not understand what all this is about.

[Translation]

The great majority of English Canadians, particularly Westerners, do not understand why Quebec is not satisfied, and why it is making certain demands. You are absolutely right.

There would be no point in asking this large and uncomprehending majority to try to define the rights of Canadian francophone or aboriginal minorities.

When Mr. Bourassa raised five demands on behalf of the province of Quebec to protect the rights of francophones in Canada, this came from the minority. These five points were taken into consideration by all of the other provinces and the federal government. That is the best approach.

Senator Gauthier: I have rarely heard such an eloquent testimonial in defence of official language minorities, and I congratulate you on it.

Do you think that Bill C-110 might be used to reduce linguistic minority rights, aboriginal rights, or fundamental rights?

Mr. White: The bill per se, I think not. I do have some reservations about the bill. It is not entrenched in the Constitution. It is not real protection. What Parliament giveth, Parliament can take away.

If I were a Quebec naysayer, I would say the bill was worthless, offering no constitutional protection whatsoever of our rights, no serious protection. As for your question, it is not the bill itself that would have that effect. While listening to this morning's testimony, I have tried to envisage the worst case scenario.

I envisaged a hypothetical situation in which there would be a minority Liberal government and a heavy Bloc Québécois and Reform representation making up the House majority. Someone proposes abolition of language rights, and the government withdraws from the debate. Let us say that all of the provinces were in agreement. The federal government would be obliged to keep out of the debate since it is required to comply with the wishes of the provinces or regions. It could happen that all ten provinces and the House of Commons would pass a law abolishing Charter language rights, and that would leave it up to the Senate to avoid this disaster for Canada.

Senator Beaudoin: A suspensive veto.

Mr. White: Only for six months. This is a far-fetched hypothesis.

Senator Gauthier: That was my next question; you have second-guessed me. We have never met until this morning. I can see that you have thought of that.

Mr. White. I have a twisted mind.

Senator Gauthier: I am one of those people who sometimes doubt the good faith of the majority. In 1982, the right to administer education was entrenched in the Constitution, yet we do not yet have it in Ontario to this day. Nor do two other provinces, British Columbia and Newfoundland, or the Yukon, although it was granted in 1982, sixteen years ago.

Senator Beaudoin: Fourteen years ago.

Senator Gauthier: I exaggerate somewhat, fourteen years. Again this past weekend, Ontario Premier Harris responded to letters from APEC, from people seeking more or less to destroy my country, by stating that yes, bilingualism is expensive. It is divisive, and perhaps one day it will be done away with, and there will be a review of the policy and of French-language services in Ontario, which were granted under provincial legislation. The entire question will be reviewed by turning it back to a parliamentary committee for examination and consideration.

All of these questions make front page headlines in the Quebec press. The anglophone majority does not know, because it is unaware of what is going on. Mr. Harris' words of last week made the front pages of Le Devoir and La Presse. It had a very great impact upon francophones. I speak as a Franco-Ontarian. Born outside Quebec, I am a francophone outside Quebec. The fact that we are considered an ethnic minority instead of a national linguistic minority troubles us.

That is the distinction that must be made. If the rights you referred to in your presentation just now were entrenched, what would be the reaction of the anglophone minority in Quebec or outside Quebec?

Mr. White: The problem lies mainly with the national francophone minority in Canada and the specific francophone minorities in each province. There is less of a problem, if there is one at all, with the anglophone minority in Quebec, whose rights have for the most part been very well respected and who have always been very well treated by the province of Quebec.

The intention of my proposal is to reassure francophones throughout Canada, particularly those in Quebec, that they are welcome in this country, that they are equal partners in this country. We want them to remain in this country; all of Canada belongs to them.

To that end, the first thing that would have to be entrenched in the Constitution is an acknowledgment of the existence of this national minority, which is lacking in the Constitution.

Secondly, recognition of this national minority's entitlement to self-government is not in the Constitution, except by implication.

Third, there is no recognition of language rights and entitlement to representation, for example on the Supreme Court, in the House of Commons, the cabinet, the Senate.

If that were all openly acknowledged in the underlying principles of the Constitution, it would have a ripple effect on all francophones throughout Canada. This was what francophones were hoping for at the time of Confederation. As we all know, starting with 1870, and perhaps running right up to the World War I conscription crisis, or even later, that dream was dealt a number of death blows.

Senator Gauthier: You have referred to any changes or reductions in rights which ought to be made with the consent of the minority involved. Now to return to my first question.

Could language rights in which improvements were desired be opposed by a region with a veto and, if so, would that block any progress toward that goal?

I am thinking of post-secondary education. For example, adding educational rights for post-secondary education. At this time, they are at the elementary and secondary levels.

Mr. White: Are you speaking of the arrangement contemplated by Bill C-110?

Senator Gauthier: Yes.

Mr. White: According to this bill, it seems to me that a region can oppose an amendment which would confer a right to education or would change such rights.

I am not an expert in this. Caution is required before venturing too far into constitutional law, but that seems to be the case.

Senator Gauthier: You would be in favour of a proposal which would prevent a province or region from opposing any constitutional modification which would be in favour of advancing language rights or aboriginal rights, or the right to sexual equality, or fundamental rights. You would be one of the people who would be bothered by that.

Mr. White: I would be in favour of a region not directly concerned being unable to oppose the improvement of a minority's language or other rights.

Moreover, I am not sure that I could put my finger on it right away, but there is a clause in the Charter which states that there is nothing in the Constitution to prevent Parliament or a legislature from recognizing other language rights. That, I feel, is basic.

[English]

Senator Andreychuk: I would like some clarification on Bill C-110. Do you believe that entrenching regions - as opposed to focusing on provinces - is the way to go? If we do enact this bill as an interim measure, as this is being sold, do you believe that we could then negotiate it out of existence as soon as 1997?

Mr. White: Senator, your point is well taken. In effect, today, we are embarking on the 1997 revision process of the amendment procedure. We must recognize that.

I am not an expert in these matters. I know they are highly technical. However, as I said in my opening remarks, it is very important that we try to agree on principles before we try to get into the specifics.

A number of principles exist. First of all, to be modern and accurate in the legal sense, there are now eleven partners in this confederation - the ten provinces plus the federal government. The first rule is that there should be no amendment permitted which negatively affects the essential rights and interests of any one of the parties to the confederation, unless that party gives their consent. That should be rule number one.

We must also recognize - and this is the new element which I am trying to promote today - that over and above the existence of the 11 parties to the Constitution, there are in this country three national groups: Two national minorities which must be recognized as such. They have specific interests which are distinct from the interests of the majority. The Constitution must recognize that, and must define those rights as much as possible, and must determine who speaks for those rights.

At the moment, by default, the government of Quebec must speak for the rights of francophones in the whole country. That is just one government out of 11. There is no government that can speak for the rights of the aboriginal peoples at the moment, although, as I have suggested, when the government of Nunuvut is formed, perhaps it can do so.

That is the second level, Senator Andreychuk, which we must define in the Constitution. What are the essential rights of those minorities which cannot be changed without their consent and, then, how is that consent to be expressed?

Senator Andreychuk: Working in the international field as I do, one of my concerns arises with the definition of "national minorities." How does one then resolve issues if minority interests become competing interests? What happens, for example, if aboriginal rights and francophone rights, in a province or on a national level, are in a competing position?

Mr. White: That often arises in human affairs. Rights compete all the time. That is essentially why we have a legal system; to try and sort out who should get what.

To me, the most important thing is to define these rights at the individual level, not the collective level, and to make an individual decision on whether an individual wishes to be associated with a national minority or not. I should be free to choose, as I have said, the official language in which I wish to receive government services or conduct my affairs, or whatever. It should not be possible for anyone to say that I am an anglophone and therefore cannot take some action, or that, as a francophone, there is some restriction.

The same is true of aboriginal peoples. Their rights must be individually attributed and individually recognized. Once that is done, it should be possible for the courts, if necessary, to work out the disputes if such arise.

Senator Andreychuk: You have recognized three national groups, one of which is perhaps not legal or historic, but it is becoming socially practical to do so. It is also one with which I am dealing.

Some of us have difficulty identifying with the anglophone-francophone issues because we come from other antecedents. How, then, do we begin to deal with that growing population, other than by education, in order to make them understand the historic perspectives and the legal imperatives that flow from that recognition? I see that more in the West, where more than 40 per cent have that difficulty.

When I was growing up, I had difficulty being called an anglophone because I was struggling to learn the English language. I did not identify with either one of the majority groups, so I understand and recognize so much of what our immigrant population and our non-English, non-French folks are feeling. That feeling is pronounced in the West. It is not a legal or constitutional issue but it is certainly becoming a social issue.

Mr. White: It is a sociological issue, and you may have noticed, senator, that I did not refer to the anglophone majority; I referred only to the minorities. The reason I did so is that minorities tend to know who they are, and they do not have any difficulty identifying themselves. They are almost forced to do so by the majority. The majority, on the other hand, as I said in French, tends to take the attitude: Well, what is your problem? I am all right. Why can you not be like me?

Majorities have great difficulty understanding the problems of minorities. In this country, we have not developed the habit of thinking of ourselves as a majority, and perhaps we never will. We think of ourselves as Canadians. That was the John Diefenbaker line: We are all Canadians together. There should be no hyphenated Canadianism; there should be one nation.

That is fine if you belong to the majority part of that one nation. It is not so fine if you do not. It will be a long time, senator, before the majority, which is very diverse and disparate, with various origins and languages and so on, begins to think of itself as a cohesive majority. Perhaps they never will. That is not the point; the point is not majority rights.

One thing Canadian history has taught us, senator, is that majorities can look after themselves. It is the minorities that need the protection. I am not worried about the majority, and I do not care how they define themselves. However, there is one thing which we must make clear to members of the majority. That is that there are only two official languages in Canada: English and French. They should both have equal status across the country.

It is unfortunate that some people have never understood the fundamental characteristics of our country because those characteristics are not set out in our Constitution. Some people think that, if the French language has rights in Alberta, then why should the Ukrainian language not have rights in Alberta, or the Chinese language in Vancouver? There are some very good answers to that question, but they are very seldom given. Many people are confused on that, but on that point I would insist: There are only two official languages in Canada.

Senator Carstairs: Mr. White, I should like to focus for a moment on Bill C-110 itself. What would you suggest we do with Bill C-110? You state in your document that it is clearly a step in the right direction. If it is a step in the right direction, does that mean that you think we should pass it? Or do you think we should amend it? What do you think we should do with it?

Mr. White: This is an awful thing to have to do in a Senate hearing, but I must speak politically. We must look at the politics of this situation. This bill has been introduced to try and impress the electors of the province of Quebec who may be persuaded not to vote yes in the next referendum, if there is one. It has not been introduced to impress the government of the Parti Québécois. I do not think anyone expects that that group will applaud and say, "This is wonderful." However, I wonder what the attitude is, either official or unofficial, of the official opposition in Quebec? What is the attitude of the Quebec Liberal Party to this bill? If I were in your position, senator, I would invite Daniel Johnson to come and give you his views as to what he thinks about this bill.

Senator Meighen: We did, and he did not come.

Mr. White: Maybe you can find someone else, then. You have asked me a political question and I do not feel qualified to give you a political answer. It is quite possible that this bill may do more harm than good. On the other hand, it is possible that it may do more good than harm. I am not in a position to answer that.

Senator Carstairs: For someone who does not wish to give a political answer, that sounded pretty political to me. The bottom line is that that is what we must decide in the next two weeks. We hope that the witnesses who appear before us will give us some insight on exactly what it is that we should do. What would you do if you were sitting in my chair?

Mr. White: I would make some telephone calls to some members of the Quebec Liberal Party and I would get someone up here. If they will not come for whatever reason, I would make sure I learned their views privately, so that I could express them. I would also read the media in Quebec and look at the reaction the Quebec media is giving to this bill.

Senator Rivest: Call me! I am a member of the Quebec Liberal Party. I prefer substance more than procedure.

Mr. White: I think everyone recognizes what the Prime Minister is trying to do. He is trying to honour a commitment that he made at the end of the referendum campaign. That is a noble and an honourable thing to do. However, the question is whether or not this is the best way to do it. That is a difficult question to answer.

Senator Carstairs: Do you have alternative ideas?

Mr. White: Yes, I do. I should like to see a proposal put on the table for a constitutional amendment.

Senator Meighen: Along these lines?

Mr. White: Yes. Along these lines, or along the lines that I outlined in my presentation. Once that is on the table - and if it had some official status as having come from the government of Canada; or, if the Government of Canada does not want it to have that official status, perhaps the government of New Brunswick might present it, or somebody might present it, then at least it would be on the table - we could start discussing it. If we cannot have something in front of us to discuss, I do not see how we will ever be able to come to a consensus.

Senator St. Germain: Mr. White, thank you for coming here today. I always find you interesting, but you are more interesting today than you usually are.

In relation to Bill C-110, when you start handing out vetoes like this, what is your opinion? Perhaps vetoes should be restricted to those minorities which require protection, as opposed to giving them out holus bolus so that you end up with virtually a gridlock situation. That is what I see happening with this piece of legislation.

Inasmuch as I was the one who was screaming for B.C. to have a veto, my complaint was based on the principle that we were neglected by the committee and, as well, we are the Pacific region. However, in my heart of hearts, and for the benefit of the country, I still think that by handing out vetoes in this fashion we are creating a dangerous precedent, and which dimishes the Quebec cause.

Mr. White: I completely agree with you. We should try to call a spade a spade. This bill is attempting to give a veto to the province of Quebec as the representative of the francophone peoples of Canada, but it does not say that. It says that we cannot do that because it is not politically acceptable. Therefore, we must give a veto to everyone. The other regions of the country say, "If Quebec is getting one, we want one, too." They do not know why they want it, or whether they want it. They want it because if they do not get it, they will be unequal. That is absolute nonsense. If the government had the courage to say, "We will give a veto to the government of Quebec on behalf of the francophone peoples of Canada, and here it is," we would have a very different debate occurring.

I do not deny that there could be some essential interests of the Pacific region of Canada that require a veto for that region. I do not know what they are, but I suggested in my presentation that if there are such, then that region should define them. Let us put them on the table. If there are essential interests of the three prairie or western provinces, then let us put them on the table and see what they are. Let us define our essential interests, and give each of us a veto to protect our essential interests. That is what we must do.

Senator St. Germain: In your comments and in your presentation, you make reference to the fact that two official languages should be available in all regions of the country. You have travelled this country; you know the make-up of the country and you know the mentality that is out there. This is why I return to the veto. If we give Quebec the veto on these linguistic rights, and these are rights that belong to them, in the view of many, myself included, there would be no need to create the havoc in the regions that, in practical terms, you and I know will take place if, as a result of doing something we should have done differently, we are forced to go out and sell some program or other.

Mr. White: We must be careful to be precise in these matters. I am talking about giving equality of language rights to individuals throughout the country. I am not talking about extending French everywhere. I am talking about giving equality of language rights. Rights are a starting point, not a finishing point. How can we say that we are equal citizens of Canada unless we have the same rights? In my opinion, giving language rights to francophones in British Columbia does not take away the rights of anglophones or anyone else. There is no logical, defensible reason for anyone to object to recognizing the rights of someone else to something which they themselves already enjoy. It comes down to a question of political leadership, and that is the point fwith which I started out.

In my opinion, that argument is not too hard to sell. Every anglophone in Canada has all of these rights, and they are in the majority. No one will take away the rights of the anglophones. The anglophones in Canada can use English everywhere they want except in some situations in the province of Quebec. Frankly, my own view is that that was largely done as a result of losing patience with the rest of the country. The rest of Canada would never recognize the rights of francophones, so why should Quebec continue to recognize the rights of anglophones?

Senator Meighen: Even the putative leader of the government of Quebec has questioned that.

Mr. White: Yes. I think it is time for political leadership. We are not taking anything away from anyone. We are not asking anyone to give up any rights. We are simply asking all Canadians to recognize and respect the basic language rights of all other Canadians. That is all we are doing.

Senator St. Germain: My final question relates to Bill C-110. If we pass this bill in its present form - and based on the analogy or the example that you gave of the Bloc Québécois and the Reformers forming a majority, and the government ruling with a minority - do you not feel that Bill C-110 feeds the separatist movement in Quebec, rather than dealing with the problem that we have? The government already has its pamphlet printed up, stating that this bill is law, even though it has not been passed here.

What do you think about this bill? I go back to what Senator Carstairs said. I would like your opinion as to what is the course of least fallout? Should we be amending this bill?

There was a suggestion here this morning by Senator Meighen that we put a sunset clause in the bill. Would that water it down? Or should we vote against it, or just pass it in its original state? What would your opinion be?

Mr. White: I heard the minister's testimony this morning, senator. I believe I heard him say that this could be a transitory provision, and that it is possible that it might lead to a constitutional amendment. I think that would be the most helpful course of action. In my opinion, we should begin right now to talk about what will be talked about in 1997.

However, if I were the leader of the Parti Québécois, I would laugh at this bill. It gives no meaningful, secure protection to the rights of francophone Quebecers. The only thing that can give such protection is a constitutional amendment.

I know we are traumatized by the experience of the Meech Lake and Charlottetown Accords, but we must face the music. This is where leadership is so important. We must try again to put these essential rights of Canadians into our Constitution. If we cannot succeed in doing that, perhaps we do not deserve to have a country.

Senator MacEachen: I first wish to mention how the witness has, in a sense, changed the vocabulary of the discussion. He has not emphasized constitutional veto. He has not stressed the concepts of the recent past - the distinct society. He has invited us to concentrate on basic linguistic and self-government rights. I find that an interesting departure from what has been, at least, discussed.

You have suggested that the Senate itself, presumably, could launch the debate, if it were convinced - or that any individual senator could - by proposing these changes to the Constitution. I believe that at a certain point in your statement you talked about the symbolic impact of moves of this kind, even though it may take years for the constitutional protection to occur. I followed that; I think it is logical, and I think the same reasoning applies to what has been proposed by the Government of Canada. It is a legislative move with a symbolic message, with which you would be more satisfied if it were a constitutional amendment.

Do you not think that Bill C-110 has that symbolic importance which you have been advocating? I concluded from your remarks that it would have, and that is why you said it is a step in the right direction.

Mr. White: Senator, I said it was a step in the right direction because I think it was very important for the Prime Minister to follow through on the undertakings that he made in Montreal. I also said that I am not sure that it is the right step. If it were to become a proposal for a constitutional amendment, I would like to see it made a little more clear that it is intended to safeguard the constitutional rights of francophones in Canada through the government of Quebec.

I am not convinced that it is necessary, or helpful, to extend the so-called veto to the regions without explaining why you are doing it. If there is a reason - and there may be - then that is fine. However, if the purpose of this amendment is to give a veto to the government of Quebec, I think it would be more clear and more helpful if the amendment said so.

Senator MacEachen: The linguistic rights have been provided in New Brunswick. We all know that if there is a constitutional proposal to have linguistic rights established in each of the provinces through the Constitution, it will be a major debate - probably an uphill debate at this stage.

I ask you whether, from a strategic point of view, it would be wise for the Parliament of Canada to enter into this enterprise. Why not try to encourage the provinces to take the lead - the province of Ontario, for example?

Mr. White: That is a very viable suggestion. My own preference would be to start with the province of New Brunswick, in a process of proposing constitutional amendments.

I have given this matter a great deal of thought and I am conscious of the political difficulties involved. One approach might be based on the percentage of francophone population in a province, or the actual number of francophones in that province. You might decree, for example, that any province in which more than 100,000 francophones reside, or in which the francophone population represents more than 5 per cent, would give an undertaking that within five years French would become an official language of that province, and that services, as defined, would be offered in the French language.

That would include, as I understand it, the provinces of Ontario and Manitoba. The province of New Brunswick is already officially bilingual. We would then need to raise the question of how this would apply quid pro quo in Quebec; whether or not Quebec would be prepared to give equal rights in the Constitution to anglophones if such rights were being given to francophones elsewhere in Canada. That is an interesting question.

Then you might decree that the six remaining provinces, which each have fewer than 100,000 francophones, and fewer than 5 per cent francophones, would, in ten years' time, declare French an official language of that province. I tried this out on a cynical journalist the other day who asked me whether I could convince Ralph Klein to do that. I said that I would not need to convince Ralph Klein to do that, since I did not know whether Ralph Klein will be there in ten years' time.

What is important is the symbolism of it. What is important is saying to Quebecers, "We will not give up. We will try again. We will try to make Quebecers feel at home throughout this entire country by recognizing their linguistic rights throughout the whole country. If it takes a long time, that is fine; we will be there." Let us at least make a start.

Senator MacEachen: If you applied the ten-year rule, you would probably pick up the Acadians in Nova Scotia.

Mr. White: Perhaps you would.

Senator MacEachen: Therefore you would entrench their linguistic rights in a constitutional amendment, and you would permit a constitutional change only with their consent?

Mr. White: Yes, one that affected their rights.

Senator MacEachen: Exactly; affecting their rights. How would they express their consent in your scheme?

Mr. White: This is something that must be determined. We do not have a mechanism. I can give you one precedent with which I am sure you are familiar. In 1867, there were 12 ridings in Quebec named in the Constitution as being protected ridings. The Constitution said that the boundaries of those ridings could not be changed without the consent of a majority of those 12 members. That is a precedent. It is the "majority of the minority" theory with which we are familiar in corporate law. It is possible to do this.

One thing I have often felt was missing in Canada was that although we are members of la Francophonie, we do not have an association of francophone legislators in Canada, at least of which I am aware. That is very strange. This country has existed for quite a long time. Am I wrong, senator?

Senator Gauthier: Quite so. I am the president of such an organization.

Mr. White: Senator, I am delighted to meet you.

Senator Gauthier: It is called l'Assemblée des parlementaires de langue français.

Mr. White: Your organization, Senator MacEachen, should address this question. If there were to be constitutional rights accorded to Franco-Ontarians, how would they be expressed, and who would have the right to speak for Franco-Ontarians? That is something which should be taken up by your organization.

Senator MacEachen: I should like to turn to another interesting point made by Mr. White, namely, the Parliament with a majority of the Bloc and the Reform together promoting a constitutional amendment that would be damaging, as he described it, and supported by the provinces. On this point, I certainly would look to you for a better opinion than my own.

However, as I read the bill, the federal government would not be hampered in taking a very active role in that situation because, as I understand it, the bill prohibits the federal government from introducing a motion to do certain things in Parliament. Am I not correct in saying that, with that interpretation, the federal government could weigh in heavily in that debate, oppose what was being proposed and throw its members, its ministers and the Prime Minister into the debate?

Mr. White: Absolutely; but my hypothesis was that the government would be in a minority and could be outvoted.

Senator MacEachen: I think that could happen in the absence of Bill C-110.

Mr. White: Yes, but it could not happen if there were a constitutional amendment that required the consent, for example, of francophone minorities.

Senator MacEachen: I understand. I am not including in the perspective the enactment of your proposal.

Mr. White: The danger, sir, is that our constitutional arrangements do not offer protection for minorities in the provinces, except for the minority in Quebec which has protections that are based on religion as well as some very narrow linguistic protections. There are no such protections for the francophone minorities in the other provinces, except for the ones which are now contained in the Charter of Rights and Freedoms, and those are not very extensive.

The hypothesis that I raised was that the Reform Party wants to repeal the Official Languages Act, I believe, or those provisions of it. It is quite possible that the Parti Québécois might not object to that.

Senator MacEachen: Right, in a minority Parliament. However, supposing that the Government of Canada would be able to weigh in in the political debate; it would not be held back by this bill. That is all I am saying.

Mr. White: That is right.

Senator MacEachen: I was afraid that the impression would be left that the Government of Canada, even though in a minority Parliament, and its members would be sterilized or frozen in the debate. They would not be; they could be very active in opposing what was happening.

Senator Meighen: Thank you, Mr. White, for coming today. I do not wish to echo Senator St. Germain's characterization of you becoming more interesting since we last met with you. However, yours is a most thought-provoking and stimulating submission.

I want to return to Senator Carstairs' point. I am sorry, for your sake, that the journalists seem to have left in droves before you completed your testimony. You have alluded to a great number of concerns that you would have if Bill C-110 were to become the law of the land, and more important, if it stayed the law of the land. Perhaps you should rewrite your first line and say that Bill C-110 is clearly a wrong step but in the right direction. Perhaps I am being facetious, and should not leave that on the record.

At the risk of flogging a dead horse, could we go back to the idea of a sunset clause? The minister might be right when he says that this may be a transitory measure on the road to constitutional Nirvana. I hope he is right. To ensure that he is right, what would be wrong in "sunsetting" this bill so that in 1997, in the wisdom of the parties involved, if they wished to reintroduce it, they could do so; and, if they did not, then they would not be encumbered by it?

My second question goes back to the lessons to be learned from the Meech Lake Accord and other such efforts. I suggested this morning that perhaps, in those cases, it was not so much the substance as the method. Since a lot of this material will weigh heavily, at least as background, in the 1997 constitutional discussions, do you have any advice for us as to how the public participation side of things might be better handled in order for the people of Canada to genuinely feel that they have had, and will continue to have, a stake in the decisions reached; something which they clearly feel they did not have with respect to some of our earlier initiatives?

Mr. White: With regard to your first point, senator, it is an interesting suggestion that there be a sunset clause attached to this measure. It is interesting for two reasons: First, it would put some substance behind the minister's claim that this may be a transitory provision, and that there is something better in the wings. I do not think it is possible for the government to simply withdraw this bill entirely and substitute nothing for it. If it has nothing better ready, then it might well make sense to leave this on the table and possibly enact it for a limited period of time, with the understanding that a more comprehensive constitutional amendment will be proposed in time for the 1997 meeting. I think that is a very intelligent suggestion.

With regard to the second question, that is extremely difficult. My first observation would be to repeat the comment I made in my presentation. Unanimity is a dangerous thing. That is one thing that we learned, some to our cost, while others, I am sure, were quite pleased, in the case of the Meech Lake Accord. We must recognize that unanimity invites constitutional paralysis because it invites people to object to an amendment for reasons that may have absolutely nothing to do with the amendment itself. What provincial politician, I will say, can resist the opportunity? We should look carefully at what amendments require unanimity.

With regard to how to obtain public support for difficult amendments, such as the recognition of minority rights, I do not think I have an answer other than the one I have already given, which is that it requires political leadership. We have been derelict in this country in educating our population as to the fundamental characteristics of Canada. This is why I think it is important to put such characteristics in the Constitution.

As I understand it from my children, the history of Canada is barely even taught in our schools any more. If it is, it is taught in 10 different ways in 10 different provinces. A country that does not know its history cannot function any better than can a person with amnesia. I think that is an interesting analogy. We do not know our history.

I have never yet come across a Canadian who, once you have sat him or her down and explained exactly what is attempting to be done does not respond with, "Oh, is that it? Well, in that case, of course, why not? It makes perfect sense." You must go through that exercise, something which we have not done; and we have not done it for 30 or 40 years.

[Translation]

Senator Beaudoin: I would like to return to the original debate. Mr. Chrétien promised Quebec a veto in his Verdun speech. But vetoes take a variety of forms. Bill C-110 revives the Victoria formula, with the addition of British Columbia.

There would also be another way of doing this. That would be to say that no rights would be taken away from Quebec on the legislative level, without Quebec's assent, in areas specific to Quebec. That would be a form of veto.

Personally, I do not find that form of veto a bad thing. Ninety-nine per cent of people are now saying that it would be totally unacceptable elsewhere in Canada. If that is the case, obviously we will have to try to find something else, or return to the Meech Lake formula where there would be ten areas requiring unanimity instead of five.

I would like to know what you think of these three possibilities. Each has its merits, but which is the best in the present context?

Mr. White: Let us start with the Meech Lake Accord. I believe that the fundamental concept of the Meech Lake Accord is a mistake. What they were trying to do with the Meech Lake Accord was to give Quebec specifically a veto on the six matters set out in section 42.1. This they did, not by giving Quebec a veto, but by putting these in the clause demanding unanimity. This therefore gives everyone a veto.

I feel that is a mistake. I would be more inclined to take things out of the clause requiring unanimity than to put things in. That would be my first point. I would not be in favour of the approach of Meech Lake Accord.

As for the other two formulas, you said one of them would not be acceptable?

Senator Beaudoin: I am told that it is not acceptable.

Mr. White: For the rest of Canada.

[English]

Senator Beaudoin: I am told that it is absolutely impossible to give a veto to Quebec in the areas where Quebec is distinct. "Distinct" is the wrong word. Perhaps I should say where it has a vital interest.

[Translation]

Mr. White: I feel, Mr. Chairman, that we must not give up the fight before it is even begun. I spend a lot of time in Alberta and I do not believe the Albertans would say they could not accept Quebec's having a right of veto over matters essential to Quebec, provided Alberta were to have a right of veto over matters essential to that province. That is perfectly normal.

Senator Murray: And that includes the reform of central institutions like the Senate.

Mr. White: Yes.

Senator Murray: So that leads inevitably to the unanimity formula in certain cases.

Mr. White: In certain cases, yes.

[English]

Senator Beaudoin: Go back in history. Quebec feels the way it feels now because Quebec is insecure, and Quebec will stay in Canada only if Quebec feels secure. It is possible to adjust federalism to comply with the desires of Quebec. I do not see a major problem with that, and it is possible. However, the problem that we have had for 30 years is that if you give something to one province, you must give it to every province.

I remember when I was part of the Pépin-Robarts commission, I called it the theory of the pants. You have ten provinces and ten pairs of pants. Each has to be the same size. You give exactly the same thing to each province, regardless of the needs of each province.

We do that because we said, right from the beginning, that asymmetrical federalism is wrong. However, the fact is that if you examine the Constitution of Canada, you have already some asymmetry. You have asymmetry in the Senate and in the House of Commons for Prince Edward Island, for example. You have asymmetry in section 93 for Newfoundland. You have a certain asymmetry for the Civil Code of Quebec. I am sure that you can find many little asymmetries like that.

Finally, we must do something with this formula of amendment. I am one of those who say we cannot forget that in one year from now we will have to rule on this question of the formula of amendment. One year is not a long time. We must hear from witnesses as to the best formula of amendment for this country.

You say it is not impossible that Quebec should have a veto in the vital fields where Quebec is concerned: Civil Code, French language, culture, et cetera. In the economic field, there is no valid reason. You may imagine that, or you may resurrect the regional vetoes. That is what the government is doing. Now there are five because of the particular problem of B.C., or the particular needs of B.C. What is best, in your opinion?

Mr. White: Senator, I will have to answer by saying that I should go back and do some more homework on this question. I did not come here prepared to testify on the best amendment formula, although I do have some ideas.

I would say two things in answer to your question: First, when we ask ourselves what is or is not politically possible in Canada, I do not think we should necessarily be guided by what has proven to be politically possible in the past. I think it was Dr. Johnson who said that the prospect of being hanged on the morrow concentrates the mind wonderfully. There is a very good chance that things that were impossible before the referendum may be possible after the referendum.

Second, and I am sorry to keep throwing in these bromides, but Harold McMillan had a slogan on his desk from Gilbert and Sullivan which held that calm, quiet deliberation disentangles every knot. Some group or body sitting down and examining these questions one by one, not trying to do what is politically clever or politically correct, but trying to do what is right, could probably come up with an answer to your question in each case.

I suspect, as Senator Murray pointed out, that the most intractable case might prove to be the Senate itself. As I pointed out in my opening remarks, there is no point in having a requirement for unanimity unless there is already substantial agreement on what is in the Constitution. If some people want to change it and others do not, the unanimity requirement simply paralyses it and makes change impossible. I think that is the frustration of those who wish to reform the Senate against those who do not, or those who have different approaches for reforming the Senate.

It is odd; I think that of all the possible subjects for constitutional amendment, the Senate is the only one that is a huge political issue at the moment in Canada and would be difficult to resolve. Senator Murray may disagree, but if that is the case, we may just simply have to abolish it.

Senator Murray: That takes unanimity, too.

Senator Beaudoin: I was surprised by the discussion this morning on the Senate, because in order to abolish the Senate, you need unanimity.

Mr. White: I was being facetious.

Senator Beaudoin: Under section 41, it is clear. However, for an institution, it is 7-50.

Mr. White: The Supreme Court is unanimous.

Senator Beaudoin: The Supreme Court is unanimous, according to section 41. Except for abolition, you may deal with the Senate in two ways: 7-50, or a simple statute of the Parliament of Canada for the retirement of the senator, as they did in 1965.

Senator Murray: However, another element came into it this morning. Ms Dawson gave it as her view that, in respect of sections 22 and 23 of the old BNA Act, the electoral districts in lower Canada, those could not be changed without Quebec's consent, so would you then need to use both the 7-50 formula and section 43?

Senator Rivest: It is good for us from Quebec.

Senator Murray: As a practical matter, 7 and 50 could bring about an elected Senate, a Senate with different powers and an equal Senate, but if the views that Ms Dawson expressed were to hold, there would need to be 24 senators from Quebec.

Mr. White: Unless Quebec agreed to change that.

Senator Murray: Unless Quebec agreed to change it. The point is that Quebec has a veto over some aspects of Senate reform as it now stands.

Senator Beaudoin: I hope she is right.

Senator Gauthier: You are the expert.

[Translation]

Senator Rivest: Mr. Chairman, I would just like to make one comment to Mr. White in relation to the discussion of the amending formula. What are the major underlying problems in Canada? Aboriginals, spending authority, the role of the Canadian government, language rights, and institutional reform. By going ahead with Bill C-110 where vetoes are introduced, as Mr. White has pointed out, everyone will pass judgment on this bill according to their underlying needs, according to whether or not it will make it easier for them to get what they want.

For example, I am convinced that the aboriginal peoples will tell us that we are again bolstering their access to the principle of self-government. The people of the Territories, who wish to eventually acquire provincial status, will tell us that we are again making this more complicated for them. The same things will be said about language matters.

Where there is some political concern is with the Quebec question. The question of all the practical details in the amending mechanism will, or may, create even more rigidity in obtaining fundamental and substantial changes on which debate in Canada has not even begun and which are pressing, not only because of 1997, but also because of the possibility of a referendum in Quebec in which Canada will need to show that it is making real changes, not just changing its process for amending the Constitution.

I know that it is terribly difficult to reach agreement on this. I think, Mr. White, the necessary leadership of the federal government to which you referred at the beginning of your presentation needs more than mere expression. It is understood that there have been formal commitments on the matter of the amending formula. I think that Prime Minister Chrétien referred, in his television address at least, to change in Canada itself being a necessary part of our future. What we need to address therefore are changes of substance, and here we are all involved in playing around with the formula. Therein lies great danger.

Mr. White: Senator Rivest, you are making a very important point there, one which I tried to emphasize. In my opinion, we need to start with the underlying principles. In my presentation I did not suggest basic changes to the Constitution. I proposed a preamble that would set out the fundamental characteristics or attributes of Canada. It being a preamble, it will be up to the experts to interpret the exact scope of the Constitution Act. I do not go into detail, however; that will have to come later. First of all there must be agreement on the principles. I realize that is very Cartesian, but the debate on details can come later. I think we may be putting the cart before the horse, starting to discuss detail instead of reaching agreement on the principles. In closing, I must say that what we need in Canada is a leadership that will speak to us of the principles that are behind Canada and will explain to Canadians what the underlying principles are which we must all recognize and respect. It does not seem that this bill moves us much further ahead with this.

[English]

Senator St. Germain: I wish to ask a question on principles. You say that we should be proceeding on principles of leadership. Should those principles come strictly from within? Do you see a constituent type of assembly or outside influence coming to the fore? Is that possible?

Mr. White: As Winston Churchill once said, "I believe in this; I am a child of Parliament." I believe that we have elected governments. They were elected to govern this country. They were not elected to fiddle while Rome burns. They were not elected to let other people take the initiative. If we have a major problem that could lead to the break-up of Canada, elected governments and first ministers should respond to that problem.

I do not agree with those who suggest that the government should be left out of this process. That is a ridiculous suggestion. Nor do I agree with those who suggest that anglophones should go off in their little corner and talk about what they want to do, and francophones in their little corner should talk about what they want to do. What kind of dialogue is that? The leadership should come from where it always has, our national leaders. We should be able to resolve this issue if the national leaders look into their hearts and do what is best for the country.

Senator Murray: It sounds like a job for 10 men in suits.

Senator MacEachen: We have learned that leadership sometimes does not work.

[Translation]

Senator Gauthier: We have political leadership here in front of us. Bill C-110 is a political proposal or initiative, not a constitutional amendment. It is a response to a promise made in a strictly political context. The House of Commons has spoken; it has passed Bill C-110.

Mr. White, what would happen if the Senate did not pass Bill C-110? You know as well as I that there would be confusion, total upheaval.

The House has already spoken on this bill. You know as well as I that this is an essentially political proposition. Why would we not pass Bill C-110 and then follow the debate carefully, precisely in order to make improvements and possibly to add constitutional amendments before the unavoidable 1997 deadline for meetings on the amending formula? We will need to move on to action.

Senator Rivest: We have eight months.

Senator St. Germain: Even if it does harm to the province of Quebec?

Senator Gauthier: It will do no harm to the province of Quebec. It is Canada that is at stake, Senator St. Germain.

Senator St. Germain: I understand that very well, but the point of interest here is Quebec.

[English]

Mr. White: I think you asked a rhetorical question. I do not disagree with you. As I said, this bill is a step in the right direction, but it must be followed by other steps.

Senator Gauthier: I agree.

Senator Rivest: It is a wrong step in the right direction.

The Chairman: Thank you very much, Mr. White.

Senator De Bané: Mr. Chairman, I wish to propose that we add to the list of witnesses Mr. Milne from PEI, and Professor Schwartz from the Faculty of Law of the University of Manitoba.

Senator Beaudoin: This matter was on the table this morning.

Senator Gauthier: Yes, with the steering committee.

Senator Beaudoin: We suggested that we revert to that matter at the end of the day, is that not right? I do not think you were there, Senator De Bané, when we did that.

Senator De Bané: That is true, but the sooner we can get in touch with them so that they can prepare their documents, the better. I am putting forward this suggestion on behalf of my party. If my suggestion has the agreement of the other side, then perhaps the clerk can get in touch with them and see what time slot would be available. I do not know if they will accept an invitation so late in the day.

Senator Beaudoin: I have no objection. I remember that a professor at the University of Montreal was interested in appearing. He was not able to appear this week, but may be able to appear next week. I am referring to Professor Frémont from the University of Montreal. If a slot is available for him next week, I would suggest the same thing. I have no opposition to your suggestion.

Senator Murray: Mr. Chairman, I do not want to cause problems but, first, we agreed to a relatively short time frame in which to study this bill. It was the wish of the government, insistently and repeatedly put to us, that we report this bill in the Senate by February 1. My inference from that is that the government wants to be in a position to have the House of Commons deal with any amendments that we might make in the week beginning February 5. We agreed to a fairly short time frame.

We have six or seven governmental, territorial, and aboriginal groups coming. I believe we settled on approximately 13 outside experts. I am aware, as you are - and Senator De Bané may not be aware - that in addition to the two witnesses he mentioned and the one that Senator Beaudoin mentioned, other organizations and groups are seeking to appear before the committee. We had to draw the line somewhere. We drew the line at the 13 outside witnesses that we have invited. To hear from the two witnesses that Senator De Bané suggested would mean that we would have to sit Friday afternoon. There was a third witness mentioned by Senator Beaudoin, and there are several organizations seeking to be heard. We cannot hear a0ll of them, and I would rather not have to pick and choose among Senator De Bané's two and Senator Beaudoin's one and the other organizations that are seeking to be heard. We should accept that we have done the best that we can in the time at our disposal, and that we have closed the list.

The Chairman: Senator MacEachen, do you have anything to add?

Senator MacEachen: If the idea is that you close the list and we have no other witnesses, that is an heroic stance that we could follow. It was my intimation that it might be possible to hear Professors Schwartz and Milne because no other representative is coming from Manitoba, and no other representative from Prince Edward Island.

However, if the committee as a whole wants to take the heroic stance, I will take it, too.

Senator Murray: The organizations include the Equality Party of Quebec, Alliance Quebec and several of the minority language organizations from outside Quebec. I do not see how we can do justice to all of that without getting an extension of time from the Senate to deal with the bill.

Senator Marchand: In terms of leaving some people out, we should hear people from all over, but I am hearing Senators MacEachen and Murray saying, "Let us close the list. We cannot hear everybody. We cannot do a complete job because everybody wants to appear."

I am willing to close the list and do our best with those we have noted. We will have heard from quite a large number of people regarding the bill, especially those from the provinces who wanted to come. We have heard about the provinces which did not want to send representatives. I am ready to close the list.

Senator Carstairs: In essence, if it is agreed that we have a list, and since the steering committee has clearly gone through all of the witnesses to solicit, one presumes, the broadest possible range of views, then I am quite prepared to agree with the list as proposed by the steering committee.

Senator St. Germain: In our meeting this morning, I made mention of the fact that the Equality Party have forwarded to me already a partial submission, and that they are interested in appearing here. In the spirit of this type of hearing, I would not want to put my stamp of approval on restricting debate or information coming forward.

This is a much more critical issue than initially meets the eye. Closure was put in place in the House of Commons. We should not be seen, as the Senate, to be invoking closure or trying to minimize debate by limiting witnesses. Basically, on the list we have the aboriginal people whose testimony is very important. We also have the academics and a few political people on the list that I have seen. We have no witnesses from industry. Industry has clearly stated that this constitutional issue is of key importance, when you listen to the likes of Matthew Barrett and the Laurent Beaudoins and others in the rest of the country.

I am not pitching for the Equality Party or for anyone else. However, I would hate to think we would get boxed into a situation where, for reasons of time, we would restrict the flow of information coming to us. Many senators will really struggle with making the right decision on this piece of legislation.

[Translation]

Senator Gauthier: We could resolve our dilemma by asking potential witnesses to submit their comments in writing. This could be done in the next seven or eight days. We will read the report. If we are going to go on indefinitely, and especially following Mr. White's presentation, I guarantee that the Fédération des francophones et Acadiens will want to testify. The Franco-Ontarians will certainly want to appear as well, and this means we are opening the door to all these witnesses. I certainly do not want to prevent them from testifying, but I recognize that there is a time constraint. I support the position taken by Senators Murray and MacEachen.

Senator Meighen: Senator Gauthier has just made the point I wanted to make. I think my colleague, Senator St. Germain, made it quite clear why we should not expand the list, because at this point union and industry leaders will all apply to appear before the committee. Our time is very limited. Let us carry on as we decided.

The Chairman: So, if I understand correctly, committee members all agree that the list of witnesses is closed. Professor Pelletier is our next witness. Welcome Professor Pelletier.

Mr. Benoît Pelletier, Associate Professor, Faculty of Law, University of Ottawa: Thank you, Mr. Chairman, I submitted the text of my presentation to you earlier. You may rest assured that I have no intention of reading the text, which is rather lengthy. Instead, with your permission, I will focus on the broad lines of my analysis.

You will doubtless note in my text that I looked first at existing amending processes. As well, I analyzed the factors adding to the complexity of these processes. Some of them appear in the Constitution Act, 1982, and are therefore part of our constitutional amendment process. Others arise from practices established by political players over the past few years and from certain requirements of Canada's social context.

Secondly, I very carefully examined the nature and scope of the regional veto we are considering here.

Thirdly, I tried to come up with all the arguments for and against the bill under study.

Fourthly, and finally, I made some recommendations to the committee, should the Senate decide to support the bill.

I will then, if I may, go directly to the heart of my study of the bill before us. I would ask you to turn to page 8 of my text and the pages following.

We must first understand that the bill before us falls outside the current constitutional framework. The regional veto is intended to complement and combine with the constitutional amending process put in place in 1982. This is why it was essential to analyze the existing procedure first, in order to fully understand how much the bill before us contributes to the present process, adds to its complexity and complicates its implementation.

The process we set up in 1982 is based on what is known as statutory procedure, that is, the passing of resolutions by the federal and provincial legislative assemblies concerned. This procedure remains unchanged. It is not affected by the bill under study.

The regional veto would not, of course, be enshrined in the Constitution and would have no supralegislative powers. It will, therefore, be somewhat vulnerable, although, obviously, it is hard to predict the future. Should the bill be passed, it is unlikely the Parliament of Canada will take a step backwards and decide to repeal this measure, unless of course, it is essentially incorporated into the Constitution one day.

We have here a procedure intended to complement the existing amending process, without amending the written Constitution. At the heart of this proposed legislation is Parliament's exercise of the veto it has over most constitutional amendments. The Canadian Parliament has, subject to the Senate's having only a suspensive veto, a full veto over constitutional amendments made, for example, under sections 38, 41, 42 or 43 of the Constitution Act, 1982.

The regional veto we are talking about involves Parliament's exercise of its veto. We will see, in the course of my presentation, that the regional veto impacts particularly on the exercise of Parliament's veto under sections 38 and 42 of the Constitution Act, 1982.

It would be interesting to know the effect of the bill's being passed. Obviously, it would be subject to a legal interpretation like all other federal legislation. The problem, however, lies in the judicial sanction of the legislation, in the event it is contravened. I will give you a few examples.

Let us assume that an individual, an interest group or even a province decided to launch an action to prevent a minister of the Crown from tabling a motion for a resolution inconsistent with the regional veto. Would such an action be allowed by the courts? In my opinion, the question is highly theoretical, extremely academic, and the courts would be very reticent to prevent a minister from tabling a motion for a resolution in Parliament, even if it contravened the provisions of the act respecting constitutional amendments.

Once Parliament had a resolution before it that contravened the law, could the courts intervene in the process to prevent it from passing the resolution? Probably not. The courts have always been extremely reticent to intervene in the actual parliamentary process.

Now, suppose the resolution were passed, still in contravention of the provisions of the law, would the courts give in to the temptation to invalidate the resolution if it contravened the provisions of the law on constitutional amendment? Here again, the answer is no, because the present amending procedures require simply that resolutions be passed by the various legislative assemblies. And the courts would doubtless conclude that it was entirely within Parliament's discretion to pass a resolution on a constitutional amendment, even though it contravened the provisions of the act respecting constitutional amendments before us.

In other words, the courts would have no hesitation in giving priority to a resolution passed by the Parliament of Canada on a constitutional amendment, even if it contravened the act respecting constitutional amendments simply because this is what the Constitution provides and because, if the courts did not reach this conclusion, this act would have to be declared unconstitutional. This the courts would doubtless refuse to do, being satisfied to declare provisions of it inoperative, so as, once again, to give priority to the resolution passed by Parliament.

So, you would probably be right in saying that this legislation would have no effective judicial sanction. It would be without effective judicial sanction in that there would be no way to enforce it, in my opinion.

It is a bit as if this bill gave legislative form to what will become a new constitutional convention, a new practice, a new usage relating to the process of constitutional amendment in Canada. This does not make the legislation uninteresting. It is interesting. For all its lack of legal teeth it doubtless constitutes a political precedent. It may well, I repeat, give form to a new constitutional convention in statutory terms, in writing, thus establishing a new usage, which, obviously, the Government of Canada will feel morally bound to follow.

In my opinion, despite the fact that the legislation provides no effective judicial sanctions, it is still perfectly legal and constitutional.

Some would be tempted to say that it is a roundabout amendment of Canada's Constitution and is therefore unconstitutional. I do not agree. First, the bill does not alter the fact that the Parliament of Canada has final say on the appropriateness of passing a resolution proposed by the Government of Canada.

Second, the bill is subtly worded, because it imposes no constraints on Parliament, but it does on the government.

Third, the bill would in all likelihood provide no judicial sanctions. This means that the courts would always give priority to the Constitution and could even declare provisions of the bill inoperative.

Fourth, the bill concerns the exercise of the veto power belonging to the Parliament of Canada, which, in my opinion, it must subject to the procedures it deems appropriate.

Fifth, the bill in no way alters the fact that our constitutional amendment process remains a process of legislative ratification in that it will still be necessary for the legislative assemblies, including Parliament, to pass resolutions.

Sixth, the bill does not in any way officially change the procedures established in 1982, but, rather, as I said a bit earlier, deals with established usages and practices in constitutional amendment.

In the end, the bill simply adds to existing procedures. Its aim is merely to complement the existing process and not to replace it. It complements the present process, without substituting an alternative solution.

We must, however, be very aware that the scope of this bill is extremely broad. It will apply to all constitutional amendments, except those to be made unanimously under section 41 of the Constitution Act, 1982. The provinces are already considered to have a veto on such amendments.

The bill will also not apply to the amendments covered by the bilateral procedure provided in section 43 of the Constitution Act, 1982.

Here again, the provinces are considered to have a veto on such matters.

The bill will also not apply to anything covered by the right to opt out provided in subsection 38(3) of the Constitution Act, 1982. This means that the bill would not apply in the case of the transfer of provincial jurisdiction to Parliament. This involves a change in the distribution of powers toward greater centralization. In such a case, the province would have the right to opt out, which is outside the scope of this bill.

Why is it outside? Because the provinces are considered to have enough protection with this right to opt out.

Senator Rivest: In all areas?

Mr. Pelletier: What areas?

Senator Rivest: Those of education and culture?

Mr. Pelletier: We are not talking about financial compensation, we are simply talking about the right to opt out.

To give you an idea of the scope of the regional veto, if you look at page 13 of my text, you will see various examples, including: amendment to the Charter of 1982; reform in central institutions; the creation of new provinces; provisions on Quebec as a distinct society; a Canada clause; recognition of Canada's linguistic duality; limits to federal spending; inclusion in the Constitution of administrative agreements; provisions covering the consolidation of Canada's social and economic union; provisions on native peoples; the requirement to hold constitutional conferences; provisions on legislative asymmetry, to name a few. All these amendments and proposals are covered by the regional veto.

This brings me to a few small technical concerns. As we can see, the bill does not indicate how the Government of Canada can ensure the provincial consent required to implement the regional veto. In his November 27, 1995 press conference, the Prime Minister said that this consent could be expressed in various forms - a vote in a legislative assembly, a referendum or direct notice from a provincial government.

In my opinion, these details, that is, the ways provincial consent may be expressed, should appear in the bill or it should be provided therein that the Government of Canada could ensure the necessary provincial consent in whatever way it deems appropriate.

I think the bill should indicate the manoeuvring room available to the Government of Canada in the use of the regional veto. Should this manoeuvring room be a source of indignation? In my opinion, no; given the very broad scope of the regional veto. If the government had no manoeuvring room in the way it ensured provincial consent, and, in some instances even, no possibility of calling a referendum, this bill would really complicate the process of constitutional amendment in Canada - much more than some would like.

Stating in the bill that the federal government has total discretion in ensuring provincial consent could eliminate any ambiguity and preclude judicial interpretation to the contrary. Such a statement could also be appropriate should a provincial government or legislative assembly decide to oppose constitutional change, whereas the Government of Canada deemed it necessary to go directly to the people in a referendum in order to break a deadlock.

It would also be appropriate, in my opinion, that exceptions under section 44 of the Constitution Act, 1982 be outside the scope of the regional veto. At the moment the right to opt out, section 41 and section 43 are outside its scope. Section 44 was not included in the bill because the provinces have no say in any case. This amending process is unilaterally under the control of Parliament. However, it would be wise, in terms of the application of section 44 - since we are talking about establishing new practices - to have everyone know that the regional veto does not apply to section 44.

I would also hope the committee will look at the question of whether the bill should provide what is to be done if a province reverses its consent or unduly delays in informing the Government of Canada of its opinion. It would be wise to include these scenarios in the bill.

Let me look at a few arguments against this bill, before I go on to look at those in favour of it. The first argument against it is that it could delay the passing of a resolution by Parliament to effect constitutional change or in favour of such change.

Let us suppose that the Government of Canada tables some proposals. Perhaps Parliament would like to support its own government's initiative with a resolution. It may in the end not be able to support the government's proposal. It may have to await provincial response on the matter, before ensuring that consent is necessary, which would then allow a minister to table the resolution permitting the passing of the particular constitutional amendment.

This, however, is not the prime argument. Unavoidably, this veto complicates the current constitutional amendment process. We could even say that we are moving from a 7-50 formula to a 7-92 formula in the case of many constitutional amendments. The regional veto also requires the participation of certain specific provinces, unlike the present 7-50 formula, where specific provinces are not required to participate.

This procedure may therefore complicate constitutional reform in Canada. We must not forget that inflexibility risks making adaptation of Canada's Constitution to new circumstances somewhat chancy. We have to realize that, with the regional veto, which amounts to a 7 and 92 formula essentially, we are approaching the rule of unanimity in almost all areas.

What is surprising is that this regional veto would apply even to certain subjects that the political players have in the past wanted covered by a procedure more flexible than the 7 and 50 formula. They include the creation of new provinces or the attachment to existing ones of all or part of the territories, namely the Northwest or Yukon Territories.

The Charlottetown Accord provided that these two areas would not be subject to the 7 and 50 formula, which was considered too cumbersome. The accord proposed that these two areas be under the unilateral jurisdiction of Parliament, as the procedure had been prior to 1982. With the regional veto, however, not only do they remain subject to the 7 and 50 formula, but they are now subject to a procedure that complicates such amendments even further.

The regional veto could be criticized for forcing the federal authorities to give up some of the flexibility possibly required for constitutional amendments. Let us look for example at the 1991 federal proposals. In 1991, that is, shortly before the Charlottetown Accord, the Government of Canada made a number of constitutional proposals and took great care not to make any proposals involving the rule of unanimity.

The proposed federal amendments involved the 7 and 50 formula at most. Why? Because the federal government felt at that point that, with the 7 and 50 formula, there was greater likelihood - unlike in the case of the Meech Lake Accord - of achieving conclusive results and it would be easier to "get round" the provinces opposing the particular amendments.

In order to get a real understanding of the impact of the regional veto, we have to realize that the 1983 constitutional amendments according certain rights to native peoples might not have been achieved, because Quebec refused to support the resolution promoting these constitutional amendments.

Did Quebec indicate its support for the proposals to the federal government, despite the fact that it did not pass the resolution? It would have enabled the government to meet the requirements of the regional veto. Some might think so, but it is uncertain.

It is often said that the regional veto revives the Victoria formula. This is not true; the Victoria formula was more flexible than is the regional veto. It required the consent of Quebec, Ontario, two Atlantic provinces, regardless of the percentage of their population, and two Western provinces, representing 50 per cent of the population of Western Canada. Why two Western provinces? Because British Columbia's demographic weight was taken into account.

We had a procedure involving six provinces and requiring 50 per cent of the population of the west, and two Atlantic provinces, regardless of the population of the region represented. The present procedure involves two Atlantic provinces, but also requires 50 per cent of the population. Then there is Quebec and Ontario and not two, but three, Western provinces, if I include British Columbia. And, in the case of Manitoba, Saskatchewan and Alberta, there is the additional requirement that there be 50 per cent of the regional population.

This bill goes further than the Meech Lake Accord. If we really wanted the regional veto to be the same as the Victoria formula, it would have to require the approval of two Atlantic provinces, regardless of their population, Quebec, Ontario, British Columbia and one Western province, regardless of its population.

Let us now have a look at the arguments in favour. I am going to take a few minutes to ensure that the arguments pro and con are given their due. The regional veto may be described as aiming to obtain the broadest consensus in Canada. It is a perfect expression of the federalist view, totally respectful of the provinces' role in a federal system. It also offers some protection - indeed, considerable protection to Quebec and Quebecers -, which is important, because Quebec does not feel sufficiently protected by the existing 7 and 50 formula.

Quebec's achievement of certain constitutional objectives will, however, be complicated by the fact that, in the future, the 7 and 50 formula will not be the only procedure that may be used to limit federal spending or to recognize Quebec's distinct nature, for example.

We must not forget recent constitutional amendment experiences: the Meech Lake accord and the Charlottetown agreement. They seem to me to be a significant argument in favour of the present proposal. Recent experience in constitutional amendments shows that in Canada we can no longer contemplate a substantial change to Canadian federalism without a consensus or very strong support from the provinces, including, most certainly, the most populous provinces.

When this is put into a legal context, we end up with the equivalent of the proposed regional veto. In other words, the regional veto is in keeping with Canada's most recent experience in constitutional amendment.

It must also be examined in the light of the conference to be held by 1997 at the latest. At this conference, our politicians will have to meet the challenge of improving the present constitutional procedure, removing certain irritants and complexities in the existing procedure. They may even consider simply replacing the 7 and 50 procedure with a formula similar to the proposed regional veto.

None of these amendments is easily made. Including the regional veto in the Constitution will require unanimity under section 41 of the Constitution Act, 1982. We can hope, however, that, if passed, the present bill will pave the way for formal constitutional reform.

A regional veto might also have a psychological impact, something which is often overlooked, especially by lawyers, to the extent that it might placate federal partners as a whole, who might feel more at ease knowing that, through a regional veto, they have some kind of a veto or the equivalent of a veto. Hopefully, federal partners might be more favourable to possible negotiations and constitutional reform in Canada.

A regional veto may also give more legitimacy to referendums as a means of resolving certain constitutional deadlocks and reduce the needs for such extensive public hearings as were held in the past across Canada on constitutional proposals. With such hearings becoming less necessary, the amending process would become less cumbersome.

To conclude, I would like to make a few recommendations to the committee in case the Senate decides to support the proposed piece of legislation. First of all, I would recommend amending the bill to formally recognize that the Government of Canada can seek provincial agreement according to the consultation formula of its choice. On page 23 of my brief, I propose three different wordings for this amendment.

I recommend that what is not covered by the regional veto be provided under section 44 of the Constitution Act of 1982.

I recommend that provisions be included in the bill, should a province withdraw its consent or unduly delay conveying its opinion, consent or disapproval to the Government of Canada.

I also recommend that the present committee looks into the advisability of amending the bill along the lines of the Victoria formula.

Should you find it advisable, the proposed amendments would be as follows: the consent of two Atlantic provinces, Quebec, Ontario, British Columbia and one Prairie province would be required; for the Atlantic and Prairie provinces, their population as a percentage of the total regional population would not matter.

Senator De Bané: Mr. Pelletier, I would like to say that I found your brief most enlightening and instructive. It is the most exhaustive study I have found to date on the bill before us.

Am I reflecting your view when I say that, in general, you have a rather favourable opinion of this piece of legislation? According to your remarks, this bill is in keeping with amendments made through the years, which require a broad consensus. As you say on page 20, this bill shows respect for the provinces. It provides, if not for legislative security, at least for psychological security. All in all, your opinion is largely favourable, is it not?

Mr. Pelletier: I believe the regional veto to be close to the Victoria formula, but not exactly the same. I have always favoured the Victoria formula. I am of the opinion that it is the one we should have adopted in 1982. Should the political players, inspired by the present bill, decide in 1997 - or before - to modify our present amending process, more along the lines of the Victoria formula, I believe that Canada would come out a winner.

I should point out that, unfortunately, we have before us a bill which, on the other hand, might also, for the present time, make constitutional amendments more difficult in Canada because it does not replace the 7-50 formula. It comes on top of the 7-50 process. As I was saying, what we are talking about now is a 7-92 formula.

Senator De Bané: But, in the end, we cannot have it all. You say that the regrettable thing regarding 1982 is that Quebec and Ontario did not get a veto. This is the regret you express. However, this bill tries to remedy this situation and, in so doing, takes into account the Atlantic region and the West, with the consequence you just talked about; it makes matters more complicated and changes more difficult; it is the flip side of the same truth.

We say we want to give a veto, but giving a veto makes things more difficult. In fact, in this country, making changes requires a broad consensus, does it not?

Mr. Pelletier: Yes, it does, Senator De Bané. In my opinion, this does not go against recent practices. I believe that we can no longer consider embarking on any major reform of the Canadian Constitution if British Columbia is opposed to it, or if Ontario is opposed to it, or if Quebec is opposed to it. In such a context, it seems to me that the bill before us does not go against neither the federalist approach nor established policies.

I must say that my main concern, as a Quebecer, is for Quebec to be entitled to some kind of protection that it deemed sufficient, and rightly so. What we have here is legislative, not constitutional protection. Nevertheless, it is an important step because it gives Quebec the right of veto.

Could we have given the right of veto to Quebec alone? In the Canadian context, is it thinkable, is it feasible? Should we not also consider the other federal partners? The question is a political one, and the Prime Minister of Canada dealt with it by making the proposals before us. Given the fact that these proposals were made, are they going to have dramatic consequences of themselves? In my opinion, they will not, for the reasons I mentioned earlier.

Senator De Bané: Of course, it would be much better if it could be enshrined in the Constitution; however, any change to the amending formula requires unanimous consent. We all know how difficult this is to get. As you were saying, from a political and psychological point of view, it would be difficult to imagine how a Canadian government could put this bill on the back burner, even if one were to agree with you that it is not binding.

In your brief, you raised another point I would like you to address. You said that it would be desirable for the bill to specify how the provinces, whose consent is necessary, will express their opinion. You acknowledge that it might be necessary at times to hold a referendum to settle some particularly contentious issues. Some claim that, by definition, in a federal regime it is the partners who should decide, not the population at large. What do you think of the argument that in a democracy the people is sovereign, of course, but that since in a federation the constituting entities are joined, they are the ones who decide, not the people they represent?

Mr. Pelletier: As you mentioned, Canada is a federation, but it is also a liberal democracy. Two things must be taken into account, on the one hand, respect for federal partners, and on the other, the fact that in the end the sovereignty of the state does and always will rest with the people, no matter what kind of institution there is to serve the people. Ultimately, sovereignty will always rest with the people, who will exercise it through our institutions.

This being said, I believe this to be a bold gesture on the part of the Government of Canada, to the extent that the government has a veto it can exercise as it pleases, without consulting anybody, if it so chooses. In the past, the government went along with holding public hearings, Parliament itself went along with parliamentary commissions, but the Canadian Parliament can exercise its veto as it sees fit.

Parliament and the government have a right of veto. It is discretionary. Should the bill be passed, from now on, to exercise this veto, they will have to consult the provinces and make sure that they consent to constitutional amendment. This is very bold indeed. I would even go as far as saying that, in a way, this not only sets a precedent, but is also generous. Right from the start, the federal government makes the exercise of its right of veto contingent upon the consent of the provinces.

Senator De Bané: It is so generous that, this very morning, when talking to Mrs. Dawson, assistant deputy minister in charge of constitutional affairs, Senator MacEachen said that in the end the federal government will have less autonomy than Quebec, Ontario and British Columbia.

Mr. Pelletier: Absolutely. There is no doubt about it. And this is my second point. Let us remember that we are in a discretionary context.

This is my third point. In my opinion, Canada will no longer have a choice and will have to consider, sooner than later, a referendum process to resolve constitutional deadlock; this might be done during the 1997 review. Let me explain: in my opinion, we should not be afraid of this idea, we should not be afraid of words. This was first suggested in 1980. It has been picked up again on several occasions. The idea of a referendum as a means of appeal has been considered. I say it again, a referendum as a means to solve constitutional deadlock could be useful.

Should a province oppose a constitutional amendment and the legislative assembly of the province oppose the amendment, if the province fails to pass the appropriate resolution, it might not be possible to make this amendment. The province will always have the last say in this matter since our legislative ratification system, under which federal partners pass resolutions, still applies and will continue to apply as long as it has not been modified through a formal constitutional amendment.

But, should the Parliament of Canada or the Government of Canada feel that the population of the province no longer agrees with its government, that the government is taking a course no longer favoured by the population - in the context of the veto it has and can exercise in a discretionary manner - why should the Parliament of Canada not use a referendum as a means to try - not to resolve the deadlock, since once again the legislative assembly will always have the last say through the passing of a resolution it deems appropriate - to put pressure on the government of the province, to show it that the course it chose is not the one its citizens want to follow?

Senator De Bané: Excuse me, but under the 7-50 formula, no province has a right of veto.

Mr. Pelletier: However, as I mentioned before, within the global constitutional reform process we increasingly find amending formulas which, in some cases, require unanimous consent.

In this context, the province can always block the constitutional process through the passing of a resolution. Without such a power under the 7-50 formula, even if it had to resort to a provincial referendum to convince the legislative assembly to adopt the proposal, a regional veto would not have much more effect if the 7-50 formula still applied.

The use of referendums requires a great deal of judgement. There is a political price to be paid when holding a referendum. It should only be used to try to resolve a serious constitutional deadlock. Whether it likes it or not, the Canadian government will have to consider such a referendum process within a few years in order to bypass a certain stubbornness, and try to reach a national consensus and confirm it.

Senator De Bané: I congratulate you on the quality of your contribution.

Senator Beaudoin: I listened to your presentation very carefully. Even though the formula is absolutely valid, you support the principle that, if a Crown minister were to decide to go ahead with a constitutional resolution, his effort would in the end prove successful because he would be relying directly on the constitutional formula. At that point, if a taxpayer were to challenge the merit of the amendment, the Court would obviously find the amendment valid. Everybody agrees on that. The Court will have to decide that Bill C-110, in this instance, is a nugatory act pro tanto, as we say in Latin. You agree with that. That is a bit like the doubt I raised this morning, when I said that I do not mind if people prefer to call that a nugatory act instead of an unconstitutional piece of legislation, particularly as the Supreme Court does make a distinction between the two. On that point, I have nothing to add.

I was somewhat surprised to hear you say that, if Bill C-110 is passed, it could become almost permanent. I have a lot of trouble with that. As far as I am concerned, the government wants to follow up on a political promise. The government knows that it cannot amend the Constitution within a month. So, this is what it wants to do instead. This can only be a transitory measure.

Do you think the 1982 amending formula can remain as it is and Bill C-110 can also remain as it is? I think it is fine and even generous to say that there are five regions and if one of them says No, then it is No and we, at the federal level, will say No. We do not live in a fairytale world; at one point, the federal government will be tempted to say that it does not agree with British Columbia, Ontario or the province of Quebec. Then, it will have to go against the legislation to protect the interests of Canada. It has a perfect right to do so. I tend to believe that maybe we can go ahead with this. It is a transitory measure. In 1997, we will have to revisit it and agree on an amending formula that will last. You do not agree with me and you believe that this can be a permanent measure.

Mr. Pelletier: We are on the same wavelength. This is a regular act of Parliament that can always be repealed or amended. If, in the end, it proves to be more restrictive than useful, it can always be repealed from a legislative point of view. Moreover, we have to keep in mind the rendez-vous in 1997. If the current amending process is changed following the 1997 federal- provincial conference, the federal Parliament could consider that it is useless to keep the regional veto if, for example, some elements of the regional veto were enshrined in the Constitution. That is true.

However, I must say that the statements I made earlier were of a more political nature. If, a year from now, Parliament decides to abolish the regional veto, we would hear complaints from those who hoped to have the veto power.

[English]

Senator MacEachen: They certainly have not been expressing any appreciation for it up to the present.

[Translation]

Mr. Pelletier: It is the people who first opposed the veto power who would most complain if the act is repealed. What I wanted to emphasize is this: there are two kinds of attitudes I do not like. Does this veto power not make our constitutional amending process more cumbersome? Yes, it would seem to. Does that not jeopardize the reform of our federal system? I do not like the attitude of those who run down this process just because it is simply a legislative one. I think that, even if it is only a legislative measure, it still represents a major commitment from the Government of Canada and the Parliament of Canada. It sets a significant precedent.

Under these circumstances, I said it would be tougher to go back once the bill is passed, unless we do so pursuant to formal constitutional amendments made during the 1997 federal- provincial conference. So, I do not like the attitude of the people who criticized the process because it is just a legislative one. It is only the first step towards enshrining the changes in the Constitution.

Also, I do not like the attitude of those who claim that the current process is too precarious. Again, even if a legislative measure is much more precarious than a constitutional amendment, which has overriding power, so even if a legislative measure is precarious, it amounts nevertheless to a very significant political action. Given the circumstances, this precariousness we are referring to may be quite relative.

Senator Beaudoin: There are three things that are of the utmost importance in a federal system: the distribution of powers, how it is interpreted by the Supreme Court and how it can be changed through amendments. These are the three major aspects of the federal system.

Senator Rivest: And the three problems we have.

Senator Beaudoin: If it can help us to agree on an amending formula a year from now, it would be worth it. It is a step in the right direction. If it leads to a dual amending formula, a constitutional one and a legislative one, imagine what it would be since we already have trouble with only one formula! If it is only a temporary measure, I can wait. If it induces us to review things a year from now and to finally agree on a formula, as the legislator told us in 1982, "In 15 years from now, you will review the amending formula." He was right on this issue. We now realize that our amending formula is not perfect, and we will improve it.

This is only a bill. It does make the process more cumbersome, but is also has some advantages. We have to have some assurance that it would lead to something a year from now. We cannot stay like this for another 15 years.

Mr. Pelletier: We are on the same wavelength.

Senator Gauthier: Correct me if I am wrong, but you seem to think that Bill C-110 has some political merit but no real constitutional impact. I have some trouble understanding how you link all of this to Bill C-110.

Mr. Pelletier: How so?

Senator Gauthier: On page 13 of your brief, you list all of the issues subject to change if Bill C-110 is passed. It seems that it will have an impact. A regional veto applies to a list. That is something new. I was told that Bill C-110 would have no constitutional impact. Are you saying it would have one?

Mr. Pelletier: Here is the situation: You have before you a constitutional proposal to recognize Quebec as a distinct society. Pursuant to the current amending process, the 7-50 formula applies. As soon as you meet the requirements of the 7-50 formula, you can ask the Governor General of Canada to proclaim a constitutional amendment. Not only do you have to meet the requirements of the 7-50 formula, but you also have to get the support or consent of the Canadian Parliament. You will have to come before the Canadian Parliament. The Parliament then says to the minister: You do not have the right to put forward a motion for a resolution that would give my consent to an amendment. You do not have the right to put forward a motion for a resolution unless it is approved by the five regions, under what you now know as the 7-92 formula.

This does have an impact of the constitutional amending process, because it means that, if the regional veto requirement is not met, Parliament would not even be asked to vote on a resolution bringing about a constitutional amendment, simply because the minister would not be entitled to introduce in Parliament a motion for a resolution in favour of the amendment. This will have some constitutional implications.

When we say that this is outside the constitutional framework, we mean that it will not change the current process. The 7-50 formula still applies. The other four processes set up in 1982 still apply. We are only adding a new requirement. And in order to do so, we are not using a formal constitutional amendment, but passing a bill. This new requirement will have an impact on the constitutional amending process.

Senator Gauthier: If I understand correctly, we are placing restrictions on future constitutional amendments, we are putting federal government in a straitjacket. That is what you are saying.

Mr. Pelletier: Yes.

Senator Gauthier: Going clause by clause, I am asking you if Bill C-110 will have some impact on sections 41, 43 and 44 and you say No.

Mr. Pelletier: No.

Senator Gauthier: If I take up the argument put forward by Senator Beaudoin and ask you what will prevail, from a legal point of view, the Constitution or Bill C-110, your answer will be the Constitution?

Mr. Pelletier: Yes, but would the Government of Canada take upon itself to introduce in Parliament a motion for a resolution that would go against the Act respecting constitutional amendments? I think the government would undoubtedly refuse to introduce such a motion, which will in itself have some impact on the constitutional amending process.

Senator Gauthier: I will let others take part in this debate.

[English]

Senator MacEachen: Mr. Chairman, I think it is absolutely necessary to underline again that this limitation is on the executive, not on the Parliament of Canada. A minister is bound. What is provided here is potentially two tracks for constitutional change; one track with a very high level of consensus which requires the overlay. That could only be done by the government. That kind of constitutional change could only be introduced by a minister, requiring the high level of consensus.

Supposing, however, that there were a series of constitutional conferences in which there was work done upon constitutional change, and the high level of consensus could not be reached but a lower level of consensus could be reached, say 7-50. The Parliament of Canada would still be able to operate and produce a constitutional amendment. The Leader of the Opposition could move the constitutional amendment. It could be moved in the Senate. All this says is that a minister cannot move a constitutional resolution unless it has this level of consensus. That is my understanding of what has been said. There has been no limitation placed on the power of Parliament; it is on the behaviour of ministers, that is all. That is an important point. Potentially, there could be two tracks. I think that is highly desirable, personally.

Senator Beaudoin: For the government, it is important.

Senator MacEachen: That is my reading of what has been said.

[Translation]

Mr. Pelletier: I will answer in French if you do not mind. Technically, you are right. What we have been working under these last few years has been a form of executive federalism, where both governmental and constitutional initiatives are undertaken by the governments themselves.

Given these facts, we have to consider this bill, whose main purpose is to stop government action. We know full well that is the direction taken by constitutional negotiations these past few years.

[English]

Senator MacEachen: That is the law. You are telling me that the technical result of Bill C-110 is what I have described. Politically, it is open to the Leader of the Opposition. If he saw that there was a lower level of consensus, he could move a constitutional amendment.

[Translation]

Mr. Pelletier: On this technicality, you are right. I want to remind you of what I said earlier. If a minister were to introduce in Parliament a resolution that does not meet the regional veto requirements, I believe the courts could not interfere in the process to find the resolution unconstitutional.

[English]

Senator MacEachen: I have views on that, but I will not repeat them. I think there are procedural and parliamentary questions that would have to be addressed. However, you addressed the courts. I will not get into that terrain.

[Translation]

Senator Rivest: Following this review, I will provide my point of view from a Quebec perspective. The point raised by Senator MacEachen is a very important one.

As a Quebec federalist, how will it be possible to convince Quebecers that this bill is an improvement? Technically speaking, and in view of the events of 1982, it is correct to say that the rights of the National Assembly will be protected vis-à-vis the Parliament of Canada. There is simply no protection, however, for the rights of Quebec's National Assembly with respect to Executive privilege and to any constitutional amendment involving the Senate. A vacuum will still exist. It is technically inaccurate then to state that the basic objective of providing a form of protection and fulfilling the Prime Minister's commitment is clear cut. This is not true.

Moreover, I foresee that a tremendous debate will rage if the federal government retains the power to determine the nature of the consent expressed by the provinces and to decide who can express that consent. From a constitutional point of view, this may well be correct, given that professor Pelletier is of such an opinion. However, one can well imagine the political debate that this will generate. We will eventually have to circumvent Quebec's National Assembly to directly debate this issue head on. While this can legitimately be done, it will create serious problems.

At one point, Professor Pelletier stated that, indeed, a referendum could be used to break a constitutional impasse, especially because the current Quebec government is sovereignist and will not participate in any process. Depending on the point of view expressed, this can either be discouraging or encouraging. This is also a route that we have travelled in the past.

The Charlottetown Accord was followed by a referendum on the constitutional amendments. Since Quebec is the province threatening Canadian unity, sooner or later, constitutional amendments or a package deal will need to be proposed to Quebecers. It will have to be better than the Charlottetown accord, which was rejected by 54 per cent of them. I think we need to be realistic since we live in the real world. How I am going to promote this?

In view of the technical aspects raised, these rights are not fully protected. Consequently, we will have quite the debate because we will need to bypass the head of the legitimately elected government. We will have to come up with a highly detailed package deal. As a Quebec federalist, I am deeply concerned since I will have to explain to Quebecers that this package represents a step in the right direction.

Prior to this bill, the consent of seven provinces representing 50 per cent of the population was all that was required for constitutional recognition as a distinct society, as expressed by Parliament through a resolution. This legislation is quite an improvement for you my dear Quebec friends! With this bill, by contrast, approval from seven provinces representing 92 per cent of the population will be required to obtain the same recognition. This issue does not concern only the notion of distinct society. For French-speaking people, as Mr. White noted, linguistic duality was recognized in both the Meech Lake and the Charlottetown accords. We had a 7-50 formula. This will now be replaced by a 7-92 rule and will be a basic feature of the Canadian federation.

As you mentioned, there may be additional matters of concern to Quebec including, among others, the spending power and the social charter, which is dear to NDP supporters. While these issues were subject to the 7-50 formula, there will now be changes. How am I supposed to convince Quebecers? As poor Quebec federalists, how will we convince them that this bill is a legal and political improvement for Quebec's traditional claims, even acknowledging that it has technical merit, as correctly noted by professor Pelletier? Why is this particular piece of legislation necessary? As previously stated, I do not see how we will be in a position to sell it.

Tell me, Mr. Pelletier, since you said that, we, as Quebecers, stand to win, in the sense that what occurred in 1982 will not happen again, unless the Senate proposes a constitutional amendment. While we may have a goalkeeper, there is a gap between his two legs. There is the Senate, the Leader of the Opposition and the executive.

We know that the Parliament of Canada will not trick us as it did in 1982. We have won this assurance, but we are paying a high price for it. This is nonsensical and completely useless, coming as it does 10 months prior to the 1997 conference.

Senator De Bané: Senator Rivest obviously did not listen to the witness. He is displaying partisanship!

Senator Rivest: The witness agrees with me. He just said that Senator Rivest is right in every respect.

The Chairman: You have the floor, Senator Carstairs, unless Mr. Pelletier wants to comment on the comments.

Mr. Pelletier: What I said is that what Quebec gains in terms of protection it can also lose. This is so because the process necessary to achieve some of these constitutional objectives will be more cumbersome. Again, page 13 provides examples of amendments which will now be covered by the 7-92 formula, including the regional veto structure.

These examples include sensitive issues such as the establishment of new provinces, the reform of central institutions, the distinct society, the Canada clause, linguistic duality, and most probably the aboriginal issue.

[English]

Senator Carstairs: I should like to take a look at what has happened in the past and superimpose this idea on it - 1981 or 1982, whichever year you want to use. If this piece of legislation had been in place at that time, you would have had the 7-10-50, but you would not have had Quebec. The Government of Quebec would still have said no.

What you said in one of your recommendations was that you would have liked to have seen in this bill some means by which the federal government could find out what the consent was. Presumably, without that, they could use a variety of methods. One of those could have been a referendum. They could have gone to the people of the province of Quebec to find out from them whether or not they approved of the constitutional package. At that point, the federal government could have introduced that package into the House of Commons. Is that the gist of what you are saying?

[Translation]

Mr. Pelletier: If the population had given its consent, for example, by way of a referendum, the Canadian government indeed could have concluded that there was a provincial consent and then could have submitted a proposal or a motion for a resolution to the Parliament of Canada. A referendum is one method of determining that there is provincial consent, because a province is not only a government or a legislative assembly, but also a population.

I would like to stress a point. In the past, referenda have not served the interests of constitutional reform in Canada. Such was the case with the Charlottetown Accord, although it must be remembered that a political agreement had been reached in Charlottetown. Upon reflection, not only was it a political agreement, but it could also have resulted in resolutions being passed by each legislative assembly in the country. While there was no need to resort to a referendum, the government did so in any event, thus leading to the downfall of the entire project.

During the next few years, we will have to consider seriously the possibility of using a referendum as an appeal route. The regional veto might just be a first step in such a process. While use of a referendum would not occur in cases such as Charlottetown, where there was a consensus among the political players, it would be resorted to in instances where a province's obstructionist tactics jeopardize the entire constitutional amendment process. The referendum then would be used as an avenue for appeal, or to provide a solution for a serious constitutional deadlock.

[English]

Senator Carstairs: As you know, there is referenda legislation in two provinces, one of which will have the veto if this legislation passes - namely, the province of British Columbia. However, before the legislature of the province of B.C. can vote on any constitutional package, they must have a referendum. That, in essence, by law, determines how the legislators will vote. The same thing applies in Alberta. Manitoba has its own peculiar aspect in that it must go through a process of public hearings before it can vote on a constitutional resolution.

Senator Beaudoin: Is the referendum imperative?

Senator Carstairs: The referendum is imperative in British Columbia and Alberta. In Manitoba, what is required is public hearings only.

Senator Beaudoin: What happens if the population disagrees with the premier?

Senator Carstairs: In B.C. and Alberta, they are required to vote as the public has voted.

Senator Beaudoin: That is directly against the Privy Council decision.

Senator Carstairs: That is the legislation in both of those provinces.

Senator Beaudoin: That is doubtful.

Senator Rivest: Politically, it is correct.

Senator St. Germain: Democracy at its highest level.

Senator Carstairs: We already have some of these aspects in force and effect.

You mentioned as one of your other recommendations for modification that you would like section 44 to be mentioned. For those who do not have the Constitution before them, section 44 reads:

Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and the House of Commons.

Why would you want that included in this bill?

[Translation]

Mr. Pelletier: This would bring greater certainty. Under section 44, it goes without saying that provinces currently do not have a voice in the process. This is an amendment procedure which comes exclusively under the Parliament of Canada. It is a unilateral procedure regarding certain issues which are related to the internal constitution of central authorities.

An exception exists, however, if the bill is interpreted as instituting a new practice. This would create a precedent which, of course, would eventually be subject to a judicial interpretation.

When reviewing the current act, it is apparent that certain issues are excluded. These issues include those subject to the opting out formula in section 38.3, as well as those mentioned in sections 41 and 43. I would not want the fact raised that the issues mentioned in section 44 are not stated and that, in the future, the Canadian Parliament will have to comply with the requirements of the bill, or those of the regional veto, even with respect to amendments concerning its own internal constitution.

A short explanation could be included in the bill explaining that the issues raised in section 44 are excluded from the bill's scope, in addition to the other provisions which I have just listed. This would have the effect of eliminating any ambiguity and future need for a judicial interpretation.

Does this answer your question?

[English]

Senator Carstairs: Clearly, however, the fact that it is not mentioned also exempts them.

[Translation]

Mr. Pelletier: No, it does not since the bill applies to any constitutional amendment, excluding those subject to the opting out provision and those mentioned in sections 41 and 43. In my opinion, another provision should also be noted, namely section 44 of the Constitution Act, 1982.

Mr. Chairman, I would like to return to your original point, concerning referenda that certain provinces have decided already to hold in the future. I must stress that such referenda will create even more complexities in the procedures which we developed in 1982. We must be aware of this consequence.

Now we have not only five different processes, but also a three-year deadline for the adoption of proclamations. An amendment also cannot be proclaimed during the year following the first resolution to approve a constitutional amendment, unless all provinces adopt their own resolution stating assent or dissent.

At present, there is an increase in the number of stakeholders at the constitutional negotiation table. Under section 35.1 of the Constitution Act, 1982, aboriginals have a veto power and are invited to participate in the constitutional negotiations over issues that concern them. The Territories are also invited to participate in these discussions. At the same time, there will be public hearings, parliamentary commissions, referenda in certain provinces and, eventually, a regional veto. This is a lot.

[English]

Senator Beaudoin: I understand Senator Carstairs' question. I do not think it is strictly necessary to mention section 44 because the unilateral power lies with the federal government to amend its own Constitution. However, if you include section 44 just for purposes of greater certainty, as they say in section 91, I have no objection.

I should like to return to the point made by Senator Rivest and the answer given by Senator De Bané. The big difference is that with Bill C-110, Quebec must be in the picture. If it is only 7-50, Quebec may be out of the picture. You may say to Quebecers that, because of this, at least they must be in.

Senator Rivest: My point is not a defensive point of view but to gain new power. That is my point. We need reform. That is our objective.

Senator Beaudoin: Yes, I remember that.

Senator Rivest: If you want to convince some Quebecers to stay in Canada, you must prove that their traditional demands will be satisfied. This is not just defensive. I know that from the defensive point of view, of course, we gain with the bill. This is purely political. However, in terms of renewal of Canadian federalism, we lost.

Senator MacEachen: The threshold is higher.

Senator Rivest: But we must face a referendum in the next year.

Senator Beaudoin: We used that argument in 1971. People said that if you give Quebec a veto, you protect Quebec. However, Quebec is frozen; Quebec will not be able to obtain more. The fact is that Quebec has not obtained more.

Senator Rivest: Except by way of the Meech Lake Accord.

Senator Beaudoin: Yes, but that accord was not accepted. In my opinion, we must be careful.

Senator Rivest: That is the beginning of the problems.

Senator Beaudoin: It is one thing to protect a province by way of a regional veto. It is good, in that sense. If you say that it may be difficult to obtain more power, that may be; I do not disagree with that. However, history shows that it is not certain that you will obtain more. You had better grab something that is on the table, then at least you will have something in your pocket. After that, if you want something more, become innovative and try to find a way, but at least you have the other.

[Translation]

Senator Gauthier: I would like to elaborate on this point. Senator Beaudoin mentioned that this bill is a transitory measure, and according to his interpretation of this legislation, it will bridge the gap, if you will, until the 1997 federal-provincial conference. This implies that perhaps this bill needs to have a sunset clause.

What do you think of a clause which would provide that Bill C-110 is repealed on the first day when the premiers and the Prime Minister meet?

Mr. Pelletier: The fact is that we have no inkling of what will come out of the 1997 federal-provincial conference. We are unaware of the context in which it will take place.

Senator Gauthier: Absolutely.

Mr. Pelletier: Following this meeting, it might even be necessary to continue with the regional veto. It could even be perceived as ultimately including a protection not afforded by the 7-50 formula.

Based on these circumstances, I do not think that it is necessary to include a sunset clause, since Parliament has the power to repeal the act at its pleasure. This is particularly so because the primary goal, of this measure, as Senator Rivest pointed out, is to provide some protection. To some degree, it would be contradictory to boast about the protection afforded, and at the same time, hurry to specify when such protection would end.

Senator Gauthier: This is what I wanted to hear.

[English]

Senator MacEachen: To make a gratuitous comment about that, in a sense Senator Rivest has the best of both worlds because he has the high level of consensus as a defensive protection and the lower level of consensus in an acquisitive sense.

Senator Rivest: On the contrary. I need a high level of consensus for the offensive.

Senator MacEachen: I understood that the high level was a block to constitutional change. The greater the level of consensus, the more difficult it is to achieve the change.

Senator Rivest: For the notion of distinct society in the past, before the bill, we needed 7-50. Now we need 7-92.

Senator MacEachen: That is what I say.

Senator Rivest: That is more difficult. Do we tell the people in Quebec that they have gained something with this bill?

Senator MacEachen: Both options are available to you in this bill.

Senator Rivest: We gain everything. We understand that.

The Chairman: On behalf of the members of this committee, I wish to thank you, professor, for appearing before us and for your presentation.

Senator St. Germain: With all due respect to the steering committee and to Senator MacEachen's saying that the average person is not aware of the subject-matter before this committee, I can understood why that might be the case. This list contains 21 witnesses. Ten are academics, and six of them are from the government - the province of B.C., the Minister of Justice Allan Rock - and the aboriginals. There is no one from the average walk in life such as business, labour groups, and so on.

Senator Gauthier: How many times are we to return to this subject?

Senator St. Germain: I want it on the record, Senator Gauthier, because it is important. If we are so exclusive in our selection of witnesses, it is tough for us who come from the hinterlands and humble beginnings to accept the elimination of our groups.

Senator Carstairs: It would seem to me that when we discussed the gun bill, you thought it was wonderful.

Senator St. Germain: I am not saying I cannot live with the decision of the steering committee, or disagree with the Cape Bretonners who made these good decisions, but I am concerned.

The Chairman: We will reconvene tomorrow morning in this room at 9:30.

The committee adjourned.