Proceedings of the Special
Senate Committee on Bill C-110
Issue 4 - Evidence
Ottawa, Thursday, January 25, 1996
[English]
The Senate Special Committee on Bill C-110, to which was referred Bill C-110, respecting constitutional amendments, met this day, at 9:30 a.m., to give consideration to the bill.
Senator Noël A. Kinsella (Chairman) in the Chair.
The Chairman: Honourable senators, our first witness this morning is Professor Stephen Scott from the Faculty of Law, McGill University. Welcome, professor.
Mr. Stephen Scott, Faculty of Law, McGill University: Thank you, Mr. Chairman. It is a great pleasure to be here.
Honourable senators, I thank you for your invitation to share with you my thoughts on Bill C-110. The bill, in substance, appears to be a gesture of good faith and in good faith intended to allay concerns frequently reiterated in Quebec since "patriation" in 1982 that, putting aside amendment by ordinary federal act, certain kinds of constitutional amendments - namely, those which do not require the consent of every affected province, and yet from which an affected province cannot withdraw itself - might be undertaken without the consent and even against the express wishes of the executive or legislative authorities of Quebec.
To address these concerns, the bill, when it becomes law, will prohibit certain steps being taken towards the enactment of relevant amendments "unless the amendment has first been consented to by a majority of the provinces" that includes, amongst others, Quebec. The bill puts Ontario and British Columbia, essentially for demographic reasons, in the same position as Quebec. For the same demographic reasons, the four Atlantic provinces and the three prairie provinces are each dealt with collectively by requiring the consent, within each group, of two or more provinces with at least 50 per cent of the group's aggregate population.
This is a somewhat untidy compromise, but it is not inherently an unreasonable one. Indeed, it broadly resembles the distribution, as between provinces, of the seats in this honourable house, now and since 1867, the main difference being attributable to the now-changed circumstances of British Columbia. Of course, the arrangement in Bill C-110 has its immediate roots in various constitutional proposals of the 1970s and 1980s, on which we cannot tarry today.
I would, myself, polish up the drafting, and perhaps, without affecting the principle of the bill, touch it up on a more substantial point. However, on the whole, and in all the circumstances, Bill C-110 seems to me an acceptable measure, though not one which prompts enormous enthusiasm.
First, as to detail, I note that the word "veto" seems inspired by U.S. constitutional usage, and it is inappropriately employed in section 1. Under sections 41 and 43 of the Constitution Act, 1982, a provincial legislative assembly simply withholds its authorization from a proposal to which it is opposed. It need not take any step against it; indeed, it need not even consider the proposal. A "veto", by contrast, is a positive action, and failure to take that action itself produces legal consequences. Clause 1 should properly speak of "an amendment in respect of which the legislative assembly of a province may withhold its necessary authorization."
Secondly, the bill omits to define what is meant by the "consent" of a province. It appears from the press that the Minister of Justice intends that the Government of Canada, or perhaps the Houses of Parliament, will thereby retain a measure of discretion as to what will be treated as a province's consent. However, at least as a matter of ordinary language, the terms of the bill as they stand do not confer any discretion. If so, the courts may well conclude, as I myself would conclude, that it is for the courts to decide, in the last resort, whether a province has, or has not, consented. Their most likely conclusion, against the background of Part V of the Constitution Act, 1982 is that, for the purposes of clause 1, a province's consent means the consent of a province's legislative assembly, or perhaps alternatively either that of its assembly or that of its executive government.
This obscurity in clause 1 may have grave consequences. Litigation on such an issue could well complicate or delay parliamentary action on amendment proposals - or even threaten the validity of steps previously taken - in circumstances when celerity and certainty are vital. If a discretion is really desired by the minister, it should, in my view, be made explicit in Bill C-110.
A good model - as several of my students pointed out to me - is section 4 of the Statute of Westminster, 1931. It barred future imperial acts from extending to the dominions, as part of their law, except under specified circumstances. Section 4 required not the request and consent of the affected dominion, but, rather, a declaration in the Imperial act that the dominion had requested and consented to it. Hence, the Imperial Parliament would itself decide whether a dominion had requested and consented and, therefore, what was necessary or sufficient. Its conclusion, declared in the legislation, would settle the matter.
To achieve the same result in Bill C-110, one might, for example, amend clause 1 to read as follows: "unless - through a preambular provision or otherwise - it is declared in the motion that the amendment has been consented to by a majority of the provinces that includes...", and so on. This would leave to the Senate and House of Commons the final decision as to the existence and sufficiency of provincial consent. It seems to me a better approach.
On the other hand, if a discretion is not desired, the legislation should state explicitly what is meant by a province's consent so that it is possible thereafter for the government and the Houses of Parliament to comply with the legislation and do so with confidence that its prescriptions have been respected.
I offer these suggestions, with respect, as friendly amendments, to avoid later problems with the legislation.
I turn now to constitutional validity. The question as to whether, if enacted, Bill C-110 will be constitutionally valid inevitably arises and becomes entangled with the merits. A cogent case can be made against the validity of Bill C-110. However, in my view, the better opinion is that the statute will be validly enacted in virtue of section 44 of the Constitution Act, 1982, as an amendment of the Constitution "relating to the executive Government of Canada or the Senate and House of Commons." Such constitutional amendments can, with specified exceptions, be made by an ordinary federal statute. I think, in particular, that Bill C-110 will not be rendered invalid as a violation of section 41(e), which requires, inter alia, the unanimous consent of the provincial assemblies for amendments to Part V itself. Part V of the 1982 act consists of the constitutional amendment formulae. Why is Bill C-110 valid?
Bill C-110 addresses only ministers of the Crown and only the single action of proposing - that is, introducing - a motion of the relevant kind. If enacted, Bill C-110 will not prevent the introduction of any motion for any resolution to authorize any constitutional amendment of any kind into either house of Parliament - even without any provincial consent whatsoever - by anyone other than a minister of the Crown.
Moreover, once a resolution contemplated by this proposed legislation has in fact been introduced, every member of each house, including any minister of the Crown, is perfectly free under Bill C-110 to vote in its favour. Passage is in no way impeded by Bill C-110. And even if, in violation of the legislation, a minister of the Crown were to introduce a motion, it is likely that once the house was seized of the motion its origin would become in law irrelevant, so that, if duly passed, it would be as valid as if it had been properly introduced by a non-minister. Lastly, if indeed validly enacted under section 44, the proposed legislation can, in law, equally well be repealed by another ordinary federal act. It will in no way be entrenched.
All this is not meant to trivialize Bill C-110, which will create real political expectations which could not be trifled with. But these features do seem to me to mean that this is not a measure contemplated by section 41(e). In other words, even though Bill C-110 is undeniably concerned with the amending mechanisms - hence its candid title - it does not actually change anything now found within Part V itself. If, though broadly concerned with Part V, it does not in truth amend Part V, Bill C-110 probably does not require to be enacted by way of the unanimous-consent procedure.
Indeed, our existing parliamentary institutions are, in large part, established and organized by ordinary federal and provincial acts whose present constitutional basis is mainly sections 44 and 45 of the 1982 act, although the legislation now in force may originally have been enacted under predecessor constitutional provisions or other powers. Like other legislative measures, namely, bills, constitutional amendment resolutions are, in principle, passed by parliamentary institutions as they happen to have been established by all relevant law. It cannot be doubted, for example, that Parliament can, under section 44, fix by statute the quorum of each of its houses.
Why, then, should Parliament not, if it thought fit, establish larger quorums for sittings at which constitutional-amendment resolutions were passed? Would this be a violation of section 41(e), simply because Parliament was making a somewhat different provision for those legislative proceedings where constitutional amendments were being considered or passed? If a federal statute is a federal statute - or, for that matter, if a provincial statute is a provincial statute - is it ultra vires merely because it specifically addresses the passage of constitutional amendment resolutions? That would seem to push section 41(e) too far. Bill C-110 seems to me to stand in no worse case than an act imposing a higher quorum for such proceedings.
I would conclude with a few general reflections. While it is reasonable to attempt to allay concerns within Quebec, we must not acquiesce in, still less encourage or perpetuate, the destructive myths which present the 1982 patriation process, and the amending formula which it produced, as an outrage upon Quebec. Except in one detail not relevant here, our amending mechanisms established in 1982 had been accepted by the then Quebec government.
I am making available to honourable senators, by way of background, copies, in English and in French, of my 1986 study for the Royal Commission on the Economic Union entitled, "The Canadian Constitutional Amendment Process: Mechanisms and Prospects", published in Volume 57 of the commission's studies, "Recurring Issues in Canadian Federalism." The last segment, headed "Quebec and the Amending Process", examines in some detail the events of ever 1981-82. I draw your attention in particular to Mr. Michel Gratton's speech in the Quebec National Assembly on November 25, 1981. It powerfully explains exactly how and why the Parti-Québécois government was escalating its demands precisely to make agreement impossible and thereby ensure Quebec's isolation. That speech deserves to be far better known.
The Chairman: Thank you, Professor Scott.
Senator MacEachen: Thank you, Professor Scott, for your presentation. I was intrigued by the sentence which ended the second-last paragraph on page 4, "Why is Bill C-110 valid?" And I presume the answer to that question is contained in the next paragraph.
Mr. Scott: The reasons follow, yes.
Senator MacEachen: You are arguing that, if the bill extended beyond ministers, it might be invalid. Maybe you would explain that a bit more.
Mr. Scott: If the bill went to the point of saying that genuine impediments to the passing of certain classes of constitutional amendments were to be created, although here we are saying that cannot be brought as government business before the house or by a government member. If it were to say that no member could introduce such bill, that would, then, intrude into Part V. Would it be an intrusion in Part V if you started to say that an absolute majority of the total membership of the Senate and the House of Commons were required to pass an amendment of this kind? I think that would still be permissible and possibly even - and this is the sort of question I put on examinations - 60 per cent or two-thirds. I then allow the student to reason from one direction or another against the background of case law, matter and form. It is interesting, as an academic exercise, to see how far you could go to get you beyond the line and make it invalid. That is what we spend our time doing in law schools. It is a very good exercise, but my conclusion is simply that, wherever the line is drawn, this is on the right side of the line in terms of being valid.
Senator MacEachen: The tenor of your presentation is, in a sense, different from a number that we have heard up to the present time. Other witnesses have taken a rather apocalyptic view of Bill C-110, as if it would become a major obstacle to future constitutional change, as if the higher threshold for consensus would prove in the future to be an obstacle.
For example, yesterday we heard from aboriginal representatives who were deeply concerned that their aspirations for the future, particularly in any steps taken constitutionally to achieve self-government, would be threatened by this particular requirement of Bill C-110.
You said that we cannot trivialize this bill, and you have not, but you have perhaps raised it a step beyond trivialization. I am interested in that aspect of your presentation.
I have been arguing with witnesses that, even though there is a procedural provision, as the minister described it, in Bill C-110 which inhibits ministers from introducing a motion, Part V is still available and can be used in future constitutional change; in other words, that the 7-50 is not impaired in any way. I gather that that is your view.
Mr. Scott: With regard to your first observations, I do not want to deny that this affects the political process. It is intended to and honourable senators are able to assess that in some way in terms of the expectations it would create if you did, in fact, have a backbencher move it. The Bloc Québécois says it does nothing. Does it do something? Does it do nothing? One cannot have it both ways. It does do something. It creates expectations. You could in law repeal it, but you would have to give some thought to the implications of doing so. It does not stop these classes of amendments from being brought to either house. It does not stop ministers from voting for them. It says that the government is not to sponsor them without a measure of prior consent, and this scheme can itself be changed later.
Obviously I am not giving an apocalyptic view of it. It says what it says and it does what it does. Those who are opposed to it are very likely to build it up into much more than it is in terms of a threat. Those who think it is a wonderful thing may build it up in that sense. I am giving two cheers for it rather than three cheers. I do not say it is a necessary measure. I do not think it is a harmful measure. If the Prime Minister believes that this reassurance is necessary, and if there have been complaints since patriation that Quebec has lost its veto and so forth, and this measure is attempting to give some reassurance, that is not unreasonable.
Senator MacEachen: You state in your presentation that if a constitutional amendment in the form of a resolution were introduced by a member of the House of Commons or by a senator or, indeed, if it originated in a provincial legislature, this bill would in no way prevent ministers from voting for the measure.
Mr. Scott: That is what it says.
Senator MacEachen: The thought has been expressed by one of the witnesses that to do that would be against the spirit of the bill. I do not know what the spirit of any bill is, but does the spirit of a bill have any legal standing?
Mr. Scott: It would be in the spirit world, I suppose, rather than the legal world. Of course, if a backbencher did so, those who were opposed to the measure would say that it is against the spirit of the bill. That happens every day in the normal political process. Those who are opposed to it try to argue measures of principle, ethics or acceptability of one sort or another, or prudence against it. Those who have the opposite opinion marshal their arguments the other way.
I see this as a cautious attempt to give this measure of reassurance. I take it as it stands on its face. I understand that there will be political expectations built on it because myths can be created. I referred to those at the end of my remarks. I take all of that into account. However, I believe that when you look at the whole thing - what it says, what it does and the political process - it is an acceptable measure.
Senator MacEachen: So that Part V is still there unaffected and can be used?
Mr. Scott: I would say unaffected in that it is not changed in any way. It operates against a slightly changed parliamentary context.
Senator MacEachen: Have you given any thought to the impact that this bill might have on the desire of aboriginals for the realization of their future aspirations? Yesterday, we heard very powerful testimony suggesting that it would be desirable to have an amendment to Bill C-110 that would protect the status of the aboriginals; in other words, an amendment saying that this bill in no way affects the present or future prospects of aboriginals.
Have you looked at this point?
Mr. Scott: I have not looked at it specifically. Obviously, the concerns of the aboriginal peoples are amongst the entire range of social, economic and political concerns which may be addressed by constitutional amendment in the future. Our constitutional amendment process is not an easy one to start with, insofar as the provinces would be able to block any constitutional amendments to deal with aboriginal concerns which affected provincial jurisdictions by passing resolutions of dissent. Therefore, all we are really talking about here is the category of constitutional amendment which is concerned with federal institutions and federal matters.
I suppose that one could devise constitutional amendments within that class which the aboriginal peoples might wish to see passed and which might be rendered somewhat more difficult by this act, though not immensely more difficult than is the case now when you take into account all the general social concerns on the aboriginal issues - the likely behaviour of the provinces, the problem of getting two-thirds of the provinces with 50 per cent of the population, and the likely behaviour of Ontario, which is probably not too often likely to be eager to pass amendments to which Quebec takes strong objection. If that is the case, you will not have your majority of the population.
If this bill is thrown into the balance, I doubt that the position of the aboriginal peoples, at worst, is much worse than it is now. I will not dispute that this complicates the amending process, the political process and the expectations that are held by some. Even though you could get around this bill quite easily in law, that might present difficulties politically. The position of the aboriginals is not a frivolous position. I have not given it any special study, apart from the general range of constitutional matters involved.
Senator MacEachen: Would it be fair to say that their situation has not been affected in any way except by the prohibition of a minister introducing a constitutional resolution?
Mr. Scott: Yes, that is true for everything because that is the limit on the bill.
Senator MacEachen: Therefore, a constitutional amendment affecting the aboriginal situation could proceed in the same way as it can proceed today; is that correct?
Mr. Scott: Any aboriginal member in either house could put it before the house and it would be before the house. That would be that, minister or no minister. Any aboriginal member, or any other member who is not a minister, could bring it before the house and it would be before the house and it would proceed.
Senator MacEachen: It could then become part of the Constitution under the 7-50 formula.
Mr. Scott: It would proceed normally, subject to the usual question. Obviously, matters are not usually carried through both Houses or either house of Parliament against the wishes of the government, but that is the case quite apart from this.
Senator MacEachen: Of course, we admit that. If the government lined up, except in a minority Parliament, it would not be great enough.
Mr. Scott: Quite so.
Senator MacEachen: What I am saying is that there is no inherent obstacle created by this bill, except the one that we have mentioned, to prevent a constitutional amendment taking place with the current provisions of Part V, is that right?
Mr. Scott: That is so.
Senator MacEachen: Why did you go out of, as it were, your way - and I am not being provocative in saying this - in the second-last paragraph of page 6 when you say:
...we must not acquiesce in, still less encourage or perpetuate, the destructive myths which present the 1982 patriation process, and the amending formulae which it produced, as an outrage upon Quebec.
We have had more than one reference in the testimony about that great injury that was perpetrated in 1982 upon Quebec. Would you tell us your point of view on this and just why you put this into your comments?
Mr. Scott: I believe this and all other proposals of a constitutional nature should be carefully and fairly considered on their merits and that the political process is there to accommodate reasonable and legitimate interests. That is one thing. The concerns of Quebec with its special history and special circumstances and distinctive identity have to be taken into account. These concerns should be fairly addressed.
However, it is quite another matter to submit or appear to be submitting to nationalist rhetoric with all its destructive consequences which we are living through, and into which we need not go into detail, which would have us having done some outrage.
It is the case in recent years and in the course of the constitutional history which we have come through that there have been people who have said things which should not have been said, and we are moving toward possible partisan controversy here which, as far as possible, I want to avoid. Those comments have perpetuated and encouraged the idea that there have been outrages perpetuated against Quebec. The historic record does not say so.
I have done technical pieces on the constitutional amendment formula, but the general piece I did here, to which I referred, for the Macdonald commission gives a blow by blow account of 1981 and 1982 at the end, and especially the speech of Mr. Gratton, which does deserve reading and is the best expression of these ideas I can recall having seen anywhere. I commend it to honourable senators.
I think the historic record shows that there was no outrage in 1982. It is important that senators say, "Yes, we are here to address the concerns of all Canadians; and, yes, we will fairly consider Quebec's concerns; and, if there are disquieting fears which need to be allayed, we will do so." But this is not to say that there was an outrage which has to be repaired. We are not submitting to or accepting the very dangerous rhetoric, with all its consequences and implications, which you hear regularly. That is why I went out of my way to say so.
Senator Meighen: Thank you, Mr. Chairman, and welcome Professor Scott. It is good to see you again.
With great respect, it seems to me that your support for this piece of legislation is restrained, to say the least. Two cheers out of three is 66 2/3 per cent. I know you set a higher standard for yourself and your students.
Mr. Scott: In parliamentary matters, senator, a lot of measures get passed through this place with a majority a lot less than 66 2/3 per cent, which is normally considered a pretty good majority in this house.
Senator Meighen: That is true. It does not necessarily ensure that the measure is good and right.
You are not unaware of the testimony that we have heard from aboriginals.
Mr. Scott: I have read a few snippets in the press, but I have not had a chance to follow it in detail.
Senator Meighen: It has not been generally as supportive as you have been, which does not mean that you are not right. You may well be right. To be perfectly frank, I think we all understand why this measure was put forward. Speaking for myself, I would like to support it because of the political objectives, largely speaking. I do not hear a great deal of enthusiasm for the legal objectives, and I want to ask you a question about that.
If we can leave aside the political questions for a moment, in terms of our Constitution and its amending process, is this a measure which you would like to see permanently in place; or do you view it as a transitory measure which, hopefully, will be replaced by something better down the line?
Mr. Scott: In terms of the long-term prospect, it can be replaced by an ordinary act. If you asked, "Would you entrench it in the Constitution acts as part of the Part V process?", I would say that I might do something like this, but not necessarily add it to the Part V process. If you wanted to go to something more like the Victoria-style formula, or this formula for general constitutional amendments in place of the two-thirds-50, rather than in addition to the two-thirds-50, then that is a reasonable option. That, of course, was essentially the sort of formula which Mr. Trudeau had in his original patriation packages, the packages which proved unacceptable to eight provinces. The formula which we have is essentially that of the eight provinces, including Quebec, the common front.
Would we be better off back with the Victoria formula? That is a perfectly reasonable suggestion. In fact, by 1997, we have to have the constitutional conference on Part V and this is the sort of thing which should be considered in that context.
Senator Meighen: If that is so and, as I hear you, you would not particularly be in favour of this being in addition to 7-50, or the other provision, is that right?
Mr. Scott: As a constitutionalized measure.
Senator Meighen: Yes. Let us assume for the sake of argument that we agree that as a transitory measure it is of some use, legal and/or political, in your view would there be any merit in attaching a sunset clause to this piece of legislation to ensure, perhaps, that we do not get encumbered with it going forward down the years?
Mr. Scott: I would have no objection to a sunset clause except that that very fact would have a tendency to defeat its political utility by diluting it still further. With a sunset clause attached, those who might otherwise have some reassurance from it would say, "Well, what sort of reassurance is there now with a sunset clause? It does not even have the permanency of an ordinary act of Parliament. As an ordinary act of Parliament, it can be repealed, but now, in addition, there is this sunset clause."
I would probably say that a sunset clause is not unreasonable, but, on balance, if I were sitting and making the legislation, I would probably not add the sunset clause on the grounds that, as it is, it is sufficiently diluted not to create undue complications for the constitutional process.
Senator Meighen: I take your point, but an ordinary statute of the Parliament of Canada can be changed by another statute by the same or a different Parliament. It has been argued before us that it really is not a terribly powerful piece of legislation for that very reason. It has also been argued that it is a bit like space junk. Once it is on the books, in whole or part, it is likely to lie around for a while, forever even, and it might thereby result in a complication of our constitutional life.
If none of us are terrifically fond of it, why not say, after "X" period of time, we better come up with something preferable, and, in order to put the legislators' feet to the fire, include a sunset clause?
Mr. Scott: It is there precisely to add, not an impediment, but another safeguard, if you like, another step.
Senator Meighen: Against any amendment.
Mr. Scott: Against amendment other than with the provincial consent. For the very reason that it can be repealed by an ordinary act of Parliament, it does not seem necessary to have it expire automatically. If you push it that extra step, if you dilute it in that extra measure, you then remove what reassurance is already there. If you can repeal it, then what does a sunset clause add? It basically will get rid of it, but, at the same time, it reduces it from a measure with two cheers behind it to one-and-three-quarters cheers. That may be saying in the end that we do not like it and we are going to get rid of it, and you might say, "Well, why pass it at all?" I think that would be an undue additional dilution to an already rather diluted statute.
Senator Meighen: Would I be fair to conclude that your view is that this bill has more pluses to it than minuses and that we are better to have it than not to have it, both legally and politically?
Mr. Scott: This is a gesture in good faith and of good faith. It is an acceptable measure, and it is reasonable in all the circumstances, and that is the basis on which a great deal of legislation is inevitably passed through this and any other legislative institution.
Senator Meighen: Thank you.
Senator Gauthier: Mr. Scott, I will stay try to stay away from the political side of this bill. There are some constitutional questions which I think you will be able to answer.
We have been told that this bill is a quasi-constitutional bill and that it is unconstitutional. Do you support that? I take it you do not.
Mr. Scott: It is quasi-constitutional in that it deals with constitutional matters, and I believe that the legislative jurisdictional basis of this bill is in fact section 44 of the act of 1982. It is an amendment to the Constitution of Canada as that concept is explained by the majority convention in the first patriation reference. It is of constitutional law, and whatever its constitutional basis, I think it is within section 44. Sometimes this kind of constitutional law which can be made and changed by ordinary act is called quasi-constitutional, and that is acceptable terminology.
When they say it is unconstitutional, it is not unconstitutional as a violation of convention. It is not a violation of constitutional practice. It is validly enacted, in my view, or it would be, so I do not think there is anything in any sense unconstitutional about it.
Senator Gauthier: The other argument we have heard, and you alluded to it this morning, is that Professor Whyte told us that this bill would be non-repealable. In other words, no government in its sane mind would repeal this bill because it would take away a veto that has been given to Quebec or to other regions. Do you agree with that?
Mr. Scott: Did he mean politically or legally non-repealable?
Senator Gauthier: He is a non-political person.
Mr. Scott: Is this an argument that this bill could not validly be repealed?
Senator Meighen: No, politically only.
Senator Beaudoin: He just said unrepealable. Once it is there, it is unrepealable, but he did not explain what he meant.
Mr. Scott: I see. Legally, it can be repealed. Either the bill is valid or invalid. If it is invalidly enacted, it is void and a waste of paper. If it is validly enacted, that can only be because it is validly enacted under some federal power. In my view, that is section 44 of the 1982 act. If it is validly enacted under section 44, it can be repealed under section 44.
As to the political process, the fact is that the considerations which honourable senators and members of the other House have to address in passing it are precisely those which they would have to address in repealing it.
Senator MacEachen: Like putting in a sunset clause.
Mr. Scott: The very concerns which may induce members, even those who are not particularly friendly to it, to decide that it should be enacted, and those who are more friendly to it to decide that it should be enacted, would be the very concerns which would be addressed through a repealing measure. If, on balance, honourable senators feel that there is a political context which makes this desirable, and if that political context were similar when the time came to repeal it, then one would not repeal it. If the political context were changed and this were thought to be no longer necessary or useful, then of course it would be repealed.
Senator Gauthier: I do not want to pursue that because this is one witness who called it even a paper tiger.
Senator MacEachen: Or not a paper tiger.
Mr. Scott: The witness is a paper tiger, or the bill?
Senator Gauthier: Well, that could be too, but I am trying to get these thoughts in order. I do not think it is a paper tiger.
I think it is a reasonable answer to a promise that was made by the Prime Minister during the referendum. It does not answer all the expectations, but it does have value. Do you agree with that?
Mr. Scott: That is essentially my position.
Senator Gauthier: Does it in any way impede the government's fiduciary obligations to the native people? Yesterday, we heard a complete day of, "Yes, it does." I did not get a chance to ask questions yesterday, but I wanted to ask that question. On what grounds?
Mr. Scott: I cannot think, off-hand, why it would be. I could understand why aboriginal peoples - we have already discussed that - might not want to complicate the constitutional process, in the broadest sense, further. However, to say that it is an interference with the federal government's fiduciary obligations seems a bit strong, and I do not quite see the basis on which that would be argued.
I do not particularly want to start imagining why some people might say that and then, having made that case, answer it. It is not obvious to me why it could be said to be a breach of fiduciary obligations, though I could see why the aboriginal peoples might not want this additional element of complication.
Senator Gauthier: You agree that the federal government could still engage in discussions with the provinces and the aboriginal peoples and the public where the federal government wants to identify a need for constitutional change. It can still do that. It can engage in that kind of dialogue with those people.
Mr. Scott: Yes, a dialogue is not prevented here. There is no point in going through the limits on the bill again because, as we have seen, a constitutional amendment can be brought before either house and enacted. The real issue is how it affects the political context of these measures and whether, in practical terms, as aboriginal peoples fear, it would be an obstacle to certain changes they desire. That depends on one's assessment of the political process. Their claims are not unreasonable.
Senator Beaudoin: You said one thing that worries me to a certain extent. You said that those supporting the bill will not have any doubt about its constitutional validity. Speaking for myself, that is certainly not the case. I tried twice in my previous life to resurrect the Victoria formula. I can hardly say that I am solidly against the vetoes because I have spent my entire life doing the opposite.
My doubt is this: Let us assume a minister disregards Bill C-110, proposes legislation in the House of Commons, and the resolution is passed and adopted. Obviously, the amendment is valid. If someone comes before the Supreme Court and raises the point, the Supreme Court will say, of course, that the Constitution prevails.
Mr. Scott: I think a good analogy is to suppose that a measure were introduced into this house or the other House by a member who was disqualified. This is not known to the chair at that time. This measure is passed. Let us say we are talking about only one house passing the measure at this stage. Would we say that if 100, 200, or 300 members of the house vote for it, it will be invalid because it was before the house on the motion of a disqualified member? I think the courts would say that it does not become invalid on that account.
Senator Beaudoin: That is only a statute.
Mr. Scott: The case is slightly different, but even if the minister were to introduce it in outright violation of the act and it was passed by the House, I think it would be valid. That is not a likely scenario for obvious reasons.
Senator Beaudoin: In your example, suppose a statute is adopted and the member of Parliament who proposed the statute is disqualified for one reason or another. The court will not say that the statute is invalid. However, that is not the case here at all. Suppose the minister goes ahead. He says it is in the interests of Canada that this bill be adopted quickly because we have an emergency. If Bill C-110 is adopted, every court in this country will say that the Constitution should prevail over Bill C-110. They are quite right because the Constitution is the basis of our constitutional system. At that time, this bill would be declared inoperative, at the least, if not ultra vires.
Mr. Scott: I do not think it would be inoperative. I agree with you about the result, but for slightly different reasons.
The fact is that the Part V process takes parliamentary institutions as it finds them in general. It says resolutions must be passed by the Houses of Parliament to the provincial legislatures. There are large bodies of law dealing with common law and statute law and dealing with the Constitution of each of those houses. You have electoral laws and laws dealing with parliamentary structure. These are valid statutes.
The issue is whether what has been done by a house is or is not properly and validly the act of the house. I do not think it would be because Part V prevails over this act that it would make a resolution valid even if passed on a motion of the minister. It is because the house, once seized of a proposal, even by one member who happens to be disqualified, is seized of the motion or the bill. If 100 senators, for example, vote for the bill, the fact that it was brought to the house by a senator who was disqualified would not mean that the house could not deal with it.
At any rate, I express a certain measure of caution as to that point. I think, on balance, that that is the result. However, I think that is a relatively minor factor in the whole package.
Senator Beaudoin: There is some abdication here on the part of the government of the country. The federal government says that a backbencher may present the motion, but a minister cannot do so because we have set aside the prerogative of the government to initiate in the House of Commons or in the Senate a resolution of a constitutional nature. That is what worries me. It is not the end of the world because you say a backbencher may make the motion, but it is an abdication on the part of the government. Who is supposed to speak for the whole of Canada? Who will speak for the whole of Canada now? Five regions?
My objection is not to a veto or to the regional veto. My concern relates to a doubtful technique. The technique amounts to an abdication of the government speaking for the whole of the country. In the case of a crisis, I can easily imagine that the government would forget about Bill C-110, present the resolution and pass the amendment. I could understand that. Of course, in my opinion, the court will say that the Constitution prevails.
Mr. Scott: Why would the minister not have a backbencher introduce the motion? I think the minister, if the government defeats expectations and says it will bring the resolution before the Senate or the House of Commons, will have a backbencher do it. Why should the minister not only defeat political expectations but fly in the teeth of the statute as well? I do not think that is an enormous risk.
Senator Beaudoin: That is the first time I have heard the argument that section 44 may validate this. That is a good point because the executive branch comes under section 44. I agree with you.
Mr. Scott: So do the Senate and the House of Commons as institutions subject to the exceptions. This is not one of the exceptions.
Senator Gauthier: Is a parliamentary secretary a member of the government and a member of the executive?
Mr. Scott: Is a parliamentary secretary a minister of the Crown?
Senator Gauthier: No. Is he part of that all encompassing -
Mr. Scott: He is part of the government, but it says "no minister of the Crown". Whether for the purposes of this act he is a minister of the Crown might depend on the statutes dealing with parliamentary secretaries. If it says he is paid as if were a minister, that does not make him a minister. That becomes a fine point, yes.
Senator Beaudoin: That is an interesting discussion.
Senator MacEachen: I have argued that another law will govern what a minister can do, and that is the law of Parliament - in other words, parliamentary procedure. No Speaker in his right mind would permit a minister to introduce a resolution for which he was prevented by a statute.
Mr. Scott: That is correct. It would be enforced by the house.
Senator MacEachen: It would be incredible if he did so, in my opinion.
Mr. Scott: That is correct.
Senator St. Germain: It is incredible they presented this.
Senator Gauthier: No, no.
Senator Beaudoin: Why are you so sure?
Senator MacEachen: You take on the job frequently of predicting what the courts will do. Therefore, I take on the job of predicting what the Speaker can do and might do.
Senator Beaudoin: I raised the point twice in the Senate.
The Chairman: I have learned the lesson that it is safer to be an historian than a prophet.
Senator Beaudoin: Beauchesne has said that again and again. Many Speakers in the Senate have said that questions of constitutional law are not ruled on or settled by the Speaker.
Senator MacEachen: It is not a question of constitutional law. It is a question of procedure, not law.
Mr. Scott: He has to enforce the statutes and make his ruling; the house decides whether it will overrule his ruling.
Senator MacEachen: Not any more. They have no right. He has absolute authority now. That is just another argument that adds to the arcane interest of this bill.
Senator Murray: Professor Scott, I saw in the Montreal Gazette yesterday a column which described you as the Anglos' answer to Pierre Bourgault. I was looking forward with keen anticipation to your appearance here.
Mr. Scott: Mr. MacPherson is not a journalist of whom I think very highly nor whose journalism I find very accurate. He has probably outdone himself this time. He talks about Anglos clutching my dismembered body parts in an independent Quebec. I simply hope that he comes to believe - possibly that is his line of thinking - that these bones will be in reliquaries which will be so venerated by Mr. MacPherson and others that they will find them necessary for inspiration. However, I do not think I can answer for Mr. MacPherson's journalism.
Senator Murray: Senator MacEachen engaged you briefly on the comments you made about 1982. I will say simply that I voted against the 1982 Constitution Act in the Senate.
Senator St. Germain: Hear, hear!
Senator Murray: I did so because of the fact that Quebec had not given its consent to that act. I was aware not only of the position of the government of the day in Quebec, but of the position of the federalist opposition headed by Mr. Ryan, who will be here later today. Neither then nor now have I ever considered it relevant whether Premier Lévesque overplayed his hand, whether he abandoned the group of eight or was abandoned by them, whether he was out-manoeuvred by Prime Minister Trudeau or whatever.
The bottom line, as far as I was concerned was that, for the first time in 117 years, a major constitutional amendment was being effected over Quebec's objections, and it was not with any sense of outrage that I voted on the matter. I am a Cape Bretoner who was adopted as an Ontario senator. So it was not a matter of outrage; it was because I felt that what was being done was dangerous and potentially quite destabilizing for the country.
Mr. Daniel Johnson, the leader of the federalist forces in Quebec, said recently in a speech in Toronto that Quebec is an unwilling partner to the Constitution. Those, I believe, are his exact words. Now, under the circumstances, I happen to believe that the commitment that Mr. Chrétien made was a right and proper thing to do, right and proper in terms of the referendum, but, even without the referendum, he is conscious of the fact that Quebec opposed the 1982 act. He is conscious of the fact that they opposed the amending formula; they are concerned, as you point out, that amendments might be made affecting their interests and their place in Confederation without their consent.
I considered it quite proper of the Prime Minister to have made the commitment that, as far as the federal government is concerned, the government would not proceed with an amendment affecting Quebec's place in Confederation without Quebec's consent.
That being the case, I continued to wonder why the government found it necessary to revive this concept of regional vetoes which has long since been rejected in important parts of the country. How would you have felt about a bill that simply carried out the Prime Minister's commitment to Quebec and provided a Quebec-specific consent to the amendments that are envisaged in this bill?
Mr. Scott: Well, senator, this morning when I woke up, I turned on the television and I was rather startled to hear an announcer ask, "What kind of game are the Senators playing?" It turned out that the question was about hockey. Yet the question is a relevant one as we ask ourselves what honourable senators are doing here and what the honourable members of the other house are doing. This is an attempt to find balanced solutions which can command the respect, the acquiescence, of all the people in this country which is so difficult to govern.
Even if one's only concern were to give Quebec the veto through this scheme, and even if this limited reassurance to Quebec were the only government objective here, the inclusion of others helped to make the bill more palatable or even politically possible. I would consider this a reasonable action even if Quebec were the only concern. But even beyond that, many people fairly believe that there is a certain symmetry, a certain logic, and that if a principle is to be established in the concept of an expedient, then that principle should be expressed in the form of symmetrical, rather than asymmetrical, expedient. Insofar as there is a principle at stake here, it is a more balanced principle.
I keep thinking of the structure of this house itself and the logic of Quebec, Ontario, the West, the Maritimes or Atlantic provinces. Clearly there is a matter of appearances involved; there is a matter of principle and expedient, but it may not be a tidy expedient. Perhaps the inclusion of the others here is to make the expedient more tidy, or it may be to make it acceptable where it would not otherwise be acceptable. Whatever is the case, I would not complain of what the government has done.
Senator Murray: I appreciate the motives of the Prime Minister and the government as you described them, but it has not worked, has it? The regional veto idea is like a red flag in some parts of the country. If the government had brought in a bill with a Quebec-specific consent only, perhaps there would have been an outcry anyway.
I must say - and Mr. Rock confirmed this when he was here - that between the time the Prime Minister made his commitment during the referendum and the day he tabled the bill in the House of Commons, nobody spoke out to object to this idea. No province spoke out.
I am not sure that a Quebec-specific consent would have generated quite as much controversy and hostility as this bill has, but that is a matter of political speculation.
As a layman, I am intrigued by your statement, as discussed with Senator Beaudoin earlier, that this bill is an amendment to the Constitution under section 44 relating to the executive Government of Canada or the Senate and the House of Commons.
I am a layman on these matters. Perhaps you can help me with this. These are passed as simple statutes of the federal Parliament. If this is an amendment to the Constitution Act under section 44, is the bill in proper form?
Mr. Scott: No special form is required. A great deal of the statute law dealing with the structure of the houses of Parliament and the executive institutions are in truth of constitutional order, whether you are using a general description of an author like Dicey concerning what is constitutional, or whether you look to the description at the beginning of the reasons of the six judges in the patriation reference majority convention explaining that the Constitution includes both law and convention.
The law of the Constitution includes the law dealing with the structure of the executive, ministers of the Crown, the structure of the houses and includes both common law and statute law. Even common law can be part of the law of the Constitution. So that almost all of the internal provincial Constitution law is enacted under section 45 or its predecessors, for example, the Legislature Act, the Elections Act, and so on. At the federal level, since 1982, the constitutional basis of much or most of such legislation has been section 44. Honourable senators are not necessarily conscious of that fact because this is dealt with in the ordinary way by an ordinary bill and it is not necessary to say, "Yes, this is constitutional law." There are all sorts of constitutional laws.
Senator Murray: The section that we are familiar with, which is amended from time to time under section 44, is section 51, dealing with readjustment of representation in the House of Commons. Our friend, Senator MacEachen, introduced some bills of this kind when he was in the House of Commons. In my consolidation of the Constitution acts, I see these described in various footnotes. For example, with section 51, there is a footnote stating, "as enacted by the Constitution Act, 1974".
Mr. Scott: That is right. They are ordinary federal acts.
Senator Murray: There is another one that states, "as enacted by the Constitution Act, 1975". There is no reason why you think this bill should be called the Constitution Act, 1995?
Mr. Scott: This bill has no short title; it only has a long title. That long title is: "An Act respecting constitutional amendments". It could be called the Constitution Act, 1995; it could be called the constitutional amendment act; or it could be, as it is, called nothing at all in terms of short title - that is, an Act respecting the Constitution, regardless of its title. In fact, the present Parliament of Canada Act, formerly the Senate and the House of Commons Act, the House of Commons Act and a few other acts are now all consolidated into the Parliament of Canada Act. Clearly, that is an act whose basis is possibly entirely under section 44 of the Constitution Act, 1982 - and it is not called a Constitution act, either. The title does not really matter.
Senator Murray: Well, perhaps it does not. We will have the officials from the Department of Justice back here at the end of our hearings. I would want to ask them why, at no point in their discussion of the validity of this legislation, they described it as an amendment to the Constitution under section 44. You are the first witness who has done so and I am intrigued by that.
Mr. Scott: It might be justified.
Senator Murray: Does it make any difference at all?
Mr. Scott: I do not think it makes any difference at all. Some might say that it is the residuary power. I say that, whether or not residuary power could be used, this is much more specific and you choose the specific basis.
For example, interprovincial railways fall under federal jurisdiction because they are excepted from the provincial list through exceptions in 92(10) of the Constitution Act, 1867. You may say, "Well, that should make them fall under federal jurisdiction under the residuary power because if they are not under provincial jurisdiction, they are under federal jurisdiction." But because the 1867 act has a more specific provision, namely, 91.29, which says, "Such Classes of Subjects as are expressly excepted..." from the provincial list - that being the more specific provision - it is normally the one which the courts would prefer to employ. Since section 44 of the 1982 act addresses very specifically the subject-matters dealt with by this bill, it seems to me, in truth - and, after reflection - the proper constitutional basis for it.
Senator Murray: Could this have been done by changing the rules or standing orders of the two Houses of Parliament?
Senator MacEachen: We heard the minister say that the result could be achieved.
Senator Murray: I was asking you, Senator MacEachen.
Senator MacEachen: You were? You were looking in my direction.
The minister told us that this could have been achieved by a simple declaration of government policy.
Senator Beaudoin: But that is not a statute.
Senator MacEachen: No. But the government is controlling its behaviour by its own discipline in the case of a policy statement. In the case of a parliamentary law, it is securing the discipline of Parliament. You could have an amendment to the standing order saying that no minister can introduce a bill, but it is probably more difficult to change than a law.
The Chairman: I remind you that we have about 14 minutes remaining. Please guide yourselves accordingly.
Senator Marchand: I will be quick, Mr. Chairman.
Perhaps this is an unfair question. I heard your earlier comments, Mr. Scott, about aboriginal people and that you had not read the transcript that carefully. You are aware that yesterday we had great concerns expressed by all of the groups, and very strong arguments were made. One of the remedies they talked about, in the event that the bill went ahead - a lot of them wanted the bill to be withdrawn or killed - was a non-derogation clause. What is your view about a non-derogation clause? Is it necessary?
Mr. Scott: You mean nothing in this affects the rights of aboriginals?
Senator Marchand: Yes. A non-derogation clause would be included for greater certainty and that kind of thing.
Mr. Scott: That would in fact not affect the act at all and there would be nothing wrong with that. How that would be presented politically in Quebec is the question. As a matter of law, the bill, as it stands, is not affecting the rights of aboriginals. If what was meant was that no constitutional amendment dealing with aboriginal matters - and you could define that or not - would be affected by this act, that would be something else again.
If you then went to say, "Well, in the case of any constitutional amendment resolution, to authorize a constitutional amendment dealing with specified or unspecified aboriginal matters need comply with this bill", that would be something more. That would affect this bill. But if all you said was that this act does not affect the rights of aboriginals, since, in point of law, the aboriginals are not participants in the passing of constitutional amendments, this bill - whatever it is and whatever it does - in a sense does not affect their rights. If you said so, it would not affect the bill, but it would not give them any advantage, either. And politically, to the layman as it were, in Quebec, it might appear to be saying that this is being cut down still further. You would probably have a political problem rather than a legal problem by adding a clause like that.
Senator Marchand: I should have been more specific. They were concerned about possible future amendments. I think they were quite content with the present bill.
Mr. Scott: If it were to say that no constitutional amendment dealing with aboriginal matters, which you may define or not, will be covered by this act, that would dilute the act still further. While that may be perfectly reasonable in one sense, it would probably impair the saleability of the bill in another respect because it would draw more attention to particular constitutional amendments of that kind and suggest that we would proceed with constitutional amendments dealing with aboriginal matters whether or not Quebec approves. That is obviously the way the Bloc Québécois would present such an amendment. That is the cost of it, if you will.
Senator Marchand: I could have been a little more specific. For example, the draft amendment of the Inuit Tapirisat was as follows:
2. Nothing in the Act shall be construed as derogating from the rights, duties, powers or privileges of the Government and Parliament of Canada to propose or to authorize an amendment to the Constitution of Canada to
(a) recognize, affirm or protect the Aboriginal peoples and their Aboriginal and treaty rights or other rights and freedoms, or
(b) preserve and protect the national unity and territorial integrity of Canada.
Mr. Scott: I personally would have no difficulty with an amendment of that sort. There is nothing unreasonable about that, and the question becomes the political context, I should think.
Senator St. Germain: Mr. Scott, thank you for assisting us today.
Mr. Scott: It is always a pleasure to come here, senator.
At the outset, I meant to introduce a distinguished law student who has accompanied me, Mr. Martin Ertl. I am sure he will very soon be a distinguished member of the bar.
Senator St. Germain: I hope Mr. Ertl brings political balance to your presentation.
Mr. Scott: He is very helpful, senator.
Senator St. Germain: As Senator Murray indicated, I believe your presentation takes away from the aspects which the 1982 patriation process created. I say that as a British Columbian and as a western Canadian. When you referred to the regions, you blocked out British Columbia again and said "the west". The west and British Columbia reinforce the concern of Senator Murray and myself. I believe that the reason we have problems with Quebec today is that they were not and still are not a signatory to the 1982 Constitution.
I base this on the recent experience of British Columbia. First, we had no representation on the committee dealing with unity. That created outrage in B.C. Then, we were not included as a region. We have always considered ourselves to be the pacific region.
I am a French Canadian by ancestry. Although I am not a Quebecer, my ancestors came from Quebec. I feel insulted for them after British Columbia's recent experience which impressed upon me how the fact that Quebecers are not a signatory to our Constitution would impact them.
I am concerned when people such as yourself, from Quebec, do not seem to understand how this is an affront to Quebecers and how this adds impetus to the separatist movement in the province of Quebec. It manifests their outrage.
I know this is argumentative, but I say this from experience.
Mr. Scott: I understand your sense fully, senator. In fact, I often ask classes whether it would have been better, in terms of expediency, not to have patriated; whether we would be better off without an amending formula and a Charter and to be still under imperial authority.
Of course, the Supreme Court said that what was being done, as long as there was a reasonable consensus of provinces, was quite consistent with constitutional principle, that it was not a violation of convention. The vast bulk of members of both Houses of all parties supported the ultimate package. That included the then Conservative opposition as well as the NDP and all nine provinces.
In addition to that, there were reasons, which I attempt to set out in this piece, to show that Mr. Lévesque was in fact making escalated demands simply to ensure Quebec's isolation. I refer you again to the Gratton speech. I could not go so far as to say that, all these things considered, it was not merely a mistake but some sort of historic outrage to Quebec that both parties, by overwhelming majorities, and nine provinces, did what they did. I understand perfectly that we are living with the outcome, and that is why I ask the question in class.
To say that it was a historic mistake is a perfectly reasonable view, but it is less fair to present it as an outrage; a slap in the face. That is going too far. When I look at the historic record, I cannot reach the conclusion that it is a slap in the face.
Senator St. Germain: I respect your opinion, but I can assure you, from my experience in politics, that it does not matter how many bodies pass it or how many premiers give it its authority; the public whom we represent often rejects it.
Mr. Scott: I was a leading opponent of the Charlottetown Accord. I think the public was right.
Senator St. Germain: That flies in the face of your argument with regard to the fact that everyone passed it.
You say that Bill C-110 will create a real political expectation which could not be trifled with. This basically pre-empts the entire process of 1997. I am surprised that a man of your stature would say that vetoes can be handed out virtually without caution. We added British Columbia and a new region in the heat of the argument. As Senator Murray argued, if we wanted to deal with the concerns of Quebec, why did we not give the veto to Quebec and those regions which require it, rather than giving it to everyone holus-bolus, with the possible result of gridlock in the future?
Mr. Scott: This is not necessarily an elegant solution. This is an attempt at accommodation in very difficult circumstances. This is not an easy country to govern. I would have thought senators know that better than I. I remember a rather good cartoon about 30 years ago illustrating Mr. Diefenbaker, hair flowing, trying to manage a troika and being pulled by horses in every direction. He was described as emperor of all the Canadas.
This is a difficult country to govern, and that is reflected in this bill. It is untidy, and it is not necessarily elegant. It may create problems.
The issue is whether it is a reasonable and acceptable solution. In all the circumstances, if I were a member of this house or the other house, I would in the end, not without misgivings, vote in favour of it.
Senator Carstairs: My question has to do with the arguments made by the aboriginal people. They argue that what will happen as a result of the passage Bill C-110 is that the 7-50 rule, which they feel is the consensus position on granting self-government, will now become more complex and more difficult. Therefore, they feel that a further obstacle has been put in the way of their achievement of a self-government initiative.
I have never accepted the consensus opinion that all we require is 7-10-50 for aboriginal self-government. I have not accepted that position for two reasons. The political reality is that, if the three Prairie provinces did not accept the concept of aboriginal self-government, I do not think you could put it into force and effect because of the significant sizes of their aboriginal populations.
The second aspect has, in particular, to do with section 38(2) and (3) which clearly gives any province whose legislative powers or proprietary rights are tampered with the ability to opt out. In light of that, do you see any significant diminution of the ability of aboriginal people to achieve self-government under this bill?
Mr. Scott: This bill creates an additional "obstacle", if you want to use that term, as you did, senator, to such measures and to all others. It is a limited obstacle, but it is an obstacle of sorts. Everyone's particular aspirations to some sort of constitutional amendment or other may be affected by this amendment.
Is this a significant additional obstacle? That will depend on how the political process works at any given time. It is not likely to prevent an amendment which otherwise could have been passed without it. If an amendment proves impossible to get across this hurdle, it would have proved impossible to get through the hurdles of the amending process itself.
That being said, if one feels that this process will create special difficulties for aboriginals, there would be nothing untoward in the sort of amendment to this bill which the aboriginal peoples were seeking. They are not simply being paranoid by asking for this. They are simply defending their legitimate interests as they see them. That is perfectly fair. Accommodating that would not be unreasonable.
Senator Rivest: On page 6 of your brief, you state:
Except in one detail not relevant here, our amendment mechanisms, established in 1982, had indeed been accepted by the then Quebec Government.
When and how?
[Translation]
Mr. Scott: What had been accepted was the formula proposed by the eight members of the common front. Essentially, the text reproduces the proposed formula, accepted in April 1980 by Quebec and seven provinces. Also when Mr. Lévesque indicated that the final version of the Act was unacceptable to him, he pointed out three aspects, one of these section 23 on education.
Senator Rivest: You are speaking of the April 16, 1981 agreement which Mr. Lévesque signed?
Mr. Scott: No, the Canada Act submitted to the Imperial Parliament in November 1981, which he said was unacceptable. I recall that he even wrote to Margaret Thatcher, indicating the points he judged unacceptable. These were: the entrenchment of mobility and settlement rights and of section 23 on education. Here again, 23.1(a) was not entrenched for Quebec. Second, the fact that constitutional amendments were being offered with fair compensation under section 40 only in the most limited of situations where an amendment transferred powers to the federal level over education or other cultural areas, rather than in all situations. This is where Mr. Lévesque's objections lay; he had no other objections to the amending formula.
Senator Rivest: But, as you know, after 1981 there was a different Quebec government. The Quebec Liberal Party's 1985 document referred in connection with the 1982 formula to the concerns of the Quebec Liberal Party and of the federal government of the time concerning the Meech Lake and Charlottetown agreements. There was no acceptance of the amending formula.
Mr. Scott: Even in 1980, the Liberal opposition was objecting to Mr. Lévesque's proposals. It was virtually impossible in 1981 to have a formula combining the Lévesque formula and the opposition formula. Where the consent or non-consent of Quebec or the Quebec National Assembly is concerned, the opposition would have objected then or at some other time.
Senator Rivest: Leaving Mr. Lévesque aside, the position of the Liberal and federalist government on the amending formula at the time and since 1985 has been as follows: Quebec wanted to gain a veto right over institutional changes, one which it did not have in the 1982 formula.
Second, the other major amendment to the 1982 formula was extension of the right of opting out of financial compensation to all powers of the National Assembly, not merely education and culture. These are the two major modifications to the 1982 formula defended by Quebec's federalist government.
Mr. Scott: I do not wish to object to the point of view of the government opposition at the time, or the subsequent government, on these points. If you wish to state that there was an injustice in 1981, the injustice of having disregarded or not accepted this Quebec point of view-
Senator Rivest: No, I do not want to get into that debate. Your statement appears to indicate that the Government of Quebec was satisfied with the formula with the exception of a few details. This is very important for the debate on Bill C-110. In the formula defended by the Government of Quebec in both the Meech Lake and Charlottetown rounds, there was no mention of regional vetoes. That point had been abandoned. That is the last position of the federalist Liberal government in the context of the debate on the amending formula.
Mr.Scott: To quote my text:
[English]
...had indeed been accepted by the then Quebec Government.
The Chairman: On behalf of all members, I would thank you, Professor Scott, for appearing before us. Your assistance is much appreciated.
Mr. Scott: Mr. Chairman, it is always a privilege and a pleasure to be here. We always have a stimulating exchange, and I thank you for your invitation.
The Chairman: Honourable senators, our second witness this morning is from York University. We welcome Professor Patrick Monahan.
Professor Monahan, we would like to give you an opportunity to make an introductory presentation which will be followed by questions from members of this committee.
Please proceed.
Professor Patrick Monahan, Osgoode Hall Law School, York University: Mr. Chairman, honourable senators, it is a great privilege to have the opportunity to appear before you. I appreciate this opportunity on this very important matter.
I have handed to the clerk a short brief, which is in English only, for which I apologize. I prepared it only last evening. I am having difficulties scheduling my various commitments, but I have managed to put something to paper. I thought perhaps I might begin by briefly referencing what I put down on this paper.
The first paragraph simply expresses the view that Bill C-110 is valid legislation. I do not discuss it at all. I simply express that view. Perhaps I could elaborate on why I reached that conclusion.
The authority for this bill is the opening words of section 91 of the Constitution Act, 1867, the so-called peace, order and good government power. It provides a residual power to the federal Parliament in respect of matters not coming within section 92 of the Constitution Act, 1867.
I should say, however, that there is a plausible argument to the effect that Bill C-110 is an attempt to indirectly amend the amending formula in Part V; that is to say, through the device of imposing a limit on the ability of ministers to introduce amendments, it is indirectly an attempt to amend the procedure in section 38, which now provides a requirement that only seven provinces with 50 per cent of the population consent. This could be argued to be an indirect attempt to add additional requirements to the existing amending formula.
However, on balance, because the bill is drafted narrowly as only applying to the ability of ministers to introduce legislation into the House of Commons and does not affect the ability of either the House of Commons or the Senate to pass amendments or pass resolutions in accordance with section 38, it does not amount to an amendment to the amending formula. I am talking here in legal terms. I do want to make the point that I think there is an arguable case to be made that it does offend because it would be made on the argument that this is an attempt to do indirectly what you cannot do directly. You cannot amend the amending formula through an ordinary federal statute. It could be argued that this is an indirect attempt to do that. I think the better view, because it is directed only at ministers of the Crown, is that it is not an amendment to the amending formula and is therefore valid legislation that does thought offend the Constitution of Canada. That is my first point.
I now want to look at the merits of the bill. Assuming this bill is validly enacted, is it a bill that ought to be enacted?
Here I have some concerns about the merits of the bill. While it is technically not an amendment to the amending formula, in practical terms it means that no amendments will be proceeded with unless the particular requirements of Bill C-110 are met. In the practical world, an amendment will not happen unless the requirements of Bill C-110 are met. Therefore, in practical terms, we are inserting, or overlaying on top of the existing section 38, this regional veto system that includes Ontario, British Columbia, Quebec, two of the Prairie provinces and two of the Atlantic provinces.
While in 1971 there was a governmental consensus in favour of a regional veto system, since that time there has been a clear consensus manifested in the last three rounds of constitutional negotiations over the past 15 years - namely, the patriation round in 1981, the Meech Lake Accord round in 1987, and the Charlottetown Accord round in 1992 - against a regional veto system. If you examine the legislative history of negotiations over the last 15 years, you will see that one of the common things that happens is that the federal government or committees of the Senate or of the House of Commons have proposed precisely the kind of regional veto system contemplated by Bill C-110. It was referred to this morning that the original federal package tabled in October, 1980 contained a regional veto system. That was rejected in favour of the 7-50 formula with opting out and limited compensation for amendments in education or cultural matters.
In 1987, it was not proposed as a formal proposal. The Meech Lake Accord formula that was worked out contemplated unanimous consent for section 42 matters and an expanded right to compensation for opting out. Although it was not proposed, it was not even given serious consideration because it was seen as unacceptable to propose a regional veto system.
Senator Beaudoin made reference this morning to the 1991 Beaudoin-Edwards committee. It proposed for serious consideration some kind of regional veto system as a possible way to reform the amending formula. Again, that did not receive general support. In fact, it was seen as unacceptable. It was debated amongst governments and the aboriginal representatives of the national aboriginal organizations in the Canada round negotiations. Again, it was rejected.
What we have, then, is a proposal that seems to have a life of its own in Ottawa, but it does not seem to get very far with the other elected governments in Canada nor in 1992 with the representatives of aboriginal peoples. If we take that seriously - and I think we have to take it seriously - one has to ask whether it is appropriate to put in place this regional veto system in Bill C-110.
I think there are two sorts of concerns here. The first is that it offends the principle of the equality of the provinces.
Whether you agree with that or not, it is a pretty firmly entrenched principle outside of the province of Quebec. In the Meech Lake Accord and the Charlottetown Accord negotiations, it was necessary to "square the circle" between the principle of the equality of the provinces and the necessity to protect Quebec's interest under the amending formula. Quebec was not to be faced with any further amendments which would affect its powers or rights without its consent. The agreed manner of proceeding at Meech Lake and in Charlottetown was to provide unanimous consent for the section 42 matters and to provide compensation for any amendment derogating from powers under section 40.
That protects Quebec's interests and does not offend the principle of the equality of the provinces. That, then, is an alternative which would deal with this issue and not offend the principle of the equality of the provinces.
This first concern is the violation of the principle of the equality of the provinces. A further concern relates to the desire to solve, on a short-term basis, a perceived problem. It is not just perceived; it is a real problem. Quebec needs a veto over future constitutional change. It becomes very difficult to enact future amendments to the Constitution including those sought by the province of Quebec itself or by federalists inside or outside of Quebec, such as a recognition of Quebec as a distinct society in the Constitution.
If Bill C-110 were enacted into law, then any proposed recognition of Quebec as a distinct society would become significantly more difficult. Under the existing amending formula, one would not need the consent of particular provinces as long as you had 50 per cent of the total Canadian population in seven provinces; whereas, with Bill C-100 you would need the consent of Ontario, Quebec, Alberta, and British Columbia. Of course, Alberta is there because of the de facto veto given to Alberta by virtue of its population in respect to the three prairie provinces.
I would have thought that this should cause federalists across the country to be concerned. People have criticized the distinct society clause. On the one hand, Mr. Bouchard says it is a boring concept which he does not wish even to discuss; on the other, politicians outside of Quebec say they are very concerned about recognizing Quebec as a distinct society in the Constitution. From my own conversations with federalists in Quebec, I sense that if we are unable to entrench some recognition of Quebec's distinctiveness in the Constitution in the near future, we will have a very difficult time in the next referendum.
Even though Mr. Bouchard says it is boring, he will not likely miss the opportunity to denounce the federalists in Ottawa and elsewhere for the failure to entrench the so-called boring concept.
Although it may be boring to him, on certain occasions, as in the past, he will make considerable mileage out of the fact that this is not in the Constitution.
A second area of concern, which was discussed yesterday in the committee and has been raised this morning with Professor Scott, relates to the aboriginal peoples. This, de facto, makes it more difficult to enact amendments dealing with aboriginal peoples. That is a concern because the negotiations over self-government have raised expectations amongst the aboriginal peoples. There has been a desire to try to entrench a recognition of the inherent right to self-government. This makes it significantly more difficult to do that in the future.
I do not minimize the difficulties now. I agree entirely with Professor Scott that it is already very difficult to entrench any such recognition, as indeed it would be to entrench a recognition of Quebec as a distinct society. However, that does thought seem to me to be an argument in favour of making it yet more difficult as Bill C-110 proposes to do.
It was raised this morning by Senator Marchand and others that perhaps the answer to the aboriginal peoples' issue is to insert a non-derogation clause saying that this does not derogate from the rights of aboriginal peoples. Again, this seems to be the answer which is always proposed when people raise particular objections to various amendments. It was raised in the context of Meech Lake. There were various non-derogation clauses inserted that ultimately played a significant role in the defeat of the accord. Once a non-derogation clause is inserted, the question of why one matter has been singled out as protected and other matters are not included in that protection is raised.
I only raise the Meech Lake example to point out that the governments inserted in the Meech Lake Accord a non-derogation clause for aboriginal matters and the non-derogation clause was, on one hand, not seen as adequate by the aboriginal peoples, but, on the other, raised a host of concerns from various other interest groups to the effect that, if a non-derogation clause was necessary for aboriginal rights, it may also be necessary to protect their rights.
I do not think a non-derogation clause is the proper way to deal with these concerns.
My own view would be as follows: Notwithstanding the concerns about the merits of Bill C-110, it has been described by the Minister of Justice as an interim measure only. I take the minister at his word that that is the case. It would be acceptable as an interim measure because no constitutional amendment is imminent in any event; therefore, to have this law in place for a limited period of time I do not think would be unacceptable, notwithstanding the concerns it raises.
The difficulty is that the legislation is not drafted as an interim measure. In practical terms - and as practising politicians you are practical people - you would not disagree with me when I say, as I believe Professor Whyte has said, that if this measure is enacted in its current form, I find it very difficult to imagine any future government amending it. To amend this measure would be seen as taking away someone's rights; it would immediately be denounced as a removal of some right that has been given to some province, regardless of the nature of the amendment.
Let us say that we wanted to proceed with an aboriginal amendment at some point in the future and we did not have the consent required. The minister would offer to amend Bill C-110 or just to ignore Bill C-110. It seems to me that would cause an outcry.
Indeed, the reaction to the suggestion this morning from Senator Meighen to the suggestion that a sunset clause be introduced, which I think was made from the other side of the table, was that this would show that this is not a serious measure and that we should not include a sunset clause. If a sunset clause cannot be added that, in itself, is evidence that it is not an interim measure. It is intended de facto as a permanent measure. We all know that. I do not think you can seriously maintain that some future government will come along and remove the protections contained in this bill.
If the minister and the government are serious in their suggestion that this is an interim measure, and I take them at their word - and I believe they are - then it seems it me the appropriate procedure is to insert a termination clause, a sunset clause, in this bill, which would say that the bill will cease to have effect, I suggest, five years after its coming into force. That will ensure that the bill is an interim measure.
Indeed, it seems it me that is the only way to ensure that it is an interim measure because the time to put a limit on a right is at the time the right is being conferred. If you give something and then try to take it away, as we all know, you cause great difficulty. In my view, the time to insert limits on what is being proposed here is at the time of enactment. Therefore, it would be appropriate, I think, to insert a clause stating that, after five years, it will cease to have effect.
That five-year period will give governments and Canadians an opportunity to consider the need for amendments to the amending formula, and if, at the end of that five-year period, there is a consensus on an approach to amendment, then that consensus can be proceeded with in accordance with the amending formula.
If, on the other hand, there is no consensus in favour of a new approach, it would then also be appropriate that Bill C-110 cease to have effect because the premise of Bill C-110 itself is that you should not enact changes of a permanent nature without a broad consensus among governments of the provinces. If there is no consensus in favour of Bill C-110, and I detect none at the present time, then, by its own logic, Bill C-110 should not be proceeded with or should not continue to have effect because it fails its own test, as I believe Mr. Petter indicated to you when he appeared here a couple of days ago.
The termination clause is superior, in my view, to a non-derogation clause because I believe non-derogation clauses are not desirable in principle. It also ensures that the amending formula and future amendments to it can be dealt with through the appropriate channel, which is the amending formula in the Constitution Act rather than through future amendments to this bill if enacted.
If Bill C-110 is enacted and becomes a permanent law, there is then the natural tendency for future governments to say, "Rather than proceed with amendments to the amending formula, we will enact amendments to Bill C-110 as we see fit, or as we and some provinces see fit." How ironic that would be, when the purpose of Bill C-110 is to provide the requirement of a consensus among the provinces but Bill C-110 itself could be amended without any provincial consent. Indeed, it seems that it is being advanced without any meaningful consent of the provinces, or at least without the kind of consensus that Bill C-110 itself requires for constitutional resolution.
You have an ironic situation where the federal government may, in the future, fall into the tendency of proposing amendments to Bill C-110, if it is a permanent measure, in the face of opposition from, or a lack of consensus among, the provinces.
That is my recommendation, senators. I thank you for your consideration. I would welcome any comments or questions you may have.
The Chairman: Thank you, Professor Monahan.
Senator Beaudoin: Thank you, Mr. Chairman. You agree, I understand, with my colleague, Senator Meighen, that a sunset clause may be a very good solution. I am inclined to agree that there is a lot of merit in that proposal. Obviously, if it is true that it is a simple statute, it may be amended at any time. It may even be amended before five years have elapsed. After all, what Parliament may do, Parliament may also undo. If, next year, we are lucky enough to find a definite formula of amendment, of course an enacted Bill C-110 would disappear. It is certainly a viable solution.
We have considered almost all possible forms of amendment, such as the four-region veto, or the five-region veto which we are now discussing. We discussed the Meech formula and the Charlottetown formula. However, there is one formula we have never really considered, and I would like to have your opinion on it: It is that we keep 7-50, but no province, as such, would have a veto, except the aboriginals, for their rights, and Quebec, for the matters where Quebec is specific. There is an obstacle to the formula of amendment. I have always thought that Quebec reacts very strongly when language, culture, education, and things of that sort and the subjects of discussion, but when the subject is economics and other issues, Quebec may go along with the general consent of the country.
As a constitutional expert, do you think this formula should be rejected out of hand, or does it offer some possibilities? Keeping the 7-50 formula of amendment, which is quite reasonable, but entrenching the rights of the aboriginals - and they are covered in section 35 but perhaps they want more protection - and giving Quebec a constitutional assurance that never in the future will we go against what Quebec considers to be a vital interest, to me, is one possibility. Should we not study that? As I understand it, people reject that idea and say that it is dreaming in technicolour. I am not sure that it is. We have tried everything else. Do not forget, unanimity is impossible. You cannot have unanimity on everything or almost everything. It will never work. The regional veto has been rejected two or three times. It does not mean that it is bad, but it has been rejected. Perhaps you would comment on the other suggestion.
Mr. Monahan: I would not want to say that it would not merit further study. I suppose as constitutional lawyers we love to study anything - the more study, the better.
My own sense would be, senator, that, in the last two rounds of constitutional negotiations, Meech Lake and Charlottetown, there was a consensus on the amending formula, namely, that matters in section 42 should require unanimous consent and that there should be an expanded right to opt out, with compensation, under section 40. That was acceptable to the government of Quebec on two occasions, both in 1987 and in 1992. I take it, therefore, it meets your desired objective, which is to protect the essential interests of the province of Quebec, because it means that either Quebec has to consent or, if it does not have to consent, it can opt out and obtain compensation.
Senator Beaudoin: But not in everything.
Mr. Monahan: In the Meech Lake Accord, yes, it covers any amendment derogating from powers. It is the same in the Charlottetown Accord. For any amendment derogating from powers such that the province opts out, reasonable compensation will be payable to the province. That is the desirable way to go.
The difficulty with the approach that you suggest is that it seems to involve some particular right of veto to a particular individual province. Again, our experience in the last 10 years indicates that that is not likely to meet with general consensus amongst other governments - that is, other than the Government of Quebec - and amongst Canadians outside of the province of Quebec. On that ground, it would seem doubtful that it could form a basis of a consensus across the country; whereas, the Meech Lake Accord formula and the Charlottetown Accord have the virtue of at least having been accepted by all governments on two separate occasions. I agree that they were never enacted for a variety of reasons, but that would be the best direction in which to move.
Senator Beaudoin: But if it has not been adopted, then it was rejected. The Meech Lake Accord went further than the Charlottetown Accord. What people in Quebec are fearing, to a certain extent, is the question of the creation of new provinces. At least in Bill C-110, with the five vetoes, there is protection for the question of the institution of the Senate and the creation of new provinces. In other words, both examples have been rejected.
I think we should try it again. We must try again next year. We may experience, for one year, another formula of amendment, because this is what it is, in fact. Indirectly, it is a new formula of amendment that is added. Perhaps you think that it is dreaming in colour to believe that we may enshrine in the Constitution some obstacle to the formula of amendment and leave it untouched. I have the greatest respect for that point of view, but I am a little bit less optimistic for the future.
Mr. Monahan: It is very difficult to get any constitutional amendment enacted in Canada. I certainly believe that. But the issue of the creation of new provinces was dealt with in the Charlottetown Accord slightly differently in that you could not block the creation of a new province. However, that province would not participate, for purposes of the amending formula, as part of the requirements for the amending formula. That was an attempt to address Quebec's concerns about the creation of new provinces and its dilution of Quebec's role in that process. That was acceptable to the then government of Quebec and the National Assembly of Quebec.
Senator Beaudoin: Yes, and the territories. But the fact is that the Canadian people rejected that.
Mr. Monahan: I do not see that as the reason why they rejected it. There were many reasons why people voted against the Charlottetown Accord, but I am not sure that that was one of them. Who knows why people voted against it. There are other elements of the Charlottetown Accord that contained much more salient reasons as to why people were objecting to the Charlottetown Accord apart from the amending formula provisions.
In the Meech Lake Accord, we had a lot of objection about the amending formula and how terrible it was that we were to have this amending formula, but that objection was not raised in anyway as strongly in Charlottetown. Mr. Wells was one of the most vociferous critics of the Meech Lake Accord. He was terribly opposed to this awful amending formula in the Meech Lake Accord. He signed the Charlottetown Accord. Indeed, he signed an agreement in June of 1990 that contained that provision.
Senator Beaudoin: Yes, and they rescinded the resolution.
Mr. Monahan: We will not get back into that one.
Senator Murray: It may be the last chance you get to criticize him, since he will be appointed to the bench.
Senator Gauthier: Mr. Monahan, I agree with you that this is a modest bill. It has much to be modest about. This is a difficult subject.
Senator Rivest: This is a Liberal bill.
Senator Gauthier: I also think, like you, that it imposes serious restrictions on ministers, but on no one else. You also alluded to the distinct society. You said that it would be more difficult now to have an amendment put into the Constitution that would recognize Quebec as a distinct society. Am I correct?
Mr. Monahan: Yes.
Senator Gauthier: The House of Commons and the Senate have both approved a resolution concerning the distinct society approach of Quebec. If, for example, it is possible for other than ministers to initiate resolutions, motions or Constitutional amendments, a province or the Senate could initiate such a measure and proceed, could it not? The House of Commons has already pronounced on this. They still must approve it, but it would be quite difficult for the House of Commons to refuse to pronounce on something it already has adopted, would it not?
Mr. Monahan: With the greatest of respect, it is theoretically possible for a backbencher of a party with only two seats in the House of Commons to propose any measures. However, the practical reality is that these measures will not be adopted. Everyone sitting around this table knows that. These measures will not be adopted unless the government is in support of them.
Senator MacEachen: There is nothing in the bill that prevents the government from giving support to it.
Mr. Monahan: Of course not, senator.
Senator Gauthier: Nothing in the bill prevents a minister from voting on such a resolution.
Mr. Monahan: Exactly.
Senator Gauthier: That could happen, could it not?
Mr. Monahan: Anything could happen, but it never does. With all due respect to the senators - both of whom have great experience as house leaders and working on the government side - for someone who has worked in that context to suggest that we can have a constitutional resolution adopted that the government is not in favour of is -
Senator MacEachen: We are not suggesting that.
Mr. Monahan: I thought you were saying, "Is that not possible?"
Senator Gauthier: No.
Mr. Monahan: You can introduce anything you want, but you will not get a vote on it because the government will not allow it to come it a vote.
Senator MacEachen: What you are doing this morning, professor, is teaching your grandmother how to suck eggs. If you stuck to your law instead of politics, you would have more credibility. You are telling us all about the politics, how politicians will act, how Parliament will act and how provinces will act, but saying very little about the law.
Senator St. Germain: You are bringing logic to the argument and you are doing a good job of it. Please continue.
Mr. Monahan: I am sorry, senator, but I am a practical person, notwithstanding the fact that I am an academic. I do not deal with these questions. I apologize for that. I agree with you that I am venturing onto terrain that you are far more knowledgeable about than I. However, I am afraid that I cannot deal with these questions in some abstract, academic way. You seem to urge me to say, "But, is not it true that some backbencher could introduce a motion; is not it true that nothing in this bill prevents the government from voting for it?"
I agree. You are quite correct. But I say that it is not a modest measure. I never said it was a modest measure.
Senator Gauthier: No, I said it.
Mr. Monahan: You said that I said it was a modest measure. I do not say it is a modest measure. I say it is very significant. It is so significant because it practically means that no amendment will be adopted by the House of Commons unless this requirement is met. You say, "But I know nothing about that; I have no capacity to pronounce upon it". I am willing to wager any amount of money that, if I come back here in any number of years you would like in order for you to point out the amendments that have been passed in violation of Bill C-110, there will be none.
Senator MacEachen: All I am saying, with due respect, is that when you make that statement, it is a political judgment, period, and I respect it as a political judgment, period.
Mr. Monahan: It is an observation, senator, about the workings of Parliament and the workings of the House of Commons.
Senator MacEachen: Absolutely, and it is a political judgment. I have no problem with anyone making political judgments, but they ought to be understood as political judgments and nothing else.
Senator Murray: In addition to his academic credentials, Professor Monahan has considerable personal experience, at least in the last two rounds of constitutional negotiations, as an advisor to the Government of Ontario. I wish to ask him several questions that bear more on his appreciation of the political and constitutional situation in the country.
In view of your own experience, and knowing what you know of the history of this country for the past 15 years, do you think that the commitment made to Quebecers by Prime Minister Chrétien during the referendum campaign was a right and proper commitment for the Prime Minister of Canada to have made?
Mr. Monahan: I make no judgment on that.
I wish to respond to Senator MacEachen, because I take issue with the characterization of my remarks. My remarks may involve a judgment about the nature and behaviour of our political institutions. Indeed, an understanding of constitutional conventions involves an assessment of the behaviour of politicians. However, as you are aware, senator, those matters have been pronounced upon by the courts and are the subject of analysis by constitutional lawyers. In my respectful judgment, senator, it is appropriate for this committee and this Senate to deal with this bill in its practical effect, not in some academic world that has no relationship to the functioning of institutions. You may take a different view.
Senator MacEachen: That is what I have been trying to do since the committee began.
Mr. Monahan: I draw a distinction between those kinds of issues and commenting on the wisdom or desirability of particular commitments made. I make no comment upon Mr. Chrétien's commitment. I take it that he made that commitment. I take it that it is a serious commitment. I take it that there is an obligation to respond to that and to make good on that commitment, and we should try to do so.
I take it that Bill C-110, as an interim measure, is acceptable. It does respond to the commitment that the Prime Minister has made and can and should be supported as an interim measure. However, I do not think it is desirable as a permanent measure.
Senator Murray: Quite apart from the fact that the commitment was made on the eve of the referendum vote, Mr. Chrétien is conscious of the fact that Quebec opposed the 1982 Constitution and the amending formula, and is concerned lest amendment be made affecting Quebec's place in Confederation without its consent.
I happen to believe that, under those circumstances, it was right and proper for the Prime Minister of Canada to say, "Until we get to the point where we have an amending formula that is acceptable to Quebec, the federal government will undertake not to proceed with an amendment affecting your interests without your consent."
Are you reluctant to comment on that?
Mr. Monahan: No. I have no difficulty with that, senator. I think it is appropriate. I would not want the federal government to proceed with amendments that would affect Quebec's powers. I do not mean to somehow dissociate myself from that. I thought you were leading me to express a negative. I have no difficulty with that. I do not think you would even need a bill to do that. The government could simply say that it will not proceed, as a matter of policy, with an amendment which would affect Quebec's interests. Again, it is entirely appropriate to do so by way of legislation as an interim measure.
Senator Murray: What would you say to a bill that specifically respected the commitment that Mr. Chrétien made to Quebecers; a Quebec-specific consent instead of this system of regional consents?
Mr. Monahan: I would have no difficulty with that. I think that would be acceptable as an interim measure.
Senator Murray: Would it be preferable to the present bill?
Mr. Monahan: I am not sure whether it would be preferable to the present bill. At this point in the process, and in an attempt to be practical, I would observe that the approach which would be most likely to meet with some success would be to impose a sunset clause on the bill rather than to try to rework the entire bill. If the government were willing to do that, that may well be a preferable way to deal with this commitment. Yes, I would agree with that.
Senator Murray: As one who is close to affairs in Ontario, what is your understanding of the position of the present Ontario government with respect to this bill?
Mr. Monahan: I have no knowledge of that, senator, and could not comment on it.
Senator Murray: Why do you suggest a five-year sunset clause? Apparently, the Prime Minister intends to convene a conference in 1997 specifically on the amending formula pursuant to section 49. I think he believes he is obliged to do so. In any case, he is convening it. Why not a one-year sunset?
Mr. Monahan: A five-year sunset is preferable because, although there will be a conference before April of 1997, even if there were some general agreement, it would take a period of time after that for any amendment to be enacted.
I am also mindful of the fact that Mr. Bouchard is the premier of Quebec and presumably will be at that time. It may be very difficult to deal with Mr. Bouchard. The five-year time limit gives some opportunity to have a government of federalist persuasion in the province of Quebec. The five-year sunset would give federalists greater breathing space in which to try to respond.
Senator Murray: Finally, the British Columbia government and others have put forward the position that, because there is a sovereigntist government in Quebec City, with a premier-designate who has already indicated that he is not interested in pursuing constitutional reform with the federal government and the other partners in Confederation, we should forget about it, possibly until there is a federalist government in Quebec City.
Notwithstanding the presence of a separatist government in Quebec, do you believe that a constitutional initiative over the next 12 to 18 months is needed to reinforce the federalist cause in Quebec and to win any referendum in Quebec, or élection référendaire, if it comes to that?
Mr. Monahan: I think it is clear that significant reforms to the workings of the federation are necessary in the next 12 to 18 months. Whether those take the form of formal constitutional amendments or other agreements between the federal government and the provinces in terms of allocation of powers and eliminating overlap and duplication, for example, which could be done without amendments to the Constitution, that may be the preferable way to go in that short time frame. In terms of any amendments to the Constitution, that may take a little bit longer than 12 to 18 months, precisely because Mr. Bouchard will be the premier of Quebec for the next 12 to 18 months, at least. It will be very difficult to reach agreement on any of the matters that are essential to Quebec's interests as long as Mr. Bouchard is the premier.
Recognition of Quebec's distinctiveness is essential at some point in the process. I doubt very much that Mr. Bouchard would be willing to agree to any recognition, no matter how generous.
Senator Murray: If the rest of Canada could get its act together to the extent of addressing the recognition of the distinctive character of Quebec in the Constitution and the amending formula - or whatever the words are, and we all know what we are talking about - would he not be very much on the defensive?
Mr. Monahan: He would be on the defensive, yes.
Senator Murray: Would we not be on the defensive if we cannot get our act together before the next referendum?
Mr. Monahan: I agree; or at least show that we are in the process of responding. My concern is that Bill C-110 makes it more difficult to respond because, first, it means additional consent will be required. Because of the concern about Bill C-110 in some of the provinces which now have to consent, including British Columbia and Alberta, and because it is in effect being imposed on them against their will, even though B.C. is getting a veto and, de facto, Alberta is getting a veto, it seems to me that takes away some of the goodwill that will be needed to secure a generous attitude towards Quebec. Again, that just reinforces my concern about Bill C-110, which is what we are debating here today.
Senator Murray: What constitutional process can we adopt here? There is no indication from the federal government that it intends to take a constitutional initiative and, perhaps, one would not be credible enough at this point. I do not see any John Robarts in the provinces who is willing to step forward to take the leadership. In desperation, one is driven to some of these ideas of constituent assemblies and so forth.
Do you have any views on a process that will enable the players, even absent Mr. Bouchard - if he will not participate that is his problem and the problem of his government - to address these constitutional issues? We must realize that at the end of the day there has to be an executive agreement, does there not, as a practical matter?
Mr. Monahan: I think that is right. We must work toward making it possible for the leaders of the most largely populated provincial governments outside Quebec, that is, Ontario, British Columbia and Alberta, to be able to support, in principle, some sort of amendments, including, for example, the recognition of Quebec's distinctiveness. That could be proceeded with at a point in time when a federalist government in Quebec were in office and prepared to proceed.
I assume that as long as Mr. Bouchard is there he will not proceed. Therefore, the best we can hope for is that the heads of governments in other provinces will indicate their willingness to proceed with, for example, recognition of Quebec's distinctiveness. I think we have to lay out the conditions which will make that possible. That may involve citizens outside government making an initial attempt to build support for some of those ideas because, perhaps, the politicians may be reluctant to get too far ahead of where they think public opinion is.
Senator Carstairs: I should like you to consider the realism, if you will, of a sunset clause. There has been some suggestions that the bill be in force for one year until the 1997 conference. You have suggested that it be five years. Someone else suggested that it be to the year 2000, which is almost the same as your idea.
In realistic terms, it seems to me that no other government, including, I suspect, the federal government, likes to be sitting around with a time bomb which stipulates, "You must do such and such a thing by such and such a time."
We have the added constitutional dilemma in that it sometimes takes up to three years to pass a constitutional amendment. We also have the additional political dilemma that there will probably be an election in Quebec before another referendum is held.
I have been watching public opinion polls. I think it highly unlikely that such an election would result in any party other than the Parti Québécois being elected. That, presumably, will give them a mandate for another five to six years.
By setting a sunset clause at five years, are you not being entirely unrealistic?
Mr. Monahan: You raise some serious concerns, senator. Indeed, it is correct that the presence of a sunset clause would force the government to address this issue prior to the expiry of the legislation. No government would choose to be in that position. Governments prefer to be able to have the maximum flexibility to address these issues.
It seems to me that the virtue of the sunset clause is precisely that it will force a future government to revisit this issue in that the formula in Bill C-110 will not be in place permanently.
Senator Carstairs: It will force the federal government to do so. However, it imposes no force or threat on the 10 provincial governments.
Mr. Monahan: No, but, presumably, the federal government will take some initiative. I would have thought that any initiative in this area should come ultimately from the federal government as the national government in terms of proposing a process or discussions with the provinces. Indeed, one concern about this bill is that there is not the kind of consultation with the provinces that might have been thought to be appropriate.
You say it requires the government to do something. Of course, it does not necessarily require the government to do anything other than to address the bill. They could re-enact the bill if, for example, there were prospects which required some additional time, or if they wished to proceed with some agreement over a three-year period, for example. There would be nothing to prevent Parliament at that time from re-enacting Bill C-110 for a limited period of time. It forces the issue to be addressed.
I take the five years, in part, from the notwithstanding clause in section 33 of the Charter, which is there for precisely that reason. It means that, if you want to override these rights under the Charter, you have to readdress it within five years. You can re-enact the override provision, if you wish - there is nothing to prevent you from doing that - but you must at least address the issue afresh.
It may be that, five years down the road, you are in a position to take a different view, as was Mr. Bourassa's government after the use of the override in 1989. Then, five years later, they were in a position to take a slightly different approach.
Then again, perhaps not. Perhaps after five years, we will see that we have no further progress and we choose to re-enact for an additional five years, or whatever we may wish to do at that time.
My preference would be that we not enact this as a permanent law or perceive it as a permanent law, but as a temporary measure. At the end of the five-year period, there would be an option to re-enact for any period of time that is seen as appropriate, as the case may be.
I do not think that is a terribly onerous obligation on the government. It leaves the government with ample room to manoeuvre. At the same time, it gives some comfort those who have raised concerns about the bill and about its implications.
Senator Rivest: I would remark on Senator Carstairs' political analysis of Quebec situation.
The next referendum in Quebec, in the minds of Lucien Bouchard and the PQ, will not be held this year but in the months after the 1997 conference. It is a question of months. They are just awaiting the rendezvous of next year. Right afterwards, they will hold the referendum.
Senator Carstairs: If, for example, we had to re-enact this legislation, would that not make it even less of an interim measure? This concept is an interim measure, as described by the Minister of Justice, presumably because we will come to some agreement on an amending formula in the Constitution which is acceptable to the province of Quebec. If we cannot do that, we must have to re-enact this bill. Each time we re-enact it, does that not reinforce the concept that it is not an interim measure but that it is, in fact, a perpetual measure, a long-term amending process for the Constitution?
Mr. Monahan: I would have thought precisely the opposite would be the case. That is to say, five years from now, if the government of the day wished to re-enact the bill, the comment would be made that this was but an interim measure which has been in place for five years.
Again, I may be criticized for treading onto political terrain, but I think it is commonplace to observe that past statements are noted, resurrected and used against the government. The government would be forced to justify why it was re-enacting the bill. If the government sought to re-enact it for another five years and perhaps for a second re-enactment five years later, it would become very difficult for the government to continue with this re-enactment and yet claim it was an interim measure.
The process of re-enactment calls into question the commitment being made that it is an interim measure only. Again, my preference is for the sunset clause because it forces the government to adhere more closely to the commitment that this is an interim measure only. It makes it difficult, though not impossible, to simply re-enact this in five years without some statement as to why they want to do so.
There is nothing to prevent the government from repealing this prior to five years. However, this acts as a check on them simply re-enacting this over and over again. If they came back to re-enact it a number of times, it is no longer credible for the minister of the day to say, "Oh, but this is an interim measure."
Some other justification may arise at that time. Then it would not be an interim measure but perhaps the desire would be that it become a permanent measure because of circumstances that may exist then, whatever those circumstances might be.
Senator St. Germain: Thank you for articulating this entire scenario in a way that is understandable by a layperson like myself. You have brought a balanced approach. Inasmuch as you were accused of being partisan, I think you were just citing the actual workings of Parliament.
Senator MacEachen: I have not accused anyone of being partisan, senator. Choose your words carefully. I said he was being political.
Senator St. Germain: I was not referring necessarily to you, sir. I never named you. I have the floor.
Senator MacEachen: You do not have the courage to name me.
Senator St. Germain: I have courage. If I decide to name you, I will. What I have stated is my interpretation.
If you alone could decide this question, professor, in the spirit of unity and nation-building, noting the complexities surrounding Quebec and respect for our aboriginal peoples, and using your experience and your studies, how would you decide? Remember, too, that Quebec federalists have come here and indicated that this bill will do nothing to solve the problems within Quebec in dealing with the separatists. Would you proceed or block the bill?
Mr. Monahan: I would proceed with the bill in precisely the way I have described - with a sunset clause. I believe, on that basis, it is entirely acceptable and it is a reasonable balance.
Senator MacEachen: My colleague has asked my question.
Senator St. Germain: Great minds think alike.
Senator MacEachen: I was going to ask whether Professor Monahan would agree with Professor Tremblay who urged us to defeat the bill. You have asked that question, senator.
Senator De Bané: Professor Pelletier was in favour of it, so there should be no suggestion that Quebec federalists are against it. Professor Tremblay is against it; but other Quebec federalists are in favour of it.
Mr. Monahan: I agree with Senator MacEachen. I would endorse passing the bill with a sunset clause.
Senator St. Germain: There is extreme nervousness here, Professor Monahan.
The Chairman: We thank Professor Monahan for attending.
We will pause for lunch before hearing our next witness.
Upon resuming.
The Chairman: It is my honour, colleagues, to welcome a long-time friend, Professor Douglas Schmeiser, from the University of Saskatchewan. Our plan would be to have a presentation, followed by a series of questions.
With that, I will turn the floor over to Professor Schmeiser.
Mr. Douglas A. Schmeiser, Q.C., University of Saskatchewan: Mr. Chairman and honourable senators, it is my respectful submission that Bill C-110 contains remarkable provisions. It provides, as you know, that no minister of the Crown shall propose a motion for resolution to authorize certain amendments to the Constitution of Canada unless the amendment has first been consented to by certain provinces or groups of provinces.
In essence, it attempts to fetter the right of the Parliament of Canada to exercise its powers of constitutional amendment pursuant to Part V of the Constitution Act, 1982. It utilizes the circuitous procedure of restricting the actions of ministers of the Crown to achieve this result.
The bill also introduces into Canadian constitutional law the concept of first-class and second-class provinces. Clearly, Ontario, Quebec and British Columbia are in the first-class category because their consent is required before the federal government can operate. Clearly, all of the Atlantic provinces and all of the prairie provinces are in the second-class category because there must be as least two of them to restrict the actions of the federal government, subject also to population requirements. This approach marks a departure from anything found in the Constitution Act, 1867 or the Constitution Act, 1982.
Leaving aside for the moment the issue of the constitutionality of the proposed legislation, the bill deserves serious criticism as a matter of principle. It subverts the interests of the federal government as a whole to the interests of the individual provinces. It subjugates national power to provincial power. It subverts the whole to the parts.
One cannot help but wonder to whose interests the federal government is catering when it proposes such a law. It certainly will not satisfy those who want to secede from Canada or those who might consider that option. It repudiates the concept of a well-functioning national government operating responsibly in the national interest. In short, it repudiates Canada as a national identity.
The bill is unique, in historical terms. It reverses a basic principle of Canadian federalism, which has stood for over 125 years, that no province can veto certain changes to the Constitution. In Re Attorney-General of Québec v. Attorney- General of Canada, the decision which held that the consent of the province of Quebec was not constitutionally required for the adoption of the Constitution Act, 1982, the Supreme Court of Canada stated:
But neither in his factum nor in oral argument did counsel for the appellant quote a single statement made by any representative of the federal authorities recognizing either explicitly or by necessary implication that Québec had a conventional power of veto over certain types of constitutional amendments. The statement made by Minister Favreau on November 20, 1964, and the passage to be found at pp. 46-7 of the White Paper have been quoted twice in the appellant's factum, as if they supported the veto rule as well as the unanimity one, but they refer only to unanimity and have been above dealt with in this respect.
Furthermore, a convention such as the one now asserted by Québec would have to be recognized by other provinces. We have not been referred to and we are not aware of any statement by the actors in any of the other provinces acknowledging such convention.
Bill C-110 is more extreme because the proposed constitutional veto is being given to more provinces and to more groups of provinces. It is an unwise policy and it will cause difficulty in the future.
The form of Bill C-110 is unusual. It states, in effect, that the federal government will not do something unless others do something. One would expect, as a political matter, that the federal government will always reserve its right to act in the best interests of the country as a whole and that it would not state, as a legislative principle, that it may only act subject to the consent of others.
The absurdity of the provisions can be illustrated by considering the legal result if certain provinces enacted legislation that they would not consider constitutional amendments unless they had been first consented to by the Parliament of Canada. This would nullify the meaning of Bill C-110. It is a novel proposition in a federal state that the legislation of a federal Parliament can be nullified by provincial legislation.
The provisions of the Constitution Act, 1982 may be and have been criticized for making constitutional amendment too difficult. Having drafted these provisions, I agree with that criticism, but those were my instructions. The provisions have not been criticized for being too flexible. The proposed legislation, if followed, would, for practical purposes, make all future constitutional change impossible.
The effect of Bill C-110 must be considered in the light of the practical realities of constitutional negotiations in Canada. I think I can speak with some experience here because I have attended most of the constitutional meetings since the mid-1960s and I am probably the longest-serving constitutional advisor in the country.
Constitutional change has become almost impossible because of the unwillingness of key participants to restrict themselves to single or clearly-defined issues. Constitutional amendment proposals inevitably lead to compensatory claims. They unleash an unending series of political tradeoffs and log-rolling which makes a successful conclusion impossible. The problem is compounded when secessionist forces are at work.
It boggles the mind to think that no further constitutional change will be required in Canada, and yet this is the effect of giving a constitutional veto to any province. Anyone with any knowledge of constitutional negotiations in Canada cannot help but be dismayed by the proposed legislation.
Section 92 of the Constitution Act, 1867 sets out the legislative authority of the provincial legislatures. All provinces are treated equally. The rights of Ontario, Quebec, and British Columbia are the same as the rights of the other provinces. The constitutional amendment provisions in the Constitution Act, 1982 refer to the participation of the provincial legislative assemblies in the amendment process. Again, no difference is created among the provinces of Canada. It is true that there is a 50-per-cent-population requirement found in section 38(1)(b) but this is a condition which can be justified on an objective criterion.
The effect of the present, existing constitutional provision is that the provinces of Ontario and Quebec, acting together, could block certain constitutional changes but not each acting individually. It is suggested that the general constitutional principle of the equality of the provinces should not be lightly discarded.
I want to turn now to the constitutional validity of the bill. Because of its unique form, it is difficult to offer an opinion about whether Bill C-110 is constitutionally valid. The natural reaction to the bill is that it is a colourable attempt to negate the constitutional amendment provisions of the Constitution Act, 1982.
The position of the federal government is that the bill does not change the constitutional amendment process but simply limits the discretion of the government to propose resolutions authorizing constitutional amendments. Whether this is a valid distinction or simply a matter of semantics remains to be seen. What can be stated, however, is that there is constitutional authority which suggests that this legislation is contrary to general constitutional rules and conventions and is quite inappropriate. This, in turn, may persuade a court to tip the scales in favour of its invalidity. While it is impossible here to present a detailed constitutional brief, reference will be made to the general constitutional principles involved. It is a basic constitutional rule that Parliament and the provincial legislatures cannot abdicate or abandon their authority. In the case of Re Gray in the Supreme Court of Canada, Chief Justice Fitzpatrick said the following:
Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured.
In the same judgment, Mr. Justice Idington said:
The several measures required to produce such results must be enacted by the Parliament of Canada in a due and lawful method according to our constitution and its entire powers thereunder cannot be by a single stroke of the pen surrendered or transferred to anybody.
Mr. Justice Duff stated:
The powers granted could at any time be revoked and anything done under them nullified by parliament, which parliament did not, and for that matter could not, abandon any of its own legislative jurisdiction.
Finally, Mr. Justice Anglin stated:
A complete abdication by Parliament of its legislative functions is something so inconceivable that the constitutionality of an attempt to do anything of the kind need not be considered. Short of such an abdication, any limited delegation would seem to be within the ambit of a legislative jurisdiction...
Concerning Bill C-110, it can be argued that it does constitute an abdication by Parliament of its constitutional amendment powers.
An interesting analogy can be drawn from the case of In Re The Initiative and Referendum Act which dealt with the validity of Manitoba legislation providing that laws for the province could be made and repealed by the direct vote of the electors, instead of by only the Legislative Assembly. The Privy Council ruled that the legislation was unconstitutional. What is interesting about the decision is that the Privy Council construed the legislation as a constitutional amendment because it interfered with the office of the Lieutenant Governor. On the question of the general power of a provincial legislature, the Privy Council stated:
No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact -
- and I would underscore those words -
- seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.
Finally, the more recent Reference Re Canada Assistance Plan decision in the Supreme Court of Canada contains the following passage:
It is conceded that the government could not bind Parliament from exercising its powers to legislate amendments to the Plan. To assert the contrary would be to negate the sovereignty of Parliament. This basic fact of our constitutional life was, therefore, present to the minds of the parties when the Plan and Agreement were enacted and concluded.
Mr. Justice Sopinka further stated - and this is really key to what we are talking about here:
A restraint on the executive in the introduction of the legislation is a fetter on the sovereignty of Parliament itself.
That is exactly what we have in Bill C-110. It is something which I would suggest one look at very carefully.
Bill C-110 purports to operate by way of a restraint on the executive. While the federal government may argue that this simply constitutes a limit on executive discretion, it is noteworthy that the Supreme Court of Canada viewed this as a fetter on parliamentary sovereignty.
Taken together, these three cases provide support for the view that Bill C-110 constitutes a fetter on parliamentary sovereignty. These cases also indicate how unusual this legislation actually is.
A second argument, closely allied to the previous one, is that the legislation is contrary to the provisions of the Constitution Act, 1867 concerning the establishment of Parliament. Much has been written about the implied rights found in the Constitution, and will not be repeated here. The essence of the argument is that certain conditions must exist for parliamentary government to operate and that any law inconsistent with these conditions is unconstitutional. Any fetter of parliamentary sovereignty could thus be construed as a violation of the Constitution. The strength of this argument will depend on how the legislation is viewed by the courts, as with the first argument.
The contention may be raised by those supporting the bill that although Parliament cannot fetter its sovereignty, it can restrict itself as to the manner and form of subsequent legislation. A good discussion of this principle is found in the Canada Assistance Plan case. It is suggested that this argument is unavailable here because Bill C-110 is not manner and form legislation, but directly restricts the operation of parliamentary government.
A third argument is that the Constitution belongs to the country as a whole and that neither Parliament nor the provincial legislatures can act to thwart its terms. The rights assigned by the Constitution are not simply powers, but duties, and the people are entitled to insist on compliance with constitutional mandates. This is the theme of the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada holding that neither Parliament nor a provincial legislature can delegate its jurisdiction to each other.
In the course of the judgment, Chief Justice Rinfret said the following:
The Constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. The country is entitled to insist that legislation adopted under section 91 should be passed exclusively by the Parliament of Canada in the same way as the people of each Province are entitled to insist that legislation concerning the matters enumerated in section 92 should come exclusively from their respective Legislatures. In each case the Members elected to Parliament or to the Legislatures are the only ones entrusted with the power and the duty to legislate concerning the subjects exclusively distributed by the constitutional Act to each of them.
It is very significant in this passage that Chief Justice Rinfret refers to the legislative process as both a power and a duty.
In the same judgment, Judge Taschereau stated:
If the proposed legislation were held to be valid, the whole scheme of the Canadian Constitution would be entirely defeated.
Similarly in the present case, if Bill C-110 were held to be valid, the whole scheme of the constitutional amendment provisions would be entirely defeated.
A similar approach is involved in the decision in Reference Re Legislative Authority of Parliament holding that Parliament does not have the legislative authority to abolish the Senate. In the course of giving judgment, the Supreme Court of Canada stated:
In our opinion, the power given to the federal Parliament by s. 91(1) was not intended to enable it to alter in any way the provisions of ss. 91 and 92 governing the exercise of legislative authority by the Parliament of Canada and the Legislatures of the Provinces. Section 91(1) is a particularization of the general legislative power of the Parliament of Canada. That general power can be exercised only by the Queen by and with the advice and consent of the Senate and the House of Commons. Section 91(1) cannot be construed to confer power to supplant the whole of the rest of the section. It cannot be construed as permitting the transfer of the legislative powers enumerated in s. 91 to some body or bodies other than those specifically designated in it.
The last quoted sentence is of relevance here, containing a proscription of the transfer of legislative powers to an unauthorized body. Bill C-110 makes the exercise of Parliament's constitutional amendment powers conditional on the exercise of power by an external body, that is, the provincial legislatures.
At the end of the judgment, the Supreme Court of Canada concluded by stating:
It was that Senate, created by the Act, to which a legislative role was given by s. 91. In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.
Similarly, in this instance, the constitutional amendment provisions should not be altered by the unilateral action of Parliament.
These constitutional arguments, although abstract, may be put into a better focus by considering the legal situation if Parliament passed a law stating that no minister of the Crown shall propose a motion for a resolution to amend the Criminal Code of Canada unless the amendment has first been consented to by certain provinces. Would such a law be valid? I would think not, and I would predict that many constitutional lawyers would be inclined to the same view. Yet, it is apparent that there is no essential difference between such a law and Bill C-110.
The point should be stressed at the conclusion of these constitutional references that the key point is not whether the bill is or is not constitutional, the key point is whether it is a good bill. The answer is that the bill is not in the interests of Canada as a whole and should not be passed, whether or not it is constitutional.
I want to turn next to fallacies that have been raised which allegedly justify Bill C-110.
One of the reasons allegedly justifying the grant to Quebec of a constitutional veto is that Quebec has always had such a veto or has always claimed such a veto. This is not correct. The Quebec Court of Appeal held that no such veto existed. In its judgment, the Quebec Court of Appeal stated as follows:
It is true that on certain occasions, it has been the policy of Canadian Prime Ministers not to proceed with constitutional amendments without the amendment of Québec. They have judged it inopportune to do so. However, the federal government has not renounced its right to request amendments to the British North America Act, 1867, without Québec's agreement. Moreover, the other provinces which are also interested parties have not recognized a special right for Quebec.
On appeal, the Supreme Court of Canada also held that no such Quebec veto existed, either by law or by convention. That, again, is a reference to a case I quoted earlier concerning how unusual the claim actually is in that case.
More significantly, in the constitutional negotiations prior to the passage of the Constitution Act, 1982, Premier Lévesque of Quebec did not claim a constitutional veto. In the Ottawa Accord, signed on April 16, 1981, Premier Lévesque substantially agreed to the constitutional amendment provisions currently found in the Constitution Act, 1982. The only major difference from the provisions in the Ottawa Accord concerned a minor clause dealing with fiscal compensation after the transference of legislative jurisdiction.
The difference between what is in the Ottawa Accord and the present constitutional provisions is so minor that I have always regarded it as a tragedy that Prime Minister Trudeau did not accept the provisions in their entirety. There was almost no significant difference except the payment of financial compensation in a very minor situation that would almost never have occurred. I have always regarded that failure on the part of the federal government to agree with that accord as one of the tragedies of Canadian history.
A second argument that has been raised in favour of Bill C-110 is that a Quebec veto over constitutional amendment is necessary to protect the essential interests of Quebec. Again, the argument is incorrect, because the matter was specifically addressed and resolved by what is now section 38 of the Constitution Act, 1982. Indeed, it was because of the presence of that section that Mr. Lévesque did not claim a veto for the province of Quebec because the rights of the province of Quebec are completely satisfied by that section.
I can assure you, from having been involved in the drafting of the Ottawa Accord as well as the constitutional amendment provisions, that this was the reason for the clause. It was specifically consented to by Premier Lévesque and the then government of Quebec. Subsection (2) reads as follows:
An amendment under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
Subsection (3) then goes on to say:
An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
The effect of those provisions is that there cannot be any law passed by way of amendment which affects the rights, powers or privileges of the province of Quebec without the consent of the legislature of the province of Quebec.
It is a matter of amazement to me that in all of the constitutional talk that one now hears that clause is not referred to immediately. It was specifically inserted into the Constitution in order to deal with the argument of protecting the rights of the province Quebec.
I would turn next to the issue I have termed the "distractive" problem of Bill C-110.
In my view, the threat of secession by Quebec is a real and significant one. It is disconcerting to see our political leaders do so little to counter the threat. This follows a pattern in most federal states of ignoring a threat of secession until it is too late, not taking resolute action, and failing to realize that last-ditch attempts to solve the problem do not work.
On the subject generally, I recommend the excellent article by Professor Greg Craven entitled "Of Federalism, Secession, Canada and Quebec," found in the Dalhousie Law Journal. The citation is indicated in my paper. On the nature of the danger which Quebec secession poses to Canada, Professor Craven writes:
As a general observation, ethnic secession movements are likely to be the most dangerous to their host states. Founded as they are in deep feelings of separate identity, often strengthened by linguistic and religious factors, and fuelled by a "peoples"-based rhetoric, such movements are perfectly capable of enduring long periods of adversity, only to break out with renewed vigour when circumstances are more propitious. It is perhaps the most basic characteristic of such secessionist movements that, like the ethnic feeling upon which they are based, they do not readily go away....
Of all the tactics for dealing with an ethnic secession movement, therefore, a reliance upon its natural dissipation is perhaps the least likely to meet with success.
Indeed, Canada's federal system may well fuel the cause of Quebec secession.
Because of the way Canada's federal system has evolved, where tax revenues are shared and where Ottawa constantly spends money in areas of provincial jurisdiction, it has become the essence of provincial politics that Ottawa is blamed for all the ills of the provinces. Often, that blame is unfair, but it does fuel secessionist movements.
What is unfortunate about Bill C-110 is that it adopts a bad constitutional technique, one which will hamper Canada's future constitutional evolution, and presents this as a meaningful response to Quebec's secession. It is not a good response and will have little, if any, effect in keeping Canada together. It is reactive at best when what is desperately needed is a proactive response. Surely the federal government should speak for all Canada and should have some say in the agenda of secession and its consequences. Obviously, this should be done before any further votes are taken. If Quebec secedes, and that is a possibility, federal politicians will be asked where they were and what they did as Canada disintegrated to protect the country as a whole. Bill C-110 is not a satisfactory answer to that question. It is only a distraction and, unfortunately, a constitutionally harmful distraction.
I am pleased to have had the opportunity to make this presentation before you, and of course I would welcome questions.
Senator Beaudoin: I have two precise questions.
At page 7, you referred to Justice Sopinka saying:
A restraint on the executive in the introduction of the legislation is a fetter on the sovereignty of Parliament itself.
Mr. Schmeiser: Yes.
Senator Beaudoin: It is unfortunate that we do not have the entire context of his comments.
This morning, we heard another thesis, and it was the first time I heard it. Our experts are divided. I am not surprised by that at all, because this is a very difficult point. In Quebec, Mr. Pelletier and Mr. Tremblay did not agree. They have two points of view. This morning, Mr. Monahan and Mr. Scott did not agree on this question.
You conclude here that a restraint on the executive - which is exactly what Bill C-110 does - is a fetter on the sovereignty of Parliament itself. Scott said yes, but do not forget that section 44 is there, and Parliament may amend the executive branch of the Government of Canada. That is the first time I have heard that notion. It is new to me in a way.
Obviously, we can change by a simple federal statute the retirement age of senators. We can make some amendments to the executive. I agree with that. However, that is not what we are doing in this case, because we are dealing with the amending formula.
The second point is that you say, at page 12, that because Quebec has the right to withdraw, Quebec does not need a special protection. You are quite right. If a provincial power is transferred to Ottawa, Quebec may say, "We will keep that power, and we will have compensation for education and culture. However, we cannot withdraw from the Supreme Court; we cannot withdraw from the Senate. And what about the creation of provinces?"
The reason we had the Meech Lake Accord is that Quebec felt that it was not protected in three areas. For the Supreme Court, it is debatable, and I think Quebec is protected. However, you could have an equal Senate tomorrow even if Quebec objected, and you could create new provinces even if Quebec objected to doing so. This is why I think people are talking about the protection in those three fields.
I would like your comments on that.
Mr. Schmeiser: With respect to the first issue, dealing with constitutional amendment, I think that you know better than I how difficult it is to predict the result in constitutional cases. My point in referring to the Canada Assistance Plan case - and I have the judgment in my briefcase here because I think it is one of the most important decisions in this area - is that there is a specific statement in a Supreme Court of Canada judgment made only four years ago that this type of legislation is questionable. I simply draw that to your attention.
You will notice that I was very careful in my brief not to voice an opinion on whether the legislation is constitutional or unconstitutional. It is very difficult to say. My point was simply that there is constitutional authority opposed to this legislation. What the Supreme Court of Canada will make of it if it comes before them is difficult for me to say. However, I would say, as a constitutional lawyer, if asked by a client, that it is worthy of litigation, that it is a questionable matter, and the chances of success are reasonable. Further than that, it would be very difficult for me to go.
With respect to the second question of the protection of the rights of Quebec, I personally take the view that the protection of these rights is a very important matter, and it is important from the point of view of all provinces because it leads to a better functioning federalism. I suppose that I approach the problem with a bias in favour of protecting the rights of Quebec. However, I do want to make the point that those rights are already protected, and, in the view of the then Premier of Quebec, who of course was a separatist premier, and in the view of the Government of Quebec in 1980 and 1981 when these negotiations were taking place, this clause sufficiently protected their rights.
It is true there are some areas that are now very difficult to change. In your statement to me, you referred to those provisions which require unanimous consent. Obviously, that requires the consent of the Province of Quebec.
Senator Beaudoin: That is only for the Supreme Court.
Mr. Schmeiser: Yes.
Senator Beaudoin: Not the Senate and the creation of provinces.
Mr. Schmeiser: And some others as well, but I think there are other matters to deal with. Obviously, any amendment requires the consent of the federal government, and there is a basic change there.
I wanted to make the point that, in the opinion of the Province of Quebec at that time, the Province of Quebec was satisfied with those provisions as well and did not find them inimical to the question of the interests of the Province of Quebec. I think that is important to keep in mind from a historical point of view.
Senator Beaudoin: What you say is very clear, and I thank you for that comment, but the fact is that in 1982, who was there? It was René Lévesque and Claude Morin. They were strongly in favour of the right to withdraw. I understand their logic. However, as my colleague Senator Rivest said, Quebec changed its mind in 1990. Quebec asked for protection in three areas which, rightly or wrongly, it considers vital.
There are three things that are important in a federal state. They are the division of powers, the amending formula and the way it is interpreted. Therefore, we need protection in terms of the division of powers, the amending formula and the interpretation, that is to say, the Supreme Court of Canada. I think Quebec is protected under section 41. However, the Senate may change that tomorrow with a ratio of 7-50. I will not talk about abolition, which requires unanimity.
An equal Senate could be installed tomorrow with the number of senators being the same for P.E.I., Quebec, Ontario and all the other provinces. Tomorrow, we could create five other provinces, the formula for which is 7-50. This is why Quebec has expressed concern. This is why the Meech Lake Accord was put on the table.
I agree with you. In November of 1991, René Lévesque did not object to this. He objected to full compensation, of course. He also objected to section 23, which concerns bilingualism and giving the last word to the Supreme Court.
The fact is that, to a certain extent, Quebec changed. It is now asking for more protection in three areas. I want to say that what has been presented is factual, but it is not factual as far as after 1990 is concerned.
Mr. Schmeiser: I have no objection to anyone changing his or her mind, or to any province changing its mind. However, what I think is unfortunate for Canadian unity is the dissemination of something that I know to be incorrect - that is, that the provisions of the Constitution Act, 1982 were imposed on Quebec without its consent. That simply does not bear with the historical reality.
If Quebec now says, "We want to change because we no longer agree with what we then agreed," that is perfectly okay. I think every province, and the federal government, is entitled to do that. However, that is not how the matter is now being presented, something which I think has been very damaging for Canadian unity.
The second part of your comment, senator, deals with what Quebec is now concerned about. The three issues to which you referred were the division of powers, the amending formula and the interpretation by the Supreme Court of Canada.
Now is not the place, I assume, to have a general discussion or debate on whether the Constitution of Canada is a good one or a bad one. Certainly, if I had my wishes, there are aspects of the Constitution that I would recommend be changed. I am sure that is true for everyone here.
However, I would point out that the Constitution of Canada is the most decentralized of any constitution in the world which deals with a federal system. The rights of the province of Quebec are enormous. The protections given to Quebec in terms of protecting their position under sections 38(2) and (3) are enormous.
With respect to the amending formula, although I was involved in its drafting and, in fact, did the final draft to it, it would not be my choice, but that was the agreement that the premiers had arrived at with respect to it. I have personal concerns, for example, about its inflexibility and about the lack of involvement of people in the process as opposed to provincial legislatures. Again, I think it is quite proper to consider that in terms of future constitutional amendments. However, it is not basically bad. It has many things that I think can be said in its favour.
I simply make the point that honourable and reasoned people will disagree on its merits and the demerits. I have those problems as well, so I quite appreciate that. However, I wish to make the point that it is not an unreasonable provision. From the point of view of the province of Quebec, it is not difficult in terms of protecting its interests or that of any other interest.
Again, with respect to the Supreme Court of Canada, which is the last item you mentioned, I think the case can be made that the Supreme Court of Canada and, prior to that, the Privy Council, have been very sensitive to provincial interests. I have, on occasion, looked at the judgments of those two courts. As a constitutional lawyer, one sometimes feels that there are some cases that the federal government should win, and they have. There are some cases that the provincial governments should win, and they have. However, there are many cases that fall into a swing category where it is difficult to predict in advance. My own conclusion has been that in most of the swing cases, the provinces fared better than the federal government fared.
I simply make that point to say that the actions of the Supreme Court of Canada, if anything, have been very favourable to the province of Quebec. One need only compare the position of a province in Canada with that of a state in the United States. By our standards, the states of the United States are nothing much more than glorified municipalities, whereas the provinces of Canada wield significant powers.
Senator Beaudoin: I must say that I am pleased with the decisions taken by the Supreme Court and the Privy Council.
Mr. Schmeiser: I am, too, Senator Beaudoin.
Senator De Bané: Professor Schmeiser, one of the characteristics of entrenching a particular clause in the Constitution is that it will become permanent. Seldom is a clause which is included deleted or amended after its inclusion. It follows that when you put something in the Constitution, ideally, it should have been fully debated beforehand because of this character of not being able to go back on it.
On page 2 of your brief, you state that the question of veto to provinces is unique in historical terms.
Mr. Schmeiser: Yes.
Senator De Bané: You also said:
It subverts the interests of the Federal Government as a whole to the interests of individual Provinces. It subjugates national power to Provincial power. It subverts the whole to the parts.
I would like to put before you the following two observations. First, in a democracy such as ours, it would be unthinkable to modify the Canadian Constitution without widespread support. I would say that in a liberal democracy you cannot amend the Constitution unless you have wide support.
Secondly, while an amending formula has been elusive to Canadian politicians, in 1971, in Victoria, there was unanimous agreement on regional vetoes. It is true that in the end Quebec did not consent. That was not because of the formula but because they wanted more in terms of social policy.
All the provinces, including your province, like all the others in the West, agreed with the question of regional veto.
Again in 1981, when Mr. Trudeau came forward with his proposal of patriation, there was a veto. Then, as you know, the opinion in the west changed and Mr. Lougheed and others came along with this formula.
You are right when you say that René Lévesque did not want the veto. He wanted to create a common front with seven other provinces. As he was the only one of the eight who had a veto, he had to leave it at the door in order to create this common front.
In your assertion on page 2 that this veto is unique in historical terms, I respectfully suggest that here you are stretching history a bit.
Mr. Schmeiser: To take the last point first, it has never been accepted in any constitutional document that Quebec has a right of veto. I will come to what you have said. It is true that there are situations in constitutional negotiations where reference has been made to giving Quebec a veto.
Senator De Bané: All I am saying is that the proposal in this bill was put forward to the other premiers and it was unanimously agreed to in 1971. Do not say that this is unique in historical terms. It was put, and it had the concurrence of everyone in 1971. It has been debated fully in the past.
Professor Schmeiser says this bill is repugnant to the traditions in Canada, yet, at one point in our history, it did have the concurrence of everyone.
Mr. Schmeiser: Not of everyone. It did have some political support.
Senator De Bané: It had the unanimous support of the 10 premiers and the Prime Minister of Canada.
Mr. Schmeiser: Political support but not legal support, because the Supreme Court of Canada held that it did not exist.
Senator De Bané: Sir, with all due respect, on that point, I am referring to facts which are so recent in our memory we all know them. The Victoria package contained several elements. One was an amending formula. That amending formula was that you needed provinces from the west that had 50 per cent of the population, Quebec, Ontario, and two provinces from the Maritimes. That was non-contentious. All the premiers gave their blessing. It failed because Mr. Bourassa at the end said, "I would like to add something more to the package."
You are right that it was never entrenched in the Constitution. The Supreme Court of Canada in 1981 said no province had a legal or conventional veto. In 1971, if it were not for this additional demand of Quebec about social policy, we would have had that.
In other words, I agree with you that we should, in general, not put anything in the Constitution unless it has been fully debated because we know from experience that, the moment it is there, you can never delete it or amend it. It must be fully debated first. It has a character of permanency. I think you are stretching history a bit.
Second, on page 3, you state that, in effect, the federal government will not do something unless others do something. This is your interpretation of the bill.
What do you think, Professor Schmeiser, of the concept that, while Bill C-110 says that no minister of the Crown can introduce a resolution concerning an amendment to the Constitution without the concurrence of so many provinces, that would not prevent any another member of the House of Commons from moving such a resolution? While this bill "ties the hands" of the government, it would still allow a backbencher on either side to introduce such a resolution.
When you carefully read Bill C-110, it says that no minister can introduce such a resolution. It is not a total prohibition on the House of Commons for moving such a resolution, it is pertains only to a minister of the Crown.
Mr. Schmeiser: I would like to respond by way of principle.
I agree that there have been times in Canadian history when foolish things have been agreed to by politicians. There are things in the Victoria Charter which, in my opinion, are not in the best interests of Canada. There were things in the Meech Lake Accord and the Charlottetown Accord that were not in the best interests of Canada.
Senator Murray: Was there anything in 1982 that was not in the best interests of Canada?
Mr. Schmeiser: I agree that there were things in 1982 that were not in the best interests of Canada.
Senator Murray: Does that include the exclusion of Quebec from the deal?
Mr. Schmeiser: I think that was unfortunate. I said earlier that I always thought that was a tragedy and that it could have been avoided. I have my own views. I was privileged to attend all of the private negotiation sessions and listened to everything that was said. I have copious notes from that time. I have never felt free to publish them because of my professional status at these meetings. However, I was present and I know what happened. I have always regarded that as a bit of a tragedy, but I want to come back to the question of principle.
I would say, with respect, that it is fundamentally wrong in a federal society to have an amending process which requires unanimity generally. That is where we are headed. Once you do that, you are subverting the whole to the parts.
I personally agree with most of what you said earlier, senator. You did say that, before there is a constitutional amendment, there ought to be widespread support. I fundamentally agree with that. I also have acted in my professional career more for provincial governments than for the federal government. I am very sensitive to provincial rights.
Having said that, I would make the point that it is wrong, generally, no matter who has agreed to it in the past, to establish an amending formula which is so rigid as to make future amendments impossible. I suggest this is what we are doing here.
In making these comments, I am not representing any western view or any Saskatchewan view. I do not have that authority in any way. Of course, one can make the point that I am simply expressing my own personal view on this matter. However, I do have some reassurance in the fact that what I am saying is in accord with what happens elsewhere in the world. It is very rare to find situations where, in a constitutional democracy, you cannot amend the Constitution without unanimous consent. There are some instances of it, but it is very rare. Most of the literature and most of the analyses state that this is very bad.
In addition to the historical weight of that evidence, I also come here with the experience of having been involved in constitutional negotiations for about 30 years. My experience in the Canadian milieu is that we will not have amendments if unanimous consent is required or if the consent of the certain provinces is required; four in the result, plus regions are involved. We will put ourselves in a constitutional straitjacket from which we cannot extricate ourselves.
There is something else which is very difficult. It is quite right to say that this is only an act of the Parliament of Canada, assuming that it passes but, as has been mentioned earlier, what happens if anyone moves to repeal that legislation?
It will be viewed as an attack on provincial rights in certain provinces and it really makes it very difficult to come up with the kind of constitutional change that I think will be required in the future.
Senator De Bané: Mr. Schmeiser, do you not think that at the bottom of our disagreement, at the heart of our divergent views, you do not agree with the approach of saying to Quebecers, "We do recognize you explicitly as a nation and we are going to proceed with the logical consequence of that, which is that no amendment to the Constitution will be done without your concurrence"? This is what is at the root of our disagreement.
On page 12, you say that Premier René Lévesque in 1982 did not claim a constitutional veto. Again, I want to remind you that while what you are writing is factually correct. The reason that he and Mr. Morin did not claim it was not because that was not in the interests of Quebec, but it was pure tactics in order to create the common front with the province of Saskatchewan and others.
That is just a question of interpretation of historical facts.
Finally, I would like to tell you that I do agree with your point that the question of flexibility of constitutions is a desirable objective. One thing that comes to mind is that the common market in Europe was stagnating between 1957 and 1985, because all member countries had a veto. When finally they amended that provision and said that from then on all that was needed was a qualified majority and countries would have a veto only in what they call "vital interest", it is then that very quickly it made dramatic progress, but as long as each had a veto on every single aspect, it was stagnating. So I do agree with you that we should not go overboard in making the amending formula so rigid that nothing can be changed.
Those are all my comments.
Mr. Schmeiser: With respect to the first issue, I do not accept the proposition that I am influenced by my views with respect to the province of Quebec concerning this matter. My view, and I state it very definitely and very positively, is that it is wrong for any province to have the kind of veto which is envisaged in Bill C-110. If it were given to Saskatchewan, from which I come, I would object to it. I object to it for British Columbia, for Alberta, for Ontario, and for Quebec. I suggest to you that it is fundamentally wrong in principle.
The second issue related to the question of the tactics of Premier Lévesque in the constitutional negotiations. I was very lucky, in the sense that I was then acting for the Premier of Manitoba, who was chair of the council of premiers. As a result, I had a good deal to do with Mr. Lévesque and his constitutional position. I spent many hours with him trying to iron out these problems. I can tell you that I became very fond of him. I found that as a person, he was very honourable, and a person who always kept his word. I can tell you that he was very troubled over the issue of a veto and that was why the question of section 38(2) and (3) came up, and he accepted it. I can recall his saying, during some of the meetings, that he had been criticized in the province of Quebec for not having publicly continued to demand the existence of a veto, but that he was satisfied that the interests of the province were now protected and he had given his word and he would stick to that word. I must say, with respect to that, I admired him.
Now, I cannot personally say what was in the inner recesses of his mind. Obviously, we always wonder about that with respect to anyone. However, certainly in terms of the negotiations, it was referred to again and again, along with the impact that it would have on the province of Quebec.
Further than that, I cannot go, except to say that during the negotiations, he acted in a very honourable and fair way. I have already expressed the view that I think it is unfortunate that the package which was put to the federal government was not accepted.
With respect to the third point, I do not think that one can draw a relationship between the common market and vetoes because there is a difference between what I would refer to as a confederation and a federation. I am sure you would accept that as well. There may be some question as to the degree of the difference but I would say it is on a different plane when one deals with national interests in one particular country.
Senator Murray: Professor Schmeiser, you were there during the events that led up to 1982. As I have heard elsewhere, and as you have confirmed today, you even held the pen on some of the drafting at that time. Prior to that, I believe you took the patriation case for Manitoba; you took Manitoba's brief to the Supreme Court. I will not hold it against you, but did you make a strong case for the unanimity convention?
Mr. Schmeiser: No comment from me.
Senator Rivest: On duty.
Senator Murray: Modesty prevents you.
It is interesting to know, and to hear from a first-hand witness, as to what Premier Lévesque agreed to at a given point during the negotiations, where you were an advisor to one or other of what was called the gang of eight. However, the bottom line, as I was saying to Professor Scott this morning, is that Quebec did not give its consent to the Constitution Act of 1982. Indeed, for the first time in 117 years, the federal government went ahead with a major constitutional amendment over the objections of Quebec.
Now, you yourself have described Quebec's non-consent, Quebec's opposition, to the Constitution Act, 1982. The fact that it was done without Quebec's consent was a matter on which both the government and the federalist opposition in Quebec were agreed. You yourself have described it as a tragedy.
Prime Minister Chrétien was a major player, as we know, in those events. He knows that Quebec did not consent, and he knows that Quebec has concerns about the amending formula, principally that changes would be made to the Constitution affecting Quebec's interests, Quebec's place in the federation, without Quebec's consent. Therefore, he made a commitment to Quebecers in the course of the referendum. The commitment was that the federal government would not proceed with a constitutional amendment affecting Quebec's interests, Quebec's place in the federation, if you like, without Quebec's consent.
Apart from your views, or even mine, as to this bill and how the government went about implementing the commitment, do you think it was a right and proper thing for the Prime Minister of Canada, under the circumstances, which you well know, to have made such a commitment to Quebecers on behalf of the federal government?
Mr. Schmeiser: I find it very difficult to criticize individuals for what they have done because I am not party to the pressures and the constraints under which they operate. However, I will again attempt to deal with it as a matter of principle and state how I respond to certain things.
You may recall from another "movie" in which I appeared when I came before a Senate committee dealing with the Pearson Airport Agreements that I feel very strongly in the notion of the rule of law. Part of that notion is that everyone is subject to the law, be that person the Prime Minister of Canada or a lowly law professor such as I. In one's public pronouncements, one should be very careful to abide by the provisions of the Constitution of Canada. All I can say in a general sense is that I think that no politician should say anything which is contrary to the Constitution of Canada or attempt to short circuit its terms. Further than that, I cannot go.
Senator Murray: What he was saying was that Ottawa would use its veto in such a way as to ensure that no amendment affecting Quebec's interests went ahead without Quebec's consent. You know as well as I do, the history of this issue and the constitutional situation, the political situation in the country today. From a policy point of view, do you think that was a proper commitment for the Prime Minister of Canada to make?
Mr. Schmeiser: I do not feel that I am competent to judge that.
Senator Murray: Do you think - because this is what it boils down to with regard to the amending formula - that it should be possible, using the general amending formula, for Parliament and seven provinces with 50 per cent of the population to take Senate seats away from Quebec without Quebec's consent?
Mr. Schmeiser: My general inclination is to say no, but I would like to think about it because I am not even satisfied, without rechecking the provisions, that that would be constitutionally possible. It may be, but I would reserve judgment on that because I am not sure.
Senator Murray: You know section 42, of course.
Mr. Schmeiser: Yes.
Senator Murray: We had a discussion here the other day with Ms Dawson and Mr. Rock. I put to them the question about whether sections 22 and 23 of the Constitution Act, 1867 respecting the residency requirements of Quebec senators and the old electoral college of lower Canada could be changed without Quebec's assent. Ms Dawson, as a personal opinion, thought not, although she did not give a firm, definitive opinion on it. Is that why you entered the caveat?
Mr. Schmeiser: Yes, it is. It may not appear from my presentation this afternoon, but I really hesitate to voice an opinion until I have had time to think it through very carefully. I can see some problems with the view that there is this wholesale right of amendment. I am not sure, and I would have to think about it.
Senator Murray: Where do you come down on the question of the Supreme Court? Does composition of the Supreme Court mean that the statute which now attributes three judges to Quebec be altered? Could Quebec's representation on the Supreme Court be reduced without Quebec's consent?
Mr. Schmeiser: I will answer that by telling you an anecdote.
Senator Murray: Should it be reduced?
Mr. Schmeiser: I will tell you how the provision got into the Constitution in the first place.
Canada is one of the few if not the only country where the position of the Supreme Court is not referred to in the Constitution. When I was working on what has now become sections 38 to 42, I thought that this was an unfortunate situation; namely, to operate in a federal society where there is nothing that gives any power to the Supreme Court of Canada other than a conventional rule that we follow the judgments of the Supreme Court of Canada. It is interesting that there is no constitutional basis for that other than a conventional rule.
As I was considering what should be put into these sections, it seemed to me that it would be good to deal in some way with the Supreme Court of Canada. It is worded in a very peculiar fashion. As I recall it, it refers to the composition of the Supreme Court of Canada.
What was intended and hoped for in a vague way was that if the Supreme Court of Canada were constitutionalized - and this is my view that it should be done - there would be something in the Constitution to refer to it and to deal with future changes concerning it. At the time that it was drafted, we had no idea what effect it would have and whether it would, for example, incorporate what is presently found by way of legislation. However, we thought that it was worthy to make some reference to the Supreme Court of Canada in the general amending formula. That is why those provisions are now there.
Senator Murray: I appreciate that, Professor Schmeiser, but I want your advice as to whether section 41(d), the composition of the Supreme Court of Canada, includes the provision - now a legislative provision - that three out of nine of the civil lawyers are from the Quebec bar.
Mr. Schmeiser: Yes.
Senator Murray: Is that covered in 41(d), or is it in 42(d)?
Mr. Schmeiser: At the time the provision was drafted, it was thought that this would not be covered. We were operating under that impression. On the other hand, after the provisions were accepted and put into the Constitution, I recall an interesting conversation with Professor Bill Letterman, whose judgment I respect very much, where he was of the view that, because of what we had done, those matters were now included in the Constitution of Canada. However, I do not know whether that is the case. I would have think about it.
Senator Murray: If it turns out they were not, do you think in this country, from what you know of it - just as I put the question to you about Senate seats - that it would be proper that Parliament and seven provinces with 50 per cent of the population could reduce Quebec's representation on the Supreme Court without Quebec's consent? What do you think of that as a proposition?
Mr. Schmeiser: Obviously, I would be opposed to it, but I do not think that there is any reasonable chance that that kind of legislation would ever pass or would even be considered. In fact, constitutional proposals that have been made over the years have been to increase Quebec's representation rather than to limit it. I would be opposed.
My overall view is that this is an area where we should have amendments to the Constitution Act. The place, role, function and status of the Supreme Court of Canada should be placed right in the Constitution itself.
Senator Murray: You made a reference - and we hear it frequently, incessantly from some sources - about how Canada is the most decentralized federation in the world, and so on. I understand the division of powers and what has happened with it over the years, but against that, among other things, you have in this country, as it now stands constitutionally, an unfettered federal spending power.
Surely you must agree that an unfettered federal spending power in areas that the Constitution supposedly attributes exclusively to the provinces is simply inconsistent with the division of powers.
Mr. Schmeiser: I personally do not accept that. My own view is that the level of spending is a political matter and must be decided by our political representatives from a constitutional point of view.
Senator Murray: In the context of the centralization versus decentralization argument, we know from experience it is the most powerful centralizing force. It is a bit irrelevant today now that we are broke.
Senator Beaudoin: It is transitory.
Senator Meighen: Professor Schmeiser, it seems to me that, with your remarkable memory and the events that you witnessed firsthand, you may become the first best-selling constitutional law professor ever to put a book on the shelves. I hope you will not feel constrained for too long before you put these remarkable memories on paper. In fact, it might be helpful if you did so before 1997 so we would have the benefit of that knowledge going into those discussions.
You characterize this bill somewhat negatively, to be charitable: as being distractive, unconstitutional, subversive, reversive, and that it makes future constitutional change virtually impossible.
Set against that in my own mind, in determining how I will vote, is the fact that it has been adopted, however unfortunately, by the elected representatives of the people. While I realize that we in the Senate have the constitutional power to disregard that, in my own case I would do so with great hesitancy unless it was a matter of absolutely fundamental importance, and I am not in any way suggesting that these matters are not of fundamental importance.
I am sorry to flog a dead horse, but would you agree or disagree that a sunset clause of five years, as Professor Monahan suggested, would reduce some of your concerns or have little or no impact?
Mr. Schmeiser: My general answer is that, if a bill is a bad bill, I would obviously be happier if it were gone in five years than if it were to last forever.
Senator Meighen: I might have expected that answer. I take it that you would not have put a sunset clause in the ranks of those measures you would be opposed to, but rather you might hold your nose and accept it if you had no other choice?
Mr. Schmeiser: Yes.
Senator Meighen: One phrase you mentioned caught my attention, and that relates to the involvement of people in constitutional change. That seems to have eluded us to some extent in Canada. I am one of those who believe that the fault of Meech Lake was more a matter of process than substance. Indeed, if the process were better, the substance might be saleable today. However, that is a matter of conjecture. Do you have any particular recommendation as to how the process could be improved with a view to involving non-political representatives in the process?
Senator De Bané alluded to the idea of vital interests being protected by a veto and looking at it on that basis rather than on a regional basis, and you made the distinction between the common market and our own situation. Is that an avenue that would offer us some hope?
Mr. Schmeiser: With respect to process, there are some fundamental changes to a constitutional document that ought to be voted on by the people as a whole. There is provision for that, for example, in the American Constitution with respect to the adoption of amendments, and I think that it has a lot to say for itself.
I am not in favour of the suggestion which has lately been bandied about quite frequently about having an unity committee touring the country, a committee composed of distinguished individuals, because I think that, under our system, the power does lie with Parliament and the provincial legislatures. We have had these committees in the past. Some of you may recall for example, the Romanow-Chrétien committee which toured the country. Some of you can go back to the Robarts committee. In the final analysis, those committees have not proved very useful because one must recognize where the power lies and where the decisions must be made.
With respect to the protection of vital interests and approaching it from that point of view, that has a lot to commend itself, but it is a very difficult area, and one would have to give it a great deal of thought.
The Chairman: On behalf of the members of our committee, I extend our appreciation and thanks to Professor Schmeiser for his excellent testimony.
[Translation]
I am very happy to welcome our next witness, a well-known figure, Mr. Claude Ryan.
Mr. Claude Ryan: Mr. Chairman, with your permission, I will read the brief I presented, I am sorry to say, only in French. I finished it only yesterday and I no longer have access to the service that used to translate my documents in both official languages. Your translation services are quite competent and I am sure they will do a wonderful job. I will be happy to answer your questions in either official language.
The actions of the federal government and the provinces other than Quebec between 1980 and 1982, when they made substantial constitutional amendments against the expressed wishes of the Government and National Assembly of Quebec, had serious consequences. Since 1867, no changes affecting the balance of power within the federation had been made without Quebec's agreement. On two occasions within relatively recent memory - at the time of the Fulton-Favreau formula in 1964 and the Victoria formula in 1971 - the federal government and the premiers of the provinces had reached agreement on a constitutional amending formula. However, because on each occasion the Government of Quebec decided not to submit a motion for ratification to the National Assembly, Quebec's disagreement was considered to be sufficient for matters not to be taken any further. In 1982, relying on a decision of the Supreme Court holding that a constitutional amendment could be initiated with the agreement of a substantial majority of the provinces and the support of nine provinces, Parliament solemnly proceeded to repatriate the Constitution and entrench a Charter of Rights and Freedoms and an amending formula. The Parti Québécois, which at that time formed the government, and the Liberal Party of Quebec, which was sitting as the Opposition, held opposing views as to whether a Charter of Rights and Freedoms was a sound and opportune idea. The Parti Québécois was against the idea and the Liberal Party was supporting it as it has always been. The National Assembly was nonetheless virtually unanimous in warning the federal government against any attempt to amend the Constitution without Quebec's agreement.
During the 1983 election campaign, the leader of the Progressive Conservative Party, Brian Mulroney, committed himself to bringing Quebec back into the Canadian constitutional fold if he were elected. In a manifesto published in the spring of 1985, with a view to the Quebec election being held that same year, the Liberal Party of Quebec laid down five conditions to be met if Quebec were to adhere to the Constitution Act, 1982. These conditions were recognition of Quebec as a distinct society within Canada, broader powers for Quebec in relation to immigration, participation by Quebec in the selection of the judges of the Supreme Court of Canada, a veto for Quebec in constitutional matters and limits on the spending power of the federal government in relation to cost-sharing for programs under provincial jurisdiction. The Meech Lake Accord, which was signed in April 1987, dealt with each of these subjects. Its responses to these issues were considered by the Bourassa government to be acceptable. In June of that year, the National Assembly was one of the first legislatures to adopt a resolution approving the Accord. Unfortunately, two provincial premiers had given their word but it was not kept and the Accord was not implemented.
Having been a member of the Quebec government between 1985 and 1994, I followed developments in the constitutional arena closely during that period. Despite the opposition expressed by the Parti Québécois, I am convinced that the Bourassa government had the support of the people when the National Assembly adopted a resolution approving the Meech Lake Accord. History will also attest to the fact that the failure of the Meech Lake Accord was followed by a spectacular surge in sovereignist sentiment in Quebec.
With the Charlottetown Agreement, we saw a new attempt to resolve the constitutional debate. However, that agreement substantially watered down certain aspects of the Meech consensus. In addition, it dealt with a vast range of other subjects, some of which, specifically aboriginal self-government and Senate reform, were not very popular, especially in Quebec because we had just been through the Oka crisis. In rejecting the Charlottetown Agreement, the people of Quebec defined a threshold below which any future attempt to resolve the constitutional debate would be destined to fail.
The rejection of the Charlottetown Agreement was followed by the referendum of October 1994. Because the federal government had systematically refused since it was elected in October 1993 to reopen the constitutional debate, the sovereignists took great pleasure in recalling the events of 1982, 1990 and 1992 and arguing that the federalists had no solutions to propose to the Quebec problem. The referendum campaign, which was swinging toward the federalist camp at first, then saw a strong recovery in the sovereignist camp. The concern this prompted in federalist circles in large part explains the commitments Jean Chrétien's campaign eventually made concerning recognition of the distinct society, granting a veto and a new division of responsibilities in the field of job training.
I wanted to go over this historical background for three reasons. First, the constitutional developments I have outlined remind us that the problem we are facing today is not solely the result of the last referendum; rather, it is the legacy of fifteen years of failed experiments. Second, they invite us to realize that any lasting solution to the current problem, while not ruling out legislative and administrative measures, will have to include constitutional solutions that take in the distinct society, the amending formula and a number of other subjects, most importantly the spending power and the division of legislative and administrative powers. Third, they remind us that the two measures that were before Parliament last November were the result of referendum commitments which relate directly to the expectations that Quebec has put forward on countless occasions.
Because the Senate Committee's terms of reference relate to Bill C-110, I shall limit myself to a consideration of that Bill. I shall first make a number of comments on various provisions of the Bill. Then, in conclusion, I shall submit a general assessment of the Bill and what action will have to be taken on it if the process on which the federal government has embarked is to bear sound and lasting fruit.
It is important at the outset to emphasize the limited scope of Bill C-110. The federal government wanted to use this initiative to carry out the commitment made by Mr. Chrétien near the end of the referendum campaign, to give Quebec a veto over any constitutional amendment. Given the nature of the subject in question, obviously the response should in principle be constitutional in nature, and not merely statutory. In the short term, the legislative route taken by the federal government will give Quebec greater protection in respect of constitutional amendments, particularly as regards the matters listed in section 42 of the Constitution Act, 1982. In the long term, however, it does not offer the same guarantees of permanence and inviolability as a constitutional solution. Quebec cannot be satisfied with a veto that is subject to the pleasure of Parliament. The status of major partner within the Canadian federation that Quebec is quite properly seeking must be defined not in a mere statute, but in the Constitution. The approach set out in Bill C-110 therefore could be acceptable only as a temporary, transitional measure to prepare the way for a constitutional solution.
The formula proposed by the federal government applies to a limited number of subjects. For instance, the following categories of subjects are not addressed by Bill C-110:
Subjects that are governed by the unanimity rule under the present amending formula, in section 41 of the Constitution Act,1982;
Subjects that are governed by the 7/50 rule, on which a province may express its dissent or its wish of opting-out and require financial compensation in some cases, in section 38;
Subjects that affect only one or some provinces, for which the agreement of Parliament and of one or more of the provinces concerned, and nothing more, is required, in section 43;
Subjects involving the Constitution of the Government of Canada, over which Parliament alone has jurisdiction, in section 44;
Subjects involving the constitution of a province, over which the province concerned alone has jurisdiction, in section 45.
Notwithstanding the limits that I have just stated, the veto that the federal government is prepared to grant would still apply to a significant list of subjects. Among those, I would note the following, the first four of which are set out in section 42 of the Constitution Act, 1982: First, the Supreme Court of Canada, except the composition of the Court, which is subject to the unanimity rule; the powers of the Senate, the method of appointing senators, the extension of existing provinces into the territories, the creation of new provinces, the number of senators per province and the residence requirements for members of the Senate; I will add the Charter of Rights and Freedoms to an extent that I am not ready to determine precisely.
In terms of the decision rule, properly speaking, Bill C-110 is a better response than the present amending formula to the dual dimension of the Canadian situation which must be addressed in any lasting solution: linguistic and cultural duality and the regional reality. In its report, published in 1980, the Pepin-Robarts Commission wrote that:
...duality and regionalism lie at the heart of the crisis.
It concluded that any solution had to be sought in light of these two aspects of the Canadian situation. In view of this dual requirement, the amending formula set out in the Constitution Act, 1982 is obviously inadequate.
Between 1980 and 1982, it became apparent that the present formula might lead to major decisions excluding Quebec. However, the formula might also result in decisions from which Ontario, or a majority of the Western provinces and population, or a majority of the provinces and population of the Atlantic region, were excluded. The 7-50 formula in fact makes possible a constitutional amendment which has been approved by a majority of provinces composed of:
First, Quebec, Ontario, the four Western provinces and Prince Edward Island. Nova Scotia, New Brunswick and Newfoundland, these three provinces representing about 94.4 per cent of the population of the Atlantic region, would be left out.
Second, Quebec, Ontario, the four Atlantic provinces and Manitoba. Saskatchewan, Alberta and British Columbia, these three provinces representing about 86 per cent of the population of Western Canada, would be left out.
Third, Quebec, the four Western provinces, Prince Edward Island and Newfoundland. Ontario, New Brunswick and Nova Scotia, the last two provinces together representing 74 per cent of the population of the Atlantic region, would be left out.
From the standpoint of a balance between linguistic duality and the regions, a formula that gives Quebec a veto and at the same time protects each large region of the country from changes it does not want is fairer and wiser in political terms than the present formula.
In addition, Bill C-110 still uses seven as the minimum number of provinces which have to consent in order for a constitutional amendment to be proposed in Parliament. On the other hand, the group of consenting provinces will have to include the four most populous provinces in the country, while under the present formula, as we saw earlier, any one of them may be excluded. Thus we are a long way from the principle of absolute equality among the provinces on which the present formula is based, but we are closer to a different balance which will ensure that decisions are more representative and guarantee that each region of the country participates in the constitutional amendment process.
In the case of Quebec and Ontario, a veto appears to be logical and legitimate. These two provinces were part of the country at its inception. They are the two most populous provinces and each of them forms a distinct region. In the case of Quebec, there is another claim in addition to the first three: Quebec is the primary and principal seat of French culture in Canada. I think that its involvement in a basic decision relating to the Constitution is essential given Canada's linguistic and cultural duality.
In the case of British Columbia, a veto also appears acceptable. That province has a rapidly growing population which already amounts to 12 per cent of the population of Canada. In addition, it forms a distinct region in geographic, demographic, economic and cultural terms. Bill C-110 does not expressly give Alberta a veto. Since Alberta accounts for 55 per cent of the population of the three Prairie provinces, it will nonetheless have to be a party to any agreement by that region to a constitutional amendment. In order for the consent of that region to be obtained there will still have to be agreement by another province in addition to Alberta.
Under the formula set out in Bill C-110, the weight carried by the six least populous provinces will be more fairly distributed. Through the veto granted to their respective regions, their participation in the amending process will be guaranteed. However, only three of them will need to agree in order for an amendment to be considered. It will be impossible, moreover, for there to be a recurrence of the 1982 experience, when the consent of these six provinces, whose combined population amounts to less than two thirds of the population of Quebec, contributed to the creation of a "substantial" majority of provinces which was held to be sufficient to overcome Quebec's objections.
The regional vetoes will indeed make any future constitutional amendment difficult. Under the formula set out in Bill C-110, in order for any amendment to be adopted it must have first been approved by at least seven provinces which may not represent less than 90 per cent of the total population of Canada. On the other hand, this must be considered to be a transitional, temporary formula. While waiting for there to be agreement on a definitive formula, Parliament must ensure, for the immediate future, that any constitutional amendment reflects a consensus that specifically includes Quebec. Canada operated for 115 years. I recently reminded my good friend Robert Stanfield that, from 1867 to 1982, under the unwritten rule of unanimity among the provinces for all important changes, the country nonetheless experienced remarkable development. On the other hand, when there was an attempt to deviate from the mutually recognized rule that had long been observed, much more serious problems were created than those that were supposedly being solved.
When the Constitution Act, 1982 speaks of the consent of a province to an amendment to the Constitution, it stipulates that that consent must be expressed by a resolution adopted by a majority of the members of the legislature of the province. Each province is free to state conditions, as necessary, to which the exercise of that prerogative will be subject. Thus two provinces, British Columbia and Alberta, have enacted statutes providing that any proposed constitutional amendment must be submitted for the approval of the people of the province by referendum. However, those conditions are within the authority of each province. They are not defined in the amending formula.
Bill C-110 is less clear, more abstracted on this point. It stipulates that no federal minister may present a proposal for a constitutional amendment to Parliament unless the consent of a majority of provinces representing a majority of the population in each region has first been obtained.
This passage, however, is very vague as to the form in which the province's consent must be expressed. Does Parliament intend to reserve to itself the power to go directly to the people of a province, over the head of their government and legislature, to obtain their consent? Or does it intend to be satisfied with the consent of the government of a province - or only of the premier of that province - and not to require that anything be done by the legislature of the province? The wording of Bill C-110 opens the door to this sort of interpretation, which was not denied by the representatives of the federal government who appeared last December before the House of Commons Committee responsible for examining Bill C-110.
According to Mary Dawson, the Associate Deputy Minister of Justice, in her testimony to the Committee, the consent of a province would normally be expressed by its government and legislature. Always according to Mary Dawson, it would appear that there was a deliberate choice of vague language. She said:
...whatever the situation, any reasonable method of obtaining the consent of a province could be used.
This explanation means that the federal government did not want to preclude the possibility of holding a referendum. This provision will have the pernicious effect of dangling the Damocles' sword of a federal referendum over any constitutional negotiations with Quebec. There is an important principle at issue here. In constitutional terms, the provinces are distinct and sovereign legal entities, which have their own fields of jurisdiction, their own powers and their own political institutions. In areas that fall within provincial jurisdiction, a province normally expresses its will through the voice of its government and its legislature. This principle must be clearly recognized. The exercise of a province's power to consent or refuse cannot be subordinated to the threat of the federal government making a direct overture to the people of the province.
If there is an irreversible disagreement between the federal government and Quebec, I think we should seek out a political solution. The federal government can hold a referendum at any time, if it so wishes, but this has nothing to do with the legal consent that the province must give. It can fight to oust a provincial government, whether in Quebec or elsewhere, but it cannot take the place of that government and exercise, by way of a referendum, authority which has been granted to that province. That is my basic position.
If Bill C-110 becomes law, Canada will de facto, in respect of constitutional amendments, be subject to two sets of rules: those laid down in the Constitution Act, 1982 and those laid down in Bill C-110. Since the consent of Parliament will still be required for any constitutional amendment under both sets of rules, we might surmise that, regardless of what majority of provinces has expressed its will under the present amending formula, the last word will go to the majority of provinces which expresses its will under the new federal statute.
In other words, it will still be possible for a majority of provinces established under the present formula to prevent a constitutional amendment being proposed in Parliament, because the formula still exists. However, only a majority of provinces established under Bill C-110 will be able to allow a constitutional amendment to be proposed in Parliament and ultimately adopted.
Accordingly, the proposed formula, even being only temporary and transitional - hopefully - is in itself very important because we are adding another amending formula to the existing one. The last one will be more important than the first one in the order of precedence.
This juxtaposition of two amending formulas expressing different approaches may generate tension and conflict; it will also be a source of greater complexity. Accordingly, it can only be temporary and transitional.
Given that a federal-provincial conference must be held in 1997, it is important to start trying to find a unified and more simple formula now, through which it will be possible, in the Constitution itself:
First, to give the linguistic and cultural duality of Canada, and the rich diversity of its regions, their proper place;
Second, to ensure that the provinces participate fairly in constitutional amendments, while at the same time avoiding locking the country into too rigid a yoke;
Third, to give Quebec a clear veto, which will equip it to deal with any repetition of the events of 1982 and enable it to participate more confidently in the future development of our system of government;
Fourth, to reduce to a minimum, or even eliminate completely, if possible, the matters that are subject to the unanimity rule.
To conclude, I would like to briefly examine two questions that go to the heart of the subject.
In response to the invitation you extended to me, I must first clearly say that whether I am for or against Bill C-110. We can discuss a bill for a long time, but fortunately comes a time when everyone has to take a decision. I have strongly emphasized the fact that this legislative measure must be seen to be transitional and temporary in nature. I also believe it necessary for the government to make a number of amendments to the Bill which will make it clearer, particularly with respect to the consent that must be obtained from a province before a proposal for a constitutional amendment can be presented to Parliament.
That being said, I must ask myself the following question: notwithstanding its limitations, does Bill C-110 give Quebec stronger protection in relation to amending the Constitution? Provided that the ambiguity surrounding the method by which provincial consent will be given is removed, the answer to the question must be yes.
In areas where Quebec already has a veto or the power to withdraw, Bill C-110 neither gives it anything more nor takes anything away. On the other hand, in areas where the matters set out in section 42 of the Constitution Act and maybe in a number of other areas, to an extent yet to be determined, in the Charter of Rights and Freedoms are concerned, Quebec will de facto have a veto which it does not currently have if Bill C-110 is enacted.
If Bill C-110 had been in effect at the time, no federal minister would have had the authority to submit the draft resolution to Parliament which subsequently became the Constitution Act, 1982. It is certainly too late to go back to how things were on that point. But if Bill C-110 becomes law, we will at least have a guarantee that in the immediate future no new province may be created, no change may be made in the powers of the Senate or the method of selecting senators or in the role of the Supreme Court and there may be no unwarranted expansion of the scope of the Charter of Rights and Freedoms in the foreseeable future without the consent of Quebec. These are real gains.
Provided that the question of principle raised earlier is resolved, I believe that we should accept these gains, while stressing that the veto given to Quebec will have to be entrenched in the Constitution as soon as possible.
If, however, we were to leave stop at the two pieces of legislation recently submitted to Parliament, that is, the distinct society resolution and Bill C-110, the impact of these measures on future constitutional prospects in Quebec would be very limited.
In 1987, the sovereignists opposed the Meech Lake Accord, which would have given Quebec much more substantial gains. We cannot expect that they will now give their support to the measures that have no constitutional validity and the impact of which for Quebec, in terms of content, is significantly lower than Meech Lake.
For their part, the voters who, while not sovereignists, allowed themselves to be persuaded to vote Yes in the last referendum in order to express a desire for change have exhibited no signs of enthusiasm toward such modest measures. If the federal government believes that it can shore up the support for Canadian federalism among the people of Quebec by restricting itself to measures as narrow as the distinct society resolution and Bill C-110, it is sorely mistaken. It would be misleading the rest of Canada if it were to try to convey this impression there.
If, rather, the federal government now intended, by introducing the distinct society resolution and Bill C-110, to suggest certain approaches that it intends to put forward with a view to the 1997 constitutional discussions, these two initiatives might signal the significant reform that the October referendum again showed to be necessary.
In view of the gravity and urgency of the situation, it is important for the federal government to make its intentions in this respect known as soon as possible. It is also important that, over the coming months, it be able to attract the support of a sufficient number of provinces that it can formulate appropriate proposals for change. These proposals will have to go far enough for it to be possible, in defining a constitutional framework that is compatible with the conviction held by a vast majority of Quebecers, to form a distinct people entitled to the equality that is rightly theirs and to a satisfactory degree of freedom within Canadian federalism.
They will also have to aim to entrench recognition of Quebec's distinct character and veto in the Canadian Constitution. They will also have to make substantial adjustments in respect of the federal spending power and the division of powers. Keeping in mind that other regions have grievances and expectations in respect of the Canadian federation and keeping also in mind the grievances and legitimate expectations put forward by the Aboriginal communities, nonetheless, in the present context, we must give priority to addressing the Quebec situation. We must avoid burying that subject in a host of other subjects, as happened in the case of the Charlottetown Agreement.
If the federal and provincial governments succeed in reaching agreement on the issue of Quebec, they will then be in a better position to address a number of other subjects which urgently demand the concerted attention of the governments and legislatures of the entire country, together, with Quebec's participation, in a climate of mutual respect, mutual support and cooperation.
Everyone, ordinary individual and elected representative alike, who loves Canada and wants to secure its future must make the effort to formulate serious proposals for change as soon as possible, bringing all their skills to bear, rather than engaging in pointless and sterile exercises in mutual distrust, shortsighted legalistic strategies, manipulation of opinion, threats and ultimatums.
Senator Rivest: Mr. Ryan, like my colleagues, I noted that you stressed the transitional nature of Bill C-110. You also gave us a well-rounded analysis, in terms of principles, of why Bill C-110 proposes a regional-based formula which corresponds to the one presented in the Victoria formula. You quoted the Pepin-Robarts report as well as the Beaudoin-Dobbie report which retained this formula.
The committee has heard that, from a political perspective, rightly or wrongly, when the Constitution was patriated in 1980, this regional formula was rejected. At the time of the Meech Lake Accord and the Charlottetown Agreement, it was also rejected. Your analysis gives us some very useful points to consider when we finally vote on Bill C-110.
My question does not concern these points. However, I felt it was important to call them to mind. I was struck by your insistence that the authority of the Quebec National Assembly and of the other provincial legislative assemblies must be respected when the time comes to seek consent for a constitutional amendment. To my mind, this is an absolutely fundamental consideration, one that we have had the opportunity to underscore.
I do not wish to focus on anything other than your testimony. On reading the text of your submission, one thought came to my mind. Contrary to what some may think, Bill C-110 was brought in to fulfil the commitment made by the Prime Minister at the time of the referendum. The Prime Minister made an undertaking that there would be no changes to the Constitution without Quebec's consent. This was one of his commitments.
This provision in Bill C-110 opens the door to the possibility of consent other than that sought from the legislative assemblies. I wonder if this bill is simply not one component of an action plan which would allow the Canadian government to proceed with constitutional changes without Quebec's consent. Could it possibly be a means of putting new proposals for amending the Constitution on the table?
Furthermore, given the fact that Mr. Bouchard, the next premier of Quebec, stated that he had no desire to take part in any kind of constitutional talks, the federal government decided to set in motion a process whereby constitutional change would be considered in Canada. It has decided to act, in concert with the other partners, the provinces and aboriginal peoples, in an effort to reach some kind of constitutional agreement.
Under the proposed legislation, given that the consent of the National Assembly is not specifically required, this legislature could be bypassed. To the extent that the amending formula has some legal meaning and stability, the government could conceivably bypass the Government and National Assembly of Quebec and seek to have any constitutional amendment approved directly in a referendum held either in Quebec or in the rest of Canada.
I know that you have already given some thought to this question. Would you go so far in your objections to the government bypassing the National Assembly in this manner as to refuse to have the people of Quebec endorse a series of constitutional amendments drafted in this manner and not supported by the legitimately elected Government and National Assembly of Quebec? We could end up with an amending formula resulting in a constitutional amendment that would be legally approved, but which would not have the support of the legitimate government of one of the provinces. Would you carry your objection this far?
Obviously, this is a very real political problem, considering that the sovereignist government in power in Quebec is unwilling to take part in the process of renewing federalism. Are you prepared to tell the committee whether you would support this kind of action on the part of the Canadian government?
Mr. Ryan: I will start by reviewing several historical facts. Senator Rivest and I were both in the National Assembly in 1981 when the federal government proposed a draft Charter of Rights to the provinces, a draft amending formula and other provisions with which the Liberal Party, which sat in opposition at the time, was generally in agreement. We agreed more with the substance than with anything else. However, the government and the majority in the National Assembly disagreed. We had to choose and a vote was held.
As Leader of the Opposition, I called upon my colleagues in Opposition to defend first and foremost the prerogatives of the National Assembly. Polls taken at the time indicated to us that the Charter of Rights had the support of the majority of Quebecers.
We told ourselves that we were operating within a constitutional framework. Since the government and the majority in the National Assembly were clearly opposed, we showed our solidarity because we wanted to preserve the prerogatives of the National Assembly.
Senator Rivest, as one of our negotiators in Ottawa, knows full well that I had been presented with Bill C-110 when I was a member of the Quebec government, I would have made it abundantly clear that I did not like this initiative. I think Mr. Bourassa would have told you the very same thing. Besides, you would probably not have submitted it to us.
Senator Rivest: No.
Mr. Ryan: You would have let people know that we would reject such an initiative. Let me tell you how I think the process should unfold. It is quite conceivable that reasonable proposals from the federal government and the provinces will be rejected by the current majority in the Quebec National Assembly. What happens then? The federal government is free at any time to consult with Quebecers. It can stage a referendum at any time. It does not need Bill C-110. Assuming that it wins its case in a referendum, then you are faced with an hitherto unseen political situation. At the very least, the Quebec government will have to act with considerable restraint. Another election battle will be waged. It will be up to those who support this initiative to defend it come election time and to defeat the government. That is how the democratic process works.
We cannot go along with the federal Parliament substituting, in a paternalistic fashion, for the Government and National Assembly of Quebec when it comes to exercising a prerogative which, by law, as been conferred upon the provinces.
Senator Rivest: When it comes to constitutional amendments, from a legal standpoint, you say that we must respect the institutional component, that this is the very essence of a federal system. We must respect the basic institutions of the federation, namely the federal government and the legitimately elected governments. However, this leaves room for one level of government to take some kind of initiative and to go to the people. All this does is put political pressure on the elected government. We should respect at all times the legitimacy and the decisions, even those we do not like, of elected governments.
Mr. Ryan: I will admit that I rewrote this part of my brief four or five times in the space of one week. I considered all sides of the issue.
Senator Rivest: Including the approach taken in Bill C-110?
Mr. Ryan: Of course, I tried to understand the approach taken by the framers of the bill.
Senator Rivest: The more I look at the bill, and your brief compels me to do so, the more I am left with the impression that the aim of the proposed legislation - because basically, no constitutional amendments will be adopted before 1997 - is not in fact to protect constitutional rights or to prevent any constitutional amendments in the short-term. What the bill does is give the government a political tool, one which I, like yourself, would like to see remain within the political sphere. The government does not need Bill C-110. In my view, it could accomplish the same thing with a general law, as you pointed out.
Senator Gauthier: Mr. Ryan, executive federalism as defined in the Meech Lake and Charlottetown Agreements is dead. Do you agree?
Mr. Ryan: No, not necessarily.
Senator Gauthier: You believe that it is still possible?
Mr. Ryan: No, to be quite honest with you, I am very cautious when it comes to the subject of referenda.
Senator Gauthier: I listened to what you had to say to Senator Rivest and...
Mr. Ryan: That is another matter. However, where constitutional questions are concerned, I am not someone who subscribes to the theory that any constitutional amendment proposal should be put to a referendum. Many changes have taken place in Canada's 125-year history. In the United States, there is no mandatory requirement to put constitutional amendments to a universal referendum. This requirement holds true in very few countries.
Senator Gauthier: There is no mention of this in the 1982 Constitution.
Mr. Ryan: I was merely answering your question.
Senator Gauthier: However, in the current Constitution, there is a reference to provincial legislative assemblies.
Mr. Ryan: Yes, you are quite right.
Senator Gauthier: Why then did you state that we need a clearer provision respecting the consent that must be obtained from a province before the bill can become law?
Mr. Ryan: Because some confusion has arisen, not only as a result of the wording of the bill itself, but as a result of the explanations given by federal government representatives who have testified before this committee and before the House of Commons committee that looked into the bill. Ms Dawson clearly stated that the government was being deliberately vague to leave itself the freedom to act as it sees fit in due time. These are all expressions that should be banned from any constitutional discussions.
Senator Gauthier: I quite agree with you. Moving on to another subject, what do you say to people like Mr. Andrew Petter and even Professor André Tremblay who testified before our committee that Bill C-110 poses a threat to Canadian unity? How do you respond to these assertions?
Mr. Ryan: The federal government determined that a legislative initiative was warranted under the circumstances in order to demonstrate that the commitments made by the Prime Minister were not simply empty promises and that he fully intended to act on them. He took the initiative. It is nothing definitive, but it is a start. I think it is perfectly legitimate for him to proceed in this manner. I am not questioning this procedure. If his actions have prompted many, like those who have come before this committee, to voice objections, then that is fine. It is all part of the political debate.
Once this debate has taken place, people will have to vote yes or no. Fortunately, we have this rule, otherwise, debates would drag on indefinitely.
Senator Gauthier: The Justice Minister told us that this was a transitional measure.
Mr. Ryan: Yes, it is.
Senator Gauthier: He stated this before the committee and I think he made himself fairly clear.
Mr. Ryan: This has to be made quite clear, because there is a danger that this will become a permanent measure. You know how our country thinks, how it is somewhat slow to address such issues. I think there is a danger that this could become a permanent measure. It is important to emphasize that this cannot be anything more than a temporary, transitional or limited measure.
Senator Gauthier: Section 49 of our Constitution states that 15 years after the Constitution comes into force, that is in mid-April 1997, a conference shall be convened. Are you one of the people who believes that this conference will indeed be held or do you feel that the amendments that have already been made since 1982 go far enough in terms of meeting the requirements of section 49? Is it absolutely necessary to convene a constitutional conference before mid-April 1997 or can we dispense with this exercise?
Mr. Ryan: I think that the conference is to be convened in 1997 and is specifically to address the amending formula. I hope that this opportunity will not be missed. If we want this conference to be successful, we must do the work between now and then. The work of conversation and discussion must be done so that we can reach a clear formula.
In my brief I suggested that, by juxtaposing the two formulas, it would not be difficult to come up with a unified one. I believe we would be fairly close to the main formulas that had been proposed for some 30 years. We can hardly do away with the regional vetoes. They may possibly be better structured than is the case in Bill C-110. I would be prepared to live with the version contained in Bill C-110, mind you. But I do not see how we can reach an amending formula otherwise. And then, the unanimity rule is very bad. We must find a way to get out of that straitjacket.
Senator Gauthier: On page 10 of your brief, you write, and I quote:
Given that a federal-provincial conference must be held in 1997, it is important to start trying to find a unified formula now, through which it may be possible, in the Constitution itself:
(a) to give the linguistic and cultural duality of Canada, and the diversity of its regions, their proper place;
Mr. Ryan, Canada's Constitution, Charter of Rights and Freedoms, and language rights were passed 14 years ago. You were one of those who came out in favour of the Mahé decision in Alberta, granting school governance to a French-speaking minority outside Quebec.
But do you realize that, even today, Ontario does not have this school governance? Nor does British Columbia, the Yukon, or Newfoundland.
You say it is high time to give linguistic duality its proper place; I think governments can acknowledge, generously, the existence of Francophones in all parts of the country. As long as those governments do not accept or implement the 1982 constitutional obligations, I believe it is entirely to be expected that people will say, listen, I do not trust them.
What must we do to convince those governments of the urgency of creating a normal situation in all parts of Canada, that is, ensuring that linguistic duality is respected coast to coast and not just in certain regions or provinces?
Mr. Ryan: You were referring specifically to educational rights, if I understood you correctly.
Senator Gauthier: Yes.
Mr. Ryan: I am of the opinion that section 23 of the Constitution Act, 1982, provides reasonable protection for both official language minorities. There was one section in particular that was likely to produce developments: the section on school governance.
Senator Gauthier: Section 23.3(b).
Mr. Ryan: Following the Mahé decision, this section was given a liberal interpretation by the Supreme Court. I believe that considerable progress has been made in Saskatchewan and Alberta.
Senator Gauthier: It certainly has.
Mr. Ryan: Setting up language-based school boards in provinces like Saskatchewan and Alberta - with which I am quite familiar, because I used to go there often - is not something that is accomplished overnight, but a great deal of progress has been made. Responsibility was given to Mr. Edgar Gallant, who did a very good job.
Senator Gauthier: Is that job completed?
Mr. Ryan: Yes, it is. But I do not believe that other provisions need to be added to the Constitution. I think we can go still farther with this.
Senator Gauthier: You have Ontario with its critical mass of 500,000 Francophones. They do not have school governance in all parts of the province, because Ontario has always supported the initiatives of the federal government in power. I need not remind you of people like Robarts, Davis and Peterson, who lost their shirts because they supported the federal government. Now, where this situation is concerned, the Ontario government is off balance.
Mr. Ryan: If the issue of Quebec can be resolved, Quebec will be much more anxious to help. When I was a member of the government I suffered a great deal-as Senator Rivest knows-because we were not in a position to do enough for French- speaking communities in the other provinces: we felt overwhelmed by our own concerns.
If that issue can be resolved, Quebec has a very great responsibility to support these communities. It can do so in many ways. Be assured that I fully share your concern about this subject. I was not up-to-date on the exact situation of French-speaking communities outside Quebec. I met with them recently. I could feel that they were very worried about the directions being taken by the present Ontario government. They did not speak with me about subjects as profound as the one you mention.
Senator Beaudoin: Mr. Ryan, I must tell you that I am impressed by your brief. I fully agree with its scope. I found two points of particular interest: section 42, and the transitional nature of Bill C-110.
It is true that Bill C-110 is useful in terms of protecting Quebec in areas addressed by section 42. I have always maintained that from Quebec's perspective, given that it is only one province among seven, the weakness of the amending formula stems from the provisions respecting the Supreme Court, the Senate, and the establishment of new provinces. Although in a way I can understand this situation, I do not think it is adequate.
There is protection with respect to the division of powers; there is protection in the case of the right to dissent: fine. There is not complete protection in the central institutions. If we want Quebecers to remain in the Canadian federation, we must protect them at the very heart of the country. It is true that Bill C-110 is a step in this direction.
I share your point of view on referendums. This subject is starting to worry me a great deal-not so much the 1980 and 1995 referendums, because Quebec cannot leave Canada without a referendum. As a jurist, I do not believe in elections serving as referendums. A government is elected for many reasons other than leaving. In our country, we tend to hold referendums all over the place. I even think we make them binding in some cases. In my opinion, a binding referendum is of questionable merit since the Privy Council has stated that the legislative assembly, not the referendum, has the last word.
I wanted to come back to the transitional nature of Bill C-110. This bill can only be temporary. In 1997 we will have to find an amending formula that is acceptable to Canada and in particular to Quebec. Senator Meighen maintains that there should be a sunset clause. The unofficial French translation for "sunset clause" is "clause crépusculaire", a term I have not found in any books written in French; no matter.
I find the idea of a sunset clause interesting. A sunset clause could be for one, two or even five years. I think you do not entirely agree. You say that this bill should be temporary but do not specify a time limit and that, if we miss our opportunity next year, Quebec will still be protected. I would like to hear a little from you on this subject. With a sunset clause, if we ever manage to reach a great constitutional amendment, the sunset clause will have no effect since the Constitution always takes precedence over legislation. Do you object to a sunset clause?
Mr. Ryan: Mr. Chairman, before I answer Senator Beaudoin's question, I would like to clarify a point that was raised this afternoon and that has a direct bearing on what we are discussing today: the difference between a veto and opting out.
This point was raised with Mr. Schmeiser, the person who spoke before me; with all due respect for him, I simply want to clarify a few facts. He said that in 1981, Mr. Lévesque had agreed to the eight-party formula and that, as a result, Quebec had agreed to it. I am terribly sorry, but the National Assembly never voted on that formula. Mr. Lévesque never submitted that formula to the National Assembly. Thus I have always considered - and that is why I said at one point - that I hoped consent would not be given by the premier alone.
While Mr. Lévesque was attending the conference in Ottawa, I was the Leader of the Official Opposition, and I sent him a telegram informing him that opting out was not the same thing as a veto at all. I begged him to be very careful before giving up the veto. The difference between them is as follows.
Mr. Lévesque had just lost a referendum. He had to find a way to appear to be participating in constitutional reform without compromising his sovereignist goals. That was the price he had to pay if he was going to take the referendum results into account and still keep some unity in his party, which strongly opposed any further Quebec participation in federalism. He found the opting-out formula. It was perfect because, of course, it suited him every time Quebec opted out and became more separatist. If the others were unaware enough to become further bogged down in centralization, that suited the Quebec sovereignists perfectly.
You have to think twice about opposing a veto. You have one of two choices, yes or no, as I was saying earlier. You have to say no if there are compelling reasons, and you have to say yes when reality makes that necessary. There is a big difference between the two. Where political commitment is concerned, although the regional veto formula is much more serious, it implies one condition: that we stop considering Quebec as one among 10, always, blindly, automatically equal. With the regional veto formula, we will never get far.
When the sovereignists say we must recognize them as a people, my answer to them is yes, fine, but how are you going to make people in the Atlantic provinces consider themselves a single people with people in British Columbia, and vice versa? They have no answer. The regional veto formula alleviates that situation. The Pepin-Robarts report concluded that we should put both aspects together and that doing so was the only solution to Canada's problem. I read that report after the Quebec referendum. I consider it one of the best documents published on this issue.
Let us return to your question about a sunset clause. In Quebec we have had experience with a sunset clause, with the Charter of Rights.
Senator Beaudoin: That may not be the best example.
Mr. Ryan: No; it puts you in an extremely uncomfortable position. In this case, if you include a sunset clause until 1997 and the governments meet in 1997 and fail to agree, the sun sets on your sunset clause, and Parliament must pass new legislation if it is to rise again.
In the normal course of events, unless there is new legislation, the sunset clause expires, and Quebec finds itself empty-handed as before, as if nothing had changed. There will be no need for a chapter in history about it, because it will have had no effect.
Senator Beaudoin: If we cannot even extend a sunset clause, things are not going very well. But I do understand your reservation.
Mr. Ryan: Senator Beaudoin, politics has taught me one thing: a bird in the hand is worth two in the bush.
Senator Beaudoin: You are quite right. Senator Rivest was explaining a very interesting theory. On the one hand, the veto protects Quebec; on the other hand, it prevents Quebec from getting more because there are other vetoes. We turned down the Victoria formula. Did we gain a great deal? If we have a veto, at least we have a bird in the hand. In fact, we must hedge our bets. I think that is your philosophy.
Mr. Ryan: I think that earlier Senator De Bané summarized very well what happened in Victoria: the purpose of that conference was to re-examine the distribution of powers where social issues were concerned. Emphasis was placed on the amending formula and patriation. Quebec said that, since it had gotten no satisfaction on the conference's main objective, it did not want to agree to the other one, preferring to keep it as its only negotiating instrument. Quebec did not oppose the Victoria formula; on the contrary, Quebec favoured it because of the particular context at that time.
I thought that, with the veto, we were participating as a major partner. Of course, the other partners will refuse some of the things one partner wants and it, in turn, will refuse some of the things they want. There is going to be interaction; will is going to be exercised. This is a fundamental aspect of the game of federalism. I do not want to participate under a guarantee that I will get what I want at any cost. If I had an attitude like that, you would tell me to get out as quickly as possible.
Senator De Bané: Mr. Ryan, first off, getting back to the 1982 patriation, at the time, I was of the view that it was necessary to wait for your government to be elected before proceeding with constitutional negotiations. If we had delayed these constitutional negotiations until after the provincial elections, I am convinced that we would have settled the issues in the 1982 reform package - patriation, an amending formula and a charter of rights and freedoms - and then gone on to resolving the division of powers issue.
Unfortunately, they did not wait for your government to be elected before beginning the reforms. And I regret this enormously. That being said, having participated as other Quebecers did in the 1982 patriation, I will not hide the fact that today, as then, I am very proud of what we managed to achieve in that agreement for Francophones. I am always prepared to compare what the Canadian government negotiated with nine provinces with what Mr. Lévesque decided with seven provinces.
Let us look at the two agreements. I do not think I am misinterpreting you if I say that, considering what was negotiated in 1982, probably the only part to which we as Quebecers object is the amending formula. We will not forget, of course, that Mr. Trudeau proposed that Quebec should have a right of veto.
You said, as Leader of the Opposition in Quebec City, that precedence must be given to the rights of the National Assembly. I can tell you that, when I was faced with these two values - federalism and the equality of all the component parts, or a liberal democracy where certain principles would have to prevail - I finally decided to support the 1982 reforms, even though one of the participants did not agree.
I thought - I do not know whether I was right or not - that you had a viewpoint that was a little less provincially oriented than that of my colleague Senator Rivest. He believes there is a fatal flaw, a mortal sin, and not just with the process, but for him that flaw overshadows the content of the 1982 reforms. He sets aside everything it contains that is positive for Quebec and for the other provinces, whether that be the permanence of their borders, the equality of the two official languages, the resolution of that cardinal weakness - the issue of French schools in the rest of Canada, or the indissociable right to dignity that was enshrined in the Charter.
Senator Rivest: They added one apart from that.
Senator De Bané: My dear colleague, I do wonder sometimes whether you might be better off sitting in a provincial legislature rather than here, but I digress.
Am I right in saying that this vice of form, which is due to the fact that we did not wait for your election in Quebec City, which is in my view an infinitely regrettable error with consequences that cannot be overstated - this vice of form should not make us forget the substance. When I saw how Mr. Bouchard exploited that issue during the referendum campaign, I told myself that we are in the process of creating myths.
Mr. Ryan: We must not rewrite history, either. I have recently heard different versions, according to which nothing happened in 1982, nothing happened in 1990, that the Meech Lake Accord failed because of the opposition of the Parti Québécois. You can stretch the truth as much as you wish, but the fact is that it was not the opposition of the Parti Québécois that prevented Meech from being approved. We took care of that. But there were others, elsewhere, who did not keep their promises. That has to be stated clearly and firmly, and saying so does not distort history in the least.
In 1992, it was more than a vice of form, it was a fundamental defect that tainted the entire operation. In Quebec City, we supported the Charter of Rights, for instance. I had supported it from the time I entered public life. The Liberal party was always in favour of it, with Mr. Bourassa and now with Mr. Johnson. There was not yet a broad consensus for it in Quebec City. The opposition had very serious objections.
You remember, Senator Rivest, Mr. Yves Pratte appeared as a witness, he was not a separatist. He came to tell us about all the implications that might have for Quebec's civil law and for a number of our institutions. There had to be a debate about it in Quebec. If there had been time, we would have debated the issue and I think we would have won. All this happened without any debate on the principles in Quebec City.
From the point of view of democracy, this was serious because it involved a document that would have an impact that is just now beginning to be measured. In addition to the ill-advised political move that you mentioned, and that I never talk about any more, there was the defect involving respect for institutions and respect for the democratic process whereby profound changes come about slowly.
I am trying without a great deal of success to make my fellow citizens of Quebec understand that five years in the evolution of a constitution is not a very long time. It might be long enough, however, for us to take the plunge and make a radical change. We put it off for five years and then another five years, and at some point the votes tell the story.
I am happy to hear what you are saying. Basically, I have not changed my views. At the time, I would have told my colleagues: "We will take the time we need, we will hold a full-dress debate and we will settle it once and for all." We did this with the language issue - we had a huge debate about language. Then came the drafting of that "notwithstanding clause" that expired in 1993. The National Assembly started preparing for that a year in advance. Our opposition was clearly set out. The opinion was drafted. We changed the provision that had been invalidated by the Supreme Court. We wanted to prepare measures, all that went very well. We carefully drafted and reworked the opinion. We were able to do it because we had done the groundwork. We told our people, "Take all the time you need to put your objections on the table and we will discuss them all one by one." This was not done in the other case. It was not done during a "night of the long knives", I do not want to be morbid, but it was done quickly.
Senator De Bané: As I am sure you are aware, the 1982 reform package contained many points that were in the interests of and have been demanded by francophones since 1867, and I believe you agree with this.
Mr. Ryan: Entirely.
Senator De Bané: With all the demagoguery during the last referendum campaign, the constitutional reforms were presented as a dismissal of the rights of francophones, and I do not agree with this.
On page 5 of your brief, you list a number of areas on which Bill C-110 would have an impact in the future: the reform of central institutions, the Charter of Rights and Freedoms, and so on. I would like to draw your attention to a few other areas on which it will probably also have an impact. This is not an exhaustive list: distinct society, the Canada clause, linguistic duality, limitations on federal spending power, entrenchment of administrative agreements, consolidation of the social and economic union, the aboriginal question, the mandatory holding of constitutional conferences, and the proposal respecting legislative symmetry. This bill could have as yet unimagined ramifications.
Finally, let us look at the issue that you set out very clearly in your brief: the expression of the will of the constituent parts to participate. If I have understood your point of view correctly, you say it would be desirable that consent be expressed through the legislative assemblies, and in the case of Quebec, through the National Assembly. What do you think, Mr. Ryan, of the following observation: in general, this philosophy should guide us - that consent must be expressed by the provincial government through the National Assembly.
Moreover, as you said, it is not necessary that it be confirmed every time by a referendum, but sometimes, on issues that are so knotty they can never be settled, the impasse may be resolved between the two levels of government, and the federal government at its own risk may consult Canadians directly. In extremely rare cases, this imprecision in the bill may enable us to consult the people to resolve an otherwise insoluble impasse.
Mr. Ryan: I am afraid my answer must be no, because it is the very basis of my position that is involved. As I said, in the case of an impasse, the federal government always has the power to consult the people, independently of Bill C-110. Everything gravitates around the issue of determining whether the consultation would have a compelling effect from a constitutional point of view.
If the federal government wants to hold another political trump card, I do not think anyone can question that. But if the federal government wants the consultation to be compelling, then you change the entire way of thinking about the amending process and you make a Constitution that is clearly weighted in favour of the federal government, when what we had was the principle of equality, at least in relative terms, between the provinces and the federal government that was at the heart of the Constitution. This is a radical change, in my view.
It changes nothing in the immediate future. Substantial changes are frequently made. The next day we all go to bed and we think about other things. There is always a law clerk in the government who tells the Prime Minister that section 3 on such-and-such a line could be used to make them keep quiet, that would be convenient. This is what we have to avoid - there is an unmistakable climate of suspicion right now.
From the point of view of language rights, as I have frequently said in the National Assembly to our PQ colleagues and I would like to repeat it here, Canada's Official Languages Act is one of the best pieces of language legislation in the entire world. We have good reason to be proud. It puts us among the most civilized countries in the world. I have always believed this, and I still do.
Admittedly, one of the provisions in the 1982 Charter regarding language rights does diminish Quebec's powers to some degree. I am referring to section 23 on minority school admissions. Here the Canada clause was imposed rather than the Quebec clause that was in the Quebec legislation. From this point of view, the section was an "encroachment" into an area of provincial jurisdiction. I would have preferred to have this happen when there was a government in Quebec City that was favourable to it. We proved that later on. There were a number of incompatibilities between the Charter and the Quebec legislation.
In the legislation we passed in 1993, they all disappeared; there were objections regarding the language of the courts, there was also disagreement about parliamentary language. All that disappeared down the usual political path. That is what I would like us to look at.
The provisions in the 1982 Charter regarding language rights seem to me to be noble ones, and one provision in particular, the one concerning minority school governance, planted the seeds of development that proved so important for minority groups. That did not bother us in Quebec because our education legislation was already oriented that way.
Senator St. Germain: Mr. Ryan, thank you for your presentation.
[English]
Some of us believe that, if vetoes are to be given or vetoes are to be handed out, it should be done so with the utmost of caution. The Canada of today looks differently at the problem we face in dealing with the challenges of Quebec. I feel, as do many people, that, if a veto had been given directly to Quebec by way of legislation on the issues that relate directly to the uniqueness of Quebec or its distinctiveness, Canadians, after experiencing the referendum of October 30, would have been in a position to accept such a veto. We would then not be confusing the whole scenario with the huge number of vetoes that are now being cast into the program.
Can you comment on that, Mr. Ryan?
Mr. Ryan: Over the past few months, I have referred to the Constitution Act, 1982 on innumerable occasions. I thought to myself that there must be a simple way of amending this legislation which would not disturb too many people. Section 38(2) relates to the 7-50 rule, and it reads as follows:
An amendment made under subsection (1)... shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
It states that there must be a minimum of seven provinces representing a majority of the population. You could merely state that it must be a minimum of seven provinces, "including Quebec". That would do the trick. It would be much simpler to just add two words. As Senator Jean-Claude Rivest told me, that was attempted a few years ago without much success, but that would simplify the situation considerably.
Senator St. Germain: Thank you, Mr. Ryan. I think Canadians have changed their opinions dramatically since October 30.
Mr. Ryan: I want to tell you that there is a way out, if that is your view.
Senator MacEachen: Thank you, Mr. Ryan, for your appearance. In my opinion, you will have been the most important witness we will have heard when we conclude our meetings on this bill because you are speaking from considerable knowledge and from a political experience that no other witness has brought to this table.
I had in mind to pursue with you the question of the referendum and its relationship to provincial consent, but that is not as important as the political context which I want you to deal with now.
We had testimony from André Tremblay of the University of Montreal, who asked the Senate committee and the Senate to defeat this bill because it would be a signal that something better was required. He also said in his testimony that, if the contents of this bill had been exposed before the vote on the referendum, that, in his opinion, the federalists would have lost the referendum. I can understand that from a certain point of view. Federalists who wanted a broad series of changes, such as you have outlined, would find this inadequate if it were the total answer.
I am asking you if this bill is relevant in any way to public opinion in Quebec. If the Senate were to defeat the bill, would it mean anything to the federalists? Would it mean anything to the Liberal Party in Quebec?
You have advised us to pass the bill. You have advised us not to put an expiry date in the law. I would like you to talk about the state of opinion in Quebec among the federalists and how this bill affects that opinion.
Mr. Ryan: No one can pretend to be a prophet in his own country, as everyone knows. You have to be prudent when you try to sum up what the reaction in Quebec is or might be.
Until now, there has been relatively little opposition to the two measures submitted by Mr. Chrétien. They have sneered at him for doing that. They have said it is too little, too late, and insignificant. You have heard that, but there has been nothing in the way of a crusade or real campaign against those measures. I conclude, therefore, that everything depends on what will follow the adoption of this bill and what will follow the adoption of the resolution on distinct society. If things stay the same at that point, as I stated in my presentation, the impact would remain limited and, in my view, insufficient to counter the threat which arose as a result of the referendum. It will take substantially more than that. I have given clear indications as to what I have in mind.
If Bill C-110 is presented, defended and worked on as the beginning of something to which every important actor is determined to work on resolutely and with determination, it could be constructive. However, any favourable judgment must be conditional at this stage.
Is that a politician's reply?
I am glad to see you again, Senator MacEachen. We have not met for years, but when I refer to the uniformity which should be avoided in identifying the people in different regions of Canada, I often think of you.
Senator MacEachen: I am glad that you think I am distinctive.
Mr. Ryan: Over the years, the relationship between Quebec and the Atlantic provinces has always been something very special. In many respects, the Atlantic provinces are closer to Quebec and vice versa than are the other provinces, including Ontario. Over the years, we have noted that, in constitutional matters, we were very close to one another. I hope that continues.
Senator MacEachen: I hope so.
There has been a certain sympathy between the Atlantic provinces and Quebec. It has exhibited itself, in my experience, in the federal cabinet because there has been a lot of compatibility in objectives between Quebec ministers and Atlantic ministers.
Your answer was helpful and more convincing to me because it comes from the depth of experience which you have.
Mr. Ryan: With respect to Mr. Tremblay, I was reminded of a remark which President Clinton has uttered often in the past few weeks. He said, "the better is often the enemy of the good".
[Translation]
Senator Murray: I clearly understand the arguments you put forward in favour of the regional formula. I even agree with them.
But the political reality now is that the Western premiers rejected this concept in 1982. The Western provinces still reject it. A number of attempts to resuscitate it, primarily by the Beaudoin-Edwards Committee, have failed. It is a "non-starter" in the 1997 list of constitutional options, in my view.
With regard to Bill C-110, as my colleague Senator St-Germain pointed out, I would have preferred by far to see a bill that respected the Prime Minister's commitment to Quebec and that granted a veto to Quebec only on the matters listed in section 42.
In Western Canada, there is now something symbolic about the concept of a Canada that is made up of regions, the concept of regional vetoes, as it seems to fly in the face of the sacrosanct principle of the equality of provinces.
The only way that has been found to reconcile the so-called provincial equality principle with what Quebec was asking for was to apply the unanimity rule to the matters listed in section 42, as was done in the Meech Lake Accord. This is just a brief comment about this regional formula. You put forward some valid arguments. I accept them. But in political terms I would say the idea is a "non-starter".
Mr. Ryan: I have attended a number of meetings recently where I have heard the same thing said about "distinct society".
[English]
Now it is a non-starter. Nobody wants to hear about that in the West. They say you must find something different.
[Translation]
There was one man there, who shall remain nameless, a man we all know. And he said:
[English]
Would you prefer the two nations?
[Translation]
Then people started saying that if you go around complicating the issue, of course problems will crop up everywhere.
If the people who defended the idea of distinct society are starting to back away now, because Mr. X or Mrs. Y in Quebec City or Victoria said that they did not want to hear about it any more, we are all worse off. We cannot keep on starting over. Work has already been done. You yourself have done some very important work on this, I recognize that. But we have to defend these things. I do not think we should leave ourselves too unprotected with the little time we have left.
With regard to the regions, what is it that is essentially insurmountable? If the Canada of the future is to be based on the principle of the equality of the provinces, I do not think that will fly in Quebec.
What are we going to do with these two proposals? At that point you quickly come back to the regional reality. The only way of finding relative, practical equality, and of coming as close as possible to the objectives of democracy, is to combine provincial equality with other factors that are also important.
I understand what you are saying and I am not criticizing you when I express my opinion. You asked me for my views.
I fail to see how we can find a solution to the problem in this country if we do not include the regional reality in the basic mechanisms and without forcing people to organize ahead of time. We will have to come to that point one day.
Senator Murray: I am looking through your presentation for the phrase you used to refer to the regional formula, which you favour because it would redistribute power more fairly. It was something about a fairer distribution for the provinces other than Quebec.
Mr. Ryan: The smaller, less populous provinces. You will find it toward the end of page 7.
Senator Murray: As regards those provinces, this is another way of saying "second-class provinces". Our committee has heard that expression a number of times and we will be hearing it again in the days to come.
Mr. Ryan: If I may respond to that, it is the current formula that treats the smaller provinces like "second-class provinces". I gave examples of this.
Under the existing formula, the smaller provinces are indeed "second class". They are defenceless. But with the formula put forward in Bill C-110 they stop being second class because by belonging to a region they will all necessarily participate in the decision-making. At present, the provinces representing 94 per cent of the Atlantic provinces can be excluded - nobody has ever pointed this out.
[English]
Senator Murray: It is a hard sell, Mr. Ryan. You are the only one I know of in the country these days who is putting forward these arguments. I have my doubts.
Mr. Ryan: It is not the first time in my life.
Senator Murray: When the representatives of the aboriginal organizations were here yesterday, some of us asked about the next process. For them, there was no question of trying to conclude a constitutional initiative, to obtain Quebec's consent to the Constitution, or to resolve the problem with which we are faced vis-à-vis Quebec. There was no question of doing that unless and until we have concluded an amendment regarding l'autonomie gouvernmentale des autochtones. They are clearly going to oppose that.
Is it your position that there will have to be a constitutional response by the federal government and the rest of the country to the situation in which we now find ourselves vis-à-vis Quebec, before there is an opportunity for another referendum or an élection référendaire?
Mr. Ryan: That is to be presumed, is it not? It is plausible.
Senator Murray: Is that your position?
Mr. Ryan: Some people may still be dreaming that the whole thing will evaporate by itself in the next few months. Then you will see no constitutional initiatives.
Senator Murray: Yes, or they think a variety of administrative agreements and overlap and duplication might resolve it.
Mr. Ryan: The problem will only return a bit later.
Senator Murray: I am asking you whether, in your view, a constitutional initiative must be taken and brought close to a conclusion within the next 12 or 18 months in order to get out of the bind in which we find ourselves as a country?
Mr. Ryan: I am not particularly in favour of globalizing an approach. That is dangerous.
Senator Murray: I should tell you that the aboriginals also said that they want another complete Charlottetown process.
Mr. Ryan: We tried it once.
If the governments were to concentrate on resolving the two leading questions which came out of the referendum - that is, the distinct society question and the amending formula question so as to provide a guaranteed veto for Quebec - if those were the two goals which they set for themselves between now and the forthcoming constitutional conference, that would be enough, in my opinion.
They could resolve those two issues. The door would then open to approaching a lot of other issues, if administrative arrangements could be worked out, in some other areas.
I read a piece in The Globe and Mail the other day about an arrangement which is in the works concerning the environment. I found the article interesting.
Senator Murray: So did I.
Mr. Ryan: If we move in that direction in the field of the environment, which is a highly controversial one, that would be a great accomplishment. If we did something in the area of vocational training, it would be wonderful. There are other matters which are the objects of close study at the moment. While they work on the constitutional issues, we have to create a broader atmosphere of cooperation and trust.
Senator Murray: I will try to get a reading from you, as did Senator MacEachen, as to the potential and present states of public opinion in the province.
Suppose that Ottawa and the other provinces were able to come up with a resolution of the question of the recognition of Quebec's distinctive character in the Constitution, and the question of the amending formula, in a way that would be acceptable to the Claude Ryans, the Daniel Johnsons and the federalists in Quebec. Then suppose they put it forward, whereupon Mr. Bouchard said, "I won't move." What then is his position with the people of Quebec?
Mr. Ryan: We would be brought to the scenario which was mentioned earlier. The federal government would then be in a position where it would have to gauge public opinion in Quebec and the rest of Canada.
Senator Murray: Surely, Mr. Bouchard is on the defensive in that state of affairs.
Mr. Ryan: That is right.
Senator Murray: He has a problem.
Mr. Ryan: That is what I have in mind, too. Should that occur, which would be providential, the federal government would then be very well placed to institute a consultation of its own initiative with the people of Quebec; following that, the political process would follow its course and we would be somewhat comforted. It could turn out well. That is the way you have to envisage those things.
Senator Carstairs: I would like to stick to that particular issue for a moment, because you spoke in your presentation about the supremacy of the legislatures and the importance of having votes in legislatures as the recognition of the popular opinion of a particular province.
I would like to look at another scenario in which negotiations have been conducted with the other nine: You have agreement of seven, which may well represent 50 per cent of the population of Canada; you do not have representation or acceptance from two, let us say Nova Scotia and New Brunswick - although that is highly unlikely - that, in fact, represent over 50 per cent of the Atlantic region. So the Prime Minister says that he will canvass public opinion. He canvasses public opinion in Nova Scotia and New Brunswick and the people of the province are more generous than their governments, and they say, "No, this is a good arrangement." Can the Prime Minister then say to Quebec, "I have the agreement, including Bill C-110, with the exception of yourself"? Does he still have to have, under Bill C-110, the agreement of the particular provincial legislatures?
Mr. Ryan: That would be my view. The bill as it is now drafted speaks another language. It gives the federal government the right to decide how it will obtain the consent of the province of Quebec. That is what I object to, in the name of federalist philosophy.
Once the federal government, as I said, had been assured of popular support for a certain program of change which had been rejected by the Quebec government and the National Assembly, then the matter would fall into the political process again. That is where it has to be ultimately resolved. No government, be it the federal government or the Government of Quebec, can put itself above the Constitution. They all have to work under the Constitution. We must avoid rules which implicitly or indirectly - or I would say insidiously - establish a certain supremacy in favour of one order of government against another in matters which would come under the Constitution. The Constitution may well stipulate that in this area the jurisdiction is on the federal side. We have a lot of examples of that. It is normal. If it is not in the Constitution, do not try to do it by way of legislation.
Senator Carstairs: It is unique. Senator Murray, of course, refers to the west, and we have heard from Alberta and British Columbia on this with regard to the equality of the provinces. We heard the same kind of statements, interestingly enough, from the governments of Saskatchewan and Manitoba. What is unique about that is that both British Columbia and Alberta have referenda legislation. If the governments insisted on the equality of the so-called provinces, they would have to refer that to a referendum of their own people.
Mr. Ryan: Here again, a referendum with a different question might be conceivable under the auspices of the federal government, even in those two provinces.
Senator MacEachen: In a scenario of that kind, the provincial legislature at that point could re-address the matter.
Mr. Ryan: Of course.
Senator MacEachen: They could say, "We have heard from the people and we passed the necessary resolution"; or, as you point out, the political process would operate and a new government could be elected to take over, right, or the matter would be held in abeyance?
Mr. Ryan: Absolutely.
Senator Carstairs: In most provinces, the legislatures are actually bound by the referendum results.
Senator Beaudoin: Are they?
Senator Carstairs: Yes. The legislation forces them to vote as the people have said.
Senator Meighen: Where is parliamentary democracy?
Senator Beaudoin: Where is it in the Constitution that a province may be bound by a referendum? That is illegal.
Senator Carstairs: That was my point the other day when I was questioning Mr. Tremblay, because, in fact, he was saying this was a layer on the amending procedure and could not be done. I asked him how then can the provinces put a layer on their amending process by having referendum legislation by which they are bound? That is why I delivered that legislation to you this afternoon.
Senator Beaudoin: I do not think they can.
Senator Meighen: Mr. Chairman, I think all I had to ask has been explored by Senator Murray.
[Translation]
I too would like to thank you for appearing before us today. I share Senator MacEachen's view on the importance of your contribution.
At the same time I am a bit surprised that you have reservations about a sunset clause, given that you, the Minister of Justice and everyone else seem to agree on the temporary and transitional nature of this legislation. If it is temporary and transitional, why not spell that out? The only question I would like to put to you is on another matter. I agree completely that between now and 1997 some objectives have to be chosen. You have suggested two. It absolutely has to be demonstrated before the constitutional conference that progress has been made in this area. Have you a suggestion as to how to undertake this? Should it be done openly, publicly, in front of the cameras, or should it be done by the politicians only or by a group of politicians and constitutional experts? How should we go about this task to improve our chances of success?
Mr. Ryan: First of all, with respect to a sunset clause, we already have to all intents and purposes a deadline defined in the Constitution, the 1997 conference. If you had inserted a sunset clause in the bill -
Senator Meighen: "Until the year 2000", for example.
Mr. Ryan: Yes, exactly. You would be giving our friends in certain provinces the ideal pretext for saying,
[English]
They are protected. There is no urgency there. The deadline comes only in 2005. Let us wait. The time is not right.
[Translation]
Senator Meighen: But what about 1997?
[English]
Mr. Ryan: It will be deferred once again when the fire is in the house.
[Translation]
That is the problem.
[English]
Senator Murray: We could sunset it for 1997.
Senator Meighen: But you did not want it then.
[Translation]
Mr. Ryan: But at that point you would not need it, because the deadline would be approaching. There has to be a certain flexibility in the definitions. When you have exercised responsibility in government, you know that sometimes in the political process you get better results if you are not too tightly bound by amendments from different sources.
In this case, I want to make clear that I respect the contrary opinion. 1997 is around the corner and I do not think we want to lock ourselves into anything. There is the prospect of an upcoming election, and it is all very well to say they will be back after the election.
But suppose the party in power does poorly and another party takes office. The context could be completely unfavourable to passing new legislation. And we have to think in terms of the lesser evil. What is going to do the least harm in all this?
I respect the contrary opinion, but from a practical and political viewpoint I have reservations about it.
Senator Meighen: And what about the way the process should be carried out?
Mr. Ryan: When it comes to deciding how the process should be carried out, I think things are moving and governments have got to take the initiative. As Professor Schmeiser said earlier this afternoon, this is primarily a matter for the elected representatives of the people, the legislatures and governments. Anyone who has sat in a legislature knows that 90 per cent of the power is in the government's hands. Governments absolutely must take the initiative and talk to each other seriously. I will venture a personal opinion: the federal government has got to stop telling the other provinces that there is no problem in Quebec, that the extremists are going to fade away and that nobody has anything to worry about. Ottawa has to tell them that there is a problem, which it overlooked at first, and it is bigger than we realized. This has to be humbly admitted and Ottawa has to say,
[English]
We must work together. It is rather urgent.
[Translation]
At that point things will change. I have had the opportunity to chat with a number of political figures over the past few weeks. Their first position is defensive, they do not want to have anything to do with it, they would rather not talk about it. I end up saying to them, "I am going home, I have nothing to say to anybody." I have met with people who do not understand anything. The federal government has to open up and say, "Yes, there is a problem, and it is a problem for all of us." I would like to remind the federal government of something. Senator De Bané will convey the message, I'm not worried about that. The federal government acts as if it had forgotten that the Liberal Party has lost three elections in a row in Quebec: 1984, 1988 and 1993. If there were another election slated for tomorrow morning, I do not think they would expect to win a majority. That has to mean something. There is perhaps a political reality here that has not entirely sunk in.
I urge the federal government to adopt an unassuming attitude that will promote a search for solutions, instead of condemning and calculating and coming up with all sorts of short-sighted schemes that lead nowhere. Basically I think that if everyone concerned took a more high-minded attitude, and displayed some humility, and at the same time some daring and courage, we could rid ourselves of many of this country's problems.
Fundamentally, I am convinced, this is still a very good country.
Senator De Bané: Not only will I convey your remarks to the Leader of the Government, I am sure that the new minister, Mr. Pettigrew, who used to be your chief of staff, will also be an authorized spokesman for you.
The Chairman: On behalf of my colleagues, I would like to thank you for your testimony, which is both very important and of great use to us in our deliberations.
Mr. Ryan: I appreciate the atmosphere here today very much. We debated in a non-partisan climate. I am rediscovering the great benefits of being a private citizen.
[English]
The Chairman: Our final witness is Professor John McEvoy from the Faculty of Law of the University of New Brunswick. He has prepared a statement, which has been circulated.
Perhaps we could permit Mr. McEvoy the opportunity to make an opening presentation of approximately 10 minutes.
Mr. John P. McEvoy, Faculty of Law, University of New Brunswick: Mr. Chairman, I understand that my brief, which is in both official languages, has been circulated. Although I would like to demonstrate my linguistic ability for the government of the province of New Brunswick, who would like to see that their return on their investment in education is fair, I will forego that at this time. I will also skip the first page of my brief which is my personal introduction to the committee.
My conclusions on Bill C-110 are as follows.
First, Bill C-110 is a political response to Quebec voters.
Second, the bill is not a constitutional amendment in the narrow, legal sense; it is a Constitutional amendment in a broader political-science sense.
Third, as a matter of statutory interpretation, the bill places constraints on federal ministers in relation to constitutional amendments, subject to the general amending formula of section 38 of the Constitution Act, 1982.
Fourth, the bill is neither a law of the Constitution nor a constitutional convention. It is a hybrid closer to a constitutional convention than a law of the Constitution.
Fifth, the bill represents the logical progression of thought or positions in relation to a general amending formula.
Sixth, the bill is neither unconstitutional nor illegal.
Seventh, considered in isolation, the bill is a regrettable development.
Bill C-110 is a political response to a particular need which is rather obvious, reflected in the October referendum results, the nature of the official opposition party in the House of Commons, and the government in Quebec City. We would not be discussing Bill C-110 today if it were not for these factors. The narrow purpose of Bill C-110 is to meet the long-standing desire in Quebec for a Quebec veto and to send a message of action on the part of the federal government.
I observe that Ms Grey, MP, is reported in the media as having stated that, "The Prime Minister has presented a Quebec package and not a Canadian package and that's unfortunate." I disagree with her assessment. In my view, Bill C-110 is a Canadian not a Quebec package. Bill C-110 dilutes the federal government's message to the voters of Quebec. In typical Canadian fashion, the bill seeks to accommodate the interests of all provinces and regions of the country at once. The last-minute recognition of British Columbia as a region reinforces this view.
The Charlottetown Accord failed in large measure because the package was too comprehensive for Canadians to digest. The seamless-web approach does not work. Too many details attract too many detractors. I would have no difficulty with a bill which merely recognized a veto for Quebec. Quebec distinct status under the Constitution has long been recognized and supports a claim for veto for that province. However, there are political realities.
I would observe that the opting-out provision of section 38(3) of the Constitution Act, 1982, permitting provinces to dissent from amendments derogating from provincial legislative powers seems a particularly apt mechanism to permit an evolving inequality of provincial powers.
It also seems a most appropriate response to the needs or aspirations of provinces such as Quebec for decentralization in some fields and the needs or aspirations of provinces such as New Brunswick for centralization.
As a matter of statutory interpretation, Bill C-110 would prohibit a federal minister from introducing a motion for a resolution to amend the Constitution of Canada under the general amending formula without satisfying the condition precedent of a requisite degree of provincial consent.
Note that amendments under sections 41, 43 and 38(3) may be introduced by a minister without the Bill C-110 level of provincial consent and are not the object of the bill. As the bill itself notes, the legislative assemblies of the particular provinces concerned already enjoy an effective veto in relation to such constitutional amendments.
Practical reality also has a role to play when considering Bill C-110. No minister would introduce a motion for a resolution to amend the Constitution of Canada unless the matter was already approved as government policy and as a matter of legislative priority. A maverick minister would not last the day, nor would such a motion likely obtain sufficient support to be adopted.
Another practical reality is that no section-38-type proposal to amend the Constitution can become a matter of government policy and priority unless there is a likelihood of the provincial consent required under the existing section 38 amending formula.
Governments and parliaments, contrary to some popular opinion, do not deliberately waste time and effort. Practical reality means, therefore, that there would probably be prior provincial consent before any motion is introduced by a federal minister. This implies a prior process of federal-provincial consultation and cooperation. The limitation created by Bill C-110 is that there cannot be a white-paper-type motion by a minister to promote reaction and discussion of a proposal for constitutional reform.
While a minister would be constrained in his or her actions by the bill, any other member of Parliament or senator is unfettered and may introduce a motion for resolution to amend the Constitution. The likelihood of such a constitutional amendment proposal being adopted is virtually non-existent unless supported by the government executive and party leadership.
Circumvention of the bill is, therefore, possible but highly unlikely. Again, the practical reality of the brutum fulmen is presented: governments and parliaments do not deliberately waste time and effort.
As an ordinary statute, Bill C-110 is subject to amendment and repeal as political circumstances require.
Finally, there is no offence provision in the bill. Bill C-110 falls somewhere between the two conceptual poles of a constitutional convention and the law of the Constitution. A constitutional convention operates on the political level. The political actors consider themselves bound by the accepted rule and the consequences of a violation of the rule are political. An amendment contrary to a constitutional convention would be unconstitutional in the conventional sense, but constitutionally valid in the legal sense.
This situation almost presented itself in the 1981 patriation round when the Trudeau government was prepared to proceed without a substantial degree of provincial consent until the historic decision of the Supreme Court of Canada in the Patriation Reference.
Bill C-110 does not operate on a purely conventional level. It places a legal prohibition on federal ministers from introducing a motion containing certain constitutional amendments. At the same time, Bill C-110 is not truly part of the law of the Constitution because it, itself, is not intended to be part of the Constitution and, as such, it is not one of the "statutory rules and common law rules...generically referred to as the law of the Constitution". That is a quote from the Patriation Reference.
As noted earlier, Bill C-110 does not contain any offence provision should a minister introduce a motion for a resolution without the requisite consents. It is akin to a policy statement; a convention written as law.
With regard to Bill C-110 as a logical development, I will refrain from a general review of the search for an acceptable in-Canada constitutional amending formula. Finding the appropriate balance of flexibility to permit constitutional change and stringency to provide stability is not an easy task. Instead, I hope it is acceptable to observe that Bill C-110 applies a modified version of the 1991 Beaudoin-Edwards general amending formula. The Beaudoin-Edwards formula requires approval of the Senate and the House of Commons and approval of two of the four Atlantic provinces; Quebec; Ontario; and two of the four western provinces representing 50 per cent of the regional population.
Bill C-110 presents a modified version because, first, there is an addition of the 50 per cent population qualification in the Atlantic region, which has the effect of making Prince Edward Island irrelevant; second, the bill adopts Ms Hunter's addendum to the majority report by including British Columbia as a region; and, third, it is not itself a general amending formula but rather a limitation on federal constitutional initiatives.
The use of regions rather than provinces - assume that one can equate Quebec, Ontario and B.C. as regions - is not inconsistent with the development of Canadian constitutional thinking. In the earlier years of the search for an amending formula, the focus of attention was on the degree of provincial consent expressed in terms of the number of provinces. Proposals up to and including the 1965 Fulton-Favreau formula centred on consent by a number of provinces.
By the time of the Victoria formula, strategic thinking had changed to what in effect were four regions - provinces with 25 per cent of the population, that is, Quebec and Ontario; two of four Atlantic provinces; and two of four western provinces. Why the change? Perhaps because it was recognized that provinces and provincial boundaries are artificial constructs; accidents of history. Regions are naturally occurring divisions, so regions as a means of determining a level of provincial consent has been around for about 25 years.
The Bill C-110 approach would not have saved the Charlottetown Accord. Only two of the five regions/provinces voted "yes". Three voted "no". The regrettable fact is that the Meech Lake Accord would be established constitutional law today had it not contained provisions respecting the composition of the Supreme Court of Canada and modification of the amending formulae.
The rest of Meech was approvable by the general 7-50 formula. Bill C-110 itself would not be adopted using its own formula.
As the federal Minister of Justice has stated, the bill lends the federal veto to the provinces and regions. It does not constitutionalize the veto arrangement. Contrasted with the section 38 formula, the number of provincial consents remains the same - seven, being two-thirds rounded up - and the 50 per cent population requirement is also satisfied.
Using the lowest population combinations reveals a stark contrast between Bill C-110 and section 38. The minimum population requirement under Bill C-110 is 91.9 per cent of the global provincial population. The minimum population requirement under section 38 is 50.25 per cent. However, population statistics alone are misleading, for they serve merely to identify which combinations of provinces must consent to a constitutional amendment. The key point is that the number of consenting provinces remains seven. Bill C-110 adds a large measure of rigidity in identifying those provinces.
As Premiers McKenna and Savage have declared, the Atlantic region gains constitutional clout from Bill C-110. With 8.05 per cent of the global provincial population, the Atlantic region gains a share in the federal veto. Contrasted with Ontario and Quebec, which have a 36.95 and 25.26 per cent global population share respectively, a veto to a region with 8 per cent of the global population is indeed generous. However, when compared with British Columbia's population share of 12 per cent, an Atlantic veto does not seem inappropriate. Its appropriateness is reinforced when one considers that an interest in constitutional arrangements is not to be tested on a "rep by pop" principle. That principle applies in the House of Commons, a veto holder.
Just as regions form the basis of Senate representation, so factors other than population must be recognized when considering constitutional amendments under a general formula. It is an application of a modern view of equality.
A key criticism of Bill C-110 is that it fetters the discretion of Parliament or a minister regarding initiating the constitutional amendment process. In two provinces, British Columbia and Alberta, a referendum is already a condition precedent to any resolution of the legislative assembly.
In my brief, I reproduce the sections from Alberta's and British Columbia's legislation, which I will not read.
These are clear conditions precedent to any section 38 resolution of the legislative assemblies of those provinces. It would be easy to make the Alberta and B.C. acts consistent with Bill C-110. For example, the Alberta statute states that the referendum question "shall be determined by a resolution of the legislative assembly on a motion of a member of the executive council."
Suppose there is a precondition that, before the member of the executive council can introduce resolution in the Alberta legislature, it must be approved by the executive council itself. Would an express legal requirement alter the validity of what every reasonable person knows is the practical reality? Does rendering a practical requirement a legal requirement make it thereby unconstitutional?
It is also worth observing that the Alberta act is narrower than Bill C-110. Under the Alberta act, only a member of the executive council may introduce a resolution, a limitation not found in Bill C-110.
Recently, media reports, particularly from Charlottetown, have stated that the premiers of the three Maritime provinces have agreed to a further fetter on the regional veto. Premier Callbeck is reported to have reached an agreement with Premiers McKenna and Savage that should, for example, Prince Edward Island and Nova Scotia agree to dissent from a constitutional amendment, New Brunswick would agree to dissent and thereby invoke the regional veto. The dissent of New Brunswick would be required, notwithstanding its independent determination in favour of the proposed amendment. The intention is that the written agreement be at the premier-to-premier level rather than being adopted in legislative form or as a resolution of the respective legislative assemblies. At least, that is what has been reported.
I have been informed, however, that, like Mark Twain's death, the news has been greatly exaggerated. I am reliably informed that within the New Brunswick government there is empathy for the position of Prince Edward Island and recognition that Bill C-110 eliminates the province as a constitutional player. This is in contradiction to the Victoria and Beaudoin-Edwards formula which set regional consent at two of four Atlantic provinces, thus allowing Prince Edward Island a real voice in constitutional amendments.
It may well be that, with the return of Team Canada, we will learn of the Karachi Accord between the Maritime premiers. As of this moment, however, I am informed that consultation is the content of the understanding between the premiers. In any event, to trigger the Maritime veto, Prince Edward Island would have to reach an agreement with one of the other two provinces. There is no promise of support merely because P.E.I. objects.
While I am concerned about the increasing rigidity introduced by regional or national pacts setting further conditions precedent to consent to constitutional amendments, I do not consider such agreements unconstitutional in the legal or conventional senses. They are political in nature as signs of regional solidarity. They are also regrettable.
Suppose that Bill C-110 provided that, rather than to regions, the federal veto is lent to Prince Edward Island alone. Would anyone find that acceptable? Constitutional players should have had a unfettered discretion to decide whether or not to consent to a proposal. Such discretion should not fettered.
Having said that, I must note that Bill C-110 does not in fact fetter federal consent per section 38 of the Constitution Act, 1982. It adds to the conditions necessary before a federal minister may introduce a motion in the House.
Mr. Chairman, I will skip the discussion of constitutional validity of the bill, allow any questions on that, and simply move to the conclusion, if that is satisfactory.
The Chairman: Fine.
Mr. McEvoy: I will go to page 15.
In Bill C-110, the federal government has played its hand. What revised package can be offered at the 1997 constitutional conference on the amending formula? Bill C-110 is presented by the Minister of Justice as a stop-gap measure to bridge the period until 1997. He further acknowledges that no constitutional amendments are anticipated in the meantime. We may find that the Bill C-110 formula is the new section 38.
I have not spoken of the exclusion of aboriginal peoples and the territories from Bill C-110 because they are not current players in the section 38 formula. Although I would agree that both interests should be involved in proposed constitutional amendments that affect them, the problem is one of identifying when they are affected.
Finally, I should add that, as I expressed to the Beaudoin- Edwards committee, I do not favour referenda to decide constitutional issues. I was pleased that that committee did not favour entrenching a ratification referendum as part of the amending process.
Thank you, Mr. Chairman.
The Chairman: Thank you, Professor McEvoy.
Have you learned whether the Karachi Accord was reached as far as the sharing of the Maritime veto with P.E.I. in particular?
Mr. McEvoy: The Premier of New Brunswick returned to the province on Saturday, and there has been no announcement. I spoke to government officials on Thursday. I have not heard whether there is an accord. As I understood it from the government officials in New Brunswick, there was never the agreement which was publicized in the newspaper. It was a consultation agreement.
Senator Marchand: Professor, I note from your curriculum vitae that you teach First Nations law. Perhaps you would care to comment about the use of the term "nation".
All of my life I have been called an Indian, but the nomenclature has been difficult over the years. I wish that we as a group of people could get together one day and do what the Inuit did and call ourselves by our proper names. In our languages, we have proper words for our people and our groupings, and so on. We are still scrambling around. We are now called "First Nations"; a few years ago we were "natives", "aboriginals", and so on. I am not sure if you, as a learned professor, have a particular significance by referring to us here as a "nation".
I am glad that when Christopher Columbus was looking for India, he was not going to Turkey. I do not know if there is any particular significance in the use of your term, but in constitutional terms, it elevates our status considerably by referring to us as a "nation".
I do not know if you heard the groups yesterday who came before us. Perhaps you read in the papers that we had a full day. They were very concerned about the content of Bill C-110 and how it would impact, especially on future changes. There was some very strong language used, words such as "handcuffed", and so on. I would like you to comment on that, and at the same time perhaps you could comment on the one remedy about which they spoke. They referred to the use of a non-derogation clause. Several different ones were put forward. I am sure you understand what the use of non-derogation clauses infers and what they mean.
Mr. McEvoy: I should begin by indicating that the use of the word "nation", as I understand, in relation to aboriginal peoples comes from Chief Justice Marshall in the Cherokee Nation and Georgia cases in the early 1800s in the United States where he defines the word "nation" to mean people.
One of the real problems we have with all persons in Canada is a problem of language in using terminology. I recall several years ago speaking with a first nation person who came to my university and law faculty to give a presentation. They talked about sovereignty but kept saying that they do not mean aboriginal sovereignty in an international law sense. I simply suggested that what should be done is exactly what the honourable senator has indicated. I went up and said, "Give us an aboriginal or a first nation word so that we are all talking the same language. Do not use the word "sovereignty" if you do not mean it in an international sense because there are so many connotations. Give us a word in some particular language that you accept. Give us that word and we will be ad idem." That was not accepted as a good suggestion. Language is important, as the honourable senator indicates.
In terms of aboriginal peoples, again, Bill C-110 adds to section 38. At present, as you are aware, aboriginal peoples are not constitutional players in that process. There is a movement toward the inclusion of others, and aboriginal peoples, in terms of provisions that pertain to aboriginal peoples, should be consulted.
With respect to the non-derogation clause, if one follows along from the Charlottetown Accord, there is, in that process and in further government proposals, obviously a similarity. That must be dealt with. Any interests of aboriginal peoples must be protected. One could add a clause to protect them. The difficulty is that that is not part of this bill.
Senator Marchand: Would you support the idea of a non-derogation clause in the event that the bill goes forward?
Mr. McEvoy: I believe one of the other senators earlier asked Mr. Ryan about a non-derogation clause for the province of Quebec or giving a veto limited to particular subjects. It is the same idea. The problem is in defining those interests.
It is very difficult to get an agreement in Canada today as to what will directly affect aboriginal peoples or the province of Quebec. One may say that the creation of provinces out of the territories will not affect aboriginal peoples in the south, but it actually will. It may make it more difficult to do if it impacts on the amending formula. There will be some interconnection, and the difficulty will be to get agreement on those. I agree with you that there will be certain core subjects. It is the peripheral area or the grey areas that will cause great difficulty.
Senator Beaudoin: I am concerned by what is going on in Canada in the area of referenda. We have an amending formula. It is not a simple one, but it is in place. It is part of the Constitution and we must comply with it. The fact is that everywhere, more and more, we complicate the amending formula by referenda which, in the west, are binding on the governments of those provinces. They are not binding on the Parliament of Canada, but they are binding on the governments of those provinces. In Ottawa, we have the experience of the referendum on the Charlottetown Accord.
I was reading an article by a constitutionalist in the United States who said that Americans were horrified by the fact that the people of Canada said "no" to a proposition adopted by the Prime Minister of Canada, all the provinces, the two territories and four aboriginal associations.
We held a referendum that was purely consultative. We all agree on that. The referendum was defeated in Quebec and in the West. The result was in Ontario was 50-50. If we continue on in this fashion, a convention of the Constitution will be created. Each time we want to amend something, we will revert to a referendum. At least, with this measure, our legal experts say that we would be adding to the amending formula not amending it. If we continue to add in this manner, if we continue with binding referenda, and if we create a convention of the Constitution, the most important thing will not be the amending formula itself, it will be the referenda. For that reason, I am concerned.
The Quebec situation is somewhat different because I cannot imagine a province leaving Canada just because it declares sovereignty. I think a referendum is a natural step to take in a case such as that. I am concerned that it may indirectly become part of the amending formula, and I do not like that. I understand you believe that it is constitutional at any rate. Are you against that tendency?
Mr. McEvoy: Personally, yes. I survived or lived through a referendum in Ireland on the Single European Act when I was there. It was a horrible experience in terms of the fear mongering about what would happen to people and their communities if they voted Yes to further integration in Ireland.
With respect to my experience with the Charlottetown Accord, I answered over 120 phone calls through the Canadian Bar Association hot line. Canadians in various provinces could call and ask questions. During the Charlottetown round, people were afraid about what would happen to them. There were many questions related to aboriginal peoples. They were fearful of aboriginal self-government and Senate reform. The package was too overwhelming for them. Rather than deal with isolated issues and say, Yes or No on this or that, there was a complete package. As a result, the house of cards fell.
As Senator Beaudoin knows, in the Patriation Reference, the Supreme Court of Canada says that there can be a convention if there is a good reason for the rule and it happens once. I am sure your students and mine at the time of the Charlottetown referendum all took the view that the democratic principle - that is the good reason for the rule - and the precedent meant there is a constitutional convention now. Politicians say that they are not bound by that. However, students of constitutional law at that time certainly thought that this was the precedent, that there was a good reason for the rule, and therefore there would always be a constitutional convention.
Senator Beaudoin: I am glad you share my concern.
Given what happened last October, I wonder if Canadians are not more ready to give a selective veto to Quebec in certain areas than to come back to the regional veto theory. You know English-speaking Canada better than I. I raise the question because you refer to this issue in your brief.
Mr. McEvoy: With the greatest of respect, sir, I do not know English Canada better than you. I am from New Brunswick. I do not know the West very well at all. The Great Divide is not just English Canada and French Canada; it is all of the various parts that make up Canada.
In New Brunswick, we are very sensitive to language issues and cultural issues because we have two linguistic communities. We have a constitutional amendment which recognizes the duality of the province. It may well be that, in order to get the consent of the province of New Brunswick for a constitutional amendment, one must have the consent of both linguistic communities in the province of New Brunswick. That sensitivity must be there in relation to that matter.
Senator Beaudoin: Suppose the veto theory were dead. If Quebec is not reassured in that area, I am not optimistic about what will happen next year. Therefore, we have to find something, whether we call it "une clause de reconnaissance au Québec" in the Constitution which, in my opinion, is what we should do; or just say that in the areas of language, the civil code, and culture, Quebec would have some kind of a veto in the sense that we cannot subtract anything without Quebec's consent. That would be better than a veto. In you opinion, is that possible?
Mr. McEvoy: It does not exist now under section 38(3).
Senator Beaudoin: No, just for the division of powers.
Mr. McEvoy: But the civil code of Quebec, which is the example you gave, is related to property and civil rights in the province of Quebec. If there were some federal law to intervene or take away that jurisdiction under section 38(3), there would be a derogation.
Senator Beaudoin: Yes, property and civil rights are fully protected because if they are transferred to the central authority, Quebec has the right to opt out.
However, the central institutions are a major concern to Quebecers. We have bilingualism in Ottawa, in Parliament and we are adequately protected at the Supreme Court. It is the Supreme Court that will decide whether the six-three-judge composition is to be upheld. Of course, probably three who will agree to that, but that is not a majority. There is no guarantee at the Senate level and there is none respecting the creation of new provinces. Could you imagine extending a little more protection to Quebec in those two areas?
Mr. McEvoy: Do you mean that Quebec should be given a veto over the creation of new provinces and a veto in relation to the Supreme Court?
Senator Beaudoin: I refer to the composition of the Supreme Court.
Mr. McEvoy: As you have already indicated, there has been federal legislation basically since the creation of the Supreme Court for representation of Quebec in three seats. That has been so for about 50 years.
Senator Beaudoin: There have been three since 1949. Mr. St. Laurent suggested that to the House of Commons.
Mr. McEvoy: That has been part of the legislative package. The Charlottetown and Meech Lake Accords were to ensure that all of that was constitutionalized.
That is a vital, central institution which interprets the power not only of the legislative assembly for the Parliament of Canada but the legislative assembly of the province of Quebec. Probably in New Brunswick and in other jurisdictions, there would be no objection. I would have no objection. I could not imagine a reasonable objection to such a veto.
The problem, again, is setting limits. As I indicated earlier and as I alluded to in my comment about aboriginal peoples, it is easy to say that there will be a veto in certain set areas. However, when one moves down the list, problems arise in relation to aboriginal peoples, in matters that actually affect them; and in matters that affect the province of Quebec.
Personally - not speaking as a constitutional lawyer - I would have no difficulty with a direct veto for Quebec in a great number of areas. That is why I indicated that, in my view, Ms Grey, the MP from British Columbia, was not correct in referring to it as a "Quebec" package; it is a Canada package.
Senator Carstairs: Professor McEvoy, your discussion of the referendum in Ireland caused me a memory flashback of trying to accomplish the fluoridation of water in Calgary. We had five referenda; we lost them all. We went into all of them thinking that we would win, but in the last few days of the civic election campaign, there would always be a massive leaflet drop into every home talking about how rats died of fluoride. Everybody would go to the polls the next day and vote against it. Apparently, it finally passed; it must be because I left Calgary.
On page 5 of your brief, you raise the point that a limitation would be created by Bill C-110 and a white-paper-type motion could not be used by a minister to promote reaction and discussion on a proposal for constitutional reform.
I take issue with that. As I read Bill C-110, it says that the only restriction is that a minister cannot introduce an amendment motion. There is nothing in the legislation that I can see that would limit a minister's ability to introduce all kinds of other motions. The limitation applies to the introduction of the final amendment motion without the appropriate approval.
Mr. McEvoy: I say "a white-paper-type motion" because, very often in Parliament, at least in the legislative assembly in New Brunswick, a bill is introduced, given first reading, and sent off to a committee for study. At committee hearing you hear the public reaction. Then, next year or the year after that, there may be some further development.
I am indicating that, as I read the bill, I do not see a minister being able to introduce a final version, if you will, of a motion calling for a resolution and then say, "Let us discuss this. Let us refer this to a committee."
Senator Carstairs: I would agree that he or she could not introduce a final motion, but there is nothing in this bill that would limit, in my view, the presentation of preliminary discussions or a general outline or a basis for a constitutional proposal.
Mr. McEvoy: I agree, senator. The minister cannot say, "Page, please deliver this to the table. This is the motion."
Senator Carstairs: He could, as long as it is not an amendment proposal.
Senator St. Germain: Professor, as I listen to this discussion of referenda, I am reminded that my province of British Columbia must hold a referendum. I predicted the outcome of the referendum on the Charlottetown Accord. Before the question on that accord it was ever put in the form of a referendum, I knew that B.C., Alberta and Manitoba would reject it, and I expressed my views to certain people at that time.
I look at your last quote of Plato and I think of the B.C. region. B.C. as a region has clearly and unequivocally stated they will not support it or anything like it. Alberta is citing discontent with this bill. The aboriginal peoples are also opposed to it.
My view is that this is the one time when the Prime Minister and the federal government must exercise pure leadership. If we go back to the regions and let the provinces of Alberta and B.C. hold their referenda, this will go absolutely nowhere, and neither will any other constitutional issue which relates to these regions. An aura of hatred will be created against anyone who tries to deal with the situation in the province of Quebec.
I know how it is done; I have been there. I live with it day after day. People will say that we should have nothing to do with them, that we should hold our position and ignore them. Obviously, these are people who have grown resentful of the system.
Do you not think we would be better off to scrap this and tell the Prime Minister to go and deal immediately with the constitutional issue and show some leadership?
I honestly believe, having come out of this referendum, the people of British Columbia and all people across the country will react to real, positive leadership in this issue, recognizing that we came within a whisker of losing the country. They do not want to tinker around with such craziness as is found in this bill.
Mr. McEvoy: With great respect, I do not think I should answer that question because that is a political question. That is not part of my expertise.
Senator St. Germain: I respect that.
Mr. McEvoy: I may have tread upon dangerous waters before and I feel somewhat guilty.
Senator St. Germain: I respect your position.
Senator MacEachen: I congratulate you, Professor McEvoy, for your presentation and particularly for your judgment in sticking with your own expertise and not wandering, as so many of your other colleagues did, into that difficult field of political judgment.
I gathered from Mr. Ryan that he had some concern that with Bill C-110, somehow, through a referendum, we would be able to bypass a provincial legislature. However, you argue in your paper, as I understand it, that nothing can be put into the Constitution without the requisite number of provincial consents which can only come from the legislatures; is that correct?
Mr. McEvoy: Right.
Senator Murray: Is that your interpretation of Bill C-110?
Mr. McEvoy: As I interpret it, as I said in my remarks, Bill C-110 is an add-on. It does not alter the present amending formula. Section 38 talks about resolutions of the legislative assemblies of the provinces. You must have that. If, for example, in the province of New Brunswick or in the Atlantic region, there was lack of desire to have a resolution by all of the legislative assemblies - it is easier in a single-province region - and there was a federal referendum, and the referendum approved it, what would you have? You would have something that permits a federal minister to introduce a motion to begin a process in the federal institution, but you would still need, in order to have a constitutional amendment, the legislative assembly of the province giving the requisite consent under section 38.
Senator Murray: You need seven of them with 50 per cent of the population.
Mr. McEvoy: That is right.
Senator Murray: Under Bill C-110, that would be changed.
Senator MacEachen: Thank you for your intervention. It has added another wrinkle because presumably the referendum, in your opinion, would permit the federal minister to say, "I have consent derived through the referenda," but that would not mean a damn ultimately in determining whether there would be an amendment to the Constitution unless the requisite number of provincial legislatures took action; is that right?
Mr. McEvoy: As you are pointing out, if there were a national referendum and the people of Canada voted 90 per cent in favour, unless there were the requisite consents, under section 38, of the legislative assemblies, you would have nothing.
Senator MacEachen: That is important.
This second wrinkle is an interesting one, namely, that the federal government, through a referendum or referenda, could satisfy the requirement to introduce a motion, but it would have no constitutional effect unless the provincial legislatures acted.
Senator Rivest: It could gain the moral authority to bypass the National Assembly which could be controlled by a péquiste government.
Senator MacEachen: It could not. The requisite legislatures would have to act, regardless of any referendum.
Senator Rivest: In some matters, they need only 7-50.
Senator MacEachen: We understand that. I understand better now that the consent can authorize the federal government to introduce a motion but could never give effect to a constitutional amendment unless the requisite number of provincial legislatures acted.
On page 10 of your brief, you discuss fettering discretion. I am intrigued as to what a "fetter" is when it comes to constitutional law. The learned witness from Saskatchewan cited several quotations from cases in the Supreme Court talking about the fetter. To me it makes no sense in the way it has been put in these excerpts. It probably does not make sense to me because I do not know the context. Perhaps you could help me in this regard. What is a "fetter"?
Mr. McEvoy: I am doubly hurt. I do not know the quote or the context in which they are referring to it. As I refer to it here in a constitutional sense, there is a fetter on the discretion in the sense that the Constitution of Canada confers upon the legislative assembly of the province, and the Parliament of Canada, the authority to approve or not approve a constitutional amendment through a particular process.
Senator MacEachen: There is a sentence quoted in this submission from Justice Sopinka which states that a restraint on the executive in the introduction of the legislation is a fetter on the sovereignty of Parliament itself. This argument is introduced to support the notion that this bill may be constitutionally invalid.
Shall I drop it there?
Mr. McEvoy: No. I would simply point out that many of these fetters exist, and they exist on the sovereignty of Parliament in the sense there is a control, but there are controls within the House of Commons and Senate legislation as to how resolutions will be introduced. There is, in the federal Referendum Act, a requirement of consultation with the opposition leaders before a bill or a question can be put to the House. All of these fetters are approved by legislation, and they are not likely to suffer any negative, detrimental effect in the Supreme Court of Canada. They are simply recognizing the fact that there is a control on the uninhibited activity of those who sit in Parliament.
Senator MacEachen: A fetter on the sovereignty of Parliament as expressed by Justice Sopinka does not necessarily lead to any unconstitutional result.
Mr. McEvoy: Not that I understand.
Senator Murray: My first question I have put to a number of constitutional experts who have been here, and I will put it to you. Do you agree with the Honourable Gordon Robertson's interpretation of the Constitution to the effect that the secession of a province from the federation, as matters now stand, could only be effected under the Constitution through section 41? Have you given that any thought?
Mr. McEvoy: I have given that thought but I am uncomfortable with the answer.
Senator Murray: Mr. Robertson's answer?
Mr. McEvoy: I am not certain myself whether or not it is really section 41 or if it is simply a provision dealing with only that particular province.
Senator Murray: Section 43?
Mr. McEvoy: It all depends. There are certain provisions, some of which come under section 43; and others would come under section 41.
Senator Murray: Are you of the view that this Constitution should contain a provision stating how a province could leave the federation?
Mr. McEvoy: The basic answer, I think, has to be, with all respect to those of us who like constitutional law, that it is irrelevant, just as the Court of Appeal, I think, held with the lawyer from Quebec, Mr. Bertrand, in his attack on the referendum in Quebec on October 30, that there is illegality, but the court will not intervene. Revolutions and secessions do not happen normally in a nice legal package. They occur regardless of the constitutional order. Fine points of whether or not unanimous consent is required are irrelevant.
Senator Rivest: Is it right that it is not constitutional law which prevails in that instance but international law?
Mr. McEvoy: As I understand it, if there were a secession, of New Brunswick, for example, or Prince Edward Island after the bridge is built, and if the Government of Canada recognized the government and the sovereignty of Prince Edward Island or New Brunswick and withdrew its operations, and other countries recognized them at law and international law, you would have recognition.
However, it is highly unlikely that the province of New Brunswick or the province of Prince Edward Island would be recognized.
Senator Rivest: And Quebec?
Mr. McEvoy: In the sense that the federal government would not withdraw from New Brunswick and would not withdraw from Prince Edward Island.
Senator Murray: I want to engage you for a minute on your reference to the seamless web. You say the Charlottetown Accord failed in large measure because the package was too comprehensive for Canadians to digest. The seamless-web approach has not worked. Too many details attract too many detractors. The statement about Charlottetown, I think, is correct, but the problem with the seamless web does not relate to the comprehensiveness or the size of the package. What it relates to is the problem of process that arises as a result of the 1982 formula. As a practical matter, I think there has to be a negotiation concluded between First Ministers, between governments, before proceeding with a constitutional amendment. What happens, as you know, is that, once in that process, compromises and trade-offs are made, even if it is only an amendment to one section of the Constitution. Once the ball is rolling in the legislatures, any amendment means that you have to start all over again.
Sir John A. MacDonald, when he brought the Quebec resolutions back to the United Provinces of Canada, did not say that it was a seamless web. That phrase was for a later statesman.
Senator MacEachen: That was your phrase. I never heard it explained properly until today. I thought it meant "perfection" when you used it originally.
Senator Murray: He told them that this was in the nature of a treaty. The compromises have already been made. The members in Parliament were talking about amending it, and so on, and he said to them, "No. You vote on it, up or down", whereupon he moved the previous question and they voted it up, and that was it.
We do have a problem here. Whether it is part of the formal amending process or a practical matter, there must be some other way of ensuring that - and, I do not know whether to call it an "intermediate" stage or something else - once the agreement is placed before the legislatures, assuming that the governments have a majority in their legislatures, the process will not be derailed. Whether that intermediate stage is a referendum or lots of public hearings on the principle of the amendment before you get down to the fine drafting, or whatever, there must be a way of doing this. Otherwise, we could get, as we have in the past, six or seven provinces in agreement and then someone passing an amendment which causes us to start all over again. That was the seamless web. The whole thing had to go through, but amendments would derail it. Do you have any ideas? You are against referenda.
Mr. McEvoy: I am also against a seamless web, but I appreciate your point.
Senator Murray: Even now that I have explained it to you?
Mr. McEvoy: Even though I have taken great elucidation from your explanation, the seamless web, as explained now, implies that each element of that constitutional package does not have sufficient merit on its own to justify acceptance. It only has sufficient merit in combination with some other element. In my view, with great respect, I do not see that the distinct society clause in the Meech Lake Accord, or the amending formula or whatever, is so linked to the composition of the Supreme Court that they cannot be dealt with separately. Each of those should stand or fall on its merits and not be accepted simply as a political compromise. If it is a political compromise alone, it only has merit because it is in combination with something else, and one should question whether or not the proposal, as an element, should be included, because it is part of the basic law.
Senator Murray: I appreciate that. Political reality is that different players will attach different measures or degrees of importance to different amendments. In the process, compromises and tradeoffs are made. If they are upset down the road, the package sinks.
Senator De Bané: Professor McEvoy, I do not understand the second paragraph on page 15, which reads as follows:
On a practical level, for the purposes of Bill C-110, a requirement of the consent of the Legislature is not appropriate.
The paragraph continues to state that the federal minister will have to have in hand resolutions of the requisite legislature before moving under the provisions of Bill C-110.
What are you saying in that paragraph when you say, "...a requirement of the consent of the Legislature is not appropriate."
Mr. McEvoy: It is not appropriate because, if Bill C-110 were amended to require the consent of the legislative assembly of a sufficient number of the requisite provinces, that would mean a motion introduced by the federal minister could only come after you already had the requisite consent to satisfy not only Bill C-110 but also section 38. You would have seven provinces and more than 50 per cent of the population.
Senator De Bané: What is appropriate, then?
Mr. McEvoy: In this instance - if one assumes that it is a process - then, obviously, as I indicated in my submission, there has been consultation. There is an indication of acceptance by the requisite consents to be expressed through their government and their legislatures. The federal minister can then make a motion which will be accepted by Parliament and the requisite legislative assemblies, and the process will move on.
It is simply a matter of when the initiation is to take place and the role of the federal Parliament before or after the consent.
Senator De Bané: I now understand.
On page 16, in the first line, you say "We may find that the Bill C-110 formula is the new section 38." What do you mean by that?
Mr. McEvoy: Bill C-110 is self-contained in its context. It has its own sunset clause in that there will be a constitutional conference next year and the federal officials have played their hands - that is, this is what we see; this is what is acceptable to us as the federal government. Can you imagine a change in the general amending formula that does not include a veto for Quebec, a veto for Ontario, a veto for British Columbia? As you go through, how can the federal government change?
Hopefully, I am still in the constitutional lawyer mode. The only question that is left to be discussed in 1997 is how provincial consent is to be expressed. Is it to be expressed by the legislative assembly? Is it to be expressed by a popular referendum? It is not practical or realistic to think that we will have a constituent assembly or will have all the law professors across Canada sit down to make these decisions. We will stay with the process we have. We will make some changes to it. However, the model has been presented. Once the veto has been given, it is very difficult to take it away.
Senator De Bané: In view of what Senator St. Germain has said, in 1997 would you be in favour of amending the general amending formula by adding two words, stipulating that, in general, we would require seven provinces having 50 per cent of the population, including the province of Quebec among the seven?
Senator Beaudoin: For everything?
Senator De Bané: No, for the general amending formula which applies when the others do not apply.
Senator Rivest: Including Quebec.
Senator De Bané: It would state "seven provinces having 50 per cent of the population, including Quebec".
Senator Rivest: Is that what Mr. Ryan suggested?
Senator De Bané: Is that something that could fly?
Mr. McEvoy: I favour a Quebec veto. I think it is consistent with our constitutional development. In terms of a constitutional package, how do you take away something which has been given? How do you take away a veto from British Columbia?
Senator De Bané: The minister from British Columbia came before us and told us that they do not want that. He is the only representative of a provincial government who came before our committee and said that they do not need one nor do they want one.
I understand your point, professor.
[Translation]
Senator Gauthier: You say on page 2 of your brief, and I quote,
... considered in isolation, the bill is a regrettable development.
[English]
In English it says "regrettable development." Why do you say that?
Senator De Bané: You do say that it is in line with the Beaudoin-Dobbie committee findings. It is peculiar that, on the one hand, you say it is compatible with what is going on and then, on the other hand, you say that, in isolation, it is not good.
Mr. McEvoy: As all honourable senators know, people in New Brunswick do speak both languages. I was going to read part of it in French, but when I read the translation I thought that "regrettable error" does not have quite the nuance I meant. I agree with "regrettable development". I do not agree with "regrettable error". That is why I put that aside.
[Translation]
Senator Gauthier: Perhaps you could explain the nuance to us.
[English]
Mr. McEvoy: A regrettable development is looking at the process which started in 1867 and has come forward. It seems to me that it has opened Pandora's box, if you will, by permitting each player to set preconditions to their own consent.
I am concerned that in New Brunswick there will be a push, because of the recognition of the two linguistic communities, that we must have referenda requiring consent of both groups before we can have the consent of the province. Is that required? Where do we stop with this?
I have made a slight joke, which I know is inappropriate, that in the province of New Brunswick we have large industrial concerns, as has every province. Do we say to the people that we will not move as a government in relation to a particular constitutional amendment unless we have the consent of the key industrialists in the province?
What is an acceptable rule? What is an acceptable precondition? We did not have that before. We were within the network of our existing institutions. Now we seem to be setting out additional "fetters", if I can use that word which Senator MacEachen likes.
Senator Gauthier: Taken in isolation, professor, you are not hostile to this bill?
Mr. McEvoy: No.
Senator Gauthier: You are rather sympathetic to it, legally speaking. I am talking to a lawyer and a professor.
Mr. McEvoy: As I indicated, I think the bill is legal and constitutionally valid, and that it represents a logical progression in the historical constitutional development of this country.
Senator Gauthier: I thank you very much.
The Chairman: Honourable senators, on your behalf, I would thank Professor McEvoy.
I would remind everyone that we will reconvene tomorrow morning at 9:30 when we will hear from the government of the Yukon.
The committee adjourned.