Proceedings of the Special
Senate Committee on Bill C-110
Evidence
Ottawa, Tuesday, January 30, 1996
[English]
The Senate Special Committee on Bill C-110, to which was referred Bill C-110, respecting constitutional amendments, met this day, at 10:30 a.m., to give consideration to the bill.
Senator Noël A. Kinsella (Chairman) in the Chair.
The Chairman: Honourable senators, our witness this morning is Professor Andrew Heard from Simon Fraser University.
Welcome, Professor Heard. It is our practice to invite witnesses to make introductory comments and a presentation, which is followed by a series of questions from members of the committee. I give you the floor, sir.
Mr. Andrew Heard, Professor, Political Science Department, Simon Fraser University: Thank you for inviting me to appear here this morning.
I have been invited to make some comments about Bill C-110. With this bill, the government is trying to make a bold and decisive innovation in the constitutional field. Unfortunately, this initiative may pose as many problems as it is intended to solve.
My comments today will touch on concerns about the wording of the bill, ones of which you may have heard already. I will also talk a bit about the wisdom of the policy of regional vetoes. However, I will devote most of my attention to the question of the bill's constitutionality and finish with some suggestions on how the committee may treat this bill.
First, dealing with issues relating to the drafting of the bill, some problems have emerged, particularly in the English version of the text. First, the bill states, "No Minister of the Crown shall propose a motion...". The word "propose" is far too ambiguous and would seemingly pose a general constraint upon a minister in a variety of settings, including federal-provincial conferences. The French wording is clearer; "...un ministre de la Couronne ne peut déposer...", and "déposer" has a meaning closer to "table", which puts the constraint in a more particular but still not exclusively parliamentary context.
Therefore, given the opportunity, it would be advisable for government to accept an amendment to the text of Bill C-110 that avoids these confusions. "Propose" should be changed to something like "introduce in the House of Commons or the Senate".
A potentially more difficult problem relates to the wording of the circumstances in which the minister may act:
No Minister shall propose a resolution...unless the amendment has first been consented to by a majority of the provinces...
There are profound ambiguities in this provision about just what "provincial consent" is meant to be; whether it is one of the provincial government, legislature or electorate. It appears that this vagueness was deliberately left in as a strategic means to allow the federal government to resort to a referendum when a provincial government is hesitating or refusing to consent. It also permits Parliament, under different circumstances, to begin consideration of a resolution immediately after the requisite agreement has been reached among first ministers. A certain amount of flexibility may be desirable, but I have a little disquietude in that this ambiguity may exacerbate tensions in a period of delicate negotiations.
The next set of issues relates to the general policy of regional vetoes to be implemented by Bill C-110, and they are far more substantive concerns. This approach has an established lineage in constitutional negotiations and may merit a stand-alone process. However, I have difficulties with it as a procedure simply grafted to the existing process.
I applaud proposals aimed at saving this country from partition, but I must voice grave worries when proposals would make the needed constitutional change extremely difficult, even impossible to achieve. My view of the lessons from the Meech Lake and Charlottetown Accords is that a wide consensus would be elusive for the profound changes required. Opinion polls in the last year show a further hardening of positions, and I feel renewal will only be achieved if the governments manage to avoid changes that require unanimous consent or that of the most intransigent provinces. As a result, the flexibility of the general amending formula of seven provinces with 50 per cent of the population becomes all the more important and valuable.
However, with Bill C-110 the government has virtually eliminated the benefits of the 7-50 formula. Under the existing process, it is possible to make an amendment with the consent of seven provinces that represent as little as 50.3 per cent of the population. The terms of Bill C-110 require particular combinations of provinces that, at a minimum, would represent 92.2 per cent of the Canadian population. Bill C-110 may endanger future constitutional changes because of the fixed requirement of the consent of certain provinces, including Alberta and my own province now, British Columbia, where resistance to fundamental concessions to Quebec may be the strongest.
It is important to note that four provinces would enjoy a veto over constitutional amendment under Bill C-110, not just Ontario, Quebec and British Columbia. Alberta is also given a veto because it holds over 59 per cent of the population of the prairie provinces. This bill creates four first-class provinces, each with a single veto, and all the other provinces are relegated to second-class status with only a limited voice in future constitutional negotiations. Saskatchewan and Manitoba are in a particularly peculiar position. Even though they are two-thirds of the prairie provinces, they could not veto an amendment acting together. Alberta is needed with the size of its population. I have very serious misgivings about the wisdom of this policy - dividing the provinces into first-class provinces with vetoes and second-class provinces with limited veto power.
A much more serious set of concerns relates to the basic constitutionality of Bill C-110. Since it was first tabled, this bill's constitutionality has been questioned. Therefore, I think it is essential that this issue be dealt with, especially since the government made it clear last week that it would make an issue of the legality of the Quebec government's moves to separation. As a result, the federal government must respond to the threat of separation with constitutionally valid measures. The government cannot take the constitutional high road if it resorts to unconstitutional practices itself.
In discussing this issue, it is instructive to begin with the argument that Bill C-110 is valid legislation. Mr. Rock, the Minister of Justice, pointed out at second reading in the House of Commons that this bill does not attempt to change the wording of the Constitution:
All the features of Part V of the Constitution calling for provincial agreement in various forms, depending on the nature of the proposed amendment, will remain entirely as they are now.
That quotation is taken from Hansard of November 30, 1995, page 17000.
The technical application of Bill C-110 is to place conditions upon the ability of ministers to introduce constitutional amendments in Parliament. The bill limits and does not expand the powers of the Crown. Parliament has full authority to regulate the powers of the Crown and may limit but not expand its powers. In this instance, the executive power to propose resolutions comes from the constitutional grant of power to Parliament to adopt resolutions authorizing the Governor General to issue a proclamation to amend the Constitution. Parliament has long been recognized by the courts to possess the jurisdiction to impose "manner and form" limitations which dictate the process through which legislation or other parliamentary business must be conducted. As Mr. Rock has said:
In effect, the federal government is putting in place a set of criteria that will guide the use of its own veto power.
That quotation is from Hansard of November 30, 1995, page 17001.
Bill C-110 only binds ministers, not other members of Parliament, other senators or either house.
One can summarize the defence of the bill's validity in the following terms: Parliament has the jurisdiction to consider resolutions to amend the Constitution; Ministers of the Crown have the right to introduce constitutional resolutions into Parliament; Parliament has the power to determine the procedure or preconditions to be observed with respect to the introduction and passage of these resolutions; the means chosen by the government in Bill C-110 do not attempt to alter the wording or the relevant provisions of the Constitution. In this argument, Bill C-110 is aimed at valid federal objectives and it supplements rather than supplants the provisions of the Constitution.
This is a powerful set of arguments, but it does not exhaust consideration of the matter. Bill C-110 may be constitutionally invalid if its fundamental objective is a matter beyond Parliament's jurisdiction - in this case, the amending process detailed in Part V of the Constitution Act, 1982. The introduction of regional vetoes may only be achievable by a formal constitutional amendment.
It is important to remember that an act can be unconstitutional even though its most immediate effects are objectives within the jurisdiction of the legislature concerned. Canada's constitutional history is full of examples of legislation being struck down, even though it may initially appear to be an exercise of the legislature's constitutional jurisdiction. Thus, the limited immediate effects of placing conditions upon ministers to introduce constitutional amendments is not the deciding aspect of the bill's constitutionality. The essential task with Bill C-110 is to determine what the courts have called its "pith and substance". What are the essential intended purpose and effect of this legislation? It is possible for a law to appear to address a legitimate issue but actually be intended to achieve an objective that is beyond the legislature's jurisdiction. So it is vitally important to determine what the law is primarily intended to achieve.
In the case of Bill C-110, the government's actual intended purpose may be found in the text of the legislation as well as extrinsic evidence, such as the speeches made by the minister who introduced the bill. In the context of responsible government, it is clear that the application of Bill C-110 to ministers of the Crown not only binds the actions of the Government of Canada but determines those of the House of Commons as well. The Justice Minister left no doubt about the practical objective of Bill C-110 when he told the House of Commons:
The effect of Bill C-110 is to provide a regional veto for any of the changes in respect of which the individual provinces do not already have a direct or indirect veto.
That quotation is form Hansard of November 30, 1995, page 17001.
He went on to say on that occasion:
We speak in this bill of a veto. A veto does not initiate change, it blocks it. What we are talking about is the ability of a region to stop an amendment to the Constitution.
That quotation is from Hansard of November 30, 1995, page 17002.
Thus, the intended effect of this bill is to provide regional vetoes over constitutional amendment where none presently exist. This bill is deliberately constructed so that the current degree of consent required to achieve constitutional amendment would be replaced by a pattern of much broader consent based on regional vetoes. In practice, these regional vetoes can be exercised by a single province; by either Ontario, Quebec, British Columbia or Alberta.
The issue then becomes whether these intended effects mean that Parliament is reaching beyond its powers in the passage of Bill C-110. In my view, the key to this question is whether Bill C-110 is "inconsistent with the provisions of the Constitution," in the terms of section 52(1) of the Constitution Act, 1982. While the wording of the process and the requirements of Bill C-110 do not directly contradict the wording of any aspect of Part V of the Constitution Act, 1982, they may still be "inconsistent." I argue that this inconsistency must be of a fundamental nature that substantively changes the operation of a provision of the Constitution. This is quite a high standard to meet.
There is very strong evidence to suggest that Bill C-110 does in fact deliberately attempt to alter fundamentally the character of the general amending formula outlined in section 38 of the Constitution Act, 1982.
First, it must be made clear that the notion of regional vetoes was part of the Trudeau government's initiatives in 1980. It was explicitly considered and rejected as part of the federal-provincial negotiations that led to the Constitution Act, 1982. The 7-50 formula was a replacement for the regional veto model now contained in a five-region format in Bill C-110.
The Prime Minister knows from personal experience that the amending formula contained in section 38 was adopted because eight of the provinces refused to accept the notion of regional vetoes and the two-tier classes of provinces. In his memoirs, Straight From the Heart, at page 184, Jean Chrétien talks about the compromise reached with Roy McMurtry and Roy Romanow that eventually formed the basis for the final deal:
In essence it was an exchange: the provinces would accept the Charter, modified to alleviate most of their objectives, if the federal government accepted their amending formula modified, to alleviate Ottawa's objections. That meant that any province would be able to opt out of constitutional amendment instead of having a veto...
The government is quite simply trying to put into practice an amending process that was directly and explicitly rejected in 1981 with the drafting of the Constitution Act, 1982. There is a profound difference between a process in which no one province can veto an amendment and one in which any one of four individual provinces can prevent a constitutional amendment. The government knows that regional vetoes were rejected in drafting Part V of the Constitution Act, 1982, and yet it has introduced Bill C-110 precisely to achieve that very thing.
In looking at the competing arguments, I come to the conclusion that Bill C-110 is unconstitutional. It is an attempt to achieve indirectly that which Parliament cannot achieve directly: the unilateral, fundamental transformation of the amending process outlined in the Constitution. The evidence is clear that Bill C-110 is a deliberate attempt to alter fundamentally the nature of the constitutional amendment process, and it does so in a manner that is substantively inconsistent with section 38 of the Constitution Act, 1982.
The bill was drafted in haste, with a minimum of consultation. It was pushed through the House of Commons with the consistent use of closure. At a time when the government should be trying to build consensus and support for its initiatives, it has chosen a route of unilateral imposition and stifled debate in order to adopt an unconstitutional bill.
I urge this committee to recommend amendments to this bill which would force the government to reconsider this legislation. The Senate has a legitimate power and a duty to provide sober second thought to ill-conceived and faulty legislation which the government of the day tries to push through with the weight of its majority. At a minimum, the Senate should offer amendments correcting the drafting flaws of the bill. However, the committee should consider recommending other amendments that are serious enough to force the government to reconsider the underlying character of this bill. Therefore, the committee could add a clause stipulating that proclamation will only follow resolutions of provincial approval that match the formula in the bill. After all, if the bill is about building national unity, its worth should be proven in its approval across the country.
Ultimately, the government must be given the opportunity to withdraw this bill because it is ultra vires the Parliament of Canada and would impose almost insurmountable obstacles to the constitutional renewal that is needed.
The Chairman: Thank you, Professor Heard.
Senator Beaudoin: I thank Professor Heard. You have put forward a strong case that the bill is probably unconstitutional because it is doing indirectly that which cannot be done directly under the amending formula, and against section 52 of the Constitution Act of 1982. Our expert witnesses are not all of the same opinion. They sometimes are, but not very often. In this case, they seem to be divided on the issue of whether it is constitutional. However, your reasoning is very strong, Professor Heard.
Considering that we will have a constitutional conference, which should be convened, at the latest, by April 17, 1997, some of us are thinking about the possibility of an amendment such as a sunset clause, for example. In other words, Quebec would have a certain protection for the time required to find the definite amending formula, since that is the purpose of section 49 of the Constitution Act, 1982.
In 1982, the people said, "We finally have an amending formula in the Constitution, and within 15 years the Prime Minister should convoke a conference and reconsider that." Of course, they may reaffirm it and say it is perfect. I doubt that it is perfect, however, but that is just one opinion among many others.
What do you think of having a sunset clause as one of the amendments?
Mr. Heard: I am concerned that even allowing this measure to proceed for the next few years might frustrate constitutional amendment that may be required in the meantime. I understand this is one possibility that can be introduced, that it would be given a finite life and would then focus everyone's attention on the negotiations to take place in 1997.
However, my bottom line is that a radical transformation of the amendment process is being attempted by Bill C-110. It is not one that, in and of itself, will carry much weight in the negotiations with Quebec. The polling data in Quebec shows there is not much enthusiasm for the legislative provision of a veto for Quebec. Therefore, I am not sure that it would achieve the intended purpose, which was mainly directed at assuaging concerns in Quebec that there would be changes made without Quebec's consent. At the same time, it may end up frustrating what changes could or might need to be achieved before 1997.
Senator Beaudoin: Seen from a purely Quebec point of view, it gives a protection for Quebec in the sense that we cannot do anything without the consent of Quebec. On the other hand, it has one disadvantage in that four other regions have a veto, and it would be difficult for Quebec to ask for a change in the division of powers. That is the dilemma seen from the Quebec point of view. However, in other parts of Canada, there is another dilemma: the equality principle of the provinces.
Do you think we should leave the bill as it is, or should we reintroduce the consent of the legislatures of the provinces? In our amending formula of 1982, it was the legislature and the Parliament of Canada, the two Houses, which had the last word. A referendum is not part of the amending formula. We may have a referendum, but we are not obliged to do so. We are always obliged, however, to have the consent of the provincial legislatures.
It is the opinion of Claude Ryan and Daniel Johnson in Quebec City that we should restore the consent of the National Assembly, and perhaps that would be useful. There are arguments for and against. Some people might say, "Bouchard will say no, but we will directly consult the people of Quebec." I understand the force of that argument.
Could we circumvent the National Assembly? We may, of course, do that by way of Bill C-110, but is it a good thing?
Mr. Heard: I lost track of your question in terms of the circumvention of the National Assembly. Should that be part of an amendment put to Bill C-110? I think it would be unwise to try to circumvent the National Assembly at this stage in giving a veto to Quebec. It would be seen as a repetition of 1982, and the whole distorted mythology that has arisen out of that period. That sort of approach would be a very dangerous one to try to follow.
Senator Beaudoin: That is exactly what Claude Ryan said.
Mr. Heard: Yes.
Senator Beaudoin: He said that we had tried that in November of 1981. You may do that again. Your answer is that it would be unwise.
Mr. Heard: Yes.
Senator Beaudoin: That means that this may be a possible amendment.
Mr. Heard: Yes. It is something similar to what I suggested in that you could add an amendment saying this bill needs the approval along with the formula outlined within the bill. A legislative veto would not get the approval of the National Assembly of Quebec.
Senator Beaudoin: If, in addition to asking the consent of the five regions, you add to the bill the consent of every province, there is no end. We will never succeed.
Mr. Heard: The bill would not work.
Senator Carstairs: Mr. Chairman, I have several questions. The first is a practical one.
Mr. Heard, at the end of your remarks, you talked about polling data with respect to the constitutional veto bill in the province of Quebec. Can you give us any references to that polling data, because I have not seen polling data to that effect?
Mr. Heard: Unfortunately, I left those notes in Vancouver. I cannot give you explicit references. Polls were conducted the week after the introduction of Bill C-110. I remember a media clipping. It showed only 30 to 35 per cent support for this measure in Quebec.
Senator Carstairs: With respect to your recommendation, you indicated that you believe the bill to be unconstitutional partly because it puts a layer on top of the present constitutional act. Have not British Columbia and Alberta done exactly the same thing with the introduction of referenda which in force and effect say that any constitutional amendment must be referred to a referendum in those provinces and that the members of the legislature must be dictated by the results of that referendum? In that light, would you also see their referenda legislation as being unconstitutional?
Mr. Heard: I will not be very popular when I say that I do not think they are constitutional. I think there is a serious question of constitutionality, for the same reasons I have outlined here. It is an attempt to directly change the process. The difficulty, especially in the case of British Columbia, is that the results are binding on the government to try to carry them out. Again, this process was considered in the drafting of the Constitution Act, 1982, and rejected. It changes the process fundamentally. I am not convinced that it would stand up to a court challenge. I think that is why we will not see a court challenge to Bill C-110 because the logic will backfire on Alberta and British Columbia if they try to challenge it.
Senator Carstairs: Thank you. I admire your consistency on this position.
Finally, I would like to debate the concept of the requirement of the House of Commons to introduce an amendment. Does the Constitution Act, in your view, bind the House of Commons and the Senate to actually introducing those amendments into their houses in that three-year time-frame? Is there some kind of imposition on them to do so? As I read this bill, what they are saying is that ministers of the Crown will not introduce this amendment until they have, in effect, regional vetoes. In your view, is there a constitutional obligation to introduce it in their various chambers?
Mr. Heard: No. Just because a resolution has been proposed in one or many legislatures does not impose an obligation on others to introduce a similar resolution. The obligation would come from the text of an agreement signed by the first ministers on that matter. For instance, some years ago Brian Mulroney introduced a resolution to change the veto powers of the Senate so that it would have, in effect, a delay veto. That resolution never came to a vote and no one else took up the issue. It was an example of a resolution being introduced and effectively disappearing into the ether.
Senator Carstairs: If there is no constitutional obligation to introduce a resolution, then why is it unconstitutional for a government to say it will not introduce a resolution unless it has the consent of these regions?
Mr. Heard: What it does is say that the government must respect conditions. Conditions must be met before a resolution is introduced. To say there are conditions does not say that there is an unconstitutional element to the bill. The question is what those conditions are. The effect of this bill is to impose conditions that fundamentally transform the nature of the process outlined in section 38. That is where the unconstitutional element comes into play. The conditions to the introduction of a resolution are such that the whole process detailed in section 38 is changed completely.
Senator St. Germain: Professor Heard, you may want to consider not answering my question because it may be too political.
The minister testified before this committee. We are all concerned about keeping Canada united. We want to work with the Prime Minister, the ministers and whoever is responsible for this issue. However, it is tough for us in British Columbia in that we do not have a member on the unity committee. A few other things have happened to British Columbia since this bill first emerged.
My question to you concerns aboriginal peoples. They appeared before this committee and said that this bill jeopardized some of their constitutional rights and might hinder the resolution of some current issues. Did you consider the aboriginal question in your study of this bill?
Mr. Heard: Those considerations are similar in the sense that, I gather, presentations from aboriginal leaders were concerned that changing the Constitution would become more difficult under this procedure and that any attempt to include a constitutional reference to self-government would have to go through these hoops. The concern is that particular provinces would object to this process. Under the existing 7-50 formula, you might be able to proceed without the requirement of those provinces, whereas if Bill C-110 were introduced, it will be more difficult.
My comments and views are the same. I think that this regional veto process makes any kind of constitutional amendment much more difficult to achieve. British Columbia and Alberta have used particular sorts of policy issues that are different from other provinces. I think there would be concerns that they may be able to hold up a constitutional amendment under Bill C-110 when they would not be able to do so under the 7-50 formula. The perspective from British Columbia is that we, as a separate region, should be able to do that if we are taken seriously as a region of the country.
Looking at this issue as an academic, I see a very serious threat to national unity. I get concerned when additional obstacles and hurdles are put in the way of reaching the required changes.
Senator St. Germain: Regarding Senator Beaudoin's question concerning the sunset clause, we are here on this committee as senators representing various regions. We are trying to deal with this particular piece of legislation in a manner which is in keeping with building a country and not tearing it apart.
The sunset clause aspect is therefore inviting. As you pointed out, it could be quite damaging. Nonetheless, we must make a decision. You also said that this bill cannot even meet its own test based on the traditional past opinions or positions taken by the provinces against a growing regional aspect within the Constitution. This bill will create an expectation that the regions as established here will also be used in future discussions.
Do you not think that a sunset clause to end in 1997 would pose far less danger?
I cannot recall if, in your answer to Senator Beaudoin, you dealt with 1997 per se. In my opinion, that date is key because I would not want it to go any further. From your past studies, what effect do you foresee a sunset clause having upon future negotiations?
Mr. Heard: There are a number of elements to consider in a sunset clause amendment. First, such a clause does not go to the substance of the policy in the bill. It looks as if the Senate is cooperating with the government at a time of national difficulty. It would, in essence, have the practical effect that the Prime Minister has talked about already. There has been some mention both by the Prime Minister and the Minister of Justice about the need to revisit this issue by April 1997 in any event, so this would not disturb the underlying policy of the government. One could say the prospect of a constitutional amendment in the next 14 months is minimal. Therefore the effect of this bill may be limited with a sunset clause and the established policy.
There are a number of strategic political reasons why that amendment could be made by the Senate and why it might be accepted by the government during its reconsideration in the lower house. The difficulty comes in predicting whether my suppositions will hold up; whether we will face a constitutional crisis in the next 14 months; whether we will need to use the amending process in the next 14 months. If there is little likelihood that this process will be required before revisiting the complete amending process, then there is little danger of using this symbolic display of national unity. The government may then make this bold initiative on behalf of the people of Canada and not divide the federalist forces by making too much of an issue of it.
There is, however, a possibility that we will need this amending formula in that period of time. We cannot say there will be no referendum within the next 14 months and that we will not need to respond in some fashion. I am a little afraid that the required flexibility would be taken away with this bill.
Any amendment would give the government a chance to reconsider this bill. Such an amendment could be seen as a constructive attempt that does not undermine the basic policy but provides an opportunity for another debate on the issue. That is the essential role of the Senate - to simply get the government to reconsider the underlying policy or the context in which it puts its policies.
Senator MacEachen: Thank you, Professor Heard, for your paper. I have just one or two questions about your recommendations. You state that this bill is unconstitutional and that it is ultra vires the Parliament of Canada. Why do you not recommend to the Senate that we defeat the bill?
Mr. Heard: The circumstances in which the Senate should and could consider defeating a bill are limited. The normal course of events for the Senate is to offer amendments for the elected chamber to reconsider the policy. While this bill is, in my view, deficient, it is a debatable issue. As Senator Beaudoin said, you have conflicting views from your witnesses. The courts are there to determine constitutionality.
In the end, unless this bill were to perform a travesty upon the federal structure or on parliamentary democracy, the Senate's role is not to defeat the government's initiatives but to get the government to reconsider them before they are passed. Basic issues of constitutionality should be left to the courts to decide.
Senator MacEachen: You would argue that, even if the bill is unconstitutional, the Senate should be reticent. It is beyond the Senate's political authority, in your view, to defeat the bill?
Mr. Heard: Yes.
Senator MacEachen: Then you advise us not to defeat the bill because the Senate should not behave in that way. I must say I disagree with you on that point, as would many others around the table.
Senator Murray: You dare not agree. We are ready here.
Senator MacEachen: Of course. We have been told that the bill is unconstitutional and is beyond the power of Parliament. We have been told not to defeat it because that is not our role. We have heard your recommendation that the committee could also add a clause to stipulate that proclamation should only follow resolutions of provincial approval which match the formula of the bill. We all know that - if I may borrow from parliamentary lore - that would be a killer. Why should we not be upfront and kill it directly rather than put it in an amendment which kills it indirectly?
Mr. Heard: The argument would be made that such an amendment is constructive and that, if the government were serious about the content of the bill, the bill should be able to live up to that requirement.
Senator MacEachen: We are talking about the obligations of the Senate, rather than trying to read the government's mind.
Mr. Heard: That is precisely my point. The Senate is not, in practice, directly killing the bill. It is saying that the bill should live up to the terms of the bill.
Senator MacEachen: You know perfectly well, if we put that amendment in, it would have the effect of rendering the bill totally inoperative. Why not do that directly? You say that we should act with restraint. We are left with but a few technical amendments. The remedy you propose is hardly in line with the perils you see in this bill.
Perhaps you are saying that, because the Senate should be impotent, we ought to hold our noses and pass the bill unamended. Is that it?
Mr. Heard: No, precisely not. There is an issue of fundamental constitutionality. The Senate must do something to bring this matter to the government's attention. A substantive amendment, such as the one I suggest, or perhaps even a sunset clause, would get the government to reconsider it.
There is a profound difference between the Senate as a chamber vetoing legislation and the Senate as a chamber proposing amendments that are unpalatable to the government.
What I suggest is that the Senate should avoid vetoing legislation, but it can propose amendments that are sufficiently serious enough that the government would be forced to reconsider the issue. If the government has reconsidered and restates its position - and this is an argument I have made before a different committee of the Senate - then the Senate should let the government have its way. The role of the Senate, and it is a very important one, is to force the government to reconsider legislation. An amendment such as that would spark a sound debate in the House of Commons.
Senator MacEachen: Thank you, Mr. Heard.
Senator Carney: Thank you very much for coming here to talk about this matter, Professor Heard.
I want to follow up on points that were raised earlier. I want to talk about your comment that this bill is trying to achieve indirectly what Parliament cannot achieve directly, which is to change the Constitution. Other witnesses have indicated that the passage of this bill would lead to constitutional gridlock; that, in fact, if we pass this bill, we could not change the Constitution. I would like you to comment. Why are we talking about possible constitutional amendments in the future if we pass a bill which would negate any attempt to change the Constitution? What happens to a country which locks itself into a Constitution that cannot be changed? What is your experience in that regard? What happens if we chain ourselves to an out-of-date Constitution with no escape clause?
Mr. Heard: Constitutions absolutely must continue to evolve to meet the changing demands and values of society as it changes. Among those changes can be the way we go about amending the Constitution. This formula may be one that we adopt; but it is a formula that should be adopted by consensus, not by unilateral imposition.
In the current circumstances, I am particularly concerned about what I view as the obstreperous position of the government and of the opposition party in B.C. They have both taken strong public positions against any fundamental concessions to the province of Quebec, the devolution of powers and so on, that would most likely by necessary in negotiations with Quebec. We are at a stage of near crisis in this country and, in my view, it is important to remain as flexible as possible in responding to that crisis. Bill C-110, I think, simply adds obstacles to the resolution of the problems we face rather than providing any constructive channelling of them.
Senator Carney: You have raised the point that the bill is vague with regard to who acts for the provinces. You have raised the point that the provincial legislation in B.C. and, I believe, in Alberta requiring a binding referendum is possibly unconstitutional. From your comments, it is not clear to me, if we pass this bill, who speaks for the provinces? Who does have the mandate for the provinces? Who speaks for the national interest? If the federal government is giving away its veto to various regions, and the regions and the provinces affected are not defined, who will have the power to exercise this veto? Who speaks for Canada? Who speaks for the country?
Mr. Heard: There is a real problem with the ambiguity in the bill regarding the consent of the provinces. There is a certain advantage in keeping that ambiguous, in the sense that a nationally-organized referendum could, perhaps, circumvent obstreperous provincial governments. I tend to be of the view that we should try to keep constitutional change within institutional settings. If we cannot trust our elected politicians, there is something unhealthy with our process. I even hold that position in the context of dealing with Quebec and the government of Quebec.
There is another problem to which you have referred, senator, in terms of federal initiatives and who speaks on behalf of the federal government.
Senator Carney: The country, not the federal government. Who speaks for Canada, the national interest?
Mr. Heard: In terms of national interest, there is a lot to be said for the advantage of having the federal government introduce resolutions for debate in the House of Commons in order to establish national consensus. In this process, the federal Parliament would be limited in terms of when it could debate an issue and when it could debate a resolution.
Senator Carney: There would be no national fora?
Mr. Heard: It would follow a particular form of consensus and negotiation, but it would be difficult for the federal government to take initiatives. It is ironic that this initiative, made by the government on behalf of Canada , would limit the opportunities for a government in the future to make new, innovative resolutions or propose them in the House of Commons.
Senator Carney: My last question, which I think indicates some of the concern about what will flow from this bill, deals with the fact that you say it is an attempt to alter fundamentally the nature of the constitutional amendment process. My concern is this: If this bill is essentially an end-run on our Constitution, we then have a situation where the government is, in effect, attacking our own Constitution. You indicate there may not be a court challenge on it. So the central question will be: Who will defend the country from an attack on the Constitution by its own government?
Mr. Heard: There are a number of elements to that, senator. It could be possible, for instance, for one of the territorial governments to challenge this measure. They are quite upset in that the introduction of new provinces would have to go through this process. They do not have the strategic concerns that Alberta and B.C. have in terms of the fallout of a legal challenge to this bill. So there could possibly be a territorial challenge.
Senator Carney: As a former resident, I would say that the idea of the country being defended by Yukon or Nunavut or Northwest Territories would be dreaming in colour.
Mr. Heard: They have challenged federal initiatives in the past, and I am sure they will in the future when an initiative affects territorial concerns.
A strategic concern I have in terms of meeting the crisis of national unity is that the government is making an issue of the legality of the Quebec government's moves toward secession.
Senator Carney: I am not talking about that. I am talking about the government attacking its own Constitution through this bill, doing an end-run on its own Constitution. That has been suggested previously, in the hearings chaired by Senator Beaudoin, when leading civil servants, including the former Clerk of the Privy Council, urged our committee to break the Constitution, to override the Constitution.
You will recall that, Senator Beaudoin.
If this bill, in effect, is an attempt to do an end-run around, or to break or attack our own Constitution, who will defend Canadians from this unconstitutional action if the courts will not? Who will defend the country if this bill goes through?
Mr. Heard: There is a whole range of opportunities for the courts to consider this bill, from citizens' challenges to a provincial parties' challenges, and so on. There are various ways in which a stand could be taken to challenge this bill in court, and I think there is the possibility that the courts would address the issue. I have a concern that the government is taking, shall we say, at least a questionable constitutional approach at a time of a national unity crisis, when it is, in turn, relying on issues of legality with regard to the Quebec government's measures.
Senator Carney: Your main point is this bill makes the national unity issue worse.
Mr. Heard: Yes.
Senator Marchand: Senator St. Germain asked one of the questions I wanted to ask. You talked about process in your presentation and the fact that there was little or no consultation before the bill was drafted. The whole question of process has been important. In terms of the Charlottetown Accord, I submit that process as much as substance was the reason why it was defeated among aboriginal peoples. I will not venture farther down that road. Certainly among the aboriginal people of British Columbia, that was the case.
Senator Murray: Their leaders were calling for another Charlottetown Accord last week.
Senator Marchand: The leaders were out of touch with the grass roots.
Senator Murray: So it seems.
Senator Marchand: First, the grass roots did not know the content. It was not a matter of what was being put forward by Ovide Mercredi. The leadership did quite a good job, but the people at the grass roots did not know what was going on. That was one of the causes of the failure of the Charlottetown Accord. Some of the substance of it was not acceptable to our people as well.
I want to talk now about process. Some articles have been written about a constituent assembly, and a number of commentators in B.C. have been talking about a constituent assembly. Could you talk about that process as well as a constituent assembly?
Mr. Heard: You have touched on a very interesting and important point about the problems we face with constitutional renewal. We have reached a situation in Canada, for a variety of reasons, where the political elite are faced with a certain amount of distrust by many people in the electorate. The process to which you refer, namely, the political leaders sitting down and negotiating largely in closed-door sessions, is one that is viewed with scepticism by many people in the public.
The problems you touch on in terms of the relationship between the aboriginal leadership and the grass roots, however, is one that is mirrored for the other political leaders who sat around the table as well. We saw that in the referendum process. Time and time again, when I went to speak to public groups, I saw the profound ignorance on the part of the public concerning what was involved in the accord and what was the actual context of the present situation.
We have a difficulty here where, by necessity, negotiations are conducted by elites that have a certain knowledge of the context, and so on. We are moving toward a situation where the package negotiated by the elites is then put to the electorate or the general population, who face certain disadvantages in terms of understanding either the context or the content of the accord.
There is a further problem in terms of dissociating elements of the package from the package as a whole. Some interesting analysis has been done by some political scientists concerning the defeat of the Charlottetown Accord which shows that most of its elements actually had the support of the majority of the population. However, the combinations of distrust on particular issues led people to veto the package as a whole when it came to the vote in the referendum. There is a real problem with putting a package to people in a referendum in terms of their defeating the whole package because there is one element in that package which they dislike.
We have heard a number of suggestions to the effect that we should move from that elite-based process to a citizens' forum, constitutional assembly, and so on. I am not convinced that it would be any different beyond saying that the table is larger and there are more people talking in the assembly. Whichever way you organize it, there will still be a small group of people involved. It may be slightly different sets of people with a slightly different understanding of political process and the context in which the issues are debated. You would then end up with a different package because of that context of who is sitting in the assembly discussing the issues.
However, you still face the same problem as before - that is, a referendum based on a package which is insufficiently communicated to the electorate and the context is insufficiently understood.
There is the possibility of a larger deference to the package on the part of the public because it is not politician-based. There may be a greater faith that this is a good package all in all because it was not negotiated by the first ministers. I am not sure that is a healthy position for a political system to be in, namely where you rely on a deference based on the fact that it was not negotiated by your elected politicians.
That was a long, rolling answer to your questions, but it is important to address that issue of moving from a politician-based discussion to a citizen-based discussion. The table gets larger and the voices are many, but you still have the fundamental problem of translating that package to popular approval.
Senator Marchand: Thank you for that answer. It will be useful to go back and have a look at it. As one observer and one parliamentarian, I felt that the last government worked hard at reaching the people. They had the Spicer commission and everything else but, obviously, something was missing. I thought they worked very hard at trying to get a good package together. There certainly was no lack of consultation, but it still failed. I have firsthand knowledge, from talking to hundreds of aboriginal people whom I know, that they did not know what was contained in the package. They did not know what was there for them to consider.
As a British Columbian and an academic - and you are venturing into the political arena in some of your comments - you know how difficult the whole question of keeping the country together and dealing with the so-called Quebec question has been over the years. I tend to feel that, perhaps, we in British Columbia are coming closer to the point where we can deal more specifically with the Quebec issues with a lot more understanding. Perhaps I am wrong, but I feel that we have come a long way over the last 25 years in understanding the issue.
We heard an excellent presentation here last week from a fellow by the name of Peter White. I hope I can paraphrase correctly what he said. He said something to the effect that this whole question of a veto and the distinct society really relates to Quebec trying to protect itself as a minority group, as a small group within a sea of anglophones, if you want, or in an area where they really have to be concerned about their identity and protecting their rights.
As an aboriginal, I think that we could entrench the idea of the inherent right to self-government in the Constitution and who would care? That is not the case, but it really should be that way. If you want to look at the reality of it, there are not very many of us. We do not want to run the Departments of External Affairs, National Defence or the military. A small group of us are trying our damnedest to protect an identity within a sea of other people, other cultural values, and so on.
What do you think of entrenching in the Constitution the idea of a distinct society and the idea of a veto for Quebec alone, but with proper definitions? We could then tell the people of British Columbia and the people of the whole country, "This is really all that they are trying to do, and it is not so scary. It is not scary at all. It is something that they are trying to achieve for themselves. It is a small minority group within a much larger majority."
Mr. Heard: I have long been fully in favour of entrenching distinct society in the Constitution. It is a very needed symbolic gesture, and I have never quite understood the depth of animosity that the term has generated nor the notion of it being constitutionally entrenched. I understand it could be used to interpret various parts of the Constitution, but I do not think the issues and the way in which it would be used are all that dramatic. It is vitally important that it be done.
Again, in politics, perspective is substance. This is the problem. Where people perceive it to be a huge change of the Constitution, it becomes one. The issue, as you say, becomes one of convincing the people outside Quebec that this is a needed, important recognition of a fact and that its placement in the Constitution would not radically alter the legal values in the way it would operate.
Senator Murray: I should like to ask Professor Heard a question that I have put to most of the other witnesses who appeared before us.
As you know, sir, the immediate background to this bill is a commitment that Prime Minister Chrétien made to Quebecers during the referendum campaign last fall. The commitment, as he describes it, is that the federal government would not proceed with any constitutional amendment affecting Quebec's interest without Quebec's consent. Mr. Chrétien knows that the national assembly of Quebec has never given its consent to the 1982 Constitution Act and that, in particular, they are concerned about the amending formula lest it be used by seven provinces and 50 per cent of the population to amend the Constitution against their wishes in matters that affect them. Under the circumstances, and knowing what you know about the history and nature of this country, do you think that the commitment the Prime Minister made to Quebec was a right and proper thing to do?
Mr. Heard: I agree with the essence of what he was trying to convey.
Senator Murray: I am not trying to trap you into an endorsement of the bill. I do not like the bill either.
Mr. Heard: You are asking about the policy of conveying a veto to Quebec.
Senator Murray: That is right.
Mr. Heard: I was surprised by the Supreme Court decision that said Quebec that did not have a veto.
Senator Murray: As were many other people.
Mr. Heard: I thought that was an incredibly inventive answer. I do not know anyone in the academic field who thought that was the way things had worked.
However, that was part of a situation involving unanimity for constitutional amendments. It is difficult to think of an example prior to 1982 involving provincial powers or interests in an amendment that did not have unanimous consent. People were particularly concerned to get Quebec's consent. When Quebec hesitated, there was deep hesitation among other provinces as well because Quebec was not on side.
Senator Murray: They broke the tradition of unanimity and then reimposed it.
Mr. Heard: Yes.
Senator Murray: As a matter of policy, do you think it was right?
Mr. Heard: As a matter of general policy, I think it is fairly sound. I actually hold a certain affection for a regional veto approach if it is taken on as the general amending formula. However, it becomes a problem when it is part of a mishmash of processes. If Quebec has a veto, Ontario wants a veto, and then, as we know, B.C. wants a veto and so on, and away we go. That is the problem of moving to a regional veto system. You end up with a large range of provinces that have a veto and a two-tier situation.
Senator Murray: In practical terms, as we know from reading this bill and from what the Minister of Justice and others have said, Quebec and every province have a negative veto in the sense of their ability to opt out of any amendments that derogate from their powers and so forth. They have a veto under section 43, a matter that concerns only them, and they have a veto on those matters that are in section 41, unanimity. As a particular matter, we are talking about essentially whether it should be possible to take away Senate or Supreme Court seats from Quebec without Quebec's consent, or whether new provinces ought to be created having a role in the amending formula without Quebec's consent, without the consent of all the players.
The Prime Minister could have implemented this commitment by way of simply tabling a policy statement in the House of Commons. That would not have been unconstitutional.
Mr. Heard: No, it would not.
Senator Murray: He could have asked us to pass a sense-of-the-house resolution, as we did with the distinct society resolution. That would not be unconstitutional.
Mr. Heard: No, it would not.
Senator Murray: Would a bill that placed the restraint on ministers only in respect of a Quebec consent be as unconstitutional as you believe Bill C-110 to be?
Mr. Heard: It is either constitutional or it is not. The nature of the change to the current process would be less. Looking at the inconsistency of the new process to the existing one, there would be less inconsistency. It would still be an important change.
Senator Murray: One would stand a better chance of getting by the court.
Mr. Heard: Yes. One could argue that it was part of a traditional approach to constitutional negotiation in Canada and that, in essence, the 7-50 formula would have difficulty on anything major without Quebec's consent in any event, as a matter of some kind of practice or convention.
Senator Murray: Thank you.
Senator Carney: My question is supplementary to something Senator Marchand said. He asked who would care if self-government was added to the Constitution.
I understand that one of the witnesses that we could not get before us was Alan Cairns from UBC. In a presentation he gave to the Beaudoin-Edwards committee, he made the point that since the Charter was introduced, we have had a situation of what he calls "new kids on the block." We have groups like the aboriginals, the distinct society, the women or the multi-cultural groups, all of which are interested only in their aspect of the Constitution. His clear question to us at that time was: If all these special interest groups are only interested in their share of the constitutional turf, then what happens to the vision of a country? What happens to the vision of Canadians?
Do you share his concern that, by splintering Canada into these special groups and now special regions or special provinces, we will in fact splinter the country itself? A constitution is, after all, not an end in itself but a law that enables a country to govern itself on a cooperative basis.
Mr. Heard: I do share the concern. Basically, a federal system is kept together by somehow maintaining a sense of national loyalty as well as the identities of its various groups or segments. The Charter has contributed in certain ways for certain groups. Other general events in politics have had the same effect of raising group identity. Sometimes, that happens at the expense of national identity.
Senator Carney: Now regional identity is affected.
Mr. Heard: Regional identity, too. These sub-group identities need not threaten your national loyalty, but they can. Where they do threaten national loyalty is where the subgroups believe the national identity excludes them. This will lead to increased demands for participation because they feel that, if they are not visible in the process, they are being excluded. That will erode their sense of citizenship. In the long run, that is a dangerous condition in a federal system.
Senator Carney: I am concerned, Mr. Chairman, that this bill does exactly that; the whole concept of regional vetoes does erode the sense of citizenship in a confederation. My question has been well answered.
Senator MacEachen: I want to outline a possible scenario which might occur under this bill. Please tell me whether I have at any point misunderstood the situation.
I will build my example around British Columbia because you are from that province and you have expressed the view that there appeared to be difficulty within the government and the opposition parties about making any fundamental concessions to Quebec. If I have interpreted correctly, then let me put this scenario before you. I will pick up on comments made by other members of the committee and yourself about constitutionalizing the concept of distinct society.
Suppose that the Government of Canada and the provinces held a series of meetings on this subject. Suppose that only the government of British Columbia, at those meetings, refused to express an intention of introducing a legislative resolution to bring about the necessary change. We would have a failure of the British Columbia government to indicate its intention. Is everything all over at that point? What are the possibilities at this stage?
The Government of Canada cannot even introduce a resolution into the House of Commons without the consent of British Columbia. However, the bill is broad enough to permit the federal government to seek from the objecting province - in this example, British Columbia - their consent to introduce the resolution into the House of Commons.
If the people of British Columbia withhold their consent, of course, no resolution would be introduced. If, however, the consent of the people of British Columbia is granted, then the federal government could introduce the resolution under the terms of Bill C-110. That, however, is a political move with no constitutional effect because no constitutional change is possible without a legislative resolution.
One might ask, "What is the benefit of that?" One could speculate that, insofar as Quebec is concerned, if the people of British Columbia gave their consent, it would be a powerful symbol of reconciliation even though it had no constitutional effect.
If the people of British Columbia say yes but the government says no, what political stirrings or developments would occur in that province? We can only speculate. The British Columbia government might respond to the consent of the people and agree to introduce a resolution; or the provincial government might remain firm in its intention, leaving the matter to be resolved in the political arena of British Columbia.
Who knows what would happen. Even though the Government of Canada has introduced its resolution and even though it has the consent of the people of British Columbia, under the Constitution of Canada the constitutionalization of the distinct society could never occur without the consent of the legislature of British Columbia.
This is just a scenario which I have constructed. It is totally inconsistent with the bill and Part V of the Constitution, in my view.
I say that Bill C-110 has the potential to move the political situation in various provinces. Take, for example, the impasse which developed in Newfoundland over the Meech Lake Accord when the government was obdurate. What would have happened if the Government of Canada had the opportunity to put the matter before the people of Newfoundland? I do not know. It would be an interesting possibility to see whether the people would say, "Yes, we agree that this is important." That would certainly move the political process in Newfoundland.
I believe, from what I have heard, that all of that would be possible from a technical point of view. Mind you, a political decision would be required everywhere for it to be feasible.
I do have a little sympathy for this provision which allows us to move the process a step further through the prudent use of consultation with the people.
Senator Carney: Is that a question, senator?
Senator MacEachen: Yes. I want to know if the witness thinks that any of the steps I have proposed are prohibited by any of the provisions of this bill or by the Constitution of Canada.
Senator Carney: Do you want him to repeat the question?
Mr. Heard: I have lost track of a few of the steps, I am afraid.
The problem here is that, regardless of whether Bill C-110 is passed or not, the Government of Canada still has the ability to hold referenda, either in a province or nationally, on an issue when a provincial government is resisting it. That could sway the mind of the government of the day. As you said, a referendum could have been held by the federal government on the Meech Lake Accord at that time; it chose not to do that.
The issue is political will. There is a certain debate as to whether or not "distinct society" does in fact need to be introduced via unanimous consent under the current formula. I am not convinced. Distinct society status can be achieved under the 7-50 formula.
Senator Murray: I do not think we ever argued otherwise. We regarded it as 7 and 50 by itself.
Mr. Heard: I know that was the government's position.
Senator Murray: There is an argument to be made that it could be done through section 43.
Mr. Heard: That is another possibility, too. Some argue that the reference to the French language touched on language in Canada as a whole, and therefore involved section 41.
In terms of the scenarios that Senator MacEachen has worked through, the issue is whether Bill C-110 would change the steps that would take place. With respect to distinct society, it would necessitate the holding of a provincial referendum in B.C. in order to secure the consent of B.C., whereas at present it is not necessary to hold a referendum because the consent of B.C. is not required for the inclusion of distinct society in the Constitution. This is one of the reasons why I say Bill C-110 is, in fact, a hurdle to constitutional renewal.
Senator MacEachen: Nothing that has been said has altered the possibility of the scenario that I have described.
Senator Beaudoin: I think that is a dangerous path, because the Meech Lake Accord was a global resolution that required unanimity. Bill C-110 would not apply in the case of section 41 and unanimity. The argument is entirely wrong.
Suppose you leave the bill as it is, and the legislative assembly in B.C. or Quebec said no. The federal government then says it will go over the heads of the National Assembly and consult the people of Quebec and the people of B.C. In a federation, it is strange to have an amending formula and a legislative veto or a statutory veto which may bypass the authority of a province.
In my opinion we have too many referendums in this country. I do not say that in the case of Quebec. I cannot imagine that Quebec could declare independence without at least a referendum. However, as Senator Carstairs has said, in a way we have referenda in some provinces that may preclude the National Assembly from considering giving consent. In my mind that is going very far, and I have very serious doubts about the constitutionality of those referendum acts. How can a province say, "If you want to give your consent or use your veto, you cannot do it except by way of a referendum"? If, in the referendum, the people say that they are against such a conclusion, in my opinion that is clearly unconstitutional. I cannot see how it is constitutional.
I would suggest that we stand close to the Constitution as it is. If we want to change the Constitution, we should do so by a constitutional amendment.
The Chairman: On behalf of the committee, I wish to thank Professor Heard for appearing here today.
Honourable senators, our next witness is Mr. Gordon Gibson. Welcome, Mr. Gibson. The floor is yours.
Mr. Gordon Gibson: Thank you, Mr. Chairman. I have prepared extensive remarks which are available for committee members to read, if you so wish. I will not read them verbatim. Rather, I should like to summarize what I have to say in four categories.
My first comment is with respect to the opportunity presented by this bill; the second area is a commentary on the place of regions in a federation and its amending formula; the third area is regarding what I see as a necessary balancing factor to Bill C-110, or some variant thereof, if you wish to proceed with it; and finally I offer a set of conclusions.
First, as to the opportunity presented by this bill, Senator Beaudoin and others have referred to April, 1997, and of course that will be a very important date for this country because a federal-provincial conference, a first ministers conference, must be convened to examine the exact subject-matter of this bill, namely the amending formula. For all we know, the current work of this committee may be the only opportunity for a leisurely consideration of these matters, absent a period of crisis.
The next 12 months could be something of a last chance for Canada. The amending formula will be central to that debate and, therefore, it seems to me that broad advice to the Government of Canada, broad commentary for the assistance of the people of Canada, is needed. I would hope that the report of this committee will give that kind of broad advice. Rather than simply focusing on the fine print of Bill C-110, I hope your report deals with its broader principle.
My second comment refers to Bill C-110, which deals with the importation of the concept of regions to the amending of our basic law. Minister Rock, in his presentation to this committee, adduced two lines of justification for the bill: The first was what he called the commitment of the prime minister, and the second was his description of the need for broad consensus in any amendment to the Constitution.
Regarding those two observations, the commitment of a prime minister is, of course, important, but I do not believe that that guarantees the automatic action of Parliament, and I assume that this committee would have the same view.
The matter of broad consensus is much more fundamental and, I think, an absolutely sound principle in the process of amending the basic law of a country, particularly one such as Canada which has many disparate elements. The question, I would suggest, is not the principle of broad consensus; the question that is really in focus here is how to assess the broad consensus. What are the benchmarks that should be set up?
There are some things to be said about the nature of political collectivities. I will not expand on that area in these remarks, but I speak in my text of how collectivities have become increasingly important in Canada. I am talking of trade unions, aboriginals, linguistic groups, and so on. They have become a very important element of our political life and it seems to me that our Constitution has to vary itself somewhat to accommodate this change. In that sense, Bill C-110 is a response to one of the great currents of history, which is the increasing focus by collectivities within federations on a particular voice of their own, a voice that will not simply be heard, but that will have power.
The central issue here, it seems to me, is the nature of the Canadian federation. Is it, in political terms, a compact or is it a union? Is it, in business terms, a joint venture or is it a merger? The distinguishing factor between these two types of organizations is whether or not the parties to the deal have an ongoing, independent personality capable of independent action.
As a case example, the European Union is clearly a compact from which any of the parties can withdraw at any time. The United States is a union. However, it started out much more in the nature of a compact. The first continental congress failed. The second Constitution of the United States reinforced that, and it was finally cemented and sealed in the extremely bloody civil war of the 1860s.
The truly curious thing about Canada is that, although briefly after Confederation there were some separatist movements, particularly in Nova Scotia and British Columbia, throughout the twentieth century, and until about a generation ago, the union or merger theory of our country was taken for granted. Yet today that is no longer the case, certainly in Quebec and, potentially, in parts of the west.
What are the appropriate decision-making processes, depending upon whether you have a compact or a union, a joint venture or a merger? For the compact-joint venture mode, there is no question what entity-specific vetoes are appropriate. Because the parties do have an independent personality, they may withdraw from the deal. That is the underlying concept of the deal, and it is a common feature of such things, whether in relation to business, international associations or treaties.
On the other hand, if an association or country is in the union mode - that is, the merger mode - withdrawal is not an option. The disappearance of the identities of the original partners usually guarantees this. Decisions are not entity-based; they are taken by majority rule or super majorities, which does not preclude the counting of majorities by geographical units, as in the provinces of Canada or the states of the United States, where three-quarters of the states are required for an amendment under one formula.
Until very recently, this concept of amending our Constitution under the union or merger rules was the theory of Canada. However, something has happened. The original entities are reinventing themselves. Quebec has been in the forefront, but other regions are increasingly finding their own identities, and aboriginals are claiming distinct entity status. That is part of the implication of the concept of distinct society.
I would argue that this Senate committee is faced with nothing less than the following question: Is this trend towards Canada as a compact or a joint venture a healthy trend? If so, how far does it extend? If it is to be validated, does the approval stop at Quebec, or B.C., or the collectivity of Alberta, or Indians, or where? When you answer that question, you will know how to proceed on Bill C-110.
If you believe in the compact theory - that is, as it applies to territory, the matter of race and aboriginal origin is not engaged here, at least directly - you will find the logic of Bill C-110 persuasive.
It must be admitted that Bill C-110 is an historic reversal of the view of the federal Liberal Party as compared to the "Trudeauvian" logic of 1982. However, times change, and so has the view of the current government. On the other hand, if you believe that Canada is an indissoluble union or merger, you should see Bill C-110 as a significant step in the opposite direction.
The minister from British Columbia appeared before you and gave the view of the government of my province. In a sense, the news he gave you is curious because, from a political point of view, we very much demanded to be defined as a region. It is interesting because the political interests of British Columbia would find it useful for us to be considered a region at the present time. Whenever our Constitution comes under renegotiation, which seems likely, that would give us more clout. However, I am not sure whether or not Minister Petter properly assessed the politics of the province at the moment.
There is a better way of achieving the broad consensus sought by Minister Rock other than Bill C-110, which assigns vetoes to specific regions. I would commend to your attention the possibility of changing the 7-50 formula. The solution I will propose to you has two parts: One is changing the 7-50 formula to 7-80; the second, which is a necessary component, is a complementary, concurrent citizen-based amending route to the Constitution.
To deal first with the 80 per cent solution, an 80 per cent requirement gives a veto to both Ontario and Quebec - Ontario, probably forever; Quebec, in the foreseeable future because the gloomiest demographer does not see any shrinkage below 20 per cent as far ahead as we can see. The 80 per cent threshold would also give a de facto veto to British Columbia and Alberta acting together. Those two provinces have over 20 per cent of the population and, as British Columbia grows, would eventually give a veto to British Columbia. You can say that it amounts to the same thing, but I would argue that it does not, because the optics are totally different. The broad consensus here is being reflected by citizens living within certain regions rather than identifying the regions by province. That is important.
Then there is the practical question - and it was raised earlier today: Who speaks for the 20 per cent? Senator MacEachen had a fascinating scenario concerning the province of British Columbia. In that particular case, there would be no concern because British Columbia would have held its own referendum in advance of deciding whether or not to put the resolution in any case, but it is a problem that could arise esewhere.
I would commend to the committee what I believe to be the wise advice of Claude Ryan to you last week. He stated that, in his view, there was a gap in the bill in that regard, and that the appropriate voice for the reflection of a provincial sentiment was a provincial legislature. That would prevent the scenario of the federal government getting around the authority of a provincial legislature and holding a referendum in a particular province. On the other hand, since I believe there should be a citizen-based route in any event, you could get at that referendum in other ways.
For this current purpose, I am more concerned with a symmetry of power between the two orders of government. If you give a referendum option to the central government level but do not give it to the provinces, the fact that the central government can hold a referendum in one place across the country but no one province can arrange for a national referendum means that you have shifted the balance of power in a way that is not good.
My remarks contain quite a few words on the concept of the equality of provinces, which I will not go into unless there are some questions about it. This matter of the equality of provinces, and particularly what I feel is the red herring of special status, is a vexatious one in our current constitutional dialogue. The widely-found British Columbia concern about distinct society is usually coupled with concern about these other two words "special status."
Perhaps the problems with words such as these cannot really be attributed to their open-ended nature. You can take the phrase "distinct society" or the phrase "third order of government" and project into that amorphous concept any basket of powers or any potential scenarios that you wish, and then worry about them. It seems to me that if we were able, as a country, as a set of governments, to particularize exactly what "distinct society" means or, indeed, exactly what "third order of government" means, then we might find a far greater degree of citizen assent than has been imagined up until this point in time. People find it simpler to agree with concrete things than they do with abstract possibilities.
If you wish to give any consideration at all to my suggestion of the 7-80 rule, then there must be a balancing factor added. That balancing factor is necessary for two reasons: First, the Constitution of Canada is already extremely difficult to amend. Whether you go for Bill C-110 or whether you try to find broad consensus by way of the 7-50 rule, you are tightening the test even more. You are making it more difficult to amend our Constitution. Therefore, you might want to consider adding another route which would open the possibility.
Constitutions are for governments. They regulate the relationships between governments in terms of division of powers, et cetera. Fundamentally, however, constitutions are for the people. It is entirely appropriate, therefore, that in working towards a solution in April of 1997, we should try to include as part of our Constitution a new section which talks about the constitutional revision rights of the people.
Governments absolutely detest regulation in their relationships with citizens. The concepts of the private marketplace to which many pay lip service, such as competition, transparency, full disclosure and agreed accounting rules, are anathema to governments. Constraints on actions that are accepted cheerfully in the private market, such as the right to private property and the sanctity of contract, have been imposed traditionally by governments in Canada. The reason is obvious when you see the attempts by governments to overturn contracts from time to time.
Since governments are so deeply conflicted in their consideration of constitutions, I would argue that it is important to provide a safety valve for direct citizen involvement. The pressure setting of this safety valve can be made very high, as long as it is there. Recently, we in British Columbia have adopted legislation providing for recall and initiatives by citizens. The legislation is extremely hard to trigger; the bars are very high. At least, however, it is there and in extremis it is a route that can be taken. I think something like that might be considered with respect to the amending formula for the Constitution of our country.
Bill C-110 is clearly well-intentioned. Its motivation is noble, but it is incompletely conceived. There are other ways of achieving the same ends. One of the ends, certainly, must be an accommodation of the aspirations of Quebec in this country or, in some ways, the nervousness of Quebec. As written, Bill C-110 sets a direction for April 1997 in terms of another push in the joint venture direction for Canada that is, at least, premature. Further thought is required.
You yourselves, of course, will determine the role of the Senate in a situation of this kind. The damage done by this bill, if it is adopted, is not irreversible. In my opinion, it is just one more small step in a mistaken direction.
Nevertheless, my opinion is that it would be worthwhile to hold this legislation up for now, with a clear message to the lower House that should they wish to repass the legislation, then you will acquiesce with their restated views. I submit that might provide a golden opportunity to the government to improve its work. It could simply allow the existing legislation to expire with the prorogation of Parliament. The new Minister of Intergovernmental Affairs who, clearly, has new and different views on various areas, would have an opportunity to review the situation himself and to consider how, in the circumstances of the day, it might be improved. The government in the lower House could either reaffirm its course, if that were thought wise, or do better should that prove to be possible.
Those are my brief comments to you, Mr. Chairman. I will be as helpful as I can.
Senator St. Germain: Thank you, Mr. Gibson, for making the journey out here and for making your views known.
I sit here, hoping that we can find a resolution to the entire unity question in this country, and that Canada will remain united. In your argument you state that the country is either a union or a joint venture. If we were to accept that it is a joint venture, then British Columbians would quickly find themselves as separate entities in the joint venture process, unless there were some drastic changes.
My first question relates to referendums. Do you think the federal government should have to pay for any referendums that we in the province of British Columbia must carry out as a result of constitutional change? As you know, such a move would force British Columbia into holding a referendum, a provision for which is set out in our provincial legislation.
Mr. Gibson: No. I think that should be an obligation of the province of British Columbia. We can certainly afford it. Any referendum held as a result of our provincial legislation would be as a result of our own choice. Therefore we should bear the cost of it.
Senator St. Germain: Do you feel that, in spite of the fact that certain other provinces have conducted their own referendums when national referendums have been held, and the federal government has paid for them?
Mr. Gibson: I presume you are referring to the funding given to the province of Quebec for the referendum held concerning the Charlottetown Accord?
Senator St. Germain: Yes.
Mr. Gibson: In that case, the argument was that the province of Quebec was saving the federal government money by holding its own referendum. Personally, I would not second-guess the administration of the day in avoiding what could have been a nasty debate. I do not think it cost the country much more money. The federal government, of course, paid for the referendum everywhere else; it ended up paying for it in Quebec as well. Perhaps it paid a few dollars more, but I do not think that is a deal-breaker.
Senator St. Germain: I agree. You know the political atmosphere in which we live in the province of British Columbia. The feeling is that things are being done for everyone else, and nothing is being done for us, that we are net payers to the process, and what have you. That is why I ask the question. I respect your views. However, in the same breath, I would be remiss in not pointing out that I think it would cause an uproar in our province.
You say that we should hold up the legislation for now, but if the House of Commons insists, we should pass it. My major concern with passing this legislation is that we have no comprehensive plan from the federal government. Right now, it seems that it is nothing but knee-jerk reactions. We passed a resolution regarding distinct society. Bill C-110 is now before us. The government is also floating trial balloons which seem to be a reaction to what Lucien Bouchard is saying in the province of Quebec. He is saying that Canada is not a real country. Thus, some are now coming up with the figure of 66.66 per cent which will be needed in future referendums, and that if the partition of Canada can take place, then the partition of the province of Quebec can also take place.
Do you not think it is dangerous to get into any of these subjects without a comprehensive plan on the part of the federal government? Do you not think the government should be sharing that plan with all Canadians, as opposed to just members of their caucus coming out with what I think are just trial balloons?
Mr. Gibson: Some questions are really statements, senator, and I hear what you are saying. I take your points, senator. If the federal government does have a plan, it is certainly not apparent to anyone. On the other hand, it appears that they now realize they must come up with one. That is progress.
One of the things I notice as I talk to people around the country - and I have contact with many of the so-called "grass roots" groups - is that they want to do something. Some want to reinvent the country while others want to save it. One of the real problems is that, almost to a group, they do not want anything to do with the political classes. That is the reputation of the political class on this constitutional or unity file. They are seen to have blown it. People do not want to be manipulated by politicians. There is a very serious difficulty with that.
At the end of the day, Canada is not a revolutionary society. Therefore, any action that comes to pass will come to pass through our constitutional machinery. That constitutional machinery is managed by politicians. The politicians who manage the unity file are here in Ottawa. Thus far, in my opinion, they have not done what they ought to have done. I think we must give every hope and encouragement that they will do so now, since clearly the problem is so difficult. At the same time, I think the premiers are beginning to make their own contingency plans, something which ought also to be encouraged.
Senator St. Germain: Minister Petter appeared before our committee. I imagine you have read his presentation. In company with many of us, he is concerned about adding vetoes indiscriminately; something which can cause possible gridlocks in any future constitutional matters that need to be dealt with.
He said that, as a representative of British Columbia, he felt that the problem in Quebec could best be solved by reinforcing social and economic programs. Basically, he inferred that, in itself, this action would solve the problems with the province of Quebec. I questioned that. Having been in Ottawa for the last 13 years, and having worked in various capacities, I think the osmosis effect of this situation would be so long in coming that we would find ourselves facing a major upheaval, generated by Lucien Bouchard, before this effect could and would take place. It is also questionable as to whether it would make any difference. What is your view on that?
Mr. Gibson: One of the approaches to the essence of the Canadian union is that the term "social Canada" is being used to define "Canadian". It is fair to say that that is a proposition particularly dear to Minister Petter's party. It is something I have always questioned. There are many more dimensions to being a Canadian than "social Canada". Indeed, we talk about national standards in the social safety net when, in fact, they are weaker there than anywhere else. When you compare the social assistance rates in New Brunswick with those of Ontario, you will see there is an enormous factor of difference, far more than the difference in, for example, the levels of education, which are wholly provincial and which have never had any so-called national standards.
There is an element to "social Canada". There is the concept of a minimum standard for all Canadians, which might be improved province by province. However, I do not think that is the key to national unity.
Senator MacEachen: Mr. Gibson, I have two questions. One has to do with the conditions under which a referendum might be called by the government of British Columbia on the constitutional amendment. Is the government obligated to consult the people on a constitutional amendment with which it disagrees, or is it only obligated to consult when it has the express intention of introducing a resolution in the legislature?
Mr. Gibson: My understanding of the wording of the British Columbia legislation is that it is optional. Having said that, I think it would be a natural protective device for any British Columbia government that had had put to it by the national government a solemn proposition said to be of advantage to Canada. I find it inconceivable that a government of British Columbia, having its own referendum legislation, would decline to consult the people on such a matter. It is a theoretical possibility; I do not think it is a practical one.
Senator MacEachen: The government might take the view, "We totally disagree. Therefore, we do not want to carry it any further. Why should we put it to the people?" I take it that that would be possible, would it not?
Mr. Gibson: That would be possible. You are much more of a politician than I, senator. However, it seems to me that that would be political suicide, and unnecessary. One would be much better off to say, "We will see if we reflect the views of our people, and we will do what they say on this matter."
Senator MacEachen: You know that suicide takes place in politics.
Mr. Gibson: It does, but assisted suicide is still against the law.
Senator MacEachen: In your document you refer to the wise advice of Claude Ryan. I also found his advice quite wise. However, I was a bit unclear - and I must go back to his testimony - as to whether his concern with respect to the bypassing of the provincial legislature had to do with introducing a motion by a minister in the House of Commons, or to bypassing the legislature with respect to constitutional amendment. There is no way that a constitutional amendment can be effected without the consent of the requisite number of legislatures. I do not see anything in this bill that removes that necessity.
In the circumstances I have described, I admit that the government could seek the consent of the people to introduce a motion in the House of Commons. However, that would not bypass the right of the legislature to decide whether it wanted to give effect to that constitutional amendment. Not having been able to understand exactly what Mr. Ryan had in mind, I should like to know what you have in mind when you raise the question of bypassing the legislature.
Mr. Gibson: I did not have an opportunity to read Mr. Ryan's testimony. However, I have spoken to him on the telephone since then. Therefore, my understanding is based on that conversation. There are others here who can describe this better than I can. My sense of the position of the National Assembly in the province of Quebec is one that is rather more sacred than the approbation given legislatures in other provinces. Insofar as Quebec is concerned, perhaps Mr. Ryan's views relate to this particular stature of the National Assembly.
My endorsement of the concern about the end-run is based on a different concept. It seems to me that the two orders of government in our country ought to be equal in constitutional terms. That means that they ought to have equal constitutional abilities to influence the situation. If we have a situation wherein we have a quasi-constitutional piece of legislation like this, the Government of Canada has the ability to end-run provinces where it chooses to do so, but no single province has the ability to end-run the Government of Canada by the same technique, and to require a national referendum. It then seems to me that we have a lack of symmetry. If the legislation was such as to provide symmetry, I would have no objection to it.
Senator MacEachen: I understand that. Thank you very much.
Senator Carney: I am not sure that my colleagues understand that, in being addressed by Mr. Gibson, we are being addressed by a former politician, or a current politician.
Mr. Gibson: It is former, I assure you.
Senator Carney: He is a former politician who has given distinguished service to the province as the former Liberal leader in the legislature. Therefore, he is speaking with some knowledge of how the provincial system works.
It is interesting to me that you have kind words about the Senate, since you have never been a particular fan of the Senate. It is reassuring to find that you think we have a useful role to play in relation to this particular bill.
However, I find you ambivalent about the role of B.C. in this matter. You raise questions about Minister Petter's opposition to regional vetoes. In fairness, Minister Petter put forward his view that one of the problems with regional vetoes is that they will foster disunity, and that such a system is fraught with problems, one of which is the creation of four classes of provinces. As a British Columbian, you know how much British Columbians dislike this concept of different classes of provinces.
My first question is quite simple: Do you disagree with Mr. Petter's statement that the creation of four classes of provinces - first class, second class, third class and fourth class - is an inherently divisive notion that will ultimately undermine, not strengthen, the commitment to national unity? In your ambivalence, do you support him or not?
Mr. Gibson: First, perhaps, I could comment on the notion of my ambivalence. I attempted to be as helpful as I could by giving both sides of the argument as it might come from British Columbia. My own view is not ambivalent at all. I believe that British Columbia's position in Confederation ought to be improved. Therefore, I believe we ought to acquire every negotiating lever we can in order to achieve that end. There is no ambivalence there.
In respect of the equality or inequality of provinces, I think these are powerfully charged words.
I would like to leave the question of Canada for a moment and turn to that of the European Union.
Senator Carney: We do not have time. We have heard more than we need to on the European Union.
Mr. Gibson: Nevertheless, I want to tell you that the European Union contains 15 vigorously distinct societies, all of which are essentially equal. However, there are also differences. Germany has a different voting weight than Luxembourg. Is it an unequal country? This kind of argument poses some problems and sometimes leads us astray from what we want to achieve.
Senator Carney: Are you suggesting that the confederation that is Canada should adopt the European Union concept of a quasi-country?
Mr. Gibson: There is also a weighted voting system in the United States Congress, which is a much more centralized country than Canada. These things happen at both ends of the scale.
Senator Carney: That is another ambivalent statement, but we agree fundamentally on the position that British Columbia needs all the levers available to it to deal with our concerns.
My second question deals with the ambivalence of your advice to this Senate committee on what to do with this bill. In your written statement, you say that the bill is a political mistake. However, you did not say that in your verbal commitment. On the one hand, you are telling us not to block the bill, but on the other, you are telling us to send it back to the House of Commons. I am not exactly sure how we do that. At the end of the day, either we amend it, pass it, send it back, or defeat it. You are being so politically neutral here that it is hard to read your intentions. What should we do with this bill?
Mr. Gibson: There was no intended ambivalence. I think you should either amend it in the way that I propose, or you should block it. By "block it" I mean defeat it with the stipulation that if the lower House insists -
Senator Carney: That is the way the Senate works. If they want to do it again, we say, "Over our dead body."
Senator Murray: It does not come back. It goes nowhere.
Senator MacEachen: It stays in the mortuary.
Senator Carney: Is it your advice that we not pass the bill in its present form?
Mr. Gibson: Yes.
Senator Carney: For the record, Mr. Gibson is not nearly so politically ambivalent in the column he writes for The Vancouver Sun.
Mr. Gibson: I take that as a compliment from a former journalist.
Senator Beaudoin: I should like to come back to the proposition of Mr. Claude Ryan. He suggested that we go back to provincial consent. Of course, Bill C-110 is of such a nature that the government, in asking the opinions of the five regions, may do what it wants. It may consult the legislative assembly, the people of the province concerned, or the government. Claude Ryan suggested that we not go over the head of the National Assembly, and that we restore that obligation in Bill C-110.
In the actual amending formula, as Senator MacEachen has said very clearly, the Parliament of Canada, or at least the two Houses plus the legislative assembly of each province, are the legal actors. However, Bill C-110 follows another path. The Government of Canada, because the ministers of the Crown form that government, has three possibilities.
I am impressed by the argument of Mr. Ryan. After all, in a federation, the powers are divided between the central authority - the Parliament of Canada - and the 10 legislative assemblies. The power is in Parliament; the power is in the provincial legislatures.
I should like to have your clear-cut opinion on the proposal from Claude Ryan, because it has its merits. I understand why the government has proposed that measure in Bill C-110, and I understand the government of Quebec may say "no" because the government is sovereigntist. Perhaps the people of Quebec will say "yes", but it is not easy to have a "no" from the National Assembly and a "yes" from the people of Quebec. It will be difficult, politically speaking. I should like your opinion on the precise case of Quebec as stated by Claude Ryan.
Mr. Gibson: For the purposes of Bill C-110, it seems to me that the signification of assent by a province should be by the provincial legislature, not by the government and not by a separate referendum. That having been said, I would not want anything I say to imply that I am opposed to the Government of Canada having the right to consult the citizens of this country directly on constitutional matters. In my opinion, that is a very important power which should not only be preserved but should be expanded.
You heard my suggestion that such a power should be incorporated in a very formal way into our constitutional amending formula. I do believe that, for the narrow purposes of this bill, it is a distraction and a complication which makes the situation worse.
Senator Beaudoin: As you remember, with respect to the Charlottetown Accord process, this had been accepted by everyone, if I am not mistaken, yet the accord itself was very clearly rejected in many parts of this country. Of course, the referendum was not binding legally. The accord, then, was perfectly legal and could have been used. However, in practice, a clear-cut referendum responding to a straightforward question is as though the referendum process were part of the Constitution. Who could imagine the eleven first ministers ignoring the defeat of the Charlottetown Accord in a national referendum? Democratically, it would be impossible.
We are already in a difficult situation in our country regarding our formula of amendment and the requirements for referenda in the west, at the centre, and nearly everywhere else. Now we are adding another obligation to those who govern this country. I have even some doubts about the referenda and the extent to which they are binding on a provincial government. The referendum may be illegal because it is the constitutional prerogative of a National Assembly or of a provincial legislative assembly to govern as it sees fit. However, I have serious doubts that such a house can be legally precluded from acting because of a provincial referendum. I do not know if that is the case.
Senator Carstairs has raised the question of the extent to which referenda are binding in the west. If they are legally binding, my impression is that they are unconstitutional. I do not know what you think about that.
Mr. Gibson: Certainly the reference of 1919, I think it was, suggested that the Crown prerogative cannot be bound by a referendum.
Senator Beaudoin: That is right.
Mr. Gibson: That having been said, I am not certain that it is constitutional for a law to demand that the government of British Columbia must take advice from its citizenry and must pay attention to that advice. We could put it to a court, I suppose. Whether or not it is constitutional, that law is very widely supported in the province of British Columbia. If a court were to set it aside, there would be considerable agitation to find a way to make it legal again, because the people want this proposition retained.
Senator Beaudoin: The Australians settled that point; they put the referendum in their Constitution. Canadians have done otherwise. We favour parliamentary supremacy, and we give power to the provincial legislatures. Those are the two points I wanted to raise.
Mr. Gibson: We are cautious people; we still have the monarch. The Australians are dealing with that issue, too.
Senator Beaudoin: That is another debate.
Senator Gauthier: Mr. Gibson, I want to come back to the Ryan proposal. Others, too, have suggested that we look at the possibility of clarifying that provincial consent approach.
The present government in Quebec is hostile to any constitutional initiative on the part of anyone. It wants only to talk about secession or separation. In that situation, we must consider your comments and those of Mr. Ryan in relation only to Bill C-110. I am not referring to the constitutional requirements regarding the legislatures.
You are recognized around this table as a former politician who has some understanding of this process. Do you not think that a provincial referendum in Quebec would be a good tool to have in the federal government's backpack? If we presume that all the other provinces and the federal government can agree following a productive process of consultation, what would we do if the government of Quebec still said, "No way"?
We could go the 7-50 route. This Bill C-110 only ties the minister of the Crown. It does not tie any backbencher or any province. As a matter of fact, B.C. could propose to amend the Constitution by selling the proposal to the other provinces, and the 7-50 formula would work. Bill C-110 is absolutely irrelevant. As a matter of fact, it is a big yawn.
Senator Carney: Certainly, in B.C. it is a big yawn.
Senator Gauthier: It could be. I may do something about it.
However, if Bill C-110 is not a big yawn and is, instead, a useful approach to a political problem, why do you say that we must absolutely amend this bill to clarify provincial consent? That is but a political response to a political situation. There is nothing constitutional about Bill C-110; it does not amend the Constitution or the 7-50 formula.
You are proposing that we amend the 7-50 formula to a 7-80 formula. That is a proposal for a constitutional amendment which would be more far-reaching than Bill C-110. We have no authority to do that here; we do not have that kind of power, but that is another subject.
Why would you object to that, knowing what I have just told you and knowing that the future of this country may be at stake?
Mr. Gibson: If I understand your scenario correctly, there would be a general approval in the country for a specific move which would be covered by Bill C-110, a constitutional amendment of some sort. The legislature of the province of Quebec would refuse to endorse it.
Senator Gauthier: The government of Quebec would refuse.
Mr. Gibson: The government would refuse to endorse it. Both are controlled by the same party. In that event, then, the federal government would propose to go around the National Assembly and put the question directly to the people.
There are experts in this field far more knowledgeable than I. However, it seems to me that such an action would be seen in Quebec as a singling-out of the province for a special sort of attack by the Government of Canada.
I am on the record as recommending that the Government of Canada put together an important constitutional initiative and put it in a referendum to all of Canada. It seems to me that, in that way, you would be treating everyone the same. My concern is with distinguishing among provinces and treating them differently in that regard because special status is not always a good thing.
I believe that, for the purposes of Bill C-110, which after all is not a very important area of constitutional reform, one had better avoid this argument.
Senator Gauthier: I think you are clear on that one. I do not agree with you, but you are clear.
The Chairman: Mr. Gibson, effectively, what is the difference between going to the people through a provincial election or going to the people through a federally-sponsored referendum in a given province? Is it not simply an issue that, in the fullness of time, would be dealt with by a provincial election?
Mr. Gibson: The conventional wisdom, at least, is that people vote in elections based on a far broader range of issues than in a referendum where the topic is restricted. In an election, voters are inevitably commenting on personalities as much as policy. Where you are commenting on policy, you are commenting on a whole bag of policy. One of the reasons why I particularly like referenda as a tool of direct democracy is that it does allow the identification and the precise testing of the public will on a given issue, rather than the far more amorphous answer which is given in an election.
Senator Murray: Mr. Gibson and I go back about 30 years when we were both here as political assistants during the Pearson government of the 1960s; he on one side and I on the other.
Some of these same issues were vexing political leaders in those days. We do not seem to be making much progress on some of them. I thought the Fulton-Favreau formula was pretty good, as a matter of fact, and I rejoiced at the Victoria formula. I was not a supporter of - and in fact voted against - the 1982 act. After that there was the Meech Lake Accord and then the Charlottetown Accord. I am not sure that it is getting better.
In recent years, Mr. Gibson has been a prolific writer and commentator on these issues, and he is too modest to plug his book so I will do it for him. Thirty Million Musketeers is the name of the book, and it came out within the past few months. Like everything else he has been writing, in various publications such as the Fraser Forum and Policy Options and so on, it is extremely stimulating and very encouraging in many ways.
One of the encouraging things I have noted in reading much of what has been written recently is that there is a real convergence of views between what you and a number of other people have been getting at. Gordon Robertson, Professor Lenihan and Roger Tassé have a book out, as does André Burelle, along with a number of others, discussing the possible future shape and management of the federation, some joint management of the federal spending power. Mr. Gibson suggests a federal council.
By the way, Senator Carney, I think Mr. Gibson has set aside the idea of the Three-E Senate in favour of the federal council as a much more legitimate expression of federalism. Mr. Gibson, I think, and some of the others, favour a greater use of concurrency. There are now only three or four areas in which there is concurrent jurisdiction, some of them with federal paramountcy, some with provincial.
All of it is interesting, stimulating and promising for the future, but getting there from here is the problem. The roadblock, if I can put it that way, the one issue that threatens to end it all, is the place of Quebec in Confederation. It seems to me that in order to get there, we must resolve the problem. I do not think it can be resolved short of a constitutional initiative. Even with a separatist government in Quebec, I think it is important to get our act together in the rest of the country on this issue.
I thought Mr. Ryan was quite encouraging the other day when he was here, because he told us that if between now and the forthcoming constitutional conference the governments were to concentrate on resolving the two leading questions that came out of the referendum - the distinct society question and the amending formula question - so as to provide a guaranteed veto for Quebec, that would be enough. In my opinion, if we could resolve those two issues, then the door would open.
What do you think of that? Can we get there from here?
Mr. Gibson: Mr. Ryan may well be right as to the reaction of Quebec; that that might be sufficient. My own guess is that we will need to go further; that as we attempt to resolve the vexatious issues of the amending formula and distinct society, it will be necessary to address other issues as well, those issues under the general bundle of the word "subsidiarity", those issues that relate to what is to happen to so-called national standards when they can no longer be imposed by Ottawa while Canadians still want some commonality.
Senator Murray: Yes, and you have some good ideas on that?
Mr. Gibson: I suspect that there will be a somewhat larger bag of issues than the two suggested by Mr. Ryan. I would not want to restrict it to that.
Senator Murray: How can you break the logjam? How can you get approval for a larger package? Do you want to put that to the people in a national referendum?
When the aboriginal leaders were here the other day, their point of view was, "You may not address these questions until you have `concluded' your unfinished business with us," which, in a phrase, is an amendment on aboriginal self-government.
Mr. Gibson: I simply disagree with that position. There is no question in my mind that the question of the integrity of the larger community must be addressed before the special needs of any element of the community. Therefore, I think the first order of business is the continuity of Canada, if that is what it is to be.
As to how we get there from here, it seems to me the sensible thing is to have some group on the federalist side - leaving open the question of whether it should be the Parliament of Canada, the Government of Canada, the first ministers, or a constituent assembly, as far as that goes - develop a truly serious answer to the restructuring problems of this country. That answer could then be put to all of the people of this country in a referendum, and to say, "We now have two ways to go. We can go our separate ways or we can go forward together under these rules. Let us decide, and then let us put this issue behind us."
People have gone down some of these dark alleys now a little distance, and they have started to look at some of the consequences of not making a deal with each other. People are talking about track 2, how we deal with Quebec if Quebec decides to separate. The real issue in track 2 is whether the rest of the country stays together. If Quebec is gone, where does British Columbia stand at that point?
When you start to explore some of these issues, and you balance the upsides and the downsides across your option spectrum, I think that the citizens of Canada will be prepared to buy into a balanced package. I take very well the point - and I think it was Senator Carstairs' point this morning, or perhaps it was Professor Heard's in responding to her - that the addition of particular grievances in the Charlottetown package added up to an overall negative. At the time, the country was in the kind of spirit that it thought it could afford to say, "No Charlottetown; so what?" The country is now beginning to realize that sometimes one must put a small grievance to the side, and what one counts in the package is not the things with which one disagrees but the things with which one agrees. If someone can bring forward this kind of package to Canadians and put it to them in a timely way, I think they will all accept it.
Senator St. Germain: Are you actually advocating another package as opposed to a more simplistic question on whether any region, province or territory has the right to secede by way of a referendum?
Mr. Gibson: Again, I will defer to those with greater wisdom in the province of Quebec. I suspect that if you asked that question in Quebec, you would get the answer that of course the region has the right to secede. However, I do not really see that you would have advanced anything. You might get the same answer in British Columbia; things have evolved there. What you are asking of people is, "How much dignity do you think you have as a collectivity?" The answer you might get back is, "We think we have quite a lot." Therefore I am not sure that that is the question you want to pose because that question, in effect, asks people to limit themselves.
I think the question you want to ask is, "Do you agree with these possibilities?" The great victory of Lucien Bouchard during the referendum was that he offered hope. Our side, if I may put it this way, offered no hope. That is what was missing, and what we must bring to the table somehow.
Senator Murray: Just so you are on the record, Mr. Gibson, you expressed your disagreement with the position advanced by the aboriginal leadership the other day, specifically Chief Mercredi, to the effect that we may not deal with these other issues until we have concluded our unfinished business with the aboriginal peoples.
Would you not be opposed to having the aboriginal issues dealt with in the package that you are talking about? You are talking about another Charlottetown process, are you not?
Mr. Gibson: I would not be opposed to the aboriginal issues being dealt with if they could be dealt with successfully. However, I would be opposed to their being dealt with as a condition of the package succeeding. That would be a mistake.
Senator Murray: The same argument could be made about some of the other issues that you raised. You mentioned subsidiarity and how to deal with national standards in the new fiscal universe that we are in, and so on. Would you allow disagreement on one or other of those issues to hold you back from dealing with the existential issue?
Mr. Gibson: In each case, it is a matter of judgment. At the end of the day, you are looking for a certain level of approval or broad consensus across the country, as Minister Rock referred to it.
Senator Murray: Let me put it this way: You do not think we can deal specifically with the Quebec issue alone; you think there must be something else?
Mr. Gibson: You could, if it would sell, but I do not think it would sell. You must offer a more complete view of the future of Canada. Many British Columbians, myself included, had difficulties with both the Meech Lake Accord and the Charlottetown Accord for precisely this reason, namely that we, too, have our own improvements that we wish to see in Confederation. The energy coming out of the province of Quebec is very important to these issues being addressed. If the Quebec problem is simply dealt with by itself, our problems will never be dealt with. There is some sort of tie-in here.
Senator Murray: Ultimately, you want a provision for referenda as part of our amending process. You have correctly told us that there is a wealth of literature, and so on, on voter-initiated constitutional initiatives or government-initiated constitutional initiatives being approved by referenda. The important question to ask you - that is, if you have thought it through - is how a referendum would work in our amending process. Would it be a national majority, bi-national majority, or regional majorities? What would it be?
Mr. Gibson: First, you must have a national majority. I would think that the actual majority test should be 60 per cent, or an unusual majority of individuals voting. Thereafter, you also need to pass another test, the count by provinces. We must recognize that there is a regional identification in this country, and we ignore it at our peril. While we are not a joint venture or compact, neither are we a full merger. Therefore, to return to what Mr. Rock calls the broad consensus, our measurement of that broad consensus must include an overall majority test and a regional majority test. In that sense, I am not opposed to the philosophy of Bill C-110; I am opposed to the specifics of it.
Senator Murray: I think you are talking about five regional majorities and a national majority.
Mr. Gibson: Yes.
Senator Carney: But Bill C-110 does not have a national majority.
Senator Murray: No.
Mr. Gibson: Bill C-110 is not a proposition of the people, it is a proposition of governments. It is an amending formula for governments to use, and it is not a citizen-initiated referendum procedure.
Senator Murray: Would the referendum procedure apply as an alternative to the seven provinces with 80 per cent of the population that you are proposing as a general amending formula?
Mr. Gibson: That referendum test in a democracy is the superior court. Yes, it would apply - not simply as an alternate, but as the top appeal level.
Senator Murray: You say that, as a matter of current practice, the existing confederal deal is disadvantageous to British Columbia in terms of division of powers, influence over central institutions and financial flows. I want to ask you about division of powers. I have not been reading you as suggesting a wholesale constitutional redivision of powers.
Mr. Gibson: I have been suggesting that, for example, the famous six sisters should simply return to the provinces with no more federal activity.
Senator Murray: Yes, where they are supposed to be, anyway.
Mr. Gibson: Beyond that, I have suggested severe limitation on the federal spending power. I have also looked at certain areas of federal jurisdiction that have not operated particularly successfully, to put it mildly. For example, the fishery, unemployment insurance, regional development, ports, aboriginal affairs and, in a certain way, immigration, are areas of supreme federal responsibilities and some of the most enormous federal failures. In all of these areas, it is difficult for me to conceive how provincial governments could have done a worse job. I do think that the division of powers needs revisiting.
Senator Murray: We could pursue that for a long time, but I will not take up the time of the committee now.
Senator Carstairs: I have two areas of concern. One area is with respect to the constitutional veto bill in British Columbia. You indicated that, in your view, there was nothing wrong with consultation but it is not just consultation in your province. In fact, it is binding. The bill states that the government shall not introduce a motion for a resolution authorizing an amendment to the Constitution unless a referendum has first been held. It then says that if more than 50 per cent of the validly cast ballots vote the same way, the result is binding on the government.
Mr. Gibson: That is correct.
Senator Carstairs: Do you not think that those two combinations together make the bill unconstitutional?
Mr. Gibson: I do not know, but if they do I would change the words "the government should not introduce such a bill" to the words "the government better watch out if it does introduce such a bill", and get on with life. I do think it is valuable to consult the people in constitutional amendments in this country.
Senator Carstairs: I should like to pick up on Senator Murray's line of questioning with respect to Quebec. In my view, both the Meech Lake Accord and the Charlottetown Accord failed because they became too broad, and there was a lack of understanding. The reasons why people did not vote in favour of the Charlottetown Accord in my province, Manitoba, were quite different from the reasons why they did not vote in favour of it in British Columbia. The overriding issue in British Columbia was the 25 per cent rule.
Senator Murray: Yes, and the inherent right.
Senator Carstairs: That is right, but I am trying to indicate the overriding issue. The most important one in my province was what they saw as the dismemberment of federal power. It was quite a different view from the one held in the province of British Columbia.
Senator Murray: You are too modest to mention that you were leading the No forces there.
Senator Carstairs: Having said that, the result of the Quebec referendum, at least in the initial few days, was such that there was a different attitude on the part of the Canadian public.
Do you not think that we would have more success in concentrating on the issues which affect Quebec - that is, the Quebec veto in areas of particular need for Quebec - than we would by trying again in a referendum with a huge package, which the vast majority of Canadians would find too complex to understand once we politicians got going with our usual verbiage?
Mr. Gibson: First, I agree with your assessment of the public mood at the time of the Charlottetown Accord, and also post-October 30, 1995. At the time of the Charlottetown Accord, people were in a cranky mood.
Senator Carstairs: Yes, including me.
Mr. Gibson: There was a subtractive attitude, if I could put it that way. One was not looking for the good things in the Charlottetown Accord; one was looking for reasons to vote against it. There was also a view that there were no consequences to voting against it, and that one could do that with relative impunity, so we went out that day and felt good. We voted the way we felt like voting.
Today, as you correctly describe it, the mood is different. People do not feel that they can simply have their protest and that life will carry on. People feel that we are confronted with a very serious crisis in this country. Therefore, it is my bet that they will be prepared to compromise much more in their evaluation of the options that are put before them. At the end of the day, it must be put before them by referendum.
I go with you that far, but I do not go the next step, namely to say, "Therefore, we should uncomplicate the package to put in front of them by making it relate strictly to Quebec." I do not know if the senators from British Columbia will agree with me, but I think I know how my province would react to that. I think my province would say, "Well, we do not like that."
Senator Carney: You would have unanimity on that issue.
Mr. Gibson: Even if you did not have unanimity, you would have unanimity in B.C. If it is a 7-50 deal, you could pass it over British Columbia's objections. However, British Columbia is currently in a process of rapid evolution. The first time Angus Reid ever asked the question - and it was asked three days before and after November 10 - is it time for British Columbia to think about becoming a separate country, 12 per cent said "yes".
We have no time series on this to know if this is a change, but I suspect that it is. I do know that in British Columbia it is certainly not politically correct to muse in public about separatism, but I have noticed that it is becoming cautiously acceptable to talk about it in private conversations. This is a change.
It is very important that we look at the next constitutional round not as simply the property of the province of Quebec but the property of all Canadians, because there are curious tendencies out there.
Senator De Bané: Mr. Gibson, you said in your paper that it depends on how you view the history of Canada - that is, whether it was a compact or a union. If it is a compact, Bill C-110 makes sense or is logical; if it is a union, it is going in the opposite direction.
What is your opinion of the comments of Professor Peter Russell, who said that in 1867, three visions clashed together. First, there was John A. Macdonald's vision, which was that he wanted to create a unitary country with one government and junior governments; second, there was the vision of the provinces, which was that it was a partnership - that is, a compact between equal provinces; and third, there was the vision of the French Canadians, who thought that it was a joint venture between English- and French-speaking Canadians. Professor Russell went on to say that the tragedy was that in 1867 they did not resolve which of the three visions prevailed. Furthermore, he said that 125 years later, we are still debating the same issue.
You have put forward here your own vision of which of the three models you prefer, namely the union vision. Your argument all flows from that vision. You also draw some conclusions from the fact that there is a concentration in one province of francophones that has historically given them some clout that otherwise they would not have if they were dispersed throughout the whole country.
What do you think of the suggestion of Professor Charles Taylor, who is from Montreal? He is a professor at McGill and, in a lecture last week, said that the way to resolve the crisis that we have at the moment in Canada would be to say to Quebecers, "We do recognize you as a nation. Besides that dimension of 10 provinces, there is also that other dimension. We do recognise you as a nation." As someone living in Quebec who has been fighting that battle in the trenches for so many years, his opinion is that this is perhaps the key; namely, to give them recognition. Of course, he was talking about federalists, not separatists, to whom it is irrelevant to make any offer.
Mr. Gibson: You have certainly cited two of the giants of Canadian federalism. As to what Peter Russell said, the other side of that coin is that it is too bad the issue was not resolved in 1867. However, any attempt to force it to resolution might have made 1867 impossible. Perhaps that came with the territory.
I would read the statement of Charles Taylor, which I had not seen before but which is consistent with what he has been saying, as another formulation of "distinct society." People look for many ways to get around these words "distinct society" because they seem to carry so much baggage, and they cause problems. I would come back to what I said in my remarks about the worry that is engendered by open-ended, amorphous concepts. If someone says to me, "`Distinct society' means that the provincial legislature of Quebec has entire control over language in that province", I can say that I sign "yes" or I sign "no". I understand how to deal with that issue. If they say "`Distinct society' means that the provincial legislature gets to regulate cablevision in the province of Quebec", again I can either agree or disagree with that.
With the inate limitations of the pragmatic Anglo-Saxon mind, what I need to understand and come to grips with is specificity. If Mr. Taylor or anyone else can describe exactly what are the unique concepts that are necessary for the ongoing good standing of the province of Quebec, then I will simply add whatever things I think British Columbia might need. We will then agree, and I believe that there will be a deal.
On the other hand - and I will not speak for myself - the people of British Columbia are very clearly worried about distinct society, but I do not think they would be worried about specific things.
The Chairman: Before we conclude, I have some supplementary questioners.
Senator Carney: It is not fair nor wise to ask our witness to speak "for the people of British Columbia", which is implied in the questioning sometimes. You have your own views which you are stating. They may or may not conflict with, or reflect, the views of British Columbians. As a commentator in your case, and as senators in ours, neither of us are elected so we do not have a mandate.
However, what I think is implied but missing in your text is that the British Columbia multicultural feature is unique to British Columbia. It is different than that of Toronto because, although Toronto has a large multicultural aspect, it is submerged in the wider Ontario culture. The huge multicultural community in British Columbia did not come to British Columbia, but to Canada. The affiliation of the Chinese community in the Lower Mainland is to Canada, not specifically to British Columbia interests. That is a new factor in determining what their attitude is to Quebec. This may not be healthy, and may lead to problems, but I find that there is a greater willingness among the multicultural community to make specific concessions to Quebec than there is in the more traditional British Columbian society, which is hostile to that route. I make that point because it illustrates that the waters are a little more muddy than they were at the time of the Meech Lake Accord or the Charlottetown Accord.
A new element is emerging, that is, that there is a wide segment of British Columbian society, reflecting the recent immigration trends, that has a commitment to Canada and a readiness to make concessions to Quebec, which has not been the traditional British Columbia role. There may be some conflicts to work out there. I wanted to put that on the record because it has not been clearly stated that that is affecting the attitudes of British Columbians.
Mr. Gibson: I agree with that. The rapidly changing demographics of British Columbia are making us a seriously distinct society. Perhaps we are not quite as distinct as Quebec is yet, but we are becoming quite distinct from the rest of Canada.
Senator Carney: Some of us would argue that we always were, but we take your point.
Senator Gauthier: I bear in mind your point that we should not focus only on Quebec, that we should try to have a more comprehensive approach to a Canadian solution to our problems. I am from Ontario. I was born and raised here. I have nothing to do with Quebec. I have no relatives left there.
However, there were certain concessions made and certain rights given to French-speaking Canadians across this land in certain provinces which are still resisted by, for example, your government. I use as an example education - the control of their schools by the minority French-speaking groups. There are still three provinces which do not recognize that right, which has been confirmed by the courts. The Supreme Court of Canada confirmed that in 1989 or 1990. Yet, B.C. continues to resist giving its French-speaking minority the right to control and manage its own schools, as do Ontario and Newfoundland. The two richest provinces are still resisting, so it cannot be a question of money.
This is something that Quebecers understand because the press there reinforces it. It is very difficult for Quebecers to go outside the province of Quebec to make a living while keeping their French background because some of the provinces do not recognize them as full-fledged, fully-mandated Canadians.
You are telling me that I must not focus on certain irritants which have been affecting us for the last 14 years. Mr. Gibson, I have a bit of difficulty with your point. That is why I do not share your view that we should be looking at a new, comprehensive package. I believe that we must settle some of the irritants in the present package, and then go on and try to improve the situation.
Mr. Gibson: I must confess that I am not as well-informed as I should be on the issue of francophone schooling in British Columbia, and that is perhaps a measure of the problem because I follow British Columbia publications as closely as I can. I will inform myself more fully.
That having been said, as to what the new constitutional package should focus on, if there is to be one, I come back to my basic point that it must be saleable. It must be acceptable across the country. I am simply giving you my opinion that if it relates only to Quebec, it will not sell in B.C.
Senator Gauthier: Equitable, fair, just; I agree.
Senator St. Germain: I, like Senator Gauthier, cannot visualize a package that could be put together that would deal with all the diverse regions of this country.
In 1985, it was deemed that if the political system in British Columbia were put in charge of Expo '86, the labour problems and various other problems in the province would be insurmountable by politicians. The premier of the province picked Jimmy Pattison to rise out of the ashes and transcend the various groups.
I have been in discussions with many groups from various parts of the country with regard to their concerns. They are asking whether they can do something on this constitutional issue. It has been suggested that, rather than having politicians handle this issue, we could find one or two non-politicians to lead the initiative for a constitutional package.
When the Prime Minister appointed Mr. Dion, I was hoping that he would leave him out of the political arena and allow him to try to find a solution.
Mr. Gibson: I do not know of one or two people who could do this. On a previous occasion we had two giant names: Pepin and Robarts. They were wonderful people.
Senator St. Germain: They were politicians, though.
Mr. Gibson: They were out of politics. They had a great research staff, and they came up with some excellent conclusions, but at the end of the day the politicians said, "That is not for us."
Perhaps if, rather than appointing one or two people, politicians were prepared to empower another group of temporary politicians - if I can put it that way - as a constituent assembly to work out some of these issues subject to the approval of politicians and to a referendum, that route might work. However, I do not know who the one or two people might be.
Senator St. Germain: Neither do I. My questions is more with regard to the process than to the names.
The Chairman: Honourable senators, in your name, we extend our thanks to Mr. Gibson for an excellent presentation.
We welcome Mary Dawson, the Associate Deputy Minister of Justice, and her colleagues.
Perhaps, Ms Dawson, you might introduce your colleagues, and then we will proceed to questioning.
Ms Mary Dawson, Associate Deputy Minister, Department of Justice: Thank you, Mr. Chairman. With me today are Lou Davis, Thomas-Louis Fortin and Warren Newman.
Senator Murray: I have several specific questions. The first has to do with the constitutionality of the bill. It would be very difficult for me to summarize the arguments that have been made by several witnesses to the effect that it is unconstitutional, because they come at it from different angles. You are aware of the arguments that have been made as to its constitutionality. Do you see any merit in the arguments at all?
Ms Dawson: No, I think this bill is constitutional. Much discussion can be had on that question, but I am satisfied that the bill is constitutional.
Senator Murray: Stephen Scott testified that in his opinion this bill is an amendment to the Constitution of Canada under section 44. Do you agree with that statement, and does it make any difference?
Ms Dawson: I will answer the second part of the question first. I do not think it makes any difference so I have not worried about it very much. Any amendment made under section 44 is made by an act of Parliament, and this is what we are now dealing with, so if it were a section 44 amendment, we are doing it in the right way.
I would not have immediately characterized it as a section 44 amendment, but I am not sure where the boundaries are, and I did not worry about it in this context. It could be.
Senator Murray: Would it not make any difference?
Ms Dawson: I cannot see what difference it would make.
Senator Murray: You are aware, from your appearance before the House of Commons committee, that some of the aboriginal leaders are insisting that some kind of non-derogation clause is needed in this bill to ensure that their interests are not adversely affected. Specifically, one of the drafts that has been presented to us by one of the aboriginal leaders reads:
Nothing in this 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:
(a) recognize, affirm or protect the aboriginal peoples and their aboriginal and treaty rights or other rights and freedoms, or...
I presume that they are talking about section 91.24 of the 1867 act, and sections 25 and 35 of the 1982 act.
Ms Dawson: Yes, I would think so.
Senator Murray: Is it your position that those sections are already covered in the exemptions in Bill C-110?
Ms Dawson: No. What is covered in the exemption under Bill C-110 would be the exemption under 38(3), which would be anything that derogates from the powers, rights and privileges of a province. I suggest that any addition to the aboriginal rights would probably be caught by that particular provision because an addition to the aboriginal rights would probably entail, one way or the other, taking away from the provincial rights. That is the converse of what you were reading.
I suggest that anything that added to aboriginal rights would not be covered by this bill. Anything that took away from aboriginal rights would be covered by this bill and, hence, would have the additional overlay that Bill C-110 brings with it. It would be harder to take an aboriginal right away under this bill than under the current situation.
Senator Carstairs: Could you elaborate a little more on that point?
Ms Dawson: Certainly. It is a little confusing.
Taking away aboriginal rights would fall under the 7-50 rule. It would not fall under the exemptions in the bill because it would not fall under sections 41, 43 or 38(3) of the Constitution. All I am saying is that the bill would apply. Given that the bill puts additional impediments in the way of changing the Constitution, it would therefore make it more difficult to take away aboriginal rights.
Senator Carstairs: They argued the converse, saying that it would make it more difficult for them to obtain rights.
Ms Dawson: Yes. That is the converse of adding rights rather than taking them away. I am suggesting that adding rights would, by and large, be covered by section 38(3) and therefore would not be within the ambit of this bill.
Senator Murray: That includes, let us say, the inherent right amendment of the kind that was in the Charlottetown Accord.
Ms Dawson: Yes, I think it would include that. Someone made the suggestion that because the government is currently taking the stand that the inherent right is covered in section 35 already, perhaps it would not be an addition. You would need to look at the detail of a proposed amendment, but my bet is that some aspect of that would be in addition to aboriginal rights. Whatever I am saying about the addition would apply to that as well.
Senator Murray: When representatives of the Northwest Territories were here, the Minister of Justice from the Northwest Territories said:
We know that there will be a need in the next few years for so-called house cleaning: Constitutional amendments arising from the creation of Nunavut Territory on April 1 of 1999. In particular, there will be a need to: one, create a Senate seat for Nunavut; two, amend section 51(2) of the Constitution Act, 1867 to entitle Nunavut to return a member to the House of Commons; and three, amend the Charter of Rights and Freedoms to include appropriate references to Nunavut Territory.
He says further that:
In our view, the first two matters could be dealt with by an act of Parliament pursuant to the Constitution Act, 1886, and would not be affected by Bill C-110. However, amendments to the Charter would be caught by the bill.
I want to ask you about the premise of the question. Is it a foregone conclusion that, as a result of the creation of that territory on April 1, 1999, first, there will be a need to create a Senate seat for Nunavut; second, there will be a need to amend section 51(2) of the Constitution Act, 1867 in order to give them a member of the House of Commons; and third, there will be a need to amend the Charter to include the references to the territory?
Ms Dawson: On your first two points, I am not sure whether it is a legal need or a political need, but there is certainly a need. It is probably even a legal need. I am not sure.
With respect to the Charter, for neatness sake, there is a need. If there was a failure to get that amendment to the Charter, I am not sure that it would not be interpreted to cover Nunavut in any event. However, it would be wise to try to get that amendment.
Senator Murray: What are the legal grounds for believing that an extra Senate seat has to be created?
Ms Dawson: There are no legal grounds that I can think of, off the top of my head.
Senator Murray: Neatness, again, is it?
Ms Dawson: It is hard to imagine a territory of Canada not having a Senate seat, but I think it is a political question.
Senator Murray: And a House of Commons seat also of its own?
Ms Dawson: Yes.
Senator Carstairs: Two from the Northwest Territories.
Senator Murray: I understand that, but I am not sure there is one for the east and one for the west, constitutionally. There are two for the territories. The question is this: Will a third be created to cover Nunavut? Senator Marchand is shaking his head.
What about their statement that the first two matters - that is, the Senate seat and the House of Commons seat - could be dealt with by an act of Parliament pursuant to the Constitution Act, 1886? That would be section 44.
Ms Dawson: I think that is correct. There is provision in the Constitution Act, 1886, and there is nothing on the face of anything I can see that would override that.
Senator Murray: That would require 7 and 50, even enlarging the Senate by one.
Ms Dawson: I think it is in the Constitution Act, 1886.
Senator Murray: Amendments to the Charter would be caught by the bill. In other words, amendments to the Charter that you are talking about would be a 7 and 50 proposition.
Ms Dawson: That is right. As I say, that is probably a neatness amendment, but others could differ.
The Chairman: Ms Dawson, is it fair to say that work on this bill did not begin in your department prior to the Prime Minister making the commitment during his Verdun speech?
Ms Dawson: Yes, that is correct.
The Chairman: Your department received instructions to do some study into this matter around the end of October, and the bill was introduced into the House of Commons three or four weeks later. I do not have the exact dates of first reading in the House of Commons. Did your department have any chance to do comparative studies of other Commonwealth countries to see whether there were precedents for this kind of legislation?
Ms Dawson: Not at the time we drafted the legislation, no.
The Chairman: Have studies been done of a comparative nature subsequently?
Ms Dawson: Not to my knowledge.
The Chairman: Is it your department which prepares the certificate ensuring that a bill introduced into Parliament is congruent with the Canadian Bill of Rights?
Ms Dawson: Yes.
The Chairman: Was that done in this case?
Ms Dawson: I would imagine it must have been done.
The Chairman: If I were to ask if this statute has any precedent or primacy over the Canadian Bill of Rights, what would the answer be?
Ms Dawson: I do not see any reason why this bill would have primacy over the Bill of Rights.
The Chairman: Would it be subject to the Canadian Bill of Rights?
Ms Dawson: I would think so.
The Chairman: Was an analysis done on this bill in comparison with the Parliament of Canada Act?
Ms Dawson: No.
The Chairman: Is there any reason to believe there may be problems in that regard?
Ms Dawson: I have no reason to think that there would be.
The Chairman: From a general public administration standpoint, the more time you have to prepare input into a cabinet document or the drafting of legislation, the less chance there is for error. Is that your experience over the many years you have worked in public administration?
Ms Dawson: I think the logic of that would hold. There are many circumstances of preparing legislation quickly, and most of them seem to hold together. You are almost putting forth a tautological statement. In other words, the more time you have, the more time you have to check.
Senator St. Germain: As I understand your role, basically the minister signs a warrant or certificate on every piece of legislation that is constitutionally correct?
Ms Dawson: Actually, the converse is true. The minister files a certificate in the House of Commons if he has reason to think that there is a Charter problem. Any certification that goes on in the other direction is only an internal process. It is the exception, not the rule, that a certificate is filed.
Senator St. Germain: That is good for clarification, because when we were discussing Bill C-68, that process was discussed but never clarified in that manner. I thank you. My question involving the aboriginal peoples has been put forward by Senator Murray.
Regarding the legislation, the minister admits:
That is my response to the senator's question. It is a political matter. It is the fulfilment of a commitment, and it is an imperative that the commitment be fulfilled.
In that spirit, were you virtually told what to do, or was the normal process of drafting legislation followed?
Ms Dawson: Normally I think drafters are told what to do. The way this bill was produced was relatively normal.
Senator Carney: I have two points to clarify, and then I will ask if you want to clarify anything based upon all the various numbers that have been thrown around, and which can be confusing.
It has been suggested that ambiguities exist in the bill in terms of the provincial consent. Was it your intent in drafting the bill to leave it ambiguous?
Ms Dawson: There was an intent to leave it - we use the term "flexible". Yes, there was an intent to leave some flexibility.
Senator Carney: A sunset clause in the bill would obviously impede the time of the bill, but would it have any particular impact on the 1997 constitutional discussions? Would it be harder or easier to implement any amendments?
Ms Dawson: It would depend on the length of the sunset period. That is a political question, probably, more than a legal one. Depending on the timing, it may have an effect.
Senator Carney: We have been given a whole range of impacts in terms of percentages, such as 92.2 per cent versus 50.3 per cent. Is there anything you want to clarify in terms of the impact of this bill, and in terms of the number of Canadians who would be required to approve it? What are your numbers?
Ms Dawson: I have forgotten what my numbers are. The 92 figure sounds familiar. Fifty is the percentage that appears in the constitution. Those are the two relevant percentages.
Senator Carney: What is the 8 per cent which is left out, if you have five regional vetoes?
Ms Dawson: I am not sure how that was compiled. It would be two of the provinces in the maritimes and two of the provinces in the west.
Senator Carney: And the territories?
Ms Dawson: And the territories.
Senator Beaudoin: I wish to come back to section 35 because I raised that point before last week.
The royal commission will likely say, as some ministers have stated, that section 35 of the Constitution Act of 1982 implicitly protects aboriginal self-government. It is a theory. All the authors do not necessarily agree on this. What is the opinion of the Department of Justice on this?
Ms Dawson: That is a difficult question to answer. The current government's working assumption is that the inherent right is covered in section 35. That is the hypothesis under which the government is working at the moment. My personal opinion is not terribly relevant.
Senator Beaudoin: I raise that question because, under Bill C-110, the federal cabinet will not agree to an amendment if one of the five regions objects. This includes section 91.24, section 25, and section 35 of the Constitution Act of 1982.
On the other hand, if we are talking about the formula of amendment for groups or organizations other than the provinces and the federal authority, Bill C-110 would not apply because we need the unanimity to change the formula of amendment. Do you agree with that?
Ms Dawson: Yes.
Senator Beaudoin: Some people came before us and said that if you give a right of veto to five - three provinces and two groups - the others will ask for the same thing, or they will object. The territories will either ask for the same thing or they will object. The aboriginals will say that it is not good enough simply to participate but that they must be consulted. Probably, in the final analysis, they will require some kind of veto.
It must be clearly stated that Bill C-110 would not apply in such a case. To change the formula of amendment, we need unanimity under section 41. This is clear-cut.
Ms Dawson: That is right.
Senator Beaudoin: I wanted to state that for the purposes of the record.
The Chairman: I would thank officials for their attendance.
Honourable senators, we will reconvene tomorrow at 9:30 a.m. for a clause-by-clause study of the bill.
Senator MacEachen: Can I take it for granted that we will not attempt to write a report, apart from reporting the bill with or without amendment? Is that the understanding?
The Chairman: A draft report has been prepared to provide an historical backdrop and some analysis of the testimony. A copy of that first draft could be made available to all members immediately. We could take the rest of the afternoon and evening to look at that. It was prepared by the researchers of the committee. If that report meets with the satisfaction of all members of this committee, we might have a consensus report there. If not, we can make the decision early in the morning to go a different route.
Senator MacEachen: For myself, I want to state my unwillingness to engage in a process of preparing a draft report that constitutes a historical review and analysis of the witnesses and so on. Such a process would be tedious, and will ultimately serve no useful purpose. It would be my wish that we not do it.
Senator Murray: While it is frequently done, it is nevertheless against the rules. I do not wish to be sticky about it, but the rule is that a committee shall report a bill with amendments or without amendments. I know it is done; narrative reports are often submitted.
My only point is that I do not want to spend any time editing. If there is a narrative report to which everyone quickly agrees, that is fine. If not, Mr. Chairman, you could make it part of the speech which you will undoubtedly give.
The Chairman: We do have a draft narrative. If people want to look at it and if there is universal agreement, fine. If it becomes problematic, the wise counsel of Senator Murray and Senator MacEachen is probably the best course of action to follow.
Senator MacEachen: Any proposal that is supported by both Senator Murray and myself should not be ignored.
Senator Carney: That is historical in itself.
Senator Gauthier: Are copies of that report available to members?
The Chairman: Yes, they will be available forthwith.
Senator Carstairs: Perhaps, just to end on a light note, I will share a piece of research as provided by my researcher. I asked her to find out how many amendments had been made to the Constitution of the United States. There have been 27 amendments to the American Constitution, 16 of them in the previous century. There have been only ten in this century; two of those concern introducing and rescinding Prohibition.
The most recent amendment was made in 1992 regarding congressional salaries, and it took 203 years to accomplish.
The Chairman: On that note of levity, we stand adjourned until 9:30 tomorrow morning.
The committee adjourned.