Proceedings of the Special Committee on
Bill C-20

Issue 1 - Evidence, May 29, 2000 (evening sitting)

OTTAWA, Monday, May 29, 2000

The Special Senate Committee on Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, met this day at 7:03 p.m. to give consideration to the bill.

Senator Joan Fraser (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this meeting of the Special Senate Committee on Bill C-20 is now in session. I welcome all of you, including the television audience, to our hearings. This evening we continue our consideration of Bill C-20, to give effect to the requirement for clarity, as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

[Translation]

This bill was passed by the House of Commons on March 15, 2000 and read by the Senate for the first time on March 21. It was then read for a second time on May 18, which means that the Senate approved the bill in principle. Bill C-20 was then sent to this special committee for closer study.

[English]

That consideration began earlier today when the committee heard from the Honourable Stéphane Dion, president of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs.

We continue this evening with two witnesses. The first witness is Professor Patrick J. Monahan of Osgoode Hall Law School, and later we will be hearing from Professor Patrice Garant, Professor of Law at Laval University. We will hear first from Professor Monahan, who will make an opening statement, and that will be followed by question from the senators.

Welcome Professor Monahan. Please proceed.

Professor Patrick J. Monahan, Professor of Law, Osgoode Hall Law School of York University: Madam Chairman, I have been here a few times in the past and I have always benefited greatly from the opportunity to discuss these issues with members of the Senate.

I did not intend to prepare a written brief since I was working on a number of other things. I had written extensively on Bill C-20 in an article that was published earlier this year. However, in preparing for my appearance here today, I had occasion to read the extensive debates that took place in the Senate on second reading of the bill, and I was struck by the nature of the arguments that were raised. I would first say I was struck by, as I always am when I read the Debates of the Senate, the fact that the issues were approached from a position of principle. There was respect for opposing views, and a great many novel arguments were raised -- arguments that had not been raised in the House.

Having read those arguments and considered them, I was moved to actually try to write something about them. Therefore, I began last night and produced this brief, which is longer than I expected. In fact, it ended up being about six pages in length. I will not read it, but I will summarize my views. We can then talk about those. I have focused on the particular arguments raised by senators, arguments that were different or distinct from those raised in the House. I did appear at the House of Commons committee, but I will not go over that testimony other than to put forward a particular amendment which I proposed at the House committee, but which was not accepted.

My first proposition deals with the proposition that Bill C-20 is, in my view, constitutionally valid legislation. I was not aware that this issue was raised in the House of Commons, but it was raised in the Debates of the Senate, and a number of interesting arguments were made as to the constitutional validity or invalidity of Bill C-20.

In my view, however, the arguments that have been raised to the effect that Bill C-20 is constitutionally invalid are unfounded.

It is almost certain, in my view, that Bill C-20 is constitutionally valid. I believe that Bill C-20 is constitutionally valid on one of two alternative grounds. It is not necessary to determine which of those grounds would be the basis for Bill C-20 since either would provide an adequate foundation for Bill C-20. The first is section 44 of the Constitution Act, 1982, which expressly provides that the Parliament of Canada may, through legislation, amend the Constitution of Canada in relation to the executive government of Canada: the House of Commons and the Senate of Canada. This is precisely what Bill C-20 does.

First, Bill C-20 enacts binding limitations on the prerogative power of the Crown to enter into constitutional negotiations on the issue of secession. It will enact, by law, that the Crown may not enter into negotiations unless certain preconditions are met, namely, there must first be a clear question in a referendum in a province which seeks to secede from Canada. Second, there must be a clear majority in that referendum in favour of secession, and that must involve a clear expression of a will that that province cease to remain part of Canada. If those conditions are not satisfied, the Crown is prohibited under this proposed statute from entering into constitutional negotiations.

It is competent for Parliament, as we all know, to bind the Crown.

Senator Murray: The House of Commons, Professor Monahan.

Senator Cools: Right.

Mr. Monahan: Senator Murray is anxious to enter into the question period and will, no doubt, raise these questions. What we have before us, honourable senators, is a proposed statute. I will get to this point about the House of Commons in a moment.

That is my third point. Bill C-20 will enact certain requirements that must be met. If those requirements are not met, then the Crown may not enter into these negotiations. I say that is valid because that is provided for under section 44 of the Constitution Act, 1982, or alternatively, it is valid under the opening words of section 91 of the Constitution Act, 1867. Under those opening words, the so-called peace, order and good government clause, Parliament has the authority to enact law in relation to matters that do not fall within the classes of matters that are assigned exclusively to the provinces. I take it to be evident, beyond argument and any doubt, that no province could enact a law prohibiting the Crown, in right of Canada, the executive government of Canada, from entering into negotiations on the secession of a province from Canada.

If it is beyond doubt that a province could not enact such a law, it follows inexorably, senators, that the Parliament of Canada must be able to enact such a law because the distribution of powers between the provinces and the Parliament of Canada under sections 91 and 92 is exhaustive. There is no vacuum or lacunae of constitutional jurisdiction. Therefore, if the provinces cannot enact such a law, then Parliament must be able to do so. Therefore, this is the second alternative basis.

Even if we did not have the express words of section 44 of the Constitution Act, 1982, it would be valid under the opening words of section 91.

Some senators have expressed the view, however, that, notwithstanding these two foundations that I say support the validity of Bill C-20, the bill is invalid because it offends a principle of the indivisibility of Canada. It is said that this principle results from the preamble of the Constitution Act of 1867, which states, as I referred to in paragraph 2.5, on page 2, that there is a desire of certain provinces to be "federally united into one Dominion under the Crown with a Constitution similar in principle to that of the United Kingdom."

It is said that this gives rise to an unwritten principle to the effect that the federal system in Canada or federalism in Canada is indivisible, similar to the systems in the United States and Mexico.

I say, honourable senators, with the greatest of respect to the views that were put forward very ably and eloquently to that effect, in my reading of the transcripts, that I do not share that view. I do not share that view because, historically, the parliament of the United Kingdom retained unlimited legal authority to amend the Constitution of Canada and could have provided, by amendment, any type of amendment with respect to the federal system of Canada.

In any event, since 1982, Canada has been fully self-governing, as the Supreme Court of Canada recently stated in the Quebec Secession Reference.

This means that there is no class of amendment or constitutional change which is beyond the capacity of domestic Canadian political institutions to adopt, including the secession of a province from Canada. That principle was accepted expressly by the Supreme Court of Canada in its decision, specifically, in paragraphs 84 and 85 of the decision.

I might add that this was also the position of the Government of Canada and of all of the intervenors before the Supreme Court of Canada. There were 14 intervenors before the Supreme Court of Canada, representing a diverse group of Canadians or individuals. I acted as co-counsel in that case for Mr. Guy Bertrand from the Province of Quebec; and that was the position that Mr. Bertrand took, along with all of the other intervenors.

Even if it were the case that the Supreme Court of Canada had not already settled that point, even if there were some doubt as to whether or not Canada is divisible, in my submission, senators, that is the best and wisest course for Canada; not because we seek division, but because we seek to avoid it. We say that, in this country, of which we are proud to be members, one is not kept here by force; one is not kept here because one cannot leave. One chooses to be here. One chooses to be a Canadian, unlike, perhaps, the situation in certain other countries. That is the tradition of our country. It is the tradition that this Parliament, therefore, ought to uphold by enacting Bill C-20.

What of the role of the Senate in relation to the Commons, the point that Senator Murray raised in his intervention? Because this has been a point and a focus of debate here in the Senate, I read extensively the arguments that were raised, again, very eloquently, by senators.

I understand the concern that is raised as to whether it is appropriate to confer on the House of Commons alone this role that is envisaged by Bill C-20. Again, I conclude, honourable senators, that that is the appropriate course.

I have outlined, beginning on page 3, under paragraph 3.1, the arguments that lead me to that conclusion. Essentially, I believe that the argument in favour of that conclusion is as follows. The executive, in the absence of Bill C-20, would be free, and has been free historically, to commence constitutional negotiations absent permission. It is not necessary to obtain the permission of the Senate or of the House of Commons. That has been a matter within the discretion of the Crown, of the members of the executive council.

What, therefore, is proposed here is to limit that discretion by statute to require certain criteria to be met before these negotiations could be commenced. I say, honourable senators, in paragraphs 3.4 and 3.5 on page 4, that it would have been possible to draft a bill imposing limitations on the Crown without reference to either the House of Commons or the Senate, at least to the extent that neither body would be given a determining role in the assessment of the clarity of the question or whether there was a clear majority. It would have been possible to have done that. Indeed, I referred you to an article which I happened to write -- and I only referred that to you because I was doing this last night and I did not do a lot of research. However, in an article I wrote in 1996, I had proposed such a model. I said the government should table a finding that there has been a clear question and a clear majority.

That would have been possible. There would have been nothing unconstitutional about that. It would have been for the government to have said, "We hereby so declare," and there would have been binding requirements in the statute that would have constrained and structured that finding.

That is not the approach taken in Bill C-20. Bill C-20 goes further than that. It states that, not only must the government form a view, but it also states that the House of Commons must make a finding and that finding will be binding on the government. The first question is: Is it possible for Parliament to do that? That is what we are talking about, Parliament by statute. The second question is: Is it desirable for Parliament to do that?

I identify those issues in paragraphs 3.7 and 3.8. I submit to you that there is no legal reason why Parliament could not provide a determining role for the House of Commons alone without also conferring the same role on the Senate or a similar role on the Senate, because we already know, under the Constitution Act of 1982, that there are different roles for the Senate and the House of Commons in the constitutional amendment process. Therefore, there is no principle that says that the Senate and House of Commons must always play an identical role.

Second, honourable senators, as a matter of policy, and as a matter of constitutional policy, I see nothing improper with the House of Commons alone being asked to make that determination because the House of Commons is the only body which is elected by all Canadians.

Certain senators would say -- and I know they have said it, and I understand the concern -- "But this devalues the role of the Senate because it does not treat the Senate as equal to the Commons." I simply say to you, senators, that neither the Senate nor the Commons has ever played the role envisaged by Bill C-20 in the supervision and limitation of the prerogative powers of the Crown. Therefore, in my view, it does not infringe on the historic prerogatives, privileges or powers of this institution of which honourable senators are a part. Thus, you do not bring any dishonour to the institution and to the traditions of the body of the Senate by agreeing to Bill C-20. Therefore, I think it is appropriate for you to enact Bill C-20 in substantially its current form.

I have proposed an amendment dealing with the clear majority. I will not go through it, but if senators want to talk about it, that is fine. However, it was not discussed in the Debates of the Senate. I put it forward because, if you are to consider amendments, then I have one for you to consider.

Senator Grafstein: That is good. The minister said he would consider amendments.

Mr. Monahan: If the minister is prepared to consider amendments, then I have an amendment that I think is very important. I will tell you why briefly, if I may. In the vortex of another referendum, at the time of that referendum, the government and all members of Parliament will be under tremendous pressure to move one way or the other. This bill is so important, honourable senators, because it will allow the Parliament of Canada, not the House of Commons, but the Parliament of Canada, to establish certain criteria that must be met before the government can enter into negotiations on the secession of a province from Canada. I say, with great respect to Mr. Dion -- whom I congratulate, along with the Prime Minister, for their initiative in bringing forward this bill -- that, unfortunately, the bill is lacking in this one respect, and that is, it does not specify how a clear majority is to be determined. It specifies certain factors that the government must take into account. However, it does not, for example, rule out a majority of 50 per cent plus one of valid votes cast as constituting a clear majority.

I have, therefore, proposed an amendment which would say, similar to clause 1 of the bill, that a certain minimum threshold must be met before the government or the House of Commons could possibly find there to be a clear majority. That threshold is a majority of eligible voters, a threshold which Mr. Claude Ryan in his testimony to the House of Commons committee accepted as a potentially acceptable threshold in this context.

Those are my general comments, honourable senators. I look forward to discussing them with you.

Senator Murray: I will not pursue the question of section 44. However, I am sure that others here who are more expert than I will wish to do so.

What you have said is that what Bill C-20 does is make a law amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. I do not know whether it has been brought forward under that aegis or, indeed, whether there is any special process, rationale, justification, or foundation for it. I will leave to others also to consider in some detail whether the bill does not affect what are called under 41(1)(b) the powers of the Senate. Professor, did you happen to hear Mr. Dion this afternoon?

Mr. Monahan: I did not hear the minister. However, I had occasion to review his remarks which were posted on the Internet. I have read his written brief.

Senator Murray: We had a very interesting afternoon. I just want to put something forward to you and let you comment on it, after which I will have no further questions. This concerns what Mr. Dion calls the legal import of the court's opinion.

You are aware, because you commented on it extensively in the piece you did in November 1999 after the advisory opinion came down but before the bill was presented, and you commented on it again after the bill was presented. As you know, the obligations identified by the court are binding obligations under the Constitution.

I also want to put on the record again, and you may or may not wish to comment on it, what the Right Honourable Antonio Lamer said in an interview to Le Devoir as he retired as Chief Justice. He said:

[Translation]

The reference on Quebec's secession, like all references, is only an opinion. Neither Quebec nor the rest of Canada are compelled to follow our opinion.

[English]

However, Mr. Dion said something today that I think he had not and no member of the government had said before, at least not in my hearing, that is, they regard this advisory opinion as binding on them and, indeed, on all the provinces. One of the authorities they quoted on this point is none other than yourself.

My question is: In view of the acceptance that this opinion is binding, where does it leave us in view of some of the matters that you brought to light in your analysis of the opinion of the Supreme Court of Canada? For example, you have pointed out that the court fills in so-called "gaps" in the Constitution that are not really gaps at all but, rather, simply matters on which the Constitution is silent. The court fills these in with hitherto unwritten principles that are binding. You point out that the court has decided to find a balance among these principles, an exercise that you say is incompatible with the judicial role.

We then get into this question of whether a clear expression of the will of Quebecers, let us say, imposes a legal and constitutional duty on the federal government and the other provinces to negotiate. You properly raise the question: If it is a legal obligation, then how is it enforced? What is the legal remedy for all this?

I keep coming back to the fact that some of us at this table voted on that amending formula in 1982. Some of us were members of the joint committee and so on. We think that if the governments, the first ministers and Parliament had wanted to put into the Constitution an obligation that all players would be required to come to the table if one player launched an initiative to amend the Constitution, then we would have done so. That was not done. However, the court now finds that there is such an obligation.

More seriously, on this question of the possible international recognition of a UDI, you point out in your November piece:

Thus what the Court seems to be tacitly approving is the issuance of an illegal UDI by Quebec, as long as the UDI is perceived as legitimate by the international community and eventually leads to international recognition.

Finally, on the question of the clear majority, you say:

Instead, the Court is engaged in a purely legislative exercise, in which it designs the constitutional obligation based on its own conception of what would be appropriate.

This is reflected in the Court's formulation of the duty to negotiate as only arising following a "clear" majority in favour of secession. While one may applaud as a political matter the requirement that "the referendum result... must be free of ambiguity both in terms of the question asked and in terms of the support it achieves," there is surely no basis for claiming that such a requirement was part of the constitution as it existed prior to August 20, 1998.

Perhaps on August 20, 1998, the government made the Supreme Court opinion part of the Constitution. The government compounds the problem, I say, by accepting, as the minister did this afternoon, that all this is indeed binding on us, and compounds it further by legislating. I invite to you comment on that.

Senator Cools: Madam Chair, Senator Murray was citing a document. Perhaps we could have copies, or at least have it put on the record.

Senator Murray: I have cited from the National Journal of Constitutional Law, November, 1999; an article entitled: "The Public Policy Role of the Supreme Court of Canada in the Secession Reference." I also made reference to another article from the C.D. Howe Institute.

The Chairman: Perhaps Senator Murray could provide those to the committee staff.

Mr. Monahan: When I was starting off in my career as a law professor, one of my law professors told me that 3.1 people read the average law review article. Thus, I am encouraged to meet one of the three people who has read that article in the National Journal of Constitutional Law.

Senator Murray: I only picked it up because you footnoted it in your brief to us.

Mr. Monahan: That is why we do that.

Senator Grafstein: We all read it.

Mr. Monahan: As law professors and jurists, it is open to us and appropriate to criticize the Supreme Court of Canada, and it is our duty to do so. It is important to have constructive criticism of the judgments of our courts. However, that does not mean, senator, that we ignore certain judgments or that we accept only the judgments with which we agree.

I mention the date August 20, 1998, because there is no doubt that, as of August 20, 1998, it is part of our Constitution because the Supreme Court of Canada has recognized that it is.

What is an advisory opinion, senator? An advisory opinion is a statement by the Supreme Court of Canada as to what its view of the law is. Thus, it is more than an opinion one might obtain from a lawyer. One could retain a lawyer to provide a legal opinion. Honourable senators have the opinion of the Supreme Court of Canada. That will, first of all, be binding on the courts, other courts, and it has always been accepted by governments in this country that it is binding upon them.

Consider, senator, that until 1949, the highest tribunal in Canadian law was the Judicial Committee of the Privy Council, not a court of law, providing advice to the sovereign in Britain.

Would we have it, senator, that until 1949, none of these judgments were binding? Would that be the position we would take? No. The position we have always taken is that advisory opinions are binding in law on governments. That does not mean that courts cannot later depart from them.

To take another example, in 1983, the Supreme Court of Canada declared, in an advisory opinion, that the Constitution of Canada in the Constitution Act of 1982 was binding on the Government of Quebec. Would we say, "Well, that is not binding?" If we were in the Government of Quebec, would we say, "Is this the position that this body wishes to take today?" That would mean that the Government of Quebec could equally say, "We do not agree with that, we do not think it was sound, and so we are free to disagree with it." I suggest to you, senator, that is not a road upon which we want to travel. It is contrary to the traditions that we have had in this country since 1867.

I see nothing remarkable or novel at all in the minister's statement today. I would have expected nothing less than that he would have accepted the binding character of that advisory opinion. One cannot ask the Supreme Court of Canada for its advice and then say, "I do not agree with it, so I will not follow it."

We must accept that that is now the law and, therefore, it is necessary. I also argued in that article that we need to clarify the meanings of the terms "clear" majority and "clear" question, because the Supreme Court of Canada did not clarify those terms. They said that it was the obligation of political actors, including this body, considering such a measure and preparing to vote on such a measure to clarify the terms "clear" majority and "clear" question.

Senator Kroft: I should like to come back to the question of divisiblity. We are in the early days of the work of this committee. At this stage of any enterprise, one of the critical steps is to have a correct lexicon. Nothing will distract us more than a lack of clarity as to the meaning of words.

I hear two completely different things on the question of "divisible," or more often the expression is "indivisible." To me, "divisible" has an absolute ring to it. If something is indivisible, it is indivisible. The only alternative is an extralegal or extraconstitutional resort that would be force. To me, indivisible means that the only recourse is force. On the other hand, the most common use of the concept of indivisiblity, as we have heard it and as you will know from the reading of the Debates of the Senate as you have said you have done, is that it merely suggests a higher bar, a more demanding threshold.

We have heard words such as "supernational" or "extraordinary." Somehow that certain category of amendment has an extraordinarily high requirement in terms of amendment. My colleague Senator Joyal has talked about a national referendum. I am in a dilemma as to whether indivisible means indivisible or whether it just means more difficult to divide.

It is more difficult for me to ask for this clarification because you have sort of knocked it off the table, but bear with me because I think the question will be with us for some time. I would appreciate any intervention you may have on this subject.

Mr. Monahan: Senator Kroft, dare I say you seem a practical man. You point out the obvious which is that, whatever the law may say, of course, nothing is indivisible. That is to say, ultimately, even if you say in your Constitution it is indivisible, that does not prevent someone some day from coming along and dividing it, even by way of constitutional amendment. We could amend a provision that says we are indivisible; or even if we had a provision that says we may not amend the provision that says we are indivisible, we could amend that. In other words, one cannot place oneself in a situation where one could never divide.

More seriously, the argument that has been raised in the Senate to the effect that there is some special quality to secession that takes it somehow outside of the category of normal constitutional amendment. Although neither the intervenors nor the Government of Canada took that position, articles were written that took that position, and they were before the Supreme Court of Canada. The Supreme Court of Canada was aware of those articles and referred to them. That argument occasioned the court's comments in paragraphs 84 and 85. If you look at what they say in paragraph 85, it is unmistakable. In paragraph 85 the Supreme Court states:

The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including, should it be so desired, the secession of Quebec from Canada.

It is unmistakable that the Supreme Court of Canada has rejected that argument.

Senator Joyal: That is not what it says.

Mr. Monahan: In my submission, the court has rejected the argument. I go further, senator, and I say that, even if the court has not rejected the argument -- which, it is obvious that it has -- we ought to reject it because we have rejected it as a country.

Senator Joyal: When?

Mr. Monahan: As a country, we have said, and we ought to say, that we are a voluntary federation.

Senator Joyal: We are a legal federation.

Mr. Monahan: In my submission, that is the basis upon which we ought to carry forward.

Senator Grafstein: This is a consensual marriage?

The Chairman: Senator Grafstein, could you please let the witness finish his reply?

Mr. Monahan: Yes. In my submission, what distinguishes Canada and makes it one of the great countries in the world is the voluntary adherence of Canadians to the Constitution.

Senator Taylor: That is political, not constitutional.

Mr. Monahan: Of course it is political. It is a matter of constitutional politics.

I mentioned to you earlier that I had worked with Guy Bertrand in the Quebec Secession Reference. As you know, at one time he was a separatist who worked to destroy Canada. I asked him why he changed his view. He told me that he changed his view because, in Canada, we could have a Leader of the Opposition who is dedicated to achieving the secession of a part of Canada. He said that was a remarkable fact about Canada and one that made Canada a country that one ought to want to be a part of. You may say, "I do not care about that. That is not a legal argument. What court ever accepted that?" In fact, we have the Supreme Court of Canada saying this in paragraph 85. I am saying to you, honourable senators, that this is a positive message, ultimately not of division but of a reason to remain within Canada.

Senator Beaudoin: My question is on the legislative branch of the state. We do not pay enough attention in constitutional law to the fact that a bill must respect the bicameralism in our country. When we are talking about constitutional law, we instinctively think about the division of powers and, since 1982, the Charter of Rights. There is another branch in Canada in the Constitution, namely, the legislative branch. Under section 17 of the Constitution, we have two legislative branches. Except in the case of constitutional amendment, those two Houses are equal. Nowhere is it stated that one is predominant over the other. When we settled the amendment of the Constitution in 1982, that is, when we said that the Senate has only a suspensive veto, we did it by a constitutional amendment. Bill C-20 is not a constitutional amendment. It does not purport to do that. If it did, obviously, it would be ultra vires since the beginning, because an amendment cannot be made by a simple law in that legislative field.

Why are we not following the equality of the two Houses in a purely legislative field of government? You may say that we have precedents for this. That may be, but because we have a precedent, it does not mean that we were right at that time. At this moment, where the history of Canada is at stake, to say that the Senate is not involved while the legislative process in the House of Commons is, and to have this done in a pure statute -- and, I do not use the word "unconstitutional" because there will be a lengthy debate on that -- is against the basic principle of bicameralism that is part of the Constitution of Canada.

Mr. Monahan: Certainly, senator, I would agree with you if what was being contemplated here was to establish a power to make law or to enact a statute without the Senate.

I begin with this proposition: Supposing we did not have Bill C-20? What, then, would be the legal situation? The legal situation would be that the government would make its own determination as to whether the question is clear and the majority is clear, because that is what the Supreme Court of Canada said the government must do. If the government wishes to introduce a measure which says, in effect: "We do not want to leave it to the government. We want to have an open debate and we want to require that there be a finding, not simply by the government but by a broader body; that is, one or two of the legislative chambers of Parliament," is it possible to say that we will select one and not the other, or must we automatically choose both? In other words, we know that we could have neither.

In the absence of Bill C-20, the Senate would not make any finding and neither would the House of Commons. The question is this: Is it possible to have just one or, by bringing in one, must you automatically and inexorably necessarily have both? The government could have said, "We wish to have both." In that situation, it would be difficult to apply bicameralism to this kind of finding. I do not say it is impossible, but I think it would be difficult and complicated. It seems to me appropriate, given the fact that the House of Commons is the only elected body, to provide this role for the House of Commons and not for the Senate. However, I understand the concern you are raising, senator.

Senator Beaudoin: I agree with you when you say the government was in a position to completely ignore the two Houses. That is the executive prerogative. I have no problem with that. However, the minute they select the legislative path, they have to obey --

Senator Taylor: Right on!

Senator Beaudoin: -- the parameters of the legislative powers. Why select one of two? It is two or nothing.

Mr. Monahan: I do not understand the logic of that, senator. I do not think that necessarily follows. It should be possible to say that we will have a binding determination by the House of Commons.

Let me put it to you this way, senator: I would object, as a Canadian, to a situation in which the House of Commons was subject to a veto or to the control of the Senate on such a matter as this. In other words, if you were to put that proposition forward and suggest that we must follow the same model that we follow in the enactment of a statute, which would mean that the Senate would have a veto. I say that is inappropriate in this context. It is inappropriate because this issue is of fundamental importance to the continuity of Canada. On this issue, with all due respect to honourable senators around this table, a binding determination must ultimately be made by the House of Commons.

Even if we got to the position where the Senate would have a role, my view is that the role would have to be a secondary one. Others may have a different view. I see that senators around the table seem to have some objection to that.

Senator Beaudoin: In the field of constitutional amendment, you are 100 per cent right, but we are not in the field of constitutional amendment. That is the problem. Anyway, I still like it.

[Translation]

Senator Hervieux-Payette: For our benefit and for all Canadians interested in this issue, I would like to come back to your comments on section 44 regarding constitutional amendments. This section did not exist before 1982 and for years it was a missing part of the Constitution.

We put the question to the Minister of Intergovernmental Affairs. In the case of a clear referendum question, of a clear result and if negotiations worked, would we arrive at a constitutional amendment?

With this constitutional amendment, we still have a legal void to fill. Must we have unanimity or must the constitutional amendment be made strictly at our level? Since we are not dealing with the provisions of section 42 or section 41, section 38 applies.

You are a law professor. In your opinion, is there any previous agreement that requires unanimity? In the separatist camp, they say that it is impossible to have unanimity. In politics, unanimity is very seldom found.

I consider the whole matter from the point of view of a unilateral declaration. If a government feels that it has come to a dead end, and sees that there is nothing to be gained, why should it start negotiations in good faith? I am trying to emphasize what we can expect if we launch this procedure.

[English]

Mr. Monahan: Section 44, although it was added in 1982, continued or gave effect to a provision which existed since 1949, which was section 91(1). That section provided that the Parliament of Canada could amend the Constitution of Canada in relation to the executive and the Senate and House of Commons as long as it was not a matter in relation to provincial heads of authority under section 92. That authority has existed for many years, and it has been used a number of times.

Section 91(1) has also been used since 1982, by the way, in other statutes that have been passed. For example, the representation acts are enacted under section 44 by the Parliament of Canada.

You asked about the actual amendment to effect secession. What amending formula would apply? Here the Supreme Court of Canada declined to offer an opinion. They were urged not to offer an opinion on that by the government, although some of the intervenors did offer a view about that.

My own personal view is that section 41 would be the applicable amending formula because it would be an amendment in relation to virtually all of the matters referred to in section 41. I do not think, however, that as a practical matter, there will be a large difference between section 38 and section 41 in the event of a secession, because a consensus will develop either in favour of an acceptable agreement or not.

If there is a sufficient consensus among the provinces such that seven provinces representing 50 per cent of the population would agree, then I think the force behind that consensus would be very large. Given the uncertainties involved in secession and the possible threat of a unilateral declaration of independence and, as a practical matter, once we pass the threshold of section 38 it will not be very far to move ahead to section 41.

What we would need in any event would be a substantial consensus. If we are to achieve that, then it will not make much difference whether we are at section 38 or section 41. If we achieve that consensus, the amendment will go through. If we do not have substantial consensus, then we will not have a constitutional amendment.

[Translation]

Senator Hervieux-Payette: If there were a law for amending the Constitution in the House of Commons, this law would be brought before the Senate. The role of the House of Commons is different from that of the Senate. On one hand the House of Commons has the last word on this matter. On the other hand, the Senate can study the matter as required by section 47. The Senate also has a suspensive power for reflection and it can return the bill with amendments. On the other hand, by deciding to pass the bill without amendments, the House of Commons has the last word. Have I correctly understood the way this constitutional amendment works?

[English]

Mr. Monahan: Yes. I read the remarks of Minister Dion. He relied on that as one of the reasons why he favoured only the House of Commons as the appropriate body to have an effective veto over the government's determination to enter into negotiations. I would agree with that. That is an appropriate consideration.

Senator Lynch-Staunton: Mr. Monahan, in your closing remarks, you showed quite a bit of enthusiasm for this bill. You welcomed it, if I remember your remarks. I have difficulty in sharing your enthusiasm because this bill, you would have to agree, gives respectability, even legality, to the possibility of secession.

The Parliament of Canada is being asked to confirm that secession is a legal possibility under certain conditions. Would you agree that that is not the role of Parliament? The role of Parliament is to do all it can, with the guidance of government, to confirm the unity of this country.

Mr. Monahan: Senator, we must deal with the situation as it now exists in light of the decision of the Supreme Court of Canada. In my view, the situation is that Canada is divisible. Not only that, there is a constitutional duty to negotiate secession in the event that there is a clear mandate on a clear question.

It is my submission, senator, that it is incumbent on the Parliament of Canada to state by statute what would or could constitute a clear question and a clear majority, so that it will not be left to the accidents of electoral politics. It will not depend upon who happens to be in the office of the Prime Minister at the time of a future referendum, or on what the distribution of seats is at that time. This statute could establish certain parameters. Of course, the statute could be amended. We know that, but at least it will be there and it will require amendment if we wish to depart from the requirements of the statute.

I believe, senator, that it is absolutely essential to the unity of this country, in light of the findings of the Supreme Court of Canada, that there be some parameters to confine the discretion of the Government of Canada to enter into negotiations. One of the great concerns of Mr. Bertrand at the Supreme Court of Canada was to urge the court to state that the Government of Canada has an obligation to uphold the Constitution of Canada, and the Supreme Court did make that statement. That is of fundamental importance, in my view, because it means that a unilateral declaration of independence must be opposed by the Government of Canada. The Government of Canada cannot accede to a unilateral declaration of independence. That is of fundamental importance. I note Senator Murray is shrugging and thinks it is unimportant.

Senator Murray: I do not think it is unimportant. I say, "So what," given the comments you made on the Supreme Court of Canada's advisory opinion about international recognition and the circumstances under which it could be obtained.

Mr. Monahan: That is the concern. If the Government of Canada were to accept a unilateral declaration of independence as valid, the international community or a substantial portion of the international community would surely go along with that. One of the important achievements of the opinion of the Supreme Court of Canada -- and I believe it is paragraph 69 -- is where they say that the Government of Canada must uphold the constitutional rights of Canadians and it would be improper, contrary to the Constitution, for the Government of Canada to accept an unilateral declaration of independence. That is no idle possibility, in my submission, and it is important that that principle be upheld.

Senator Lynch-Staunton: Surely we did not need the Supreme Court to tell us that a UDI need not be accepted by the Parliament of Canada.

Mr. Monahan: No, the Government of Canada, sir.

Senator Lynch-Staunton: Whoever. It is so obvious. The tragedy of the whole situation is that the Supreme Court went way beyond the question that it was asked. It has set us on this path to God knows what, and I do not see the obligation of the Government of Canada to introduce a law based on an opinion which is not binding. It may be binding by tradition and by practice, but in legal terms it is not binding. Why did the Government of Canada just not leave it alone and say, "Thank you for your opinion. You went a little further than we expected you to go. This is a very nice indication of what route we should follow should that route ever need to be taken"? What is this bill going to do? It is going to take the Supreme Court's opinion making secession legitimate and make it legal. How can this country, after it is all over and this bill goes through, pretend that it is no longer indivisible when we are actually sanctioning divisibility?

Mr. Monahan: That is the law.

Senator Lynch-Staunton: Let me finish with this. What are we accomplishing with this law which previous governments found unnecessary? In the first referendum, Mr. Trudeau said, "I am not here to negotiate the separation of this country." In the 1995 referendum, Mr. Chrétien said about the same thing. He said, "Your questions are crazy, mad, and ambiguous, and I am not here to discuss separation."

Every government has maintained a policy of keeping this country together. For the first time, we are proposing a law that, if passed, will make secession a legal possibility. I do not know how anyone can accept that.

Mr. Monahan: Senator, I do not think we really part company, because I think you will agree with me if I talked to you long enough about it,

Senator Grafstein: Let us take the time. Maybe we will convince you.

Mr. Monahan: Let me say that that is not a road that you want to go down, senator. The Supreme Court of Canada states the law of Canada. When the Supreme Court of Canada declares the law, we accept that.

Mr. Bouchard has tabled a bill in the Quebec National Assembly, and which is now before the assembly, which says that, given the political importance of the opinion of the Supreme Court of Canada --

Senator Taylor: Not constitutional, political.

Mr. Monahan: He and you, senator, would be making common cause. It is just a political opinion. It is not binding on anyone. I say, senator, that is not a road we want to go down. In fact, that bill is unconstitutional precisely because it refuses to give effect to the binding character of judgments and advisory opinions of the Supreme Court of Canada.

Senator Lynch-Staunton: That is where we part.

Mr. Monahan: That bill shall be declared unconstitutional by the courts for that very reason. It fails to give effect to the fact that the courts declare what the law is.

Senator Cools: Would it be possible for the committee to develop a rational way in which a senator may interject, so that if a senator has a question that was relevant 15 minutes ago, perhaps he or she could have had the opportunity to interject 15 minutes ago?

The Chairman: Senator Cools, the steering committee has gone into this at some length. I am sure you are aware of the number of senators present. The steering committee, after considerable discussion of this matter, decided that we would deal first with senators who are members of the committee and then with senators who are not members of the committee. Each one of you will get your turn strictly in turn. No one will be skipped. We go as quickly as we can. If you would like the steering committee to revisit this at its next meeting, I am sure we could do so, but for now, that is what the steering committee has decided to do in terms of how we are going to conduct our affairs.

Senator Robichaud: I did not intend to talk about the advisability of this legislation at this stage. I know that Senator Lynch-Staunton is opposed to it. I disagree with that very amicably, because I think it makes sense at this stage. I am not talking about the substance of the legislation; I am talking about the advisability of following the advice of the Supreme Court.

That being said, we have talked about the divisibility or the indivisibility of Canada; that is, the whole. Frankly, at this stage, we do not agree as to whether Canada is divisible or indivisible. There are two schools of thought. I do not think it matters that much at this stage. There are certain things that are more important than that. As Senator Murray said the other day, in quoting a line by Clark Gable: Frankly, my dear, I don't give a damn.

According to Quebec, clearly Canada is divisible. If the whole is divisible, in your estimation, professor, why is not a part of it, namely, Quebec, divisible? How can they argue that they can divide Canada but not allow Quebec itself to be divided?

Mr. Monahan: They can argue anything they want, but it does not follow, does it? It is an incorrect and invalid argument. It is obviously invalid, and it is becoming widely and much more widely accepted even to the point where Mr. Claude Ryan, in a study which he published with the C.D. Howe Institute in March of this year, accepted that the borders of Quebec would be a subject for negotiation in the event that Quebecers voted to secede from Canada. He noted that that would be a subject for negotiation, quite a remarkable development, I thought. It evidences the logic of the view that, if Canada is divisible, Quebec also is divisible is becoming more and more obvious. Therefore, I agree with you on that view.

That is only marginally relevant to Bill C-20 in that clause 3 of the bill requires that the government address that issue in the negotiations before a constitutional amendment can be tabled. Of course, it does not require that the borders of an independent Quebec, assuming it were to become independent, would be any different from what they are now. It simply requires that the government address that issue in the negotiations.

Senator Kinsella: Professor Monahan, is it not true that, from time to time, the Supreme Court of Canada changes its opinion? Does it not sometimes happen that a subsequent decision reverses an earlier decision?

Mr. Monahan: That has occurred, but usually it has occurred in circumstances where the earlier opinion was rendered many years previously and circumstances had evolved to the point where the court declared that it wished to depart from that earlier determination.

Senator Kinsella: Is it not true that earlier this year, in the decision of the Supreme Court of Canada in the Marshall case, a few weeks after the court pronounced it issued a clarification?

Mr. Monahan: It dismissed an application for a rehearing by an intervenor in that case. In the course of that dismissal, it did clarify certain of its remarks in the earlier judgment, yes, but it did not overrule the earlier judgment.

Senator Kinsella: Would you not agree that an explicit provision in the written Constitution, whether the Constitution Act of 1867 or the Constitution Act of 1982, is more solid ground than a reading in to the Constitution such as the advisory opinion?

Mr. Monahan: Senator, I read your remarks in the Debates of the Senate, and I must say that I do not agree with your characterization of the Supreme Court's opinion as a reading in to the Constitution, although, as Senator Murray pointed out, I have written an article criticizing the judgment and saying I have some difficulty with it.

However, the Supreme Court had to deal with the fact that secession is not expressly provided for under the terms of the Constitution. Therefore, the Supreme Court had to make a finding either that secession was permitted or that it was not. There was no either/or position. It was the same as in 1981. The court had to determine whether the proposal to patriate the Constitution was legal. There was nothing in the written Constitution that expressly dealt with that type of situation, but the Supreme Court nevertheless had to declare whether it was legal.

It was different from the commonly referred to reading in practice where a court finds that a statute, as written, is unconstitutional and then adds something to the statute to make it constitutional. That is what is known as reading in, where the court, in effect, amends the statute.

In the current situation, where the Constitution does not make express provision for something and an issue arises as to whether a power exists, the court must declare either that the power exists or that it does not. That is all the court had to do, and it did it in the way that it did in the decision of August of 1998.

Senator Kinsella: In my opinion, the court was placed in a very difficult situation in having the reference question put to it. What else could it do but attempt to answer those questions? It did so, doing its duty as the court saw it.

Turning to the matter of the prerogative of executive government to which you have alluded, is that not another area in which there is no explicit explication in the written Constitution as to the power that the executive authority has? In this instance, there is obviously nothing in our written Constitution that speaks to the executive power having the authority to take actions that would lead to the breakup of Canada. Would you not agree that that is nowhere to be found in the written text of our Constitution -- that the executive power is not explicitly given that power?

Mr. Monahan: I agree.

Senator Chalifoux: I find your submission very interesting, Mr. Monahan. I should like to have your opinion on a couple of things.

First, Quebec has a very large aboriginal population. There are the Inuit, the Métis, the Cree, the Mohawk, and several other First Nations. The Cree-Naskapi act and the James Bay treaty impact on those First Nations. I know that the bill now provides that the First Nations would be consulted. However, those treaties with the First Nations were made by the Crown and the British Parliament. How would this bill affect those treaties? Does the Parliament of Canada or the Government of Canada have a legal responsibility to consult with those First Nations? How would this bill affect them? I am not referring to the amendment, because it only says that they must be consulted and that their opinions will be considered. What legal responsibility does this country have to the First Nations?

Mr. Monahan: That is a very important question. The Supreme Court of Canada commented extensively on that in its judgment. It suggested that the rights of the aboriginal peoples had a special role to play in the secession process. I believe that an argument could be made that they have some right to participate in some way in the negotiations, although that would be difficult to coordinate.

Senator Chalifoux: Why is that?

Mr. Monahan: There would have to be a method for ascertaining which representatives would speak on behalf of the aboriginal peoples. At the time of the Charlottetown accord, for example, there was litigation over which group could speak, which should get funding, and so on. There may be some difficulties, but I do not think that is the import of your question.

This bill does not take away the treaty rights. Indeed, it could not take away any treaty rights because those treaty rights are constitutionally protected under section 35 of the Constitution Act of 1982. The obligations that exist, exist separately from Bill C-20. They exist as part of the Constitution. The fiduciary obligation of the Crown in relation to aboriginal peoples is included in section 35 of the Constitution Act. I believe that they are clearly protected constitutionally, separate and apart from the terms of Bill C-20.

Senator Bolduc: In your article in the National Journal of Constitutional Law you said that in the secession reference the court may have been acting as politicians rather than as judges in formulating a duty to negotiate secession.

Do I interpret your point of view correctly when I say that the judges have used a kind of judicial activism?

Mr. Monahan: I criticize the Supreme Court of Canada from time to time, as do other professors, and in this case I have criticized what I thought were some difficulties with the court's judgment. However, I accept it. That is the judgment. I do not accept only those judgments with which I agree, particularly if I am losing counsel. One should never consult counsel as to their opinion of the case because it will be in direct correlation to how successful they were in the court.

I simply say I accept the judgment of the Supreme Court of Canada. It is now the law in my view. It states the law of Canada and it is the basis upon which we should proceed.

Senator Bolduc: You would not call that judicial activism?

Senator Cools: What would you call it?

Mr. Monahan: There are some questions that might be raised as to the legal basis for the duty to negotiate.

Senator Bolduc: You seem to be happy that they said something. They could have said nothing.

Mr. Monahan: They are the Supreme Court of Canada and they have spoken on that issue. Now we must operate on that basis.

Senator Bolduc: You do agree that they can be legislators?

Mr. Monahan: Yes. The Supreme Court of Canada, under the Constitution, which sets very general standards, does have to make judgments that are inherently discretionary. Some might call them "political". That is the nature of the judicial role under our Constitution.

Senator Bolduc: One of your colleagues in the United States has said that the judicial activism there is courting disaster.

Senator Furey: Professor, I have a very brief question for you.

The Supreme Court of Canada has stated that any negotiated terms for secession of a province would require a constitutional amendment. We can agree on that. In such a case, no doubt the Senate would have a role; however, it would be limited to the suspensive veto agreed to under the amending formula.

If Bill C-20 gave the Senate a veto over the present negotiation process, would that not, in effect, be amending the amending formula?

Mr. Monahan: I do not think I would go so far as to say that.

Senator Furey: If it were no longer a suspensive but a full veto?

Mr. Monahan: I do not think it would be unconstitutional if Bill C-20 stated that the Senate could make a finding that would have the effect of prohibiting the government from entering into negotiations. I do not think that would be an amendment to the amending formula, any more than I think Bill C-20 is an amendment to the amending formula. I do not agree with that view. I simply go back to the view I stated earlier, that I think it is appropriate that that determination be made by the House of Commons and that there is nothing prohibiting the Parliament of Canada from deciding to confer that power on the House of Commons through the adoption of Bill C-20.

Senator Finestone: Madam Chairman, I believe this is a very important subject, and although I am not an official member of this committee, I intend to participate fully according to my rights under the Senate rules and regulations. I suggest that if you are finding we are running out of time, that you book hearings differently so we can meet the expectations of committee members who are in attendance.

Senator Taylor: Hear, hear!

Senator Finestone: Professor Monahan, I am not sure how to pose this question after your presentation. When our minister was here earlier today, he said that nothing could be resolved in advance, and that the Supreme Court said certain things cannot be resolved in advance.

As a representative of the English-speaking community of Quebec, amongst other people here who also represent that community as well as non-English-speaking people, I have some serious concerns about how we will calculate who voted, who had the right to be counted, and how we will count.

Do we calculate a percentage of the number of voters who go to the polls? Do we count the number of voters on an electoral list? Do we count the aboriginal people about whom my colleague, Senator Chalifoux, has been asking, and do they have the right to participate in a referendum? If they do not participate and conduct a separate referendum, will the result be counted?

I find the whole question of the clarity of the vote unclear, and currently I feel this is an "unclarity bill." Although I support the concept, I am finding it difficult to figure out how it is supposed to work. How do you define the population going to the polls? How do I represent English-speaking people who, through their municipalities, have said quite clearly that irrespective of the vote, they wish to remain part of Canada? Do we separate out the boundaries where voting took place?

Mr. Monahan: I know we are pressed for time.

Senator Finestone: I wish you would not react to that. The questions are more important than the time.

Mr. Monahan: I will stay all night if you wish. That is fine.

Senator Murray and I spent all night at the Meech Lake negotiations and we will carry on here.

Let me just say that I did not hear the minister so I do not know what he said, but I would be surprised if he said that nothing could be decided in advance, since he would then be disagreeing with his own bill. His bill says that certain things can be decided in advance. Proposed section 1(4) states clearly that we can now decide in advance that certain questions will not give rise to a clear expression of will. It is not correct to say that nothing can be decided in advance.

Senator Finestone: He just talked about borders. Nothing is certain in advance.

Mr. Monahan: I would agree with that. However, it does not mean that we cannot state certain parameters in advance, because his own bill says certain things such as the wording of the question can be.

Parliament should be able to say that a bare majority of 50 per cent plus 1 of those casting ballots does not constitute a clear majority, which would give effect to the view of the Supreme Court of Canada. The Supreme Court stated repeatedly in its judgment that a bare majority, a "mere majority" rule, or something to that effect, is not in accordance with our constitutional tradition.

I do not think this Parliament should deal with all of the details of the mechanics, but it should deal with some of the general principles, as indeed Bill C-20 does, in relation to the wording of the question and to the tabling of a constitutional amendment in clause 3.

I submit that the bill is insufficient in its failure to provide any parameters, any material clarification, on the majority required. If the Senate is minded to make amendments, I suggest that is the amendment that should be made.

Senator Finestone: Does that mean the Senate would have something to say with respect to those general principles, and would have some role to play in the response to an amendment such as this? Were it to find favour with the House of Commons and be included in the bill, would we then be part of the discussion on both the clarity of the question and/or the issues?

Mr. Monahan: I think the bill does provide that the Senate shall play a role because it is referred to in clauses 1 and 2. It requires that the House of Commons take into account the views of the Senate. Thus, the Senate will, and is required to, have a role under the bill. The question is, should the Senate have a determining role? I say to you, senator, that I agree with the government's view that it should not. I think it is appropriate that the House of Commons have that role.

I know that senators may feel differently, but that is my view on the issue.

Senator Finestone: Do you view the Senate as representative of the regions and the minority communities of this country? Do you not think that as a senator representing a minority in a province, I do have a specific role to play?

Mr. Monahan: I think the Senate has an important and traditional role to play in representing those minorities and regions to which you have referred. With all due respect, senator, I do believe that the House of Commons is the appropriate body to play that determining role. It does not mean that the Senate does not have an important role, but I believe there is a difference between a role and a determining role.

Senator Finestone: Clause 2(3) deals with other views to be considered. It states:

In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government proposed the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada...

We are number three in a list of four. I do not know how you phrase in legalese the weighting and the acceptance of those views:

...especially those in the province whose government proposed the referendum on secession, and any other views it considers to be relevant.

What about municipalities that have something to say?

Mr. Monahan: I suppose there is nothing prohibiting the House of Commons from considering the views of municipalities, but they are not listed here. I think that the bodies that have been identified here, such as the aboriginal peoples and others, are the appropriate primary bodies whose views ought to be taken into account by the House of Commons on a mandatory basis. I do not know whether the order in which they are listed in this clause is somehow intended to rank them in importance. I am not sure that that follows. It seems to me it is simply a list of the bodies whose views are to be taken into account. I am not sure that I read the Senate as somehow ranking in some particular logical order in relation to those other bodies. I simply did not turn my mind to that particular issue.

The Chairman: Professor Monahan, if you do have further thoughts on that issue, perhaps you would send us a letter.

Senator Grafstein: Professor Monahan, welcome yet again. I am delighted that in response to Senator Furey, you put to bed the foul ball that somehow if the Senate was given a binding role it would be constitutionally inappropriate. My understanding is you are saying that it would be constitutionally fair, except politically you think that the government has made a good decision in excluding the Senate. I took that to be the substance of your evidence.

Mr. Monahan: From a determining role, yes.

Senator Grafstein: Unlike the minister, you feel that there is no constitutional barrier to the Senate playing a determining role.

Mr. Monahan: That is right.

Senator Grafstein: Let us understand the political nature of what you said. We are now talking about a political, not a constitutional judgment. You are saying to us that the executive could fetter its discretion with a binding resolution of the Senate, but it does not have to do so if it chooses not to. It could, if it chose otherwise, appoint a one-man judge to determine whether the question is clear or not. The government could have done that.

Mr. Monahan: Absolutely.

Senator Grafstein: It could have turned to Senator Fraser and said, "As the chairman of this committee, who will pick up a great deal of wisdom from these hearings, you can be the determining judge."

Mr. Monahan: Yes.

Senator Grafstein: Or it could even be me, who am from Ontario. Or we could turn to Chief Justice McLachlin and say, "You can be the sole arbiter of this."

Mr. Monahan: Yes.

Senator Grafstein: Let me turn to Senator Beaudoin's position to see if I can help in understanding that. He says that once the government decided not to make a determination by delegation but to use the legislative actor, suddenly we are in somewhat of a different situation, because conventionally, the legislative process includes both Houses. Let me make my full argument and then you can respond.

At the end of the day, we have a somewhat different problem. If you turn to Reference Regarding Legislative Authority of Parliament to Alter or Replace the Senate, which is another advisory opinion, there seems to be a clear decision by the Supreme Court that one federal house should not interfere with the sectional interests of another house. That is to say, the House of Commons should not. I will leave it there if you want to clarify that, because you raised it. Perhaps you can give us some understanding of that decision. It is a reference to the Supreme Court on the powers of Parliament to alter or replace the Senate and deals with the legislative powers. It would be very useful to hear your view on that.

I will not take up the time, Madam Chairman, because the witness does not have that case in front of him and says he would have to hastily review it.

Mr. Monahan: Are you referring to the Upper House reference?

Senator Grafstein: Yes.

Mr. Monahan: I will respond to that.

Senator Grafstein: I would like you to take a look at that case and then respond to it separately.

What is the government asking for in this bill? What is the product of the decision? Is it a finding by the House of Commons? Is it an order of the House of Commons? Is it a legislative act of the House of Commons? What is this binding opinion that is the product of this legislation? Is it merely a binding opinion, or is it larger than that?

I ask that in this context because the government is pursuing the clarity bill, which I agree with in principle, to generate greater legitimacy with the Canadian public and with the public of the province of Quebec. Its purpose is to give greater legitimacy to the decision-making process of the executive.

What is the legal nature of this product that the government is seeking to levy upon only one house, and which seems to be unconventional, unique, different, and heretofore unheard of in our constitutional history?

Mr. Monahan: Senator, it is always a pleasure to discuss these issues with you because you raise very interesting points. Let me try to deal with them in the order in which you raised them.

First, you say that the Supreme Court of Canada in the Upper House reference of 1980 said that there is equality of houses and so on. That is not what the case said at all. It said that Parliament could not abolish the Senate by ordinary statute, and that it required an enactment of the Parliament of Westminster. It would clearly be unconstitutional for the government to put forward a bill to abolish the Senate or replace it with a house of provinces. They would have to follow sections 41 and 42 of the Constitution Act. That is what was decided in 1980 and is reflected in the amending formula.

This is a different situation. What is the product? It is a resolution of the House of Commons, which is not a bill. You make my own argument, senator, which is that Parliament could have said in Bill C-20 that it will appoint a series of learned people, judges, journalists, senators, a constituent assembly, to make a determination on whether a question is clear. We do not need to go to the House of Commons or the Senate. Do you agree with me there?

Senator Grafstein: Do not take my questions as agreement. I am raising this as a proposition.

Mr. Monahan: You say they could not have done it then?

Senator Grafstein: I am not sure in my own mind whether or not the government can abdicate its function in this particular fashion.

Mr. Monahan: I believe that the Parliament could have designated some other body to make a finding. That is commonly done in statutes, where persons are designated with certain powers and those determinations are binding on governments.

Is there some reason why they could not then select the House of Commons without also selecting the Senate? I say that the House of Commons may act by resolution without the Senate doing likewise. That is unlike a bill, which the House of Commons may adopt, but which does not become law unless enacted by the Senate. The House may resolve a resolution without the approval of the Senate.

Senator Cools: Is that binding?

Mr. Monahan: No, but you are mistaking the argument. Senators, please, I am only establishing a minimal proposition that the House of Commons may act by resolution and that does not require a resolution of the Senate.

Senator Grafstein: I have no quarrel with that.

Mr. Monahan: The question is, can the Parliament of Canada enact that resolution by statute? We acknowledge that the House of Commons may enact a resolution without the Senate doing likewise.

Senator Grafstein: As may the Senate.

Mr. Monahan: As may the Senate, indeed. The Senate could adopt a resolution on a different subject that is not binding on the executive. However, the question is, could Parliament make it binding by statute? I say it could.

Parliament could say that the Senate will adopt a resolution and make a finding. They could adopt that. In the United States, the Senate ratifies treaties. There would be nothing unconstitutional about saying that the Senate shall make a determination by resolution. I do not think it is right, good policy, or the way we should govern ourselves, but it would not be unconstitutional. Equally, there is nothing unconstitutional or improper in saying that the House of Commons, by resolution, will adopt, and that resolution will be binding. It is appropriate that the House of Commons play a determining role.

Senator Grafstein: Perhaps we could leave it on this basis: I cannot recall any time when the convention, the custom, the uses and the practices of Parliament were so changed by legislation dealing with a fundamental issue that goes to peace, order, and good government; can you?

Mr. Monahan: Senator, there is no practice, usage or historical tradition whereby the Senate has determined by resolution whether a question is clear and made determinations binding on the government, nor is there a tradition of the House of Commons doing that.

In my humble submission, we are not dealing with the traditions. Our history is that Parliament enacts statutes and they are approved by the Senate, House of Commons, and the Queen's representative. In my view, with all due respect, it is mistaken to say that we are departing from custom because we do not have a custom on this. We are trying to establish certain parameters, which is difficult to do. It is courageous of the government to take this initiative, but it is not derogating in my view.

Senator Grafstein: Are you saying that the bicameral nature of the order of government, which delegates powers to the two houses and additional powers of checks and balance to the judiciary, is not relevant to this discussion?

Mr. Monahan: No, I am not saying that.

Senator Grafstein: Professor, you have said that it is inappropriate. That means it is irrelevant.

Mr. Monahan: I am saying that the Senate does have a role as envisaged by Bill C-20, but it is a secondary role.

Senator Grafstein: Madam Chair, it is important, when we are getting to the heart of issues, to pursue a witness in a fair manner to see if we can come to a resolution. I see other members agreeing with me. I do not mean to upset you, Madam Chair, but we are trying to arrive at some consensus on the fundamentals.

The Chairman: A number of senators have fundamentals that they wish to get to, Senator Grafstein.

Senator Grafstein: One last follow-up question.

Professor, I am interested in your political views. Senator Pitfield has said that, in his knowledge and deep experience, this is unique and unheard of in a fundamental way that you have not addressed; that is, the nature of the Parliament and its relationship to the executive as it applies to the Constitution, which involves checks and balances.

I agreed with the minister that the Senate is different from the other house because it acts as a check and balance on the decisions of the other house, as envisaged by the Fathers of Confederation.

Are you saying it is not appropriate in these circumstances, or it is not politically wise to have a check and balance in this circumstance of all circumstances? I cannot follow that.

Mr. Monahan: I agree with Senator Pitfield that this is unprecedented. It is unprecedented for the executive to be bound by statute by a determination of either House, forget about both.

The practice has been that the executive conducts constitutional negotiations and only when it seeks to have the product of those negotiations enacted into law does it come to the legislative bodies.

Therefore, there is a departure here. It is not that the government will not come before the Senate and the House of Commons, because eventually they must if there is to be an amendment. The departure lies in the fact that, before the negotiations can even commence, they are seeking the determining view of one chamber and not the other, although the Senate will express a view. That is unprecedented. It is both necessary and appropriate, given the challenge that we face as a country.

Senator Joyal: Professor Monahan, I happen to disagree with you on one very essential interpretation of the status of the Senate. To me, the Senate, and senators individually, have a duty to revise legislation or decisions of the government that are binding upon the executive and that may be equivalent to legislation.

Clause 1 of Bill C-20 recognizes that the resolution that is adopted on the first question has a binding effect on the government because it brings the government to the second question. It is equivalent to legislation.

As a senator, I cannot constitutionally vote not to exercise my responsibility to scrutinize and revise a decision taken by the other place.

If I were to do that, the Supreme Court could call me to order and say, "Exercise your duty on this." That is why I feel that clause 1 of the bill is missing the point. As long as it is binding, it is an initiative equivalent to legislation. I therefore have the duty to pronounce on it, and I cannot vote for this bill as it is because I am abandoning my duty as a senator and member of this institution to scrutinize decisions that are binding on the government. That is why I feel one of the essential elements of this bill is at stake. I say to myself, if we are to do something that is useful for the maintenance of the integrity and sovereignty of Canada, let's not take a chance. Let's ask the Senate its opinion and make sure it is in the proper form according to the way the Senate and House of Commons act in terms of legislative matters, which is to concur before giving advice to the Crown. This is essentially where you and I differ on the interpretation of clause 1 of the bill.

That being said, I wish to come back to paragraph 85 of the ruling. I do not read that as you read it. That paragraph states:

The Constitution is the expression of the sovereignty of the people of Canada.

To me, the sovereignty of Canada, or the perpetuity of Canada, lies in the hands of Canadians. Canadians are the depository of the sovereignty of the nation.

The court continues:

It lies within the power of the people of Canada$to effect whatever constitutional arrangements are desired within Canadian territory...

In other words, if the Government of Canada wants to put an end to the sovereignty of the people of Canada on part of its territory, to limit the rights of any Canadian citizens to enjoy their citizenship over all the territory, the government must ask the people of Canada if they wish to surrender that sovereignty.

I submit to you, sir, that your interpretation of the introductory clause of section 91, that peace, order and good government give a blank cheque to the Government of the Canada to part with that sovereignty, does not concur with what the court said. To me, the court has certainly not gone that far.

If we want to make sure we address the issue of the survival of Canada, why do we not mention in the body of the bill the very principle that you have stated, that the Government of Canada has a duty to uphold the Constitution of Canada, to maintain the sovereignty of its people, and to protect its territorial integrity? That is essentially what we have in the introduction to the Emergencies Act. This is a fundamental obligation of the Government of Canada. If we are to depart from that, let's make sure we understand clearly what we are doing. That is why I feel this bill does not cover the whole of the Supreme Court judgment. Your proposal is a shortcut. It avoids the discussion and the entrenchment of the fundamental principles that are at the basis of our democratic and constitutional order, that the Government of Canada does not have the mandate to dismantle the country. That is what the Prime Minister said. They have interpreted section 91's introductory clause correctly by saying they are to uphold peace, order and good government, which is essentially the survival of the nation. I feel that your proposal today is totally contrary to the essence of the opinion of the Supreme Court of Canada, that is, the maintenance of the sovereignty of the people as stated in the Constitution.

Mr. Monahan: Senator, first of all, let me say I found your speech in the Senate very provocative, very thought-provoking, and one that raised some very important questions. Be that as it may, I do take a different view. Let me speak directly to the points you raise, first to the point of clause 1 of the bill.

You say where there is a binding determination made on the government, that is a legislative act, and you then reason that therefore the Senate must be involved. I say to you, sir, if that is your view, then you will have to revise hundreds of statutes that have been enacted by the Parliament that provide for binding determinations to be made by persons who are not members of the government. I did not come here armed with these statutes, but I would be happy to refer the committee -- and I will do so by letter if the committee wishes -- to those in which there are determinations made by persons other than members of the government that are binding upon it. That was my argument and that is the example that Senator Grafstein raised. I say that is perfectly permissible. The fact that, by statute, powers are conferred on a body or on a group of persons and that the determinations made by them are binding upon the government does not invoke automatically the Senate. I say that would be a remarkable principle. It would be remarkable if we were to say that the Parliament of Canada could not provide by statute that determinations made by persons other than the government would be binding upon it. I see no reason why we would want to invoke that rule. It is contrary to our practice over many years.

Let me turn to the issue of the sovereignty of the people in paragraph 85. That paragraph must be read, of course, in light of the entire judgment, and indeed in light of the immediately preceding paragraph 84, in which they raised the argument -- not made by any of the interveners or parties, but in articles written by various professors, including Professor House, then at the University of Toronto, Professor Fremont of the University of Montreal, and Professor MacLauchlan at the University of New Brunswick -- that secession was supra-constitutional, beyond the power of the constitutional amending process, could not be affected under Part V, and that there had to be some other process, perhaps a referendum. That was Professor House's view at least.

I make two points on that. First, I think the Supreme Court clearly rejected that in its judgment. You take a different view, I understand.

Senator Joyal: They clearly refer to a referendum in paragraph 88. Why do you say they excluded it? I can quote it:

Those representatives may, of course, take their cue from a referendum...

Mr. Monahan: Of course they may take their cue from a referendum. There is nothing to prohibit the Government of Canada -- or the Government of Quebec -- from holding a referendum. Indeed, the preamble to the bill says that a province may consult its people by referendum, and the Government of Canada may equally consult the people of Canada by referendum. However, my point in reference to your argument is this: You initially advanced the view that there was a principle of indivisibility under the Canadian Constitution. However, as I read your speech, sir, it occurred to me that your argument was rather different. You may disagree, but it seemed to me your argument was that Canada is divisible, but that the rule of divisibility is different from the rule that would be recognized by the government. The rule of divisibility that you propose is that there must be a national referendum and it must be approved by a majority in all regions of Canada. Therefore, on that rule, Canada is in fact divisible, but you would establish a different rule, sir. Your rule would require a referendum. I say, that is all well and good, but it was not incorporated into the 1982 constitutional amending formula. It is certainly permissible for the government to hold a referendum. Politicians may take their cue, as the court says, from a referendum, but it is not mandatory. If we are talking about "reading in," as the honourable deputy chairman has said, would it not be a remarkable reading-in for the courts to say not only must there be a national referendum, but there must be majorities in all the regions?

Senator Joyal: Bill C-110 has said that already.

Mr. Monahan: This is being proposed not as a statute, but as a rule of the Constitution as interpreted by the courts. There would be nothing wrong if we wished to put that in our Constitution, but I am suggesting that would be serious judicial activism, would it not? The Constitution makes no express provision for referenda. The court says in paragraph 87 that the Constitution does not address the use of a referendum procedure. It is not required, in my submission, and a fair reading of the Supreme Court judgment indicates that the court does not accept the view that you have put forward.

Senator Joyal: The court has not ruled it out. The court says that it belongs to the political actors to decide from where they will get their cue. I submit to you that the present government has introduced legislation, namely Bill C-110, that provides specifically for regional majorities before the government initiates a resolution. The government has bound itself even more than the court advised. The court had Bill C-110 before them when they pronounced in 1998. They did not say, "We must set aside Bill C-110, which prevents the government from introducing a resolution." Parliament would not vote on that unless there were majorities throughout five regions of Canada.

If we are to craft the best bill possible that will ensure that we maintain the continuity of this country and that will allow Canadians to enjoy their citizenship throughout the country, it is in our capacity as Parliament to introduce elements that would prevent the government of the day from rushing, as you said, to change the already existing bill without consulting the Canadian people. I am telling you that the Supreme Court has never said that it is impossible and unconstitutional. The court knew it was possible for the Government of Canada to do so.

Mr. Monahan: You have shifted your argument. You have raised a different argument, with all due respect. You have suggested that the court did not rule out the possibility of requiring a referendum by statute, as we had in Bill C-110. Of course, Bill C-110 does not require a referendum or a majority. It requires the approval of certain provinces, but does not speak to the manner in which that approval will be obtained. That is a mere detail, because your argument is different. Your argument is that the court does not rule out the possibility of Parliament, by statute, requiring a referendum. I agree with you that the court does not rule that out. However, neither does it require that that be done.

Senator Grafstein has asked for my political views. I do not think that we would want a situation in which referendum results in one province supported secession by a clear majority, for example, the Province of Quebec, but other provinces voted against it. That would be a recipe for impasse, and I do not think that would be advisable. That is irrelevant to this debate because you have now shifted your argument.

Senator Joyal: I have not shifted my argument.

Mr. Monahan: With respect, senator, you have. You have now said that it would be permissible for Parliament to enact such a measure. I agree that it would be permissible, but it is not required. The Supreme Court says clearly that the legislatures could enact constitutional amendments and there is no necessity to consult through a referendum under the existing Constitution.

Senator Taylor: I am not a lawyer, but at times this reminds me of a Gilbert and Sullivan opera.

You state in paragraph 2.10 of your submission that "The Parliament and government of Canada have always regarded themselves as duty bound to act in conformity with the advice of the Supreme Court of Canada, and this is the rule that should apply here." You are making lots of assumptions here.

Does Canada slavishly follow the advice of the Supreme Court? Does the U.S. do the same? Does the U.K.? In other words, how knowledgeable or how necessary is the Supreme Court of Canada?

Mr. Monahan: One of the great things about Canada is that we, as you say, "slavishly" follow the courts. When the courts issue an order, governments follow it. Thank goodness!

Senator Taylor: This is advice.

Mr. Monahan: We have had reference advisory opinions from the Supreme Court of Canada since 1892 and the government has always followed them. There is no instance, in over 100 years of such advisory opinions, in which they have not been followed. The United States does not have advisory opinions and that is fine. If we do not wish to have advisory opinions, the government need simply not seek them. However, the government chooses to obtain advisory opinions from time to time, and when it does so it does not say, "We only follow the advice if we like it." The Government of Canada does not do that, and thank goodness for it.

Senator Cools: Professor, you have raised many interesting questions and there are dozens of things I would like to ask you to comment on. One would be Mr. Trudeau's latterly opinion of the Supreme Court of Canada's advisory opinion back in 1981. I will try to get to that later.

My question to you flows from paragraph 2.3 of your notes. This issue of the prerogative powers of the executive is continually being recycled. It is a recurring or a constant theme that will not go away. Today, I asked the minister what that prerogative was and he did not seem to know. You are a gentlemen who is very conversant with these matters, so I shall try the question on you.

The prerogatives of the government or the prerogatives of the Crown, however you want to name them, are known to us. They are not new; they are the oldest form of law. Could you list the prerogatives for me and identify by name the particular prerogative that allows the government of this country to negotiate a secession?

Mr. Monahan: Dean Hogg and I are completing a book on the prerogatives of the Crown. I believe that he will be here next week.

There is no simple definition of the prerogative. It is the residual power of the Crown to enter into negotiations with other governments with respect to constitutional change. That is the particular prerogative at issue here.

Senator Cools: What is it called?

Mr. Monahan: It is difficult to answer because it is a residual of power that existed in the Middle Ages when the king ruled through the prerogative. You really do not want to get into it. This is why I was smiling; you really do not.

Senator Cools: I assure you I am not a lawyer so you need not give me as much explanation. The prerogatives are very definite powers that can be identified?

Mr. Monahan: No. There are certain types of powers that have been recognized by the courts. Therefore, where court decisions have defined prerogatives, we know them, but there are undefined ones that have never been the subject of judicial interpretation or of statute.

Senator Cools: I am only asking about one prerogative, not all.

Mr. Monahan: There is no specific name.

Senator Cools: I am asking you for that prerogative under which a government can negotiate a division, a partition, a disunion of the country, whatever you want to call it. I am asking you to identify that prerogative.

Mr. Monahan: I have already identified it as the prerogative to enter into negotiations with other governments.

Senator Cools: Very well. Suppose I were to tell you that there is no such prerogative?

Mr. Monahan: The Supreme Court of Canada has said that there is an obligation to negotiate secession.

Senator Cools: That brings me to my next question.

Mr. Monahan: I do not see how you can maintain the power does not exist when it has been explicitly recognized by the Supreme Court of Canada.

Senator Cools: When you say there is a prerogative to negotiate with governments, are you talking about foreign governments?

Mr. Monahan: No. The Supreme Court of Canada refers to negotiations between the Government of Quebec and the governments of the other provinces. Your view, Senator Cools, is that this power may not exist. How then could the Government of Canada act in accordance with the decision of the Supreme Court of Canada?

Senator Cools: My view is that if there is a law, you can identify it and tell me what it is. Then we would not have to guess. We would know. It would be tangible and we could refer to it.

Mr. Monahan: The prerogative does not exist through statute. It is a common-law power and is not defined in any statute.

Senator Cools: Precisely. That is why it is called a prerogative. It is the law of prerogative. That is why it is not in statute. I was trying to identify --

The Chairman: Senator Cools --

Senator Cools: This is very important.

The Chairman: Everyone's questions are very important.

Senator Cools: We must decide how this committee will handle these concerns.

The Chairman: Might I make a suggestion? If you would like to draw up a list of questions, I would be glad to communicate them to anyone you wish.

Senator Cools: I would like to put these questions because this entire bill has been framed on a reliance on the prerogative. The leaders have told us that. The government has told us that the entire bill has been drafted and is relying on this prerogative to negotiate secession. The government can do that without any of us.

I would like to find out what this prerogative is. The Leader of the Government in the Senate will not tell us. The minister will not tell us. Now the professor says that he cannot tell us.

The Chairman: He has answered the question twice.

Senator Cools: No, he has not told us what the prerogative is. These prerogatives have names. They are laws. This is not a mystical set of things. It is a set of laws. It goes to the heart of the bill before us.

The Chairman: Senator Cools, you have asked the question twice. While Professor Monahan's answer may not be to the liking of some senators, it is his answer and he has given it twice.

Mr. Monahan: The Supreme Court of Canada has now expressly identified the obligation to negotiate secession after a clear majority on a clear question. To that extent, it has now clearly identified that as an aspect of the prerogative.

That is how we define certain aspects of the prerogative that previously may not have been clear or perhaps non-existent in this case. Now we have a Supreme Court of Canada decision, just as in other decisions the court recognizes certain prerogative powers of the Crown.

Senator Cools: This is the first time then that this court has defined a royal prerogative? This is the first time in the history that the court has defined it?

Mr. Monahan: No.

Senator Cools: Yes, it would be.

Mr. Monahan: I am sorry.

Senator Cools: Let's go on to the central point. There is a principle that asserts that the sovereign ought not be deceived about the character of any bill or measure that the sovereign is asked to approve by Royal Assent. Is that not true?

Mr. Monahan: I am not sure I understand that question. Under what circumstances would the sovereign be deceived? Do you mean that the clerk may put forward a bill saying that this bill provides X, but in fact it provides Y and the government may be deceived? Yes, that would certainly be improper.

Senator Cools: Thankfully, clerks do not put forward any bills. Only members do.

Mr. Monahan: For signature? Go ahead.

Senator Cools: The government has told us that it can do quite what it likes, subject only to the House of Commons, because the House of Commons alone is the house of confidence. Do you agree with that proposition?

Mr. Monahan: Do I agree that the government has put forward that view? I believe I read that in Mr. Dion's written statement, but I did not hear his oral testimony.

Senator Cools: The government tells us that it is subject only to the approval of the House of Commons in confidence. That fact allows it to exclude the Senate by final determination, by resolution of the House of Commons, on the question of clarity.

If the government does not need the Senate in terms of that resolution, or in terms of any resolution, because the House of Commons is the confidence house, why then does the government need a bill to exclude the Senate? If, by the government's own definition, it does not need the Senate at all, then why does it need a bill to exclude the Senate?

Mr. Monahan: The purpose of the bill is not to exclude the Senate. You have mistaken the purpose of the bill. The purpose of the bill is to constrain the government from entering into negotiations unless certain preconditions are met. That purpose is achieved precisely by Bill C-20.

Senator Cools: That is what I was hoping you would say. Would I be right then in saying to you that the real purpose of Bill C-20 is, in point of fact, to create a prerogative that does not now exist? That is, the prerogative of a government negotiating secession?

Mr. Monahan: No.

Senator Cools: That is why the bill is needed?

Mr. Monahan: No, it is exactly the opposite. It is to limit a prerogative that would otherwise be subject to the discretion of the government alone and subject to the obligations in the secession reference. The purpose is one for which Parliament has often enacted laws -- to limit the prerogative. The prerogative is this power possessed by the king or queen from the Middle Ages. Parliament subjects the prerogative to limits. That is precisely the purpose of Bill C-20, in my view.

Senator Banks: I am in awe of your encyclopaedic knowledge. I am also not a lawyer. Otherwise, I would not have the temerity to argue with you as I am about to do.

People in favour of this bill in its present form, of whom there are not many, argue on two sides of the fence. One argument says this is just a matter of housekeeping and we therefore ought not to be particularly concerned. A second argument says the bill is unprecedented and the government is therefore freed from the tradition and the common practice of referring matters of import for the approval of the Senate.

You have mentioned that there are many bills in which the Government of Canada has derogated determining responsibilities to others, by which they are then bound. You also said that this bill should be intended to protect the question, which we all hope we will never see, from the accidents of electoral politics and should be given the benefit of a degree of continuity.

It seems to me that all of those things would argue that the Senate ought to be involved in this question rather than it ought not to be. All of the other examples, the nice, legal arguments that cite precedents that such and such does not have to happen, are very nice, and I am sure that they have legal precedent to back them up, but no other question, I do not believe, certainly no question like this, has ever come before Parliament or the government or the Senate or the House of Commons by itself before. This is unique. The determining question here ought not to be, "May the government do this?" or "May the government and the House of Commons do this?" or "May anybody by themselves do it outside of normal practice?" Rather, the determining question should be, "Should the government do this? Should the House of Commons be the only determining house in this question?"

That is my first observation, with which you might want to argue, and you have already commented on it a great deal.

My second question is one of instruction, and it has been referred to by Senator Joyal. The Supreme Court seemed to go to great pains not to use the word "legal" in front of the word "obligation." A little later on, it went to great pains to say that the distinction must be made between legality on one hand and legitimacy on the other. I am asking this because I am a neophyte. What is the nature of that definition?

My third question is the one that has been referred to by Senator Grafstein. What would be your view hypothetically if the Senate were to say in the case of this question, as it did in the case of the NAFTA, that, in its view, the government as it is presently constituted does not have a mandate to negotiate a question of this import and that the government ought to obtain such a mandate in order to proceed to negotiating the dissolution of the country?

I ask that question only because I do not expect, however long I might sit here, that I will ever hear a question as important as the one that we all hope will never show up.

Mr. Monahan: Let me deal with the third question first, because it is an interesting question, slightly different than the others. I think you were referring there to the 1988 decision respecting the Free Trade Agreement, not NAFTA, but the Canada-U.S. Free Trade Agreement. There, the situation was that Mr. Turner announced at that time that the Senate, of which the Liberal Party had majority, would not enact a bill to implement the NAFTA. Therefore, the role of the Senate was to be called upon to enact into law a statute giving effect to a bill.

Was the Senate required to make a ruling as to whether the government can enter into negotiations? No. Did the Senate determine or pass judgment upon whether proposals had been clear or whether various preconditions had been met before negotiations were conducted? No. The Senate was asked, as it has always been in our system, to enact a statute. When it was called upon to do so, it declined because it said it did not believe there was a mandate. What would be the case here? Exactly the same.

At the time at which an amendment would be sought to effect the secession of a province, a resolution would be introduced in the Senate and the House of Commons in accordance with the provisions of Part V. The Senate would only have a suspensive veto, but the Senate could take the view that it would not pass the measure at that time, exactly the way it did in 1988. Nothing would change. There would be no breach. Nothing would change in the traditions of the Senate. In 1988, the Senate was not called upon to approve the negotiations of Mr. Reisman. Mr. Reisman did not come in and have a determination made by the Senate.

Senator Banks: Is this the same kind of thing? I do not think it is.

Mr. Monahan: I say that in this case it is not exactly the same kind of thing. Because of the precedent nature of this, it is not housekeeping. The government has seen fit to introduce a bill that would call upon the House to make this ruling in advance. I say that there is no reason why the government should not do that. Indeed, it is a positive development that they should do that because then we will hear from the opposition parties and they will participate in that debate. All members of Parliament who are elected will have a voice in making a determination of whether there is a clear question.

Therefore, I think I have already indicated I believe it would be appropriate. It does not derogate from the traditions of the Senate. I have nothing else to add to what I have already said.

The Chairman: Thank you very much, Professor Monahan. That brings us to the end of our list of questions for you. We are not opening a second round.

[Translation]

Senator Bolduc: If I understand correctly, in our system of Cabinet Government, are we not always on a "fast track authority," as the Americans would say?

[English]

Mr. Monahan: No, because if we wish to have the government make its own determination we could have done so without recourse to any body, and it has chosen here to seek the view of the House of Commons. I cannot see why we would say that this is somehow the American system or an inappropriate method. I think it is an entirely appropriate method for the government to have used.

The Chairman: Thank you, Professor Monahan. It has been an extremely interesting and valuable session.

[Translation]

The Chair: Good evening Professor Garant and welcome to the Senate. First I will let you make your presentation and then, we will go on to our question period.

Mr. Patrice Garant, Professor, Faculty of Law, Laval University: Honourable Senators, thank you for inviting me to say a few words about the referendum clarity issue. I will rapidly give you my comments, which is unfortunate because I would have liked to have two and a half hours like my predecessor, but if you are from Quebec, it is less important than if you are from Toronto.

Be that as it may, I am naturally interested in constitutional reform.

Senator Prud'homme: What Mr. Garant said with a smile, will remain in the written record. If he wants to take two and a half hours, it is his privilege.

Mr. Garant: I will try to be brief and give you my impressions of Bill C-20, with respect to the Quebec Secession Reference. I had the honour of being invited to the World Conference on International Law last July, held in Rotterdam, the Netherlands. There I was able to confer with some 400 constitutional specialists on the Quebec Secession Reference which I believe is probably the most important opinion in the history of the Supreme Court of Canada. Incidentally, it is an opinion that not only surprised, but amazed most constitutional experts in the field of comparative constitutional law.

What is striking in this reference -- and also what is striking in Bill C-20 -- is that the secessionist approach is considered legitimate. The Supreme Court made a deliberate choice, to proclaim the legitimacy of this process, but placed it in an orderly framework which is that of constitutional legality.

This was a tour de force for the court, which respected the legitimacy of the constitutional approach of the population of a province. I emphasize the fact that we are talking about the population of a province and not just any segment of the Canadian population. Canadian provinces are already federal States that already have State sovereignty, limited of course, but the province is a territory, a community with a governmental structure. It became important for the Supreme Court to speak of the legitimacy of the approach of a province's population.

However, as you know, the Supreme Court considered two issues. A certain number of very important conditions had to be met in order for this secessionist process to be considered legal, that the question be clear and that the answer given to the question by the population be unambiguous. It is based on this -- and this is what most constitutional experts around the world described as inspired -- that the Supreme Court ruled that there was a constitutional obligation to negotiate, this deduced from the characteristics of Canadian constitutionalism taken as a whole, and which according to the Court served to create constitutional standards, in such a way as to make it difficult to call into question what was said by the Supreme Court.

It is a deliberate choice. The Court did rule immediately, on the bench, they took six months to deliberate. A myriad of documents were consulted. And the Court made a unanimous decision in a judgment that is remarkably clear and so we really need to take this decision as a starting point.

Now, the Supreme Court has turned to political actors to ask them to specify what would be the parameters of a clear question and of an unambiguous response to such a question. The court did not specify that Parliament should develop legislation, but we have legislation. It is a prerogative of Canada's Parliament to propose Bill C-20. Nor did the Supreme Court indicate who the political actors would be to implement the criteria, should there be legislation to determine what would be a clear question and an unambiguous answer to this question.

Bill C-20 makes a political choice and designates the House of Commons as the political actors above all. I will come back to this, you can rest assured, in the second part of my presentation because this is a great concern for members of this Chamber.

A number of questions have arisen over the last few months regarding Bill C-20. Is it appropriate and is it logical from the constitutional perspective, that there be a law in place before a referendum, to establish the parameters of a clear question? Logically, it is easy to understand that Parliament propose legislation stemming from the reference, and that it would be acceptable and appropriate to establish the parameters of what would be a clear question. The Supreme Court determined that the political actors had a clear constitutional obligation, that in advance, there be legislation laying out to all of the population what the criteria would be for a clear question from the federal government's perspective. To me this position is quite defensible, and those who are against the fact that Parliament is proposing this legislation may not be right, because the federal Parliament is consciously exercising an invitation to a clear constitutional obligation to which the Supreme Court referred.

So much for the timing of legislation setting out a certain number of criteria. Starting with clause 1 of this Act, we see, with respect to timing, a certain period within which the Act would require the House of Commons to rule on the clarity of the question, which means that they would have to implement the criteria in the legislation.

This 30-day period is debatable for the following reason. Of course, the House of Commons will be involved in order to determine whether or not the government will have to negotiate, but implicitly, this involvement could be considered as an attempt to influence the Quebec voters. So it would represent a type of involvement by a federal body in the relationship between a provincial legislature and its electorate, which leads us to question whether clause 1 is truly in keeping with at least the spirit of federalism and democracy which are two of the basic principles in the 1998 reference.

Some might even say that the constitutionality is doubtful and that Parliament has found a clever way to interfere in an area of provincial legislative jurisdiction. If it were up to me, I would do away with the 30 days to avoid this type of apparent interference in the provincial referendum process.

In the text that I will send to you -- I had sent it earlier but it has not yet arrived in Ottawa -- I deal with the importance of the decision. Of course, I need not convince you of that. The Supreme Court used very strong language. It said that the question was of extreme importance. It said that the matter of secession was of utmost importance to the public and that it felt that such a determination should represent the democratic will of the population of a province.

Now, this idea of having the people of a province decide leads me to ask the question about the majority that will be required. We see that the Supreme Court granted a great deal of importance to this. I am not surprised to see that a certain number of senators are asking the fundamental question about involving all Canadians in this process, a process which not only will lead to the secession of a province but could threaten to dismember the country. The Court uses the term "dismemberment". This could even lead to the breakup of Canada. I can understand those who are disturbed by this constitutional process and who are concerned about the fact that most of the people in Canada will not be involved in a secessionist process in one part of the country.

As to determining what would be subject to negotiations, I believe that once the Supreme Court deals with legitimacy, once there is a clear answer to a clear question from a significant majority of the population in a given province, it will probably be very difficult to discuss the very principle of secession when the time comes to negotiate. I feel that we are already negotiating the very conditions for sovereignty. The Supreme Court states that we should take great care and it is important to take that into account.

I was struck by something else. If Parliament adopts legislation through which government decisions will be made, then we enter into the realm of a possible judicial control of the secessionist process. There are both advantages and disadvantages to this.

From a purely legal point of view, Bill C-20 could face a constitutional challenge because it was enacted by Parliament. Government decisions will flow from the legislation and possibly even from the House of Commons resolution. In Canadian constitutional law, resolutions of the House of Commons cannot be legally challenged, but this one is so novel, and it is connected to legislation that would clearly lead to a constitutional review. Quite likely, a Court could be asked to rule on the constitutional validity -- either as regards the Charter or as regards Bill C-20 -- of the House of Commons resolution as well as any government decisions that might be made.

This bill runs the risk of setting us on a course of constitutional challenges. In fact, that is already on the horizon in Quebec. Some are already preparing their artillery for a court challenge. This is an important fact that must be underscored in the process surrounding Bill C-20. Once it is passed and once decisions have been made, there will no doubt be some constitutional wrangling.

As to the clarity of the question, it should essentially deal with separation and independence, plain and simple. Of course, a legislature can ask a number of questions, but we must clearly distinguish between a specific question dealing with independence and separation, and the response to this question.

The bill gives examples, so as to eliminate questions that, in the past, were considered to be ambiguous. With that in mind, I have some questions about, among other things, paragraph 4 of clause 1. I am somewhat concerned by these two examples of an ambiguous question, because they are very close, in some cases, to a value judgement on the questions that were put in 1980 and 1995.

It might be considered bad form for a Parliament to comment on the quality of an intervention undertaken by another legislature. In any case, we get the message. It is important to have a question that deals essentially, if not exclusively, with sovereignty in order to obtain a clear response from the population to this question.

It is a matter of discussing it with people who are interested in the question, from both the sovereignist as well as the federalist sides, so as to have a true range of opinions and to determine that some people will quite honestly tell you that a clear question will deal with the wish to separate and will allow them to maintain their Canadian citizenship, their Canadian passport, the Canadian dollar, and maybe even the Rockies. It will be up to the respondents to determine whether the question is clear.

Unfortunately, I do not agree with that. The question must be clear. The Supreme Court stated that, it said that the question must deal essentially with separation, so that if we were to remove the examples, we might still arrive at a proposal where the question would be clear if it were to deal solely and exclusively with secession. It may be radical, but at least we will know where we stand.

As to the non-ambiguous nature of the answer, clause 2, paragraph 2, sets out three criteria that would allow the House of Commons to determine if a clear majority of the population has opted for independence. These three criteria are the size of the majority of the vote, the percentage of voters who exercised their right to vote, and any other relevant factor or circumstance. It seems to me that things could have been clearer.

We are discussing a constitutional matter, and as you know, we have constitutional case law in our system. According to the principles of fundamental justice, our laws must be clear. The laws must be clear, especially when they might affect our fundamental rights.

The Superior Court of Quebec has already determined that a secessionist process could affect the fundamental rights of citizens, so that the principle of fundamental justice that requires that laws not be too vague, could apply here, and this clause could be vulnerable and challenged because of the requirement to be specific.

Some well-known Supreme Court decisions have dealt with the matter of what is specified in the Constitution and have determined that what is specific is the legislative standard that could serve as a basis for a legal debate, that is to say that could structure the discretionary power in some way. Here, the discretionary power of a government is not structured at all, nor is that of the House of Commons, when the text says "any other factor or circumstance." This could be a lot clearer.

With respect to a clear answer and a clear majority, I think an effort could be made to be clearer and more specific about what is meant by a clear majority. The Supreme Court, in dealing with the majority, did not set out a specific percentage, but it did have a lot to say about the majority rule.

The Court said that it was extremely important to amend the Constitution. Under normal circumstances, this would require significant support from a large majority, and that is why the Court suggested that an absolute majority of 50 per cent plus one would be insufficient.

The Supreme Court seemed to suggest that a qualitative and clear majority was necessary. But what criteria will determine whether a majority is clear and qualitative? The Supreme Court referred to the people. There has to be a will on behalf of the people of a province, of the people of Quebec. The Court did not refer to the will of old stock Quebecers or Maurice Richard supporters, but of every citizen living in Quebec. The spirit of the Supreme Court's judgment seemed to indicate that a higher bar should be set than a simple or absolute majority (50 per cent plus one) as is contained in Bill 99.

To that end, in order to clarify the criteria defining what a clear answer is, we could perhaps reword section 2 to make it more specific, without, however, going to the other extreme, that is, by making it an automatic criterion.

For instance, the two legislative bodies will have to consider whether enough citizens voted, whether the referendum process was legitimate and whether a majority of registered voters voted.

Of course, in comparative constitutional law, you can see that in many cases an absolute majority was sufficient. In other cases, the threshold was higher than an absolute majority. Either a qualified majority was required or a majority of registered voters had to vote.

The idea of having a significant majority based on a majority of registered voters is to provide for a certain margin of majority. Given that, generally speaking, voter turnout is very high, I believe this would encourage a significant majority of voters in the province to cast their ballot. This provides a certain level of security and would render a result less controversial than would a simple majority of 50 per cent plus one.

It would simply reenforce a result if a clear majority of the population of a province cast their ballots.

I was not surprised that the House of Commons was designated as the political actor mandated with applying the criteria of the Clarity Bill. But upon second thought, it is a dubious choice for several reasons. Indeed, according to the Supreme Court, the political actors are first and foremost the parliaments, but Bill C-20 is more specific and widens the range of political actors to include governments, legislative assemblies, the House of Commons and the Senate, as well as provincial political parties. Under the bill, the House of Commons plays a major role because it will have the power to make binding decisions, as well as having the prerogative of the Crown which we talked about a little earlier.

As for the Senate, it becomes a body to be consulted on a par with provincial political parties or any other group or person. This is surprising given the stature and the role of the Senate in Canada's constitutional tradition. The Senate is, in principle at least, the equal of the House of Commons. However, there are three exceptions: initiating money bills, ministerial responsibility and constitutional amendments -- section 47, subject to section 44. As for section 47 which was much debated, you have to admit that it knocked down for the first time the Senate's role since Confederation. When the Senate agreed to diminishing its powers, it was the first step in the decline of the Senate's power. In my view, Bill C-20 continues in the same vein, taking away the Senate's power. Under the bill's provision to amend the Constitution, the Senate becomes a minor player. It would be consulted as if it were a provincial political party or any other group in Canada.

In that regard, in view of the evolution of Canada's Constitution and in view of the fact that bicameralism is an essential characteristic of Canada's Constitution, this bill gives rise to serious concerns because it is not a strictly constitutional one. It would nevertheless have an impact on the Constitution. It is the first step towards a major constitutional review. It is very worrying that the bill plays down the role of the Senate to the benefit of the House of Commons.

There has been a lot of talk of reforming the Senate, but the emphasis has been on giving it a more significant role. Throughout Canada, people have said they not only want to keep the Senate, but to give it a more democratic basis. In fact, people have been saying this for 100 years. People talked about it in the time of Cartier and Macdonald, as well as over the last few years. Therefore, I am concerned with the idea of gradually reducing the Senate's power, despite the fact that Canadians appear to want to preserve it after all. In my view, the fact that many senators raise the issue is legitimate.

Bill C-20 could possibly be amended by including a provision similar to section 47, which would give the Senate the power to temporarily suspend the process after a vote. Then, by means of a second resolution, the House of Commons could, if it cannot reach a consensus with the Senate, reverse the Senate's veto, as is more or less provided under section 47 of the constitutional Act of 1982. That way, the Senate would at least not see its role downplayed once again. That is one suggestion I would make to make Bill C-20 more palatable to senators.

The Chair: That was extremely interesting. You have raised several fascinating issues. We will now move on to questions.

Senator Beaudoin: I would like to begin by congratulating you because you have raised several issues which have not been mentioned so far, such as the status of a resolution within the Senate and the House of Commons.

From the outset, we should remind everyone that Bill C-20 is a bill and not a constitutional amendment. If the bill passes, it becomes law. That is why I maintain we should apply the principles of bicameralism, something which is not provided for in Bill C-20.

The bill only gives the House of Commons the power to order the government not to negotiate because the question and the result were not clear. This would happen in the first 30 days. What I do not like about the wording of Bill C-20 is that a single legislative body is given the power to decide whether the question was clear or not. It is almost as if it were a legal power. What right does a parliament have to judge another one before enacting legislation? That is what the bill says. You have reservations and I share them, but what solution do you propose? Is there an alternative? Should the time period be extended? I have already discussed this matter with government representatives who said that it would be too late after 30 days. We would end up intervening in the business of another legislative chamber. Can you reconcile this with the principle of federalism?

Mr. Garant: You cannot. Within those 30 days, the legislative assembly will still be holding discussions and votes. It would really be a case of one level of parliament intervening in the affairs of another. After all, legislative assemblies are parliaments and because of the division of power within a federation, only the courts have the right to decide which jurisdiction belongs to which level of government. Perhaps it is not an issue of jurisdiction, but when Parliament introduced its bill, the National Assembly introduced its own legislation in response to the federal Clarity Bill. This has given rise to an extremely delicate situation, which does not respect the principles of federalism nor even the spirit of parliamentary democracy. It is a kind of non-intervention within a federation, of one level of government into the affairs of another. This rarely happens, even in ordinary legislative bodies. Usually the different levels of government do not debate the same issues at the same time. A province would not introduce an environmental bill when the federal government is debating its own environmental legislation, since there may be jurisdictional problems.

I agree with you, it is a delicate matter. Constitutionally speaking, it is certainly not in keeping with the spirit of federalism and constitutionalism that has prevailed to this day.

Senator Beaudoin: This is the first time that we have opened this door. We have made changes affecting the executive, the legislature, and so on. But this is a case of one power encroaching on another power. This does not seem to me to be the right way of doing things.

Mr. Garant: I had the opportunity to discuss this issue with the Minister. He stated that the people had to be protected against themselves, to some extent. People, voters, are nevertheless not schoolchildren. They can make their own judgments, up to a certain level.

Certainly, there are all the federal politicians who are able to warn the people if the question is not clear. The Houses may step in later -- even after the referendum -- to say that, according to the parameters of the Act, a question was not clear and therefore no negotiations will take place.

[English]

Senator Furey: Professor, in your submission to the House of Commons committee, you wrote that the federal Parliament should not pronounce on the clarity of the question before a referendum is held. Your reasoning was that that would constitute an unconstitutional intrusion into the democratic activities of the province. Am I correct so far?

Mr. Garant: Yes, I would go that far.

Senator Furey: If the House of Commons is of the opinion that the referendum question is not clear and, therefore, does not create an obligation upon which the federal government might enter negotiations on secession, would it not be preferable for the House of Commons to make its views known before the referendum?

Mr. Garant: From a practical point of view, you could be right. However, on a matter of principle, as I said to Senator Beaudoin, it is difficult to admit that one level of Parliament could be involved in the democratic discussions in another parliament, which is the legislature. It is a matter of principle.

For practical reasons it might be more convenient to intervene when it is more important, but I would prefer to follow the principles. I know that after a referendum is finished, you have the result. If the result favours the Yes side by a close majority, the population could say, "Well, we thought that the question was clear, but now at the federal level they say it is not clear." That could be seen as unfair.

I would prefer to follow the principles and say that the answer and the question were not clear in due time -- that is, after the referendum.

[Translation]

Senator Murray: You say in your brief that Bill C-20, once it is adopted, will become a law within the meaning of section 52 of the Constitution Act, 1982. The test of constitutionality applies to the Act and you add:

Similarly, the government decision made under this legislation is subject to the Constitution and the Charter, and may be the subject of a court challenge.

According to the provisions of this Act, this decision will be the draft resolution that will be tabled by the government in the House of Commons, stating whether or not the question is clear. That is the government decision made under this legislation.

Under what circumstances could this decision be challenged in court?

Mr. Garant: I saw the government decision, in the process, as coming instead after the House of Commons resolution. The House of Commons will vote on a resolution indicating whether or not the government can negotiate.

After this resolution is voted on, the government will decide to negotiate on one matter or another. This is the government decision that will be made following the resolution. The resolution could be challenged under the Charter or the Constitution because this House of Commons resolution is something that is somewhat new and it is like implementing a parliamentary statute. In this sense, it almost becomes a matter that may be brought before the courts.

The government's decision to negotiate on a particular question could be the subject of a legal challenge. Grounds for the challenge would still have to be found, namely, infringements of the Charter or of the provision.

The general principle is that it becomes easier to mount a court challenge than would be the case if matters were left somewhat vague, as they currently are. As things stand, the government would negotiate by virtue of its prerogative, which is a very comprehensive discretionary power that is less likely to give rise to a constitutional challenge than if we had a statute. This is what I meant when I mentioned the possibility of a constitutional challenge. There are surely people who intend to mount one. The possibility is already being raised now.

Senator Murray: If I understand the purpose of the bill correctly, the government will not be required to follow up on a resolution. If the resolution says that the question is not clear, and it is approved by the House of Commons, that is the end of it. The government does not negotiate.

Mr. Garant: Yes. That raises the question of whether or not the resolution itself could be challenged by people who would like to see negotiations and who claim that the question is clear, that the House of Commons is wrong, that it has incorrectly applied the parameters or the criteria set out in Bill C-20.

Senator Murray: What parameters?

Mr. Garant: In Bill C-20, there must be parameters to determine what is clear and what is not.

Senator Murray: You heard Professor Monahan a few minutes ago, when he spoke of the nature of the Supreme Court opinion.

Mr. Garant: Yes.

Senator Murray: He maintains that the opinion is binding, that we do not have a choice and that it has the effect of law. As of August 20, 1998, there are new obligations on the Canadian Constitution, there is new legislation concerning some aspects; the Supreme Court created new legislation.

Mr. Garant: I fully agree, and an overwhelming majority of constitutional experts share this opinion. This constitutes a binding advisory opinion. This may seem to be a contradiction in terms, but we are dealing with constitutional matters. The Supreme Court said as much in the well-known reference concerning Provincial Court judges.

An opinion in constitutional matters, when solicited by governments, becomes a new constitutional standard. We say that the Supreme Court is a creator of constitutional standards.

Senator Murray: You have convinced me. How do you explain the statement made by the Right Honourable Antonio Lamer?

Mr. Garant: I fell off my chair when I heard it. Of course, he is no longer Chief Justice, he is speaking as a citizen. I do not understand that statement at all.

Senator Murray: He said that neither Quebec, nor the rest of Canada, was bound to accept their opinion.

Mr. Garant: I really do not understand. I prefer to base myself on the Court's decisions and on the opinions of the overwhelming majority of experts in the area of constitutional law.

Senator Murray: Do you think we should invite him to come before this committee to explain his statement?

Mr. Garant: Ask him to explain it.

[English]

Senator Milne: I apologize for following on through the same line of questioning that several other senators have followed, but you have posed a real conundrum. You think the question as proposed or as defined in subclause 1(4) is not clear enough, that Bill C-20 should allow only a question that deals exclusively with secession, and that it should be defined more closely in that part of the bill. However, you also say that the federal government should not announce in advance whether the question that the government of Quebec might pose was clear.

Would it not be setting the people of Quebec at a very great disadvantage, when they went to vote in a proposed referendum, if the federal government did not declare itself in advance? I think you are sitting on both sides of the fence on this one.

Mr. Garant: I will accept the way subclause 4 is written, but I would prefer a shorter formulation that would say exactly what the court said and what is the fundamental meaning of the bill, which is that we want a clear question on secession and an answer to that clear question. If you had other questions, we could divide it and look at the expressions of the population. Did the population of Quebec want secession and a partnership and other advantages following from the present status? We could have a different answer to that question. I know from experience that, even in 1995, quite a few Quebec people voted for the Yes side saying that it will not be real secession, it will not be a real separation, it will be a new deal.

Senator Murray: Negotiations.

Mr. Garant: That is what I should like to avoid. I might be a radical, but we must be clear. It is a bill on clarity. We should put the clarity at its heart.

Senator Milne: You seem to be proposing clarity within the clarity bill.

Senator Murray: We all are.

[Translation]

Senator Nolin: Does the Supreme Court, in its opinion, tell the government to take the legislative measure that is put forward in Bill C-20?

Mr. Garant: It certainly does not exclude it. It leaves it up to the political players to select the procedure for determining what a clear question is. The legislative option generally consists in legislating. It is a matter of laying one's cards on the table. The legislative option is not a bad choice, especially since we want to give people an indication of what constitutes a clear question and a clear answer. This option will give rise to the much-discussed constitutional obligation to negotiate. The central point is the fact that a law is approved by Parliament.

I know that in Quebec some people claim that this is a steam-roller, a form of interference. On the contrary, it is in keeping with the spirit of the Supreme Court reference. It certainly does not go against it, even though the Supreme Court did not state that it would like to see a statute prescribing the criteria for determining whether or not a question is clear.

Senator Nolin: You mention in a document that I read, and in your preliminary remarks, the question of the appropriate time to table this House of Commons resolution, the timing of this decision. In answering one of my colleagues a few minutes ago, you even floated the idea of a decision made after the referendum.

Mr. Garant: After 30 days. That might be after the referendum.

Senator Nolin: After the referendum question presented to Quebecers and voted on by Quebecers. Could you please elaborate on this.

Mr. Garant: I attempted to explain that, naturally, we are in a difficult position. If we wait until after the referendum, people might criticize us, saying that we could have warned them or cautioned them beforehand. As for the 30-day period, in principle, it is clearly an interference in the legislative process of another level of government. You could perhaps try to fit it between the two, leaving the legislature to vote on its question and passing judgment after it had voted, but after the question is approved, the referendum campaign would be underway. Is that a good time to intervene? It is, of course, possible to step in at that point. All federal politicians must become involved, and so on, as was the case in the last two referendums. Would it be the same kind of intervention? At that point, the resolution would be considered as interference, like any other kind of interference in the process. I do not know. I would by far prefer that we allow some time to pass and that we wait for the results of the referendum, examine the question and the answer, and see whether they meet the criteria for clarity set out in Bill C-20.

Senator Nolin: Under Quebec's Referendum Act, the debate on the question must last at least 35 hours. There must be a minimum of 18 days between the tabling of the question and the vote in the National Assembly on it. Your questions about the appropriateness of the 30-day period are very justified, because, clearly, if we extend the time to 30 days, we are right in the middle of the referendum period, which would seem like an intrusion to you. You used the word "indelicate" rather than trusteeship or disavowal. These are words that are familiar in constitutional law. If we cannot do this during the debate on the question, we cannot do it during the decision by the people on the question. When will we do it?

Mr. Garant: We would have to wait until afterwards.

Senator Nolin: Could people not say that we did not tell them?

Mr. Garant: Many people will say that. I think that all federalist politicians will say that, because clarity will be an important issue. If the question is truly ambiguous, everyone will say: "If you vote on that, on your head be it." The federal government's obligation to negotiate depends on the clarity of the question. The government will say: "We are warning you, because we think, we feel that this question is not clear, that it is ambiguous."

Senator Nolin: I have one final question. You mentioned, quite rightly, the hypothesis of referring a quasi-act or a resolution of the House of Commons to the courts. You are going to have to enlighten us on that, because I have always understood that Parliament passed laws and that in so doing, there was an automatic reference to the courts. Once the parliamentary process was complete, the judicial authorities could take steps to have the legislation interpreted by the courts. You are putting forward a very interesting hypothesis here.

If the measure can be referred to the courts, that means it is a law. If it is a law, the parliamentary process applies, but the parliamentary process includes the Senate and the Queen or her representative. So how can we square the circle, given all the contradictory problems contained in Bill C-20?

Mr. Garant: The resolution could be the subject of a constitutional challenge. The application of a federal law is really along these lines. Referral to the courts, particularly in the case of constitutional matters, is not bad in itself. When the government decided to ask for an opinion, I wrote in Le Devoir that this was like setting the cat among the pigeons. However, when I reread the Supreme Court's decision, I realized that it might not have been such a bad idea to ask the Supreme Court to rule on such an important matter. Referral to the courts in order to protect the freedoms and rights of various groups may be a good approach.

Senator Nolin: I have no problem with that. I just want the rules to be followed.

Mr. Garant: In constitutional matters, this can be done quickly. It will not take years. We can go directly to the highest court and have an answer within a few months. We cannot talk about secession for 10 years. At some point, we have to move on to something else.

Senator Gill: My question is about aboriginal peoples. You mentioned that a number of parties should be involved in the consultations on the legislation, but you did not talk about the Aboriginal peoples.

I see from your curriculum vitae that you have had some experience in Quebec regarding aboriginal communities, such as the Dorion commission on Quebec's territorial integrity. You must also be aware of what was done in the case of the James Bay Convention and the decision by Judge Malouf in this case regarding extending Quebec's borders. In order for the boundaries to be extended and for this to be enforced, the aboriginal people had to be consulted -- and I am not talking about merely token consultations. Do you not think that the aboriginal peoples must be involved in this case, regardless of what happens in Quebec or elsewhere in Canada, given that the aboriginal peoples are scattered throughout Canada? Do you not think that this should be a major obligation on the part of the federal government, to ensure that the aboriginal peoples are consulted and considered?

Mr. Garant: The Act does not address that in such clear-cut terms. It is clear that aboriginals are implicitly included in the groups and that their opinion must be taken into account by the House of Commons, but strictly speaking, no. Since amendments can be proposed, according to what I heard Minister Dion say, you should deal with the situation if you specifically want Aboriginals to be consulted. It does not expressly say so. If you want to go any farther, it is an entirely different matter. The Senate is already excluded, all that is left is the House of Commons. You start by re-involving the Senate, and if you want other groups to have a true veto, then it becomes a different matter entirely. I am not saying that I disagree with you, but the fact remains that the bill does not go in that direction.

Senator Gill: When I talk about the extension of Quebec's borders, I am talking about the history of the Royal Proclamation. I am talking about an historical record that was reconfirmed in 1982 -- the inherent rights of aboriginals -- during the patriation of the Constitution. Regardless of what is being said now, do you not think that aboriginals should be consulted, regardless of what happens with respect to a redistribution of territory or reconfiguration of territory, simply in light of these constitutional obligations?

Mr. Garant: The Supreme Court did expressly state that all aboriginal issues must be addressed at the negotiating table. Now, what did it mean by that? Will aboriginals be directly involved or will it have to go much further and involve consent by aboriginals to re-discuss territorial rights and borders, et cetera? That will depend on the negotiations that unfold around the table. The Supreme Court was cautious in that regard.

Senator Bolduc: I simply want to say that my concerns were raised by one of my colleagues and that I have received answers to my questions. I am very satisfied with that.

[English]

Senator Kroft: I will try to be very brief. I will ask you a question that does not arise from your own remarks directly.

You went into the area of intrusion into the affairs of the province. In your case, it was by way of the timing on the clarity issue. I would like your opinion on a matter that was raised here during the course of the day. The matter was raised by one of our colleagues, who, in the search for another way of approaching clarity, suggested that it may be salutary to include in the bill itself the actual text of a question. Since we are dealing with whether certain actions would or would not be intrusion into the area of a province, I would invite your comment in a brief manner, on that suggestion.

Mr. Garant: I would not go that far. I would rather follow what the Supreme Court has said about the essential object of a question, namely, to know if the population agrees to separate or to secede from Canada. That is the essential question.

Senator Kroft: In other words, you would rather deal with the quality of the question than with the actual words of the question?

Mr. Garant: Yes.

[Translation]

Senator Kinsella: I would like to know if you think that the role entrusted to the House of Commons is a type of disallowance? If the House of Commons has to pass judgement, does that mean that if the question is not good, it would constitute a form of disallowance? If the National Assembly were to come up with a question and if the House of Commons were to decide that it was not a good question, would the decision by the House of Commons constitute a form of disallowance with respect to the decision by the National Assembly?

Mr. Garant: I do not think so. There is however a Supreme Court decision that stipulates the constitutional parameters of what clarity must entail. The criteria for clarity will be established through the implementation of federal legislation. Someone must, however, decide. Would this decision be better made by a political body instead of a judicial one? We could have envisaged a legal body designed to render a decision on the clarity of the question.

Senator Nolin: They said that they did not want to do so.

Mr. Garant: If Parliament leaves it up to political players, in other words to a political player that, ideally, could be the House of Commons and the Senate, to render a decision on clarity, it should not be considered an intrusion, a value judgement or a disallowance of what a legislature has done. It is the application of a constitutional standard, period. Because a constitutional obligation to negotiate stems from the clarity of the question. So it is also up to the legislatures to follow what the Supreme Court has said. In its reference, it sent a message to all provinces telling them that their questions on secession must be clear. You have Bill C-20 to help them ensure the questions are even clearer.

Senator Kinsella: My second question is as follows: how long will the results of a referendum question last? During second reading debate in the Senate, one of the arguments presented by Senator Boudreau was, and I quote:

[English]

...the constant threat of a third referendum on Quebec secession in less than a generation leaves us no responsible choice but to act now, and before the crisis atmosphere of a referendum campaign. The Prime Minister of Canada asked the Premier of Quebec to agree to a commitment not to hold a referendum in the Premier's current mandate. The Premier refused, forcing the Government of Canada to proceed with this bill.

[Translation]

In your opinion, how long would the results of a referendum question that is lost be valid? One year, five years, ten years?

Mr. Garant: If you assume that the question was clear and the same question is used, is there a constitutional limitation period? I do not think so.

The advantage of a bill or an act to determine the clarity criteria is to specifically state that identical questions cannot be re-used if, in the past, they were deemed ambiguous. There is no time period. Clarity is an objective obligation. Provincial parliaments and provincial legislatures must use clear questions to ask their people if they want to separate.

The Supreme Court examined the issue of secession, not the nature of constitutional amendments of any kind. The obligation to negotiate if there has been a clear answer to a clear question will exist as part of a secession.

Senator Kinsella: And if the answer were no? And if a year later, the secessionist movement comes up with another question, what will happen then?

Mr. Garant: If it is clear, it meets the Supreme Court requirements. Obviously, the Supreme Court did not speak to the number of referendums. In that regard, at the constitutional conventions on comparative law that I have attended, constitutional experts from throughout the world say: "But would Quebecers not eventually win by dint of repetition?" The Supreme Court did not speak to that.

Senator Fraser: Mr. Garant, I would like to go back to the majority that should be required. Are you in favour of a 50 per cent-plus-one majority of all registered voters?

Mr. Garant: The absolute majority of registered voters, so that it does provide some security. We must avoid what happened during referendums in other countries. In other words a lower voter turnout being able to decide such an important issue as the dismembering of a federal state. To encourage the people to participate massively in this major choice, the idea of predetermining the majority of registered voters does provide some security and does normally result in their being more than 50 per cent plus one. This criteria has already been used in other constitutions throughout the world.

Senator Fraser: Would we not fall back into the same trap? Many people feel that 50 per cent plus one is not enough. In other words, any majority of 50 per cent plus one runs the risk of being very fragile and of disappearing a month or a week later.

Mr. Garant: Obviously, it is undoubtedly less fragile than an absolute majority of voters. If 80 per cent of the people vote and the result is 50 per cent plus one, that does not really make up the majority of the people in the province, according to the Supreme Court. To be more certain that it is the majority of the people in the province, the majority of registered voters provides some security. Ideally, it would perhaps be better to predetermine a qualified majority as in some other constitutional regimes, where majorities as high as 75 or 60 per cent exist.

Senator Joyal: Mr. Garant, I would like to take you back to the bill and the issue of political players. The 7th "whereas" of the bill reads as follows, and I quote:

[...] whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a province on secession [...].

Are you of the opinion that the 7th whereas in the introduction to the bill corresponds to paragraphs 100 and 153 which state, and I quote 153:

However, it will be for the political actors to determine what constitutes a "clear majority on a clear question" [...].

When you read these two paragraphs and when you refer to the seventh whereas and to clause 1, is this not a summary of what the Supreme Court said?

Mr. Garant: Not only is it a summary, but it is unclear. Luckily, the preamble is not part of the Act. You are absolutely right. In mentioning a clear question, the Court was targeting political actors, and that is a lot more than elected representatives. As Senator Beaudoin mentioned in reference to elected representatives, it referred to initiating legislation and even there, the Supreme Court was not careful. It probably inadvertently forgot about another provision of the Constitution to the effect that a decision cannot amend the Constitution. But the Senate can initiate constitutional legislation; members of the Senate are not elected representatives. So in my opinion the Court inadvertently said something that is inconsistent with the Constitution. And you are absolutely right that what is contained in the preamble is also incorrect. It is not correct to consider that it will up to the elected representatives to determine the content of the question, because the Supreme Court said that it will be up to political actors.

Senator Joyal: It repeated that on two occasions in the decision.

Mr. Garant: The preamble runs counter to what the Supreme Court said about a clear question. It talks about political actors. Even when the Supreme Court talked about elected representatives initiating constitutional legislation, it is inaccurate, because it runs counter to the Constitution of 1867.

We must be careful, and you are absolutely right. The notion of "political actors" is linked to the clarity of the question. Political actors include parliaments and government. As a political actor, the federal government introduces legislation and it chooses among the various political actors to apply the legislation. This choice is in my opinion highly questionable. The choice is solely up to the House of Commons because -- perhaps it was implicit, as Mr. Dion seemed to be saying -- it must be made by elected representatives. When the Supreme Court talks about elected representatives, it means initiating bills, which is inconsistent with the Constitution.

If it had wanted to talk about initiating projects for secession, that would have been more understandable, because projects for secession normally come from the provinces. The provinces do not have a Senate, they only have elected representatives. It obviously goes without saying that these projects will be initiated by elected representatives.

Talking about legitimacy in this regard can be defended. Elected representatives -- members of the National Assembly or another legislature -- who propose secession and trigger a secessionist process. That is understandable. However, when talking about political actors for the clarity of the question, they are all political actors, but they are not all elected. You are absolutely right.

Senator Joyal: To ensure that this bill is watertight, should the potential challenges not be limited as much as possible?

Mr. Garant: Yes.

Senator Joyal: Challenges can arise once the bill has been adopted, but they can also arise during a referendum or immediately following a referendum.

Mr. Garant: Precisely.

Senator Joyal: The worse case scenario is as follows. The Canadian government introduces a resolution in the House of Commons, it is adopted on clarity and the majority. When it has been adopted the secessionist government of the province takes the resolution, goes to the courts and challenges its constitutionality, because it would not have had the required constitutional authority of having being endorsed by both Houses of Parliament in Canada.

We end up in the worst possible scenario, a legal vacuum at a time when the country needs clarity and to know what the rule of law is. Do you not think that if these clauses of the bill were amended to re-establish the status of the Senate, we could considerably limit any uncertainty in this bill?

Mr. Garant: Considerably. I have proposed a number of amendments that did not seem as essential as that one. Like many others, I thought about that late in the game.

The role devolved upon the Senate in this bill seems much more dangerous in terms of a constitutional challenge, and perhaps at a time when we will least expect it. After a referendum where things collapse, we will end up before the courts to challenge the very basis of the government's decision to negotiate or not.

Senator Joyal: In your opinion, re-establishing the status of the Senate could not be challenged on the basis that the government would have given a non-elected House a role reserved for an elected House. The opposite argument could not be made, but in this case, it can be.

Mr. Garant: You are absolutely right, it can be.

Senator Joyal: One way to prevent that is by recognizing -- the Supreme Court is not defending it -- the role of a political actor that is essential to constitutional order in Canada, which is in particular the Senate?

Mr. Garant: Precisely. Ultimately, could a provision like section 47 of the Constitutional Act of 1982 be included? It would probably be preferable to include it as a major actor in this process.

[English]

Senator Grafstein: Professor Garant, thank you very much. Your evidence has been elucidating. Let me come to the Supreme Court of Canada decision, which you find exciting and positive. In part, who can deny some of the statements in the Supreme Court of Canada decision? For instance, I am sure you will recall that the Supreme Court of Canada, in its chapter on constitutionalism and the rule of law, talks about the rule of law and the Manitoba language case as leading precedent. It goes on to talk about the importance of the rule of law as it somewhat is varied by the Constitution. In fact, paragraph 72 of the Reference re Secession of Quebec says that "the rule of law principle requires that all government action must comply with the law, including the Constitution." It talks about constitutional supremacy. Paragraph 72 goes on to say, "The Constitution binds all governments, both federal and provincial, including the executive branch."

You heard Professor Monahan's exposé about how new the federal government's prerogative is with respect to looking at provincial legislation, but really it is not that new. There has been in the Constitution from day one a form of the power and the prerogative of the federal government to deal with provincial legislation, the power of disallowance and reservation.

Therefore, here we have something that is not new, but we have a new process. There is explicit power still residing in the Constitution for the federal government exercising its prerogative to disallow egregious provincial legislation or reserve it. If it reserves it or disallows it, there is a mechanic about suspending judgment, and it could fall if the government does not do anything. I will not spend the committee's time reviewing that, but perhaps we should refer to those provisions.

The government now takes its prerogative and now utilizes it, as we have been told, in a different way. However, there is no reference here whatsoever to the removal of the bicameral constitutional principle; none whatsoever, not a hint of it anywhere. The government now exercises its prerogative out of the blue to avoid the bicameral principle, and this, I take it, you say is colourable.

Mr. Garant: I think so.

Senator Grafstein: Let us look at the product of this legislation. Is the product of this legislation a law? What is the difference, in effect, between a binding opinion and a law in its generic terms?

Mr. Garant: If it is binding, it is a law. By its nature and the characteristic of the law, it is binding. It creates obligations and rights, so that resolution vis-à-vis the government is binding. It is a law.

Senator Grafstein: That is why I assume the Supreme Court of Canada went on in paragraph 72 to say that the governments, both federal and provincial, may not transgress their provisions. Indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution and can come from no other source.

I suppose you would agree that the bicameral theory is alive and well under this decision and that there is only one way that the government, exercising its prerogative, beyond disallowance or reservation, can change that, and that is by a constitutional amendment itself.

Mr. Garant: Yes, I would agree with that.

[Translation]

Senator Prud'homme: You can see that we are not in a hurry, the beauty of the Senate is that we take our time. I assure you that we want to treat you equally, even if I am not a member of the committee: I am still patiently waiting for that time to come. I will not repeat the passionate speech I made this afternoon that forced me to go out and get some fresh air, but I am prepared to repeat once again that I know who I am. I define myself as a French-Canadian nationalist from Quebec.

I believe that Canada is indivisible and that this cannot be done this way. On the contrary, I feel that proceeding this way is pure provocation for people who, like us, believe that this is not the way to keep the country united.

[English]

The federal government introduced the National Energy Program, and Alberta was outraged. Albertans may be more fed up with Canada than Quebecers. Alberta, the Yukon and British Columbia are fed up with new treaties for a very small minority that decide they will go their own way. Who would deny that "Do you want to make X a country?" is not a clear question?

[Translation]

Now, 80 per cent of the people say yes. Mr. Garant, you were talking to a member who was lied to when the War Measures Act was adopted. I wanted to vote against it. I had obtained permission to make a speech that was perhaps clumsy, but it was the price I had to pay. I was lied to. The facts I was given flowed from total paranoia. I repeat that it can happen in the same circumstances: you can have a government that is very popular in one part of the country, including the government in Ottawa that holds a majority, or, to use our colleague Senator Joyal's expression, a near minority government where the Speaker's vote determines whether the question is clear and if the percentage is sufficient.

What is more, the Senate is ignored. I reread the Senator's speech very carefully and I am listening to colleagues here. I am ready to be convinced by one or the other, but I am increasingly convinced that this bill is provocation.

The Chair: Do you have a question, Senator Prud'homme?

Senator Prud'homme: Do you consider a bill, under circumstances where the percentage of votes is not defined? It is as if we were saying that we would wait to see how many people vote, and then we will know if it is enough. That is like taking people for idiots if they do not know what they are voting for. 93.34 per cent of Quebecers voted. In part of the Mont-Royal riding, 99.3 per cent of people voted, and they knew full well what they were voting for. Ninety percent of the people voted in nine ridings in Quebec, and there were no ridings where the turnout was under 80 per cent. There were only six ridings where the turnout was between 80 and 90 per cent.

The Chair: The question, Senator Prud'homme...

Senator Prud'homme: Why wait, why not specify the percentage? It has been suggested that the figure should be 50.1 per cent, as you said, of the names on the voters' list. As you know, that would create a problem for the peace talks in Israel.

The Chair: Your question.

Senator Prud'homme: I am not one of the great constitutional experts, but I do have some practical experience with these matters, and I know what people think. If the question is not clear, they know that Ottawa is going to have to negotiate, and that it is going to say that if the question is not clear it will not negotiate. But what is the reason for all this convolution? Who are we going to consult? The Aboriginal people should be consulted.

The Chair: We are going to ask Mr. Garant to answer the question.

Mr. Garant: I think you are right, and I would suggest that we come up with something as objective as possible. For example, the absolute majority of voters on the list would be clear.

As for the rest, it has to do with what the Supreme Court said about quality. Does that mean that the Supreme Court spoke in order to say nothing? The Supreme Court's message is directed at the people of Canada, and is it necessary to restate it in a bill? That is where you may be right about questioning the usefulness of a bill. But a bill can also be pedagogical, it can remind people of things that are uniquely true, but that bear repeating for people generally.

As part of its constitutional obligation to negotiate, the federal government could say under which criteria they are obliged to negotiate. Perhaps you are right to wonder why we are doing all this, and to think that it would be preferable to let the future unfold and then take some stand after the fact, as will be required. Actually, the idea of a bill is not bad in itself. It may also be useful for informing people of what is meant by clarity.

The Chair: You have been extremely patient, Mr. Garant, and your intellectual calibre and physical stamina are outstanding. The fact that everyone is still here bears witness to the interest of committee members in your testimony.

The meeting is adjourned.