Proceedings of the Special Committee on
Bill C-20

Issue 2 - Evidence

OTTAWA, Thursday, June 1, 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 6:10 p.m. to give consideration to the bill

Senator Joan Fraser (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, This third meeting of the Special Senate Committee on Bill C-20 is now in session.

This evening we will be continuing 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]

The bill was passed by the House of Commons on 15 March and given first reading in the Senate on 21 March. It was then given second reading on 18 May, meaning that the Senate approved the bill in principle and then referred it to this special committee so that we could study it in-depth.

[English]

Our consideration began earlier this week when we heard from the Honourable Stéphane Dion, the Minister of Intergovernmental Affairs, as well as from Professors Monahan and Garant.

We continue this evening with the appearances of Dr. Roger Gibbins, President and Chief Executive Officer of the Canada West Foundation, and, following him, Professor Joseph Magnet of the Faculty of Law at the University of Ottawa.

Do you have an opening statement, Dr. Gibbins?

Dr. Roger Gibbins, Individual: Yes, I do.

[Translation]

Senator Hervieux-Payette: I should like to know how much time is being allotted to each witness? It seemed flexible at the beginning of the week. Are we going to grant each witness an hour and a half or are we going to continue indefinitely?

The Chair: In principle, we allot an hour and a half to each witness. If the senators are very caught up in the questions, we may exceed the allotted time slightly. With the number of senators present around the table, an hour and a half per witness should suffice.

Senator Nolin: It is often only towards the end of a witness' testimony that we really get to understand the substance of what was presented. I would not, because of this time limit, want the exploration of the very substance of the issue impeded.

The Chair: Our witnesses cannot stay here until dawn either.

Senator Nolin: No. We try not to impose to much on our witnesses' time.

[English]

Dr. Gibbins: Senators, I will be fairly brief in my opening comments. I have prepared a written draft, but my opening comments diverge somewhat from that. I have had a chance to read the transcripts of the last sessions.

I should like to begin by thanking the committee for this opportunity and to stress that I am appearing before the committee as an individual. I am not speaking on behalf of the staff or council of the Canada West Foundation.

I should also point out that I am not a constitutional expert. My views will be more political, in a good sense of the word, and somewhat more regional than the other views you have heard. I have reviewed the transcripts of your last sessions. As a non-constitutional lawyer, they have been an interesting learning experience for me.

The principles of Bill C-20 are very much in tune with the political landscape in Western Canada. Western Canadian political parties have long called for the imposition of predictable rules for sovereignty referenda in Quebec. Thus, the intent of the clarity bill appears to enjoy broad, although not necessarily deep, support in Western Canada.

I would argue that there is also support for the principle that the Canadian political community as a whole should play an active role in setting the conditions for any future sovereignty referendum in Quebec, and in responding to the outcome of any such referendum. If Western Canadians are likely to stand apart in this matter, it will come through two convictions.

The first is that the people should be directly involved. There is little faith within the region that parliamentary institutions and/or the national government will adequately reflect regional opinion. Therefore, popular ratification of any agreement is essential, and the promise of that ratification is essential to establish the credibility of any negotiating team.

The second conviction is that provincial governments must be directly involved and not merely consulted in some abstract fashion. Consultation is not enough. The potential separation of Quebec is a constitutional matter and neither the federal government nor Parliament can proceed unilaterally.

I realize the limitations of the clarity bill in this respect. It cannot set rules for provincial engagement. However, it is important to stress that the provinces must be involved, and must be involved from the outset of any process.

It is important to note that support for the general principles of the clarity bill should not be equated with sustainable support for some of its specific clauses. My argument here gets a little bit more tentative because, in fact, the clarity bill has not been the subject of a whole lot of political debate or discussion in Western Canada. I will try to give you a reasonably informed idea of how I think these issues will play out in the west, but there has not been a lot of discussion, public opinion polling, or anything of that sort.

How does the region react? There is a strong possibility that Western Canadians assume that the clarity bill goes much further than it does. It would not surprise me, for example, if Western Canadians were to believe that the bill both defines the question that might be posed to Quebecers and sets the threshold level at which a Quebec vote would trigger a response by the Government of Canada. In other words, Bill C-20 falls short, and perhaps well short, of public expectations in these respects.

As well, the bill does not specify who would negotiate with Quebec should negotiations occur. Finally, Western Canadians would be surprised, and probably quite upset, to discover that the clarity bill does not specify the role to be played by provincial governments in this process.

Framing a response to a successful Quebec referendum is not something that Western Canadians would be prepared to entrust to the federal government or to Parliament, however we define "Parliament."

All of this is not necessarily a criticism of the existing bill, which, after all, only takes us a short way down a very hypothetical road. It is simply a signal that there may well be significant differences between what Western Canadians believe the bill says and what in fact it says. It also suggests that when and if the specifics of the bill are operationalized -- when, for example, a threshold is defined, it cannot be assumed that Western Canadians will be onside. To see regional support at this moment as a blank cheque for the future would be a mistake.

If Western Canadians have not yet become engaged in a detailed discussion of the provisions of the bill, when might we expect should they become engaged?

Here I would like to mention a number of potential problems relating to the bill's principled commitment to requiring that a referendum in Quebec, should it be held on a clear question, would require a majority greater than 50 per cent, and quite likely much greater than 50 per cent, before it would trigger a response from Parliament.

Although I would anticipate initial regional support for this supra majority requirement, it opens up a very troubling scenario for the west in which a sovereignist government in Quebec secures more than 50 per cent of the vote but not a large enough majority to trigger a negotiating response.

Why would such an outcome be problematic for the west? I will address two concerns. The first is the prospect for a damaging stalemate brought on by a situation where a referendum, for example, received between 55 and 59 per cent of the popular vote but where the federal government decrees that a larger margin is required. Western Canadians would have little stomach for such a stalemate and would likely urge that negotiations begin. There would be no interest in taking extraordinary steps to woo Quebec back below the 50 per cent benchmark. Once that benchmark is surpassed, the political mood in the west will fundamentally change and will likely change in ways unconstrained by the provisions of the clarity bill.

The second and related concern is that a threshold greater than 50 per cent may encourage "yes" votes in a Quebec referendum by suggesting that "yes" will have little practical consequence. Ottawa will simply not respond. Thus, a "yes" vote could become little more than a means to show solidarity with Quebec and/or an interest in constitutional reform.

However, outside Quebec, and particularly in the west, the response to this kind of vote would be quite different. It could be seen as a way of locking the country into a never-ending national unity debate, a debate for which Western Canadians have less and less tolerance.

All this means, I suggest, is that, upon reflection, there would be considerable regional support for a threshold of 50 per cent, a threshold where every vote would count and where the sovereignty vote would not be inflated by the expectation of Quebec voters that a referendum was, in essence, a free vote.

Given a vote even minimally in excess of 50 per cent on a reasonably clear question, my guess is that Western Canadians would say enough is enough and urge that negotiations commence regardless of the provisions of the clarity bill.

It is not at all clear what a clear question might be. I suspect that Western Canadians would support the proposed prohibition on double-barrelled terms such as "an independent Quebec in an economic partnership with the rest of Canada." As things now stand, there is little appetite for a question that presupposes any specific response from the rest of Canada, including a willingness to pursue an economic partnership.

The point here is not that Western Canadians would necessarily be opposed to a variety of economic and political relationships with an independent Quebec; there is simply an unwillingness to have others presume what the regional response might be.

Let me mention one other potential problem that has come up in the region. As you know, the Supreme Court reference case to which the clarity bill responds is not Quebec-specific. It sets out a discussion as to how Parliament might respond to any provincial referendum designed to trigger constitutional change. Thus, for example, the Supreme Court opens the door for an Alberta referendum on Senate reform.

The question then is whether the clarity bill provides a suitable template for constitutional referenda originating outside Quebec and designed to initiate constitutional reform rather than the break up of the country.

How would Albertans feel, for example, about a principle template in which Parliament might set the question and determine the threshold for a provincially led referendum on institutional reform? My guess is that Albertans would not be pleased. This suggests, then, that if the clarity bill is seen as a precedent that might apply to other provincially initiated reform proposals, it may enjoy less support in the region than it would if it is perceived to apply only to referenda designed to terminate rather than to improve the Canadian federation.

In summary, the principles and intent of the clarity bill are likely seen in the west as movement by the Government of Canada to bring itself into line with longstanding western Canadian opinion on national unity issues. At the same time, Western Canadians quite likely believe that the bill goes further than it does. The bill may also set threshold conditions that will be problematic for the west.

Last, any suggestion that the federal cabinet alone would enter into negotiations with Quebec or that it should do so with nothing more than the commitment to consult with other political players would be met with ridicule and anger.

Finally, I would like to mention the concern that has been expressed over the past few months about the diminished role of the Senate in Bill C-20. I would agree that Bill C-20 may undermine the importance of the Canadian Senate within Canadian parliamentary democracy. However, I would also argue that this approach is entirely consistent with the way in which both the present government and governments of the recent past have treated the Senate. To suddenly imbue the Senate with importance in the context of Bill C-20 would be inconsistent with the steadfast opposition that federal governments have shown towards the Senate or Senate reform. Thus, although Western Canadians may support the principle of Senate reform, it is unlikely they will come to the aid of the Senate in this case.

Senator Joyal said in his own very illuminating speech to this body:

The Senate is the ...embodiment of the federal principle designed to protect regional and minority interests against a simple majority rule in the House of Commons...

This view is completely at odds with Western Canadian perceptions of the present Senate. The existing Senate is not seen as a useful vehicle for regional representation. It will be extremely difficult to convince Western Canadians that regional interests in a post-referendum Canada will be better protected if the Senate had a more formal role to play.

The very argument that the Senate can be excluded is an argument that the provinces must be included. Provincial governments and their legislatures are charged with constitutional authority and any process that fails to include them in a formal way would not only be in violation of the Constitution, it would be doomed to failure.

In this sense, the clarity bill does not go very far in establishing how in fact Canadian governments -- and I stress the plural -- would proceed following a successful referendum in Quebec.

Western Canadians would not be prepared to entrust even the initial stages of negotiation to the federal cabinet alone, or to the House of Commons.

The last cautionary note I would make is that many people, including myself, have referred to the use of referenda at some point in this process. The point I would make is that we have no decision rules at this point as to how in fact such referenda would work. We have not even begun to think through how we might handle a very diverse set of regional and provincial responses to a referendum held at any particular point during the process.

It is incumbent upon us all that, if we begin to discuss the role of referenda in this process, we have some idea as to what the decision rules might be and how referenda could add to the political process, rather than simply adding more confusion to it.

Those are my opening comments. I would be happy to respond to any questions.

Senator Lynch-Staunton: Dr. Gibbins, I have a few Alberta roots myself, as you know. I am interested in your presentation. I read it this afternoon and I listened to you. The one thing I find missing, though, is a concern from Western Canada about the impact of this bill. I had hoped you would have said that westerners do not want the break-up this country. You entertained on the mechanics of the bill and whether the threshold of the vote should be such-and-such and the referendum and so forth.

I would like to hear from you, as you are speaking for Albertans in particular and Western Canadians in general, a plea to keep this country together, rather than just a cold analysis of the bill as if eventually a breakup could ensue.

Dr. Gibbins: That is a fair reflection on what I said. Again I say it would be erroneous to see my views as necessarily reflective of the province or of the region. I am trying to pull together my own sense of the region. You have to take that for what it is worth.

To go forward from that, there is no appetite for the country to be dissolved. Western Canadians have played an exceptionally important role in building the country. However, my sense of this particular bill is that Western Canadians -- and I speak here more emphatically for my own circle of friends and colleagues and acquaintances -- would have no strong appetite to keep the country together in the face of a determined opposition by Quebecers to leave. That option has now gone off the table.

That is why the clarity bill would not be opposed on the grounds that it would encourage the separation of Quebec or that it makes that feasible or possible. It seems that argument has not been acknowledged.

Senator Lynch-Staunton: Do you feel that Western Canadians would not be unhappy to see any part of this country decide to secede? This bill does not apply just to Quebec. It is as a result of the reference on the Quebec secession, but it applies to every province. I think Quebecers would be very unhappy to see Alberta vote a clear question with a clear majority and would certainly stand up to it.

Have I heard you say that you have become so fed up over the last 30 years because Quebec has always been at the forefront, that they are always complaining and whining, and that they are never satisfied? If they want to get out, shall we let them get the hell out, and we will carry on?

We do hear that, but is that the general feeling I am getting or is that, hopefully, just a sporadic frustration which is not generally shared?

Dr. Gibbins: I will try to be as clear as I can because I realize this is easily misunderstood.

Any decision taken by Quebecers to leave the country would undoubtedly be met with a great deal of sadness and despair within the region. There is no enthusiasm whatsoever for Quebec to leave. There is no belief that Canada would be a better place without the presence of Quebec.

That aside, my sense is that, if there were a majority vote within Quebec on a reasonably clear question to leave, the mood in the west would shift then not to one of anger but to one of simply wanting to move forward into negotiations to see what can be worked out. That is the turning point I see.

Linked to that -- and here again I am speculating somewhat -- is a belief that Western Canadians do not have a whole lot of leverage on what Quebec would or would not decide on this issue. We are spectators to this particular debate. We passionately hope that it turns out one way, but if Quebecers decide in their own wisdom to move in a different way, then, at that point, you would not see a strong sentiment in the west to say that we must keep the country together no matter what.

I think that is as clear as I can be.

Senator Lynch-Staunton: You are very clear. I am getting a bit off topic but the whole national issue dominates this bill. It is unfortunate that certain premiers are not playing a more active role on the national scene and being active in promoting unity.

Would you agree that, if Quebec left, it would more or less be the end of the country, that nobody would accept Ontario's domination? It would just be the beginning of the end?

Dr. Gibbins: This probably taking us somewhat beyond Bill C-20.

Senator Lynch-Staunton: I think it is important. You are from the west and we will not hear from many people who are as knowledgeable and understanding of western thinking. That is why I want to go beyond the bill.

Dr. Gibbins: I appreciate that, senator. All I can say is that there is no unbridled confidence in the west that the rest of the country would necessarily survive the departure of Quebec. That stops well short of being a conviction that this would be the beginning of the end. I think the reconstruction of the country would be an extraordinarily difficult task to which we have not even begun to direct our thoughts.

My suspicion is that Western Canadians would pitch in as well as they could to try to ensure that not only the rest of the country survived but that there was some amicable and reasonable working relationship with the Quebec partner, whatever that might happen to be. It would be foolish to say that there is total confidence in the success of any such undertaking. There is not.

Senator Lynch-Staunton: Thank you very much.

Senator Furey: My question relates to the latter part of your comments concerning the advisory roles of the provinces. My question is twofold. Are you suggesting that this makes the bill unconstitutional, and what role would you propose for the provinces?

Dr. Gibbins: I do not believe it makes the bill unconstitutional. The point I was trying to make is that it would be extraordinarily difficult for the house or the federal cabinet or any combination thereof to proceed with negotiations following a Quebec referendum without the immediate participation of provincial governments. That is simply a concern about how adequately the House, as it is, stands, dominated as it is by understandable traditions of party solidarity. I do not see how Western Canadians would see the House or the national government as being able to negotiate in their best interests, and therefore provincial governments would have to be folded into that process.

The formal constitutional role of the provinces really comes into play at the ratification end. Therefore, I am not sure there are constitutional guidelines that would suggest how and in what manner provincial governments might be folded into that process. I do not think the federal government is constrained constitutionally in the procedures or mechanisms that it would set forth. However, there would be a very practical political constraint in trying to move ahead unilaterally without some involvement of the provincial governments.

Senator Furey: Would there be a hue and cry from the provinces if the federal government tried to impose their will on the provinces through the legislation?

Dr. Gibbins: If the federal government, without any consultation, were to rule on what would be an appropriate threshold or on whether the question is clear or not, I suspect this would be a matter of considerable dismay with provincial governments.

Senator Bolduc: Following the question of my colleague, would you say that, by analogy, the process would be similar to what we have in international treaty negotiations, for example, for the NAFTA? We know that the provinces were involved informally within the consultative process by the federal government. Would you say that the same type of process would occur? Since it involves their very existence, would they ask for more than just a consultative process?

Dr. Gibbins: My guess is that the international treaty negotiation route would be a reasonable starting point in trying to work out what that relationship might be. I hesitate about making this particular argument, but the situation is somewhat different from the analogous situation you proposed because of the complexion of this particular federal government and, therefore, the complications that arise in it negotiating with a province, Quebec having passed a successful referendum. One can imagine different kinds of national governments in which different regions might have more or less confidence. We have had trouble in recent years having national governments that are broadly representative of the Canadian population. When that broad representation breaks down, then provinces become the backstop. It would depend very much on the exact composition of the federal government. I realize this bill has to look ahead to many different scenarios.

Senator Bolduc: I asked you that question because, as you know, in 1988, part of the Senate did not agree with the point of view of the government. The government of the day decided to have an election to decide if we would have free trade or not. Not only did we have the participation of the provinces at the consultative process, but we also had a point of view strongly expressed in the Senate against that proposed deal. Finally, the government decided to have an election. It was not a referendum on the mandate, but everyone in Canada knew that the election was on the North America Free Trade Agreement. It is only after the election was won by the government that finally the Senate accepted the proposition and voted the ratification of the agreement.

Dr. Gibbins: Yes. I have given some thought as to what role an election might play, because there is no doubt that a successful referendum in Quebec would be a major destabilizing influence on the national government.

Senator Bolduc: I say that because Professor Monaghan yesterday said that the law is good because, in principle, the government can negotiate -- that is, the executive can negotiate. He said more than that. It could negotiate without taking care of the provinces and the Senate. However, he does put some parameters to his own discretionary action. We are far from the situation of 1988, are we not?

Dr. Gibbins: We are. It is a political question of a different magnitude entirely.

Senator Bolduc: Thank you.

Senator Chalifoux: Dr. Gibbins, I am an aboriginal woman from Alberta. I also have French ancestry. I am a Métis. I would like to hear about your circle of friends and where you get this idea. I find that there are many French communities in Alberta, Saskatchewan, and Manitoba which are very concerned about the role of the francophone in Western Canada if this should ever happen in Quebec. There are aboriginal people in the western provinces as well as in Quebec who are concerned as to their role if Quebec has a referendum and wants to secede.

In the last referendum, trainloads of people came from Western Canada to Quebec in what was called the "unity train." I would also point out that in the francophone communities in Alberta Web sites are being established which welcome their customers with: "Bonjour, Quebec."

The communication is extremely intimate with the gathering and the uniting of the francophone nation within Canada. The minority groups that I have spoken to, and I have spoken to many, do not want to see Canada separate. Therefore, I would like to know who are your members and where you get your ideas from?

Dr. Gibbins: Let me back into a response to this. I want to make it emphatically clear that I am not in any sense suggesting that the breakup of Quebec would be a good idea or be one that I would personally support. It is one that my circle of friends would react to with a great deal of dismay. I want to be clear, I am not trying to advocate something.

I do want to pick up on your points about the French communities in the west and the situation of aboriginal peoples in the west. As a political scientist, I am not advocating anything. If I were to make a prediction, there is no doubt that the separation of Quebec would be catastrophic for the survival of francophone communities in the west, at least as far as public support for those communities is concerned. There is no doubt in my mind about that whatsoever.

I would also argue that Quebec's participation in the Canadian federation has provided an umbrella of empathy for a whole range of minority groups within the country. Aboriginal peoples should look upon the possible separation of Quebec with a fair degree of apprehension. My guess is that the backlash to that, in the west and probably elsewhere, would be a redefinition of Canada along much more uni-cultural lines.

The communities that you referred to are expressing a genuine interest in the survival of Canada, as well as a genuine apprehensiveness about what the separation of Quebec would mean.

Senator Chalifoux: I should like to hear your comments on the provinces being included in the breakup of this country, or the uniting of this country, as far as this clarity bill is concerned.

Dr. Gibbins: We must distinguish at all times between provincial governments and provinces because, as we found out in the 1992 Charlottetown round, provinces often speak differently from their provincial governments. My personal sense is that provincial governments and provincial premiers must be involved in any subsequent referendum campaign within Quebec, and they must deliver two messages. One, they must deliver the message that they have a steadfast desire to keep the country together. The second message they must convey, however, is basically a tactical one, and that is that a yes vote, even if it is on a soft question, even if it is loosely defined, will ripple through the west in ways that are not predictable. Therefore, they must bring a sense of realism to that vote. The message must be that we want the country united but that this is an extraordinarily serious vote. It is not simply one in a series. I see the mood of the region as one capable of tipping if things go wrong.

Senator Kinsella: Mr. Gibbins, is it your view that generally speaking most Western Canadians start from the point of view that the fundamental principle is that Canada is divisible, as opposed to the fundamental starting point of our American cousins, that being the union is indivisible? Is that where you believe western Canadian thought commences?

Dr. Gibbins: If I had to guess, senator, that would be my perception. I should add, however, that we have little good public opinion data on this or similar questions. I am reaching.

Senator Kinsella: Obviously, if you proceed on the basis of accepting this bill because of the principle that you can break up Canada, then would you not agree you are on a slippery slope no matter where the breakup first occurs?

I will put my question another way. Do you see, in this Bill C-20, the model pursuant to which those very same three steps -- clear question, clear majority, negotiations -- could be used by a western province as the first jurisdiction to go through the steps and secede from Canada?

Dr. Gibbins: No, senator, I do not. In my academic career, since 1973, I have focused largely on Western Canadian politics and on western alienation, western discontent, and I have never found over that 27 years any significant public support for an independent west without at least some catastrophic event happening elsewhere within the country. Therefore, my answer is no.

Senator Kinsella: I am delighted to hear that, and I believe you are including all four of the western provinces.

As a senator from Atlantic Canada, I am interested in understanding the psychology of the judgment-making to which you have alluded should there be a clear question be accepted, a clear majority identified, negotiations, an amendment to the Constitution, and the secessionist movement in Quebec seceding. Did I understand correctly that your assessment of the western mindset on that is: If they want to go, they can go? When you make that judgment as a western Canadian, do you factor in the impact on Atlantic Canada as you make your Canadian judgment?

Dr. Gibbins: That is a good point. I would like to think that I do. It would also, however, be erroneous to suggest that Western Canadians, when they consider the political world, pay a lot of attention to Atlantic Canada. That is probably not the case.

Let me explain where some of my understanding of the emotional dynamics come from since it does relate to your question. I was a participant with close to 300 political science students, university alumni, professors and so on in a room as we watched the 1995 referendum in Quebec. I found that an extraordinarily emotional roller coaster as the reading went back and forth for pro and con. It was interesting to go through that experience, to talk to people afterwards, and see how their emotions swung as the needle swung. In the sense that this was such an emotionally wringing event, if it had been decided the other way the sense was it had been decided and let's pass on, let's get on with the rest of our lives, and that emotional experience has probably informed my own thinking about this to a considerable degree.

Senator Kinsella: Finally, Dr. Gibbins, should that third stage in the process that is identified by Bill C-20 be reached, Minister Dion testified earlier before this committee that in his view it was not even necessary for the government to limit the executive's authority to negotiate secession. In other words, indeed, even with this bill, that bilateral negotiations could be undertaken, that is to say, between the federal government and the secessionist province. As a Western Canadian, would you accept a bilateral, that is to say, federal government and secessionist province, negotiation leading to secession?

Dr. Gibbins: It is fair to say, senator, that that is probably my worst nightmare.

Senator Kenny: Mr. Gibbins, is any country likely to last in perpetuity?

Dr. Gibbins: I do not believe Canada is guaranteed a perpetual existence, no.

Senator Kenny: The same would be true of any country?

Dr. Gibbins: We have certainly seen examples of that, yes.

Senator Kenny: The arguments we have been hearing about the country being divisible or not being divisible are arguments that have more to do with patriotism or emotion, they do not have much to do with the reality of how the world functions.

Dr. Gibbins: From a political science perspective, we are living in a global environment that is posing a substantial challenge to the survival of nation states as we know them. I think the political science community is certainly less comfortable in looking ahead with any degree of certainty as to the kinds of political organizations that we will use to structure our political lives.

Senator Kenny: If the political science community, as you refer to it, accepts the fact that the world evolves and changes, is it reasonable or prudent to have in place rules that would provide for a clear question if a country was divisible, which is what you suggested earlier?

Dr. Gibbins: I do not believe that having rules in place necessarily encourages movements to break up the country. Some rules may act inadvertently in that way, but having rules in place does not launch the country in that particular direction.

Senator Kenny: I follow you. If you could answer the same question in the positive, would you say that having rules in place perhaps decreases the likelihood of anarchy or violence or uncivilized behaviour?

Dr. Gibbins: Let me respond very carefully. Having some degree of predictability does help avoid chaos, to use a broad term. I think that Bill C-20 is a step in that direction. Because it does not take us all the way down the path, it is hard to say with certainty whether it would be the vehicle for maintaining that degree of civility within the country. I see it as a step in that direction.

Senator Kenny: Would it be putting words in your mouth to suggest it provides a certain civility to the debate and the discussion?

Dr. Gibbins: It might be putting words into my mouth but I would not find them objectionable. However, I would not spit them out. On reflection, I think it does promote some degree of civility, yes.

Senator Kenny: By the same token, would providing for a clear threshold or a mechanism for devising a threshold in advance be a prudent step if you wanted to maintain that civility?

Dr. Gibbins: This is a matter I have thought about to some degree, and I think that predictability in terms of the threshold is important. For whatever it may be worth to this body, I have been convinced for a number of reasons that a 50-per-cent-plus-one threshold is both predictable and sensible and fits within the democratic norms of this country. I think it would aid in civility to have that known in advance.

Senator Kenny: In summing up, would you suggest that the absence of rules and structure, such as are provided in this bill, are no guarantee of keeping the country together and are likely to precipitate violence and incivility in the event that some parts of the country want to move on?

Dr. Gibbins: That question was a bit convoluted. Although I would not agree with all the parts of this bill, I think it has been a positive step towards promoting civility. It has not made the situation worse and it has not promoted, or made more likely, the break up of the country. I guess I would also say that we would not, in my view, be better off without it.

The Chairman: We will now move to senators who are not official members of the committee.

Senator Taylor: Mr. Gibbins, as fellow Albertans, we go back a long way. I do not know that we have agreed very often, and I am not sure we will change that tonight.

You went to a great deal of trouble to point out that you are not representing the Canada West Foundation, although you are a member if it. As a matter of fact, you mentioned that a couple of times. Knowing you, there is probably good reason for that. Is it because the Canada West Foundation is in favour of a triple E Senate and you wanted to forget about the Senate and use the provinces instead?

Dr. Gibbins: I seldom have the opportunity to forget about the Senate. The Canada West Foundation has been a very strong advocate of Senate reform. However, I do not see this particular issue as one that necessarily promotes whatever its resolution might be. I do not see it as one that necessarily promotes or necessarily harms Senate reform. I see it as being somewhat tangential.

Senator Taylor: Nevertheless, because the Canada West Foundation has definite ideas on the Senate, you might make a note to see whether they will be invited to address the meeting. I am a little puzzled by your point that the regions have to have a say in the break up of any province leaving Canada. You then take a colossal leap for a constitutional lawyer or professor in political science and say that it must fall to the provinces. You completely leave out the fact that we have a Senate that was put together for the sole purpose of representing the regions of Canada.

It is it is one thing to say that you do not have any faith in the institution, and that it is no good, and so on, but it does not follow that you must throw out the institution. You might reform the institution. Do you have any precedent in Canada where they go immediately to the provinces? To date, the provinces have shown no interest in this type of thinking.

Dr. Gibbins: I have argued for a long time that one of the dysfunctional features of Canadian parliamentary democracy is that the provinces have come to exercise a regional role that should more properly be exercised by the Senate. I am not happy with the situation in which provincial governments take on a national role, speaking for their populations in national events.

If I had my druthers, the Senate would perform that role and provincial governments would have a reduced role in the operation, at least in terms of Canadian national politics. However, I do not think the existing Senate does that and, therefore, that explains what you termed a "colossal leap," but to my mind it was almost an automatic leap.

The other point is that, in this issue, the provinces are charged with constitutional responsibilities. At some point their legislatures are part of the amending process. Thus, at some point, even if they are not the sole spokesperson for the regions, they are involved. I would be much happier if we did not put so much emphasis on provincial premiers as regional spokesmen.

Senator Taylor: This bill speaks to leaving the Senate out of the consultative process. It does not speak to leaving the Senate out in the final process. Likewise, do you expect the provinces to be in on the consultative process? Would it not be better to have the Senate involved in the consultative process? It is literally impossible to bring the provinces in on the consultative process, although, certainly, they could be involved in the later decision.

Dr. Gibbins: If the Senate were brought in, formally acknowledged, on the consultative process, I would not see that as any kind of significant impairment, because the Senate would be easier and faster to mobilize than it would be to consult with the other groups that you mentioned. Finding a mechanism for pulling in the provinces and finding a mechanism for pulling in aboriginal peoples will both be more complex and time-consuming processes than drawing in the Senate. There is no logistical cost to involving and building in a more formal role for the Senate.

My only point is that that Senate role cannot displace the role that the provincial governments have come to play, both constitutionally and politically. However, I do not see a more formal involvement of the Senate as being one that would be sort of sand in the gears for this process. There will be so much sand and so many rocks in the gears, that having the Senate involved would probably be a positive value.

Senator Joyal: Mr. Gibbins, it is a privilege for me to engage in this conversation with you on the follow-up to my colleague, Senator Taylor.

Do I understand well the position of the Canada West Foundation -- that the Canada West Foundation supports a bicameral system for Canada?

Dr. Gibbins: Again, I must be careful. We are not an advocacy organization. We have been involved in research on Senate reform for over 20 years. That research overwhelmingly supports a bicameral parliamentary system for Canada, correct.

Senator Joyal: That being said, I think the Canada West Foundation, especially when you consider the small number of Senate representatives from the west in comparison with other regions in Canada, certainly has a valid ground of complaint.

In your opinion, since this bill will not be, we hope, used in the short term, would it not be wiser to maintain the traditional role of the Senate as the house that must concur with the House of Commons in the legislative process, to keep that traditional role in this bill in the context that Senate reform down the road could be reflecting the priorities and the objectives that, say, western people generally would have liked to have seen in the Senate in Canada or in a second chamber in Canada? Let us put it in broader terms so that we do not really associate the present one with the model that you would like to see implemented in our federation.

Dr. Gibbins: Again, I must be careful. Our work has supported the conclusion that abolishing the Senate, replacing it, and starting again would be a far more difficult undertaking than reforming the Senate. Both would, in fact, prove to be very difficult undertakings.

Nothing that has come out through our work suggests that Canada would be better off with a unicameral parliamentary system. Therefore, I feel overly blunt, but having the existing Senate in place is a useful marker and a useful opening for what a Senate could become.

Whether that means that, in this case, the Senate's role in this particular process should be supported because it would be a useful way of maintaining the vitality of the Senate is something upon which I have had difficulty coming to a firm conclusion. I am torn back and forth because, on the one hand, it seems to be recognizing a role that I do not think the Senate plays right now in terms of regional representation. Thus, I do not like to reify that role.

Senator Joyal: We do not wish to reaffirm the present condition, I agree with you. However, there is a cynical approach which is the following, and it is alluded to in your brief on page 8: Let us strip the Senate bit by bit to a point where it will be an empty shell. At that point in time, it will be so useless and downgraded that there will then be no other alternative than to totally abolish the Upper House or do something else.

My contention is, rather, let us ensure that we recognize fully the need for reform and how that could be articulated within a federal system like the one that we have, but maintain the credibility of the institution and a minimum of power of the institution because, if the model you have is nothing, it will be very difficult to grab back the powers from the House of Commons, believe me, it will be, as we say in French, un bras de fer. Everyone will fight. The premiers will fight to obtain more power and the House of Commons will fight to retain their power. It will be even more difficult to get the proper functioning of an Upper Chamber under those circumstances.

My suggestion to you is to at least keep the proper functioning of the institution within its constitutional role in terms of the legislative process so that, if we can achieve the reform of the institution, it will still have some meaningful power.

As I understand the triple-E Senate, there is a need for an effective institution; that is, it has real power to represent the views of the regions. I understand this is your view, that the regions should be better represented at the national level in the Upper Chamber.

Dr. Gibbins: Let me begin by saying that I am not wedded to the triple E as a model. I do believe that a properly functioning Senate is essential for a well-functioning democratic or federal system. I do not think we have that at the present time.

However, I would agree that further stripping the Senate of legitimacy or credibility in the public's eye is not a useful strategy to pursue in terms of promoting Senate reform. I do not think it is necessary. In the long term, I do not think it is a useful strategy.

In my response to Bill C-20, I am not trying to respond tactically and say that, by failing to endorse the role of the Senate, I am indirectly supporting Senate reform by enfeebling the Senate even more. I do not think that would be a useful step.

Senator Banks: Dr. Gibbins, thank you for being here. I hope very much that we have a chance to talk at length some day.

I want to focus my first question on a very narrow aspect of Bill C-20. I know that you are not a constitutional lawyer, but you have tiptoed over there a few times and you are very close cousins with constitutional law. I should like you to address your mind to the concept of the separation of powers, which is a fundamental precept, one could say, of parliamentary democracy. The bill that is before us was introduced and passed by the Commons, which contemplates that arising out of that question an adjudication will be made by the Commons. The Commons has vested in itself the adjudicative authority to pronounce on a question that derives directly out of the bill, concerning any province, regardless of the makeup of the Commons and regardless of whatever the nature of the majority might be at that time.

Over the years, in enacting laws the Canadian Parliament has vested the authority to adjudicate in regard to those laws mostly in the courts, but sometimes not in the courts. Sometimes the adjudicative power is given to boards. I am taking a great deal here from the writings of Mr. Blair, and I am sure you are very familiar with his writings. Parliament has vested adjudicative authority in the labour board, for example, as well as in quasi-judicial tribunals of one kind or another. However, in this case, in what I believe is the first time, the Commons has proposed and passed a bill in which it invests the adjudicative authority in itself. I do not think that has ever happened before. Generally speaking, would you comment on that, please?

Is the pronouncement of the Commons on the question contemplated in this bill binding on the government or is it merely an expression of opinion?

Dr. Gibbins: If a referendum is held in Quebec, a political decision, not a legislative decision, must be made on behalf of the rest of the country as to what it means. What do we do with this? The vote has been held; how do we respond? There is no established legislative process by which we would make that decision. I think that Canadians would turn to the government of the day to provide some guidance on it.

I would also argue that it would be imperative that the government throw out as broad a consultative net as it possibly could, with the constraint that there will be extraordinary pressures of time. This is where it goes back to Parliament. Mobilizing the provinces and the aboriginal communities will be an extraordinarily difficult, almost paralytic, situation. That is why I am back into thinking that, perhaps, the Senate has a role to play here simply because of the ease of mobilization.

I do not think it is inappropriate for the bill to put that adjudicative function back into the hands of the cabinet, which is really where it will be. To say it is in the House of Commons is a fiction. It is not really in the House of Commons; it is in the hands of the government of the day.

Senator Banks: This will be a law.

Dr. Gibbins: That is right. However, the decision that the cabinet or the Prime Minister would come to would not be a law, it would not be a bill. It would simply be an opinion that we will therefore move in a certain direction because we think this is what it means. It is not authoritative. It is not binding on any of the political players. It becomes binding only when political players are forced to grapple with the consequences of that act, which is a deal or a bargain. It is not binding. Therefore, I think it is appropriate that the government of the day have that ultimate capacity to say, "We think this is what it means."

Senator Christensen: Dr. Gibbins, I have two questions that are rather convoluted. I am not sure I can phrase them just right.

Senator Kenny touched on the issue that this bill can have a very positive effect in that it requires a clear question and a clear majority. It also does not specify what those will be. It leaves it up to the government of the day, in fact, to delineate what those will be. The assumption seems to be that with that requirement it would be very difficult for any province of Canada to meet those requirements, because people, having a clear question, would say, "No. I do not want to separate." The assumption seems to be that it is more or less a deterrent.

Such a referendum would probably not be called, as long as you had a very strong government. Given the parameters and the way that things are unfolding in our future, we do not know what the government will be in six months, 10 years or 100 years from now. Let us say you have a minority that says, "We do not care what the question is. You can have any question you want. We will agree with it, and 50 plus one is all we need, and we agree with that." What would happen at that point? In our bicameral government, we would normally have a check there that says, "Wait a minute. Let's call in the provinces and make sure that the people have a say in this." That is not provided for in this bill. What would happen in that case?

Dr. Gibbins: I must confess that I have thought of the bill largely in terms of a majority government situation. If we contemplate other scenarios, which are not fantastic scenarios but possible given Canadian history, the situation gets increasingly complex and difficult. It would be even more difficult for a minority government to impose an authoritative decision on how to respond to a particular event in Quebec.

I would also argue that in a minority government situation, and perhaps even a majority government situation, it would be very difficult to respond after the event. I think that it would be all but impossible to make the decision after a vote on whether a majority was large enough. Therefore, I believe that the clarity bill would better serve Canadians if it laid out those conditions beforehand.

Senator Christensen: My second question deals with how this bill addresses the Senate. It is not a Senate reform bill, although I think that all senators are open to reform. When we were sworn in as senators, we took an oath to uphold the Senate and the principles for which it stands. This bill appears to ask us to bypass the bicameral process of our government and I wonder where senators stand legally on that point.

Dr. Gibbins: As I said, I am not a constitutional lawyer, but the Senate has a clear and constitutionally defined bicameral role in the passage of legislation, and I believe that senators could not abdicate that responsibility. However, the Senate does not have a similar constitutionally defined role in terms of providing advice to the government of the day on what are essentially political decisions. Therefore, the issue is whether the Senate's advice would be prudent and useful for the government. I think you can argue that it would be. However, I believe that it is harder to argue that it is part of the convention of Canadian politics or part of the constitutionality of Canadian politics. I do not think it is either of those. It really is a matter of tendering advice to the government of the day on a political decision that is not legislative in character.

I do not think senators would be violating their oath of office in any sense by supporting the bill as it is, but there is an argument to be made that the Senate is one of those bodies that should be consulted when the government faces an extraordinarily difficult situation.

Senator Sibbeston: Dr. Gibbins, you state in your brief the importance of the western provinces being involved in this process early on. In reading the bill from a positive perspective, do you not see that it is possible for the process to work if, fairly early in the process, the federal government convened a meeting of first ministers, consulted with aboriginal peoples, and conferred with the Senate, all the things that the bill says the federal government would do? Given that, could you not see the process working very well?

If there are too many people involved, it could lead to further chaos. Obviously, the federal government needs to take the lead and this bill outlines how that would happen, although it does not show all the ways in which it would do it. Looking at the bill in a very positive way, can you see that it could all work very well?

Dr. Gibbins: I cannot see how it would work very well in a limited sense, because the bill does not take us very far down the road as to how one would put all the consultative mechanisms together. I do not believe that the bill as it presently stands prohibits the positive mechanisms that you have proposed. It does not throw up any insurmountable or significant barriers to the government of the day constructing whatever appropriate consultative mechanism it wants. It does not preclude a positive response by government. It could have at least hinted at what those mechanisms might be. The only way it has done so thus far is with regard to the Senate, and how those mechanisms might work has been a bit of a flash point of concern. The bill itself does not get us off to a bad start and does not preclude a good and productive process.

Senator Sibbeston: Would you not agree that a person's view about this bill could depend in part on their views of or experiences with the federal government? I can understand that in the west there may be some feeling of alienation or distrust of the federal government far away in the east, but from reading the provisions of the clarity bill I do not see how provinces or important people in the process could be left out.

Put in the best light possible, could you not believe that everything would work out very well, that this is a very logical and democratic plan for dealing with a very important matter, an attempt by one area of the country to break away from Canada?

Dr. Gibbins: I find it very difficult to think of what the best light would be, because the bill is designed to address an extraordinarily difficult situation for the country. I see no best light. I see worse or poorer lights.

As I said, I do not believe that this bill necessarily gets us off on the wrong foot. I argue that at a very superficial level, the level at which most Western Canadians know the bill, it reflects a reasonable view of the region. I have not sensed any degree of regional outrage that this bill, as it is currently framed, is yet another indication of an insensitive federal government. It is seen as reflective of the region as a whole.

Senator Sibbeston: As a political scientist, is it your view that the federal government has the power to act as it indicates in this bill that it would act, that is, to deal with the matter in an executive fashion, doing what it wants without the involvement of the Senate?

Dr. Gibbins: In my view, the bill addresses basically a political decision that would be made by the government and is in line with my understanding of parliamentary democracy.

Senator De Bané: Dr. Gibbins, when some democratic countries say in their constitutions that their country is indivisible, obviously they are not saying that their borders are eternal; but if a region of their country wants to separate, the consent of all the citizenry is required. The thrust of this bill is that here, in one province located centrally in Canada, 2.5 million people, who would vote for the dissolution of the country, who would vote for separation, would have an impact on 27.5 million other Canadians.

Do you agree with that approach, that 2.5 million people can make a decision that would impact profoundly on the rest of the people? Can a region of Canada that wants to separate, particularly if it is centrally located, divide the country? It would most probably mean the end of the country as we know it. Should the region be disallowed from doing that because 2.5 million people could make a decision that would impact on the others? What is your view on that, compared to other democratic countries that also have taken their positions?

Dr. Gibbins: As Minister Dion has pointed out in a number of his speeches and writings on this topic, there are not many examples, if indeed any, of countries that have broken up over a very close majority vote.

I concur entirely with the catastrophic possibilities inherent in the event we are discussing. The question I keep asking myself is this: What would be an alternative response to negotiation if indeed a province passes a referendum to this effect, whether it is 2.5 million or 3 million or whatever? As a resident of my particular region of the country, what could I do? The point I am trying to make seems harsher than it should be, but it is my sense that the people of my region would say, if that vote occurred, that, although this is catastrophic, we do not know what we can do to turn it back; we do not think there is anything to do but get into negotiations. That is not to say that everything should not be done to encourage that vote to go in a different direction.

Senator De Bané: I agree with you. If a vast majority of Quebecers vote in favour of separation, the rest of the country might very well say, "Okay, if you want to leave, you leave." But then the decision will have been made by both groups and not only by one.

Many democratic countries say that a group cannot separate just because of that. Imagine that tomorrow Quebec was an independent country and the Montreal area decided it wanted to leave. Do you think the premier of Quebec or the president of that republic would say, "Oh, yes, if you want to leave, leave; no problem." Or if eastern Quebec wanted to join the Maritimes, would the leader say, "Yes, if you want to join, sure you may leave Quebec"? Rather, he would say, "No, no; the whole province of Quebec must decide the issue of letting you leave."

When the French population in Switzerland wanted to leave the canton of Berne, which is German, all of Switzerland voted on that issue. They said, "Yes, you may leave the canton of Berne." We all knew those people wanted to leave the German-speaking canton of Berne but the opinion of the whole country was necessary to implement that.

I agree with you that the rest of the country could very well say, "Well, if you want to leave, we will participate in that decision and then you may leave." However, I am not sure that to start with the premise that only the people of one region can make a decision that can impact on the others is unassailable logic.

On another point, I agree that no one knows exactly what would happen after that, but when you look at the different probable scenarios, do you really think that if Quebec were out of Canada tomorrow the people of the western provinces would accept to be part of a country with a House of Commons dominated by only one province? Consider the fabric of the economy of the western provinces. It is not geared toward domestic markets but toward the world. Do you not think it would be in their interests, each of them, to apply to join the United States of America? Then, of course, the writing would be on the wall. The Maritimes would do the same. Ontario would do the same. Quebec would do the same.

Quebec will end up with two senators in the American Congress who will speak English, because, frankly, French will come a long way after Spanish if ever it is allowed in the American Congress. We will end up with our two English-speaking senators in the American Senate. I know that we cannot predict the future, but do you not think that that scenario is more plausible than the west saying to Ontario that, yes, it can run the show in the House of Commons and make all the decisions? I cannot envisage that. Mind you, when I put that scenario to a separatist leader of Quebec, he said that perhaps Quebec will end up there but it will be the last to join. That was his consolation.

Dr. Gibbins: I will give a very quick response to a very complicated question, senator. I do not predict; I have no clear sense of how the rest of the country would survive. Ontario is a huge problem for the west in a subsequent Canada. I do not even begin to comprehend how we would design a Canada that would work. Thinking about an independent Quebec is a piece of cake compared to thinking about how to design the rest of the country after separation.

It is very difficult, but I do want to touch on the first part of your question. Should the rest of the country decide or at least have a role to play? I strongly feel that it would be a mistake to put to the rest of the country the question of whether we should allow Quebec to separate. There are so many possible outcomes that would really be horrific. Quebec could vote to say, No, they will not go, while the rest of the country could vote to say, Yes, you should. Different regions of the country could react very differently. What if British Columbia voted 80 per cent Yes, Quebec can go, and Ontario said, No, it cannot?

I feel, as strongly as I feel on anything, that that decision should not be put to the Canadian people. The decision about the deal, the ratification, the terms under which one province might leave must be put to the Canadian people. I firmly believe that. To put the initial separation vote to the country would be horrific. I would abstain. It would be awful.

[Translation]

Senator Robichaud: Minister Dion appears to have been quoted incorrectly when the witness was asked what he thought about Minister Dion's comments about the possibility of making a bilateral amendment. In fact, there were two wordings, and the change could not be made bilaterally.

You just said that Canadians ought not to be asked to decide whether or not Quebec can separate. However, if we came up with an agreement that would allow such a separation and the people said "no", what do we do?

[English]

Dr. Gibbins: You are perfectly correct that there is a bad outcome to that alternative, and that is that people fail to ratify the deal. We have seen that before; 1992 was one example of that.

Senator Robichaud: That was not following a referendum. In this case, that would have been on a clear question with a clear majority.

Dr. Gibbins: I agree, but there is the possibility that we have a negotiated settlement that we put back to the people of Canada and they say, "Sorry, we are not interested; thumbs down to this." That leaves us in yet another hopeless situation. It is one of an increasingly long list of awful scenarios that spring from a positive referendum in Quebec. However, I do not see any way around that public ratification. In my own province, for example, the provincial legislature cannot act to ratify a constitutional amendment without a provincial referendum, and it is the same in British Columbia. I think we are locked into that.

Senator Nolin: For clarification, on the matter of you not supporting a referendum across the country outside Quebec after a positive referendum in Quebec, do I understand that one of your reasons is that you would fear the reaction in Quebec? I am assuming a clear, positive referendum in Quebec versus an adverse reaction from the population in the rest of the country.

Dr. Gibbins: That is a good point of clarification. If there were a clear vote in Quebec on this issue, then putting a similar question to the rest of Canada would, in my mind, be a pointless exercise. If Canadians said "no," it would leave us in a very difficult situation. If Canadians said "yes", if it encouraged this kind of emotional response of saying, "Yes, go," that, then, in a sense, would poison the negotiating process. I do not see it as being a positive contribution to helping either Quebec or Canada get through a difficult time.

Senator Nolin: Using the same reasoning with respect to Ontario, do not you think a negative attitude from the House of Commons towards a question adopted by the National Assembly in Quebec City would have the same effect in Quebec?

Dr. Gibbins: I think it would, yes.

Senator Prud'homme: Just to show how different this country is, everyone is addressing you as "doctor," and rightly so, but French Canadians never use that expression among ourselves. A doctor for us is a medical doctor. That just shows the nuance.

I never understood why Western Canada, where I have been more often, as I said last Monday --

[Translation]

There are 118 representatives from Western Canada in Canada's Parliament, 127 from Ontario, 99 from Quebec and 62 from the Atlantic provinces. These figures of course include both Chambers.

When I speak of the Parliament of Canada, I do not say, the way some people do: I am a member of Parliament, I am not a senator. Such people do not understand the parliamentary system. We are all members of Parliament, whether of the Senate or the House of Commons.

I feel a very strong attachment to Western Canada, having been there about 300 times. Please explain two things to me. How come 118 people can feel alienated from the central power?

[English]

The second question, out of courtesy to you, I will put in English. I travel quite often in difficult countries around the world. Everywhere I go, the world says that Canada is the best country. I hear that time and again in Canada from political leaders. We brag about it. What is it that the rest of the world sees in us to proclaim us the best country in the world that we do not see in ourselves?

I could make suggestions. I would even debate my dear friend Senator De Bané on this issue anywhere, any time, in my own way: passionately. You see, in Canada, you are calm. You represent a part of Canada. That is our habit.

[Translation]

We French Canadians have the same devotion to Canada. I know this is going to make you smile. What is it that the whole world sees in us that we ourselves do not see? I will tell you.

Is it not striking to see here around the table, Senator Robichaud and Senator Gauthier. There is also Senator Fraser and Senator Lynch-Staunton; in other words, two English Canadians from Quebec and two French Canadians from Ontario.

Senator Chalifoux taught me a great deal about the First Nations, and also present are Senator Sibbeston and a host of other people. Meanwhile, the rest of the world is wondering how Canada can function, saying: It's extraordinary, we can't do this at home. And then we are told that it is impossible to do it here?

I am a French Canadian nationalist. I know that this makes everyone unhappy, but I will repeat it. I am a French Canadian nationalist from Quebec. You may smile, but that doesn't matter, I am who I am.

I also know that it is difference that makes Canada distinctive. What can we do to convince Canadians and how can we go about getting them to accept their differences?

One day when I was in Vancouver at a lecture on the Constitution being given by Joe Clark, a young Anglophone from Saskatchewan told me:

[English]

"I am very tolerant of the French."

[Translation]

I wanted to say thank you. Until a woman, an Aboriginal Chief, told me:

[English]

"I want to speak." I felt bad. I said I can handle this guy and this lady there, but not the First Nations, because I bow to the First Nations. They were there before me. I was expecting her to blast me. She said, "I want to tell you something. The day Canadians understand this, the day the federal government understands this, the day the scholars understand this, the day the constitutionalists understand this, we will continue to have that great country of ours." She said, "I understand, Marcel." I had never met the lady before. "I understand his pride in his language," and she showed everyone. She said, "I am only annoyed about you all, because today I have to express my pride in English because I lost my language." That struck me as the greatest thing I ever heard from a Canadian. It made me more determined to work harder in my own style and make everyone nervous.

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

Senator Prud'homme: Yes. I want him to comment.

Dr. Gibbins: I would be delighted to comment. I will do so fairly briefly. I do not want to suggest in any way that I am speaking of a region that is bubbling over with discontent, alienation or outrage. The political climate in the west these days is pretty good. I do not think many Western Canadians would have any sense of disbelief at the statement that Canada is the best country in the world. There is a very strong sense of nationalism. I do not think, at this point in the west's history, that Western Canadians are particularly upset at the way in which national institutions are working. They have been in the past, but this is not a high-water mark in any sense of western discontent. I do not want to say anything to leave the impression that I am talking about a region that is bubbling over with discontent. It is not true. It is a region that is prosperous and is reasonably happy about the direction Canada is going. It has real internal problems on social policy issues.

I am trying to suggest how that region might respond to catastrophic events that might occur elsewhere. I have tried to suggest that if such an event were to happen, the historical grievances, the historical animosities and so on might come into play to shape the response that people have.

I want to be as clear as I can be that Western Canada, as I know it and as I have studied it, has always been marked by a very strong sense of Canadian nationalism. These are people who see themselves as having built the country. They have recently come and put a great deal of effort and work into the country. There is no desire at all to see the country dissolve. I do not think I can be clearer than that. There is a very strong sense of nationalism. There is no simmering revolt going on within the region. On the other hand, if you suddenly hit the region with the catastrophic event that we have been discussing in the clarity bill, it will then get harder to predict how that region will respond. That is all.

Senator Lynch-Staunton: I have many questions, but I think that I will pass and perhaps speak to the witness at another time.

The Chairman: In that case, with some regret, we have to tell you, Dr. Gibbins, that this portion of our hearing is over. I thank you very much for having come all the way from the west. It has been very interesting.

Our next witness is Professor Joseph Magnet from the University of Ottawa. Thank you for being with us. Please proceed with your opening statement.

Mr. Joseph Magnet, Professor, Faculty of Law, University of Ottawa: Madam Chair, honourable senators, thank you very much for inviting me. It is an honour and always a pleasure to come before you to share my views with you on some of the issues that you have been discussing.

I have read the speeches delivered in the chamber and I have had the opportunity to read the minister's brief and his testimony before you. I have also had occasion to read the testimony of the two professors on Monday night.

In the interest of being of assistance, I do not really think it would be helpful for me to make a general statement about the bill, but I do want to address a few of the points that seem to trouble you and to share with you my views on those points. I will speak about the indivisibility of the federation, about which there were some powerful and moving speeches in the chamber, the proper amending formula in the event of a secession, the obligations of the constitutional actors, the constitutional power to enact Bill C-20, and the role of the Senate. I shall also comment on the role of aboriginal people. Those are some of the issues that I understand were troubling you. I will see if I can assist you.

First, is Canada divisible?

The province of Quebec was created by sections 4 and 5 of the Constitution Act of 1867, and subsequent Constitution Acts enlarged its borders and redefined its powers, enlarging them, for example, by section 92A of the Constitution Act of 1982 and by the elimination of section 93(1) of the 1867 Act, and also contracting its powers, for example, by proclamation of the Charter of Rights and Freedoms and also, during certain emergencies, by giving to the federal Parliament an overriding power to deal with matters normally the subject matter of Quebec legislative jurisdiction, that power having been delegated by the federal Parliament to the federal cabinet. We can see that the juristic entity of the province of Quebec is something brought into being by the Constitution Act and modified in significant ways during our constitutional evolution.

In view of this, constitutionalists like to debate whether or not provinces could be eliminated. In the patriation reference, in 1981, counsel advanced the argument that, using the old amending machinery, provinces could be eliminated. In fact, all provinces could be eliminated and Canada could be turned into a unitary, as opposed to a federal, state. The court considered that but did not find it necessary to pass on that submission of counsel.

In the Secession Reference, Ottawa's counsel again advanced an argument that anything could be done by the new amending formula. The court questioned counsel very vigorously as to where the federal government got the authority to say that it would dismember the country if certain events occurred. There is a fascinating video available of the argument in the Supreme Court. The court's answer, as you are aware, came at paragraphs 84 and 85 of the Secession Reference in which the court, having had a debate with counsel about this, replied that by an amendment to the Constitution, anything could be achieved, including the secession of a province.

There was a fascinating debate as to the meaning or the juridical stature of this pronouncement in paragraphs 84 and 85 in view of the fact that the Secession Reference is a reference and is an advisory opinion and not a decision of the court in the ordinary course of legislation. That is something that has been debated in this chamber. I should like to say something about that.

In ordinary litigation in a court, the products of the litigation are basically two. There is a judgment and there are reasons for judgment. There is a judgment, something happens, some plaintiff demands something, or some prosecutor asks for something. The court says, Yes, you are entitled to your $2,500, or Yes, you are entitled to a conviction, and that is the judgment. Then there are reasons for judgment, or an opinion, explaining why that is the right thing.

In a reference, there is not a judgment because no one is asking for anything. There are only reasons for judgment or an opinion or, as we have been calling it, an advisory opinion. In ordinary litigation, only the judgment counts. The judgment can be given to the sheriff, who will go and get the $2,500, or given to the authorities to deliver the body into prison or to enforce some social controls. Only the judgment counts.

The reasons for judgment have precedential value because they explain how the court reached that judgment. In the lower court usually it is a fact-intensive thing, but as we go up the appellate chain, questions of law are asked and the reasons increasingly are impregnated with legal reasoning and legal conclusions.

The advisory opinion has exactly the same status in law as the reasons for judgment. As we go up the appellate chain, the advisory opinion or the reasons for judgment or the opinion of the court binds in the same way it binds in a lower court.By the application of legal doctrines, stare decisis, analogy, precedential value, lawyers are able to give opinions: this is like that, therefore, if this appears again that will happen because they are the same and the same reasoning will apply.

My conclusion is that it is true that the Quebec Secession Reference, at paragraphs 84 and 85, is an advisory opinion, but that does not change its status at all: it has the same precedential value as the products of a court giving reasons for opinion in ordinary litigation. Therefore, we know that if a court is asked, and a lawyer can advise, that if the amendment procedures in part 5 are asked to be used to effect the secession of a province, the answer of the court will be that yes, part 5 can be used to effect the secession of a province from the country. That is how we reach the conclusion. I am quite satisfied that this is decisive and that it is not really much a point of dispute. I understand that it has troubled you greatly and I hope my thoughts will be of some assistance in your consideration of the issue.

I see that there has also been some difficulty before you as to which amending formula would apply in the case of secession. In my opinion, the amending formula that would apply would be the unanimity formula, and that is because the lieutenant-governor of Quebec would be eliminated. Under paragraph 41(a) of the Constitution Act, 1982, that requires unanimity.

I assume that, if Quebec were to be eliminated from the federation, three judges from the Bar of Quebec would no longer sit on the Supreme Court. That change to the Constitution also would require unanimity, because of paragraph 41(d) of the Constitution Act. However, I see no reason for that change to be made immediately. That is a change that may or may not be made at some subsequent time, but I think paragraph 41(a) is inescapable. It would eliminate the lieutenant-governor and that would require unanimity.

On the obligations of the constitutional actors, I take the view, as I read the Quebec Secession Reference, that the only obligation is to come to the negotiating table. The Constitution actors must come to the negotiating table. They do not come necessarily to agree, but the court did say that they cannot be indifferent to the expression of a desire to secede by a substantial or by a clear majority on a clear question. That means that the constitutional actors must come to the table, perhaps persuaded, as Senator Joyal expressed himself to be, that the country is indivisible, but they must come to the table with an open mind, willing to hear the other side, willing to be persuaded as to what should or could or might be done even though they have extremely strong convictions.

That is the sense in which I read the obligation to negotiate. I believe it is completely consistent with the high-minded views that have been expressed in this committee, that this country should not be divided, that this country is morally indivisible. To come to the negotiating table to hear the views of another participant, another constitutional actor in the federation, on what should happen and even that the country should be dismembered, and to discuss why, how and on what terms, is quite consistent with that high-minded view. That is the extent of the obligation -- an open mind without indifference.

I suppose if an actor were to come to the table with a closed mind, indifferent to the other side, there is nothing a court could do about it, but the Supreme Court did speculate that other actors in the international system would have regard to this unreasonable conduct or this inflexibility or this closed mind of the federation. Perhaps that is so and perhaps it is not so. It has no juridical import.

I should like to say a few words about the authority for Bill C-20. There have been some abstruse debates here about prerogative and such things. As I read Bill C-20, what constitutional lawyers call the pith and substance of that bill concerns the obligation to come to the negotiating table. That is an obligation that lies upon the federal participants in a constitutional amendment. Formally, the Constitution knows only the Senate and the House of Commons. The Constitution does not know the executive participants that would actually go to the negotiating table; the Prime Minister, the Leader of the Opposition, the cabinet are creatures unknown to the formal Constitution. The role of the executive government in the process is entirely by constitutional convention.

If the executives were to agree on a proposal for secession, the products of that negotiation, the agreement, would need to be submitted to the formal actors, to the Senate, to the House and to the legislative assemblies of all provinces, and I have explained why. In my view, the characterization of Bill C-20 is a bill to implement the obligation to come to the negotiating table. The authority for that is section 44 of the Constitution Act. It implements the constitutional responsibility of the two chambers by specifying how they will respond to a legitimate request for secession. It limits the instrumentality of the two chambers, which is to say the executive government, which would be acting for them in that process. It specifies what it will consider and limits the executive government in doing certain things.

To my mind, that simply regulates the relations between the two constitutionally responsible actors, the Senate and the House, and their conventional instrumentality, the executive government. That is something that has been done many times before, and the courts have considered it on certain occasions, most notably in OPSEU v. Ontario (Attorney General), the case involving the Ontario Public Service Employees Union. I am embarrassed not to have a text. Perhaps I can read the citation for that case into the record. It is [1987] 2 S.C.R. p. 2. That case considered legislation that impacted on the civil service of a province. The court explained that this was legislation conducted or authorized by section 45, which is the look-alike authorizing section for amendments to the Constitution of a province. The court said that this was actually a source of power to do those things.

Bill C-20 regulates the executive government in an analogous way and it is authorized under section 44 of Part V of the 1982 Constitution Act. I do not think it is authorized by the prerogative. I do not think I need to go into that. I do agree with the views that were expressed that there is a prerogative to conduct foreign relations between government, but I do not see how there can be a prerogative in a federation for one Crown to talk to another Crown. I think it is quite an abstruse and off-topic issue.

If the Senate does not agree that this should be its role, then its prerogative is not to transfer that power. In other words, not to assent to Bill C-20. It has full authority to veto that. If it wants to, it may, if it does not agree with that role. However, once it gives its assent to that bill, then that shall be its role in the constitutional amendment process.

I have a quick point about the role of aboriginal people. You have had some discussion about that. The minister discussed it. Section 35.1 commits Parliament and the provincial legislatures to the principle that, before a constitutional amendment is made to certain matters, they will hold a constitutional conference and invite representatives of the aboriginal peoples to participate in a discussion of those certain matters. Those certain matters are the following: federal authority for Indians and land reserve for Indians, that is section 91(24); section 25 of the Charter; and the amending formula itself.

It seems clear to me that the secession of a province, particularly the province of Quebec, will affect federal jurisdiction in relation to Indians and lands reserved for Indians, because it will remove some 10,000 Cree, some Mohawks, and others from federal jurisdiction, or at least it purports to do that. Such an amendment would have to be preceded by a constitutional conference and the aboriginal peoples would have to be invited to participate in a discussion of that item. It seems clear to me that clause 3 of Bill C-20 contemplates that there will be some discussion of aboriginal peoples in the secession negotiations. I would take that to be the equivalent of the required constitutional conference and I would think that aboriginal peoples are constitutionally required to be invited there. However, that is a very different point than saying that aboriginal peoples have to participate in forming the decision whether the federal authority has to go to the negotiating table at all, whether or not the obligation to negotiate has arisen. If a constitutional amendment to remove federal jurisdiction over Indians and lands reserved for Indians were to be proposed, they would have to be invited; but it does not follow from that fact that it travels backward and that they can decide or participate in the decision of whether or not there is any obligation to negotiate with the province at all.

I think I should stop there. I hope my views are of some assistance to you.

The Chairman: Thank you very much.

Senator Beaudoin: Thank you for this clear presentation. I have two or three questions, and the first one is on Bill C-20. Some constitutional experts have told us that the bill is based on peace, order and good government and others have told us that it is based on the advisory opinion. If I understand you correctly, you say that it is based on section 44. Section 44 enables the unilateral power of the federal authority to amendment the Constitution, in some cases, one of them being the executive government. My only problem with that is that Bill C-20 is not intended to be a constitutional amendment. It is intended to be an ordinary statute. Having said that, are you still of the opinion that Bill C-20 for that part is a constitutional amendment?

Mr. Magnet: That is why I referred to the OPSEU case. In that case, it was also ordinary legislation of Ontario that affected the political rights of the civil service. Judge Beetz referred to it as an amendment of the Constitution of the province, which would be done under section 45. Whereas we think of amendments to the Constitution being big deal items, in which it is very clear that the federal Constitution is in some way being affected, in fact, many lesser deal items are also amendments of the Constitution such that they are brought within sections 44 and 45, including something so humble -- at least as contrasted with the secession of Quebec -- as amendments to civil service acts.

Senator Beaudoin: Yes, but Bill C-20, in my opinion, does not entirely respect the concept of bicameralism that is contained in the Constitution of Canada. My argument is the following: If you use an ordinary statute to exclude the Senate in a simple statute, I think that goes directly against the principle of the equality of the two Houses that is enshrined in the bicameralism concept of the Constitution. If you base Bill C-20 on section 44, you may use the same argument and say that it is amending the Constitution. Of course you may reduce the power of one or the other House by a constitutional amendment. Everyone agrees on that. That is not the problem. The problem is whether Bill C-20 is an ordinary bill, in which case we have an absolute veto, or whether it is disguised as a constitutional amendment under section 44.

Mr. Magnet: If I understand you correctly, you would be suggesting that only a suspensive veto would apply with respect to Bill C-20, on that logic. In other words, you would not have a full power to actually veto this bill. I would not read your powers in that way. I think you are too modest as to your powers to defeat Bill C-20.

Senator Beaudoin: No. There is no doubt that, if we do not say yes to Bill C-20, the bill is destroyed. It is an absolute veto on ordinary legislation. However, if it is a constitutional amendment, then it is only six months. That is why my question is relevant in this debate.

Mr. Magnet: Sections 44 and 45, which are the unilateral amending powers that Ottawa and the provinces have in respect of their own internal constitutions, apply to organic statutes as such -- things that organize their legislative power and govern the relationships between them and things that do not touch the federative aspects of the Constitution. For example, in the Senate reference, as you know very well, although it was an amendment to this chamber, the court held that this affected the federative aspects of Canada. That was why the matter could not proceed under the then power that was section 44.

Bill C-20, in my characterization of it, does exactly the former, which is to say that it organizes the federal power respecting the constitution of the federal level of government without touching on the federative aspects of it. In other words, it says: "Look, we have an obligation to go to the table. How are we going to do that?" Bill C-20 says: "Well, the way in which we are going to do that is we have got to figure out whether or not there is a clear majority on a clear question. We are going to designate an instrumentality among us, the House, to do that. If the House reaches certain conclusions, taking certain things into account, that is how we will organize it, that is how we will implement our obligation." In my opinion, that is an organic statute within section 44.

Senator Beaudoin: Suppose everything is fine there. I turn back to bicameralism. The two Houses of Parliament are equal under section 17 for ordinary statutes.

Mr. Magnet: Completely.

Senator Beaudoin: In constitutional matters there is a suspensive veto only by virtue of section 47. What we are doing here is giving power to one House but not the other. The least that we can say is that the two Houses are not treated equally. Is this only an organic enactment, or is this a constitutional amendment under section 44?

Mr. Magnet: The language is very loaded -- "not treated equally" -- and it does not help me to understand the problem. In other words, there is an obligation, and how will you carry it out? There is an obligation on the federal authority and the only federal authority known is the Senate, undifferentiated, and the House, undifferentiated. Those are the only authorities known.

How, then, is this unwieldy body going to carry the matter out? It requires implementation. Bill C-20, as I read it, is implementing legislation, like some other implementing legislation. The Canada Elections Act, the representations legislation and the civil service acts are all constitutional, but I do not think it can be suggested that the Senate has only a suspensive veto with respect to them. They are constitutional; they fall under section 44. The Senate has a full veto and they are implementing in that sense.

I believe that the remedy for the difficulty that you are seeing, that you are calling unequal, if that is your judgment of it, and you are perfectly within your rights to have that judgment of it, is not to assent to the bill. The bill will not become law, notwithstanding the fact that it is a constitutional statute under section 44.

Senator Beaudoin: If it does become law, and if we repeat that from time to time, the Senate will be considerably reduced after a few years and without a constitutional amendment.

Mr. Magnet: It may be. Of course, what you do you can always undo. If you agree to this statute, you can attempt, with your coordinate partner, to undo it. However, I am speaking in terms of formal constitutional law, senator; I think that we know the practicalities of it.

Senator Beaudoin: The royal prerogative was mentioned. Do you say that to initiate a constitutional amendment, and in my opinion section 46 is clear-cut, it must be either a province or the Senate or the House of Commons? I understood from what you said that the executive of the state cannot do it except with the Senate and the House of Commons; is that what you are saying?

Mr. Magnet: Yes, I am speaking of the formal Constitution and that is what I am saying. Of course the conventions of the Constitution fill in the quite considerable gaps and add all the details.

Senator Furey: I am somewhat confused by your reply to Senator Beaudoin's last question. I understood from your comments that, if the Senate were to pass this bill in its present form and not require any binding input into the policy decisions that are going to be made with respect to clarity, you did not see this as in any way diminishing the constitutional role of the Senate; is that correct?

Mr. Magnet: I do not see it as diminishing its constitutional role. It is certainly true that it will have diminished by its own act its political role in certain events, should those events come about.

Senator Furey: What does that mean, professor?

Senator Joyal: It means what it means; a cat is a cat.

Mr. Magnet: It means that the constitutional powers of the Senate remain undiminished. It does not change its constitutional role, but if the unpleasant events of a secession come about, the Senate will not be consulted as to whether or not it is necessary to go to the table in the way in which some members around this table and in the chamber feel that they should be consulted.

Senator Milne: The Senate would be consulted, but that is all.

Mr. Magnet: It would not have a veto.

Senator Furey: It would not be binding. I still go back to what you said in your presentation, which is that, in its present form, you do not see it derogating in any way, shape or form from the constitutional authority of the Senate; is that correct?

Mr. Magnet: That is right.

Senator Chalifoux: You make some very interesting remarks regarding the aboriginal people. You mention only section 91(24) and section 35. My concern is, and has been all along, the treaties that were made between the Crown and Canada. Where would that fit and what right does any secession from any province have in cancelling out those treaties that were made many years ago? That is a big concern. Another concern is how it would affect the James Bay and Northern Quebec Native Claims Settlement Act and the Cree-Naskapi (of Quebec) Act. Those acts state that the aboriginal people of Quebec must be consulted and must be partners in any referendum.

Mr. Magnet: I believe that the aboriginal peoples must be consulted before any constitutional amendment is made. More than consulted, they have to be brought to the table for any discussion on that item. The points that you raise are fascinating and difficult points. It may well be that the treaties become a question of international law when successor states come into being, or it may be that the treaties between aboriginal peoples and a metropolitan state are somehow different and that they must be dealt with in the negotiations. I am unaware that we have seen anything like that, and this would be a very difficult and fascinating question. Sometimes I think that if I lived in Quebec I would be tempted, just out of intellectual curiosity, to vote for secession to find out what would happen.

Senator Rompkey: I want to return to the question of the Senate. You said that the only actors under the Constitution are the Senate and the House of Commons, and the government is acting for them. In this case, the government chose to include one chamber and not the other. I will not ask you to speculate as to what was in the mind of the government because, at the moment, the government controls both chambers. It might not always control both chambers. As a matter of fact, there is probably more likelihood of it controlling this chamber and not the other one. When I came to Ottawa in 1972, it was a minority Parliament. It has happened before, and it can happen again.

However, at the moment, the situation is that the government has chosen to include one chamber and not the other. You have said that that does not diminish the ongoing role of the Senate constitutionally, and that is true, because we will get a chance to judge any final deal that is negotiated. However, this chamber will not be included in advising the government on the elements that are in Bill C-20.

I will not ask you to speculate on what was in the mind of the government when they took that decision, but I will ask you to put it in an historical context. Are there precedents for this sort of thing, either in this country or elsewhere? I ask you to comment from an historical point of view.

Mr. Magnet: The most obvious precedent is eliminating the Senate's veto with respect to constitutional amendments. That puts this chamber in the junior role constitutionally. That has happened. I guess in the minds of some this would put the chamber in a junior role with respect to forming an opinion as to whether or not it was necessary to go to the table; and that, in the minds of some, is not desirable.

The Chairman: I should like to return to the question raised by Senator Beaudoin. What if we do this, and then we do it again, and we set precedents and end up cumulatively genuinely diminishing the Senate's role? What I am not sure about is how, in practical terms, we could do this again and again and again in any way that would affect our powers. I say that because, constitutionally, we have to be there to pass laws. Thus, this kind of precedent could only apply in the first place to something that was not legislation where we did not have any power anyway. Do you follow my convoluted reasoning here? What I am trying to ask is this: How in practice could we set up a long series of precedents in this situation?

Mr. Magnet: If I understand you correctly, Madam Chair, you are suggesting that it is quite an extraordinary set of circumstances to which Bill C-20 is addressed. In the life of this country, there could be few things more extraordinary. If these circumstances were to come about, it would be extraordinary indeed. It may well be that you are correct that this precedent would not be followed. Senator Rompkey asked me for a precedent in which the role of this chamber was diminished, and I provided him with one, albeit at the constitutional level. It may be that in the minds of some this would be accumulated and would serve as two precedents, and perhaps there would or would not be a third.

It is difficult to speculate. I can certainly not disagree with the thought that the secession of a province from the federation, which has never happened before in history in the case of an advanced, successful, wealthy, free democracy, would be extraordinary.

Senator Joyal: That is why we have to make it impossible.

The Chairman: I think I have my answer. Thank you, Professor Magnet.

[Translation]

Senator Gauthier: Mr. Magnet, I would like to speak to you about a matter that has not been discussed much, which is to say minority official languages.

Bill C-20 says that if the question is clear and the result equally clear, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the provincial whose government is proposing the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of Aboriginal peoples, especially those in the province whose government is proposing the referendum, and any other views it considers to be relevant.

When I asked Minister Dion why he had not included official language minority groups among those entitled to state their formal statements or resolutions, he answered me that the only reason he had done so was that because it was included in section 35.1 of the Constitution, and he had therefore decided to include aboriginal peoples. You know as well as I do that the provisions concerning the constitutional rights of official language minorities are based largely on the nine sections in our Constitution from 16 to 24. Why do these people not have the same right in Bill C-20 to state their views in the House of Commons?

[English]

Mr. Magnet: No, senator I really do not have access to the inner thinking of the movers of the bill. I certainly agree with you that the official language minorities -- and there are some 1 million of them inside and another 1 million outside the province of Quebec -- have an important constitutional position. They have a gigantic institutional structure, a growing one, both constitutionally and legislatively protected and set up by administrative practice. They have an extremely important role to play in the country. Sometimes asking people for their opinion, though, can be a little strange. You find, when you consult them, that people have all sorts of opinions that you do not expect. When the Constitution was patriated, the Société franco-manitobaine had some problems with it. On the first Quebec referendum, the Société franco-manitobaine, for example, was in favour of the secession of Quebec. It can sometimes be very interesting to ask people for their opinions.

[Translation]

Senator Gauthier: For greater certainty in a document as important as this bill, why set aside or ignore one of the important components of our country: linguistic duality? If this same linguistic duality is not included in Bill C-20 and there is a change in government or we get a coalition government consisting, say, of the Bloc Québécois and the Canadian Alliance, what can official language minorities do? In my view, nothing, unless they are, and I quote: "... considered to be relevant" as stated in the final sentence of section 1(5) of the bill.

Would it not be better to clearly state in the bill that official language minorities are entitled to state their views on the question rather than leave it hanging? I have nothing against the fact that the Minister includes Aboriginal peoples -- on the contrary, I am in favour of this. But why ignore the two founding peoples of the country? I have always believed that my country is indivisible. Now I am told this is no longer the case. I will think about the arguments I have been given thus far. Official language minorities, Anglophones in Quebec and the minorities in the rest of Canada have raised their children in a country that they believed showed respect for its official languages, which could be used from coast-to-coast. Now they are being told that this will be negotiated. Are we to become bargaining chips dependent on the good intentions of the two parties in question, namely the dissident province and the rest of Canada? I don't want to be a bargaining chip and I would like to be able to state our views and amend this bill to say that we can do so. Do you think this is possible?

[English]

Mr. Magnet: Senator, I thank you for the eloquent expression of that view and for giving me an opportunity to make a very brief comment about it. One thing that official language minorities can do in the absence of an amendment, which may or may not commend itself to you, is to have recourse, as they have done over many years, to your good offices, now sitting in this chamber as the senator for official language minorities, who must be consulted. You have long been an eloquent and passionate voice as an advocate for those causes. Your comments on the record today will attest further to that and may be of some assistance to some people.

Senator Banks: Professor Magnet, those of us who are less sanguine about consultation may be recalling Churchill's note that you can consult a condemned man on the night before you cut his head off on whether he would like to have his head cut off. He will likely say no but, having consulted him, you cut his head off. However, there was consultation.

Did you perchance hear my question of the previous witness?

Mr. Magnet: I am sorry, I did not.

Senator Banks: It was with regard to the separation of authority principle of government, which is that a legislature ought not make a law on which it then subsequently adjudicates things arising therefrom. I asked the previous witness whether it was his view that an adjudication on the question that arises and is contemplated in Bill C-20 would be binding on the government. It was his view that it would not. I am happy to say that I won an argument in the hall with him otherwise, because laws can either compel or prohibit. In the case of this law, with some future House of Commons of perhaps a different makeup than the present one, it is not impossible to contemplate a situation in which the Commons would vote in such a way as to prohibit the government of Canada from entering into negotiations. In fact, as I understand it, Bill C-20 says that, absent a determination by the Commons that the question put is in fact clear, the government may not negotiate. Since that is so, is it not the case that in this case the Commons has designed and passed a bill and vested in itself the adjudicative authority to determine on a question that derives therefrom and is contemplated in that bill and that is then in some circumstances at least binding upon the government? Is that not flying in the face of tradition and the things that you referred to as filling in the holes between the actual niceties of the constitutional law?

Mr. Magnet: Thank you for that question. Constitutionally I do not see it that way, but you have raised points of very practical politics and wrapped them in a constitutional blanket. I cannot see that this binds the government in a way that is constitutionally impermissible, but I think that your point about a differently constituted chamber in the House may well come back to haunt the government. I have some views about that which are not constitutional or legal, but political, and they are really not so different from the view I understand you to be articulating, that being that the government could find itself with a very difficult breakdown in the other chamber. It could find itself with the Bloc holding a very strange balance and making strange coalitions. This bill may prove to be some difficulty for it.

That is a completely political judgment. Of course, I think that the political conventions are that a government would expect to be able to control what happens in the other chamber. However, the points you are making do suggest all sorts of strange things that could happen that could defeat those expectations, and this bill might not prove helpful in those circumstances. On that political point, I have no disagreement with you. However, to then go on and say that somehow this bill is constitutionally impermissible is a leap that I am not able to make. I do not think I could assist you in that way.

Senator Banks: In terms of what action might be taken afterwards by third parties with respect to redress before the Supreme Court, for example, as far as actions taken under Bill C-20, and leaving aside for the moment even the selfish interests of the Senate, would it not be safer for the Commons to vest in some other body, be it quasi-judicial, a committee of eminent persons, or whatever, the authority to make a determination on the clarity of the question?

Mr. Magnet: The secession reference was not asked of the court for the amusement of law professors or for intellectual edification. The questions were referred to the Supreme Court because the government perceived that it had a very serious problem in that a significant number of people thought that secession could be achieved in a very easy way. The questions were asked in order to change some minds. The questions were not asked without a follow-up strategy in the mind of the government. The questions were very careful.

The answers were not tremendously unexpected, nor the reaction. Bill C-20 was not something that was cooked up in the kitchen in a couple of minutes. I believe there is a coordinated strategy that the government feels is necessary to respond to a very serious problem that it has. The suggestion that at this point things should somehow be given to an independent, non-political body to do independent, non-political things I think would be seen in government quarters as a very strange suggestion.

Senator Joyal: Mr. Magnet, I have had the opportunity of knowing you for a certain number of years. I am rather puzzled at your conclusion in the brief that has been circulated that you have not, to my mind, read, and I should like to put it on the record. In the last section of your brief, entitled "Do I Support the Bill?", you say that to the extent that it speaks to the 600,000 soft nationalists and says, "We can make things very difficult for you," you do not support the bill, based on experience. However, you say that to the extent that it speaks to the progeny of Mr. Parizeau -- "We will by subterfuge get a mandate and secede unilaterally" -- you not opposed to the bill.

I am rather puzzled by that conclusion. Maybe I should not be, because, as a law professor, you would say maybe yes, maybe no -- you go in the middle; but I tell you as a senator committed to Canada that I am left a little off on my appetite and when I get out of the room I am furious.

The government went to the Supreme Court for one particular reason, and I want to emphasize it. As you said, it was not to provide occupation for the law professors and the lawmakers of the land. It was to prevent the dissolution of this country. That is why the Government of Canada went to the Supreme Court.

The Supreme Court said "no" to two simple questions: Quebec cannot secede unilaterally; Quebec has no right to self-determination in Canadian law, and Quebec has no right to self-determination in international law. In paragraph 98 of the ruling, it says no rights, no legal enforcement. That is the law of the land.

The court went on to say that there would be an obligation to sit and negotiate in good faith. What infuriates me in your presentation is that you qualify that obligation at length; you know that obligation -- you have to come to the table in very good faith -- but what the court says about the obligation, the nature of it, not enforceable in court, but enforceable in the tribunal of public opinion. So the Government of Canada, even though there is a referendum with a clear question and a clear answer, can decide in its political judgment, "No, I will not go to sit and negotiate. Take me to court if you want. I will go to the Canadian people and they are going to be the judges of this." That is, in fact, the reality. That is the political reality of this judgment.

I am really fed up with people who come fencing around saying, "You know you have an obligation to sit and negotiate in good faith." I said, "No, I will not go to negotiate in good faith. I will go back to the people of Canada." That is where the good faith lies and that is where it is going to be expressed.

When I have that kind of nice little attitude -- "Well, I do not want to hurt the nationalists, but if it is for the bad separatists, oh, yes, of course, I am for the bill" -- this to me it is no more. It is no more than the Senate: "Oh, you know you are a junior chamber." We are not a junior chamber in this bill. The amending formula says we have a veto and we exercise it and if six months after the House of Commons voted no, it comes back to us. This is the veto.

This is no veto. This is nothing. It is not a junior chamber. We disappear as a legislative chamber. This is what it is, this bill.

The Chairman: Do you have a question?

Senator Joyal: I like to call a cat a cat. I want to say what it is. It is our role to try to understand the legal implications of this, what we can do legally, what this government is bound to do legally, and what this government has the political judgment and will have the guts to say. This is the exercise we are pursuing and this fencing around on this and that, Professor Magnet, I tell you, sometimes I have difficulty controlling my reaction.

Mr. Magnet: This is why you are so loved among your admirers and supporters, of which I am one and have been for many years. It is your passion and that you do not mince words. I appreciate very much the remarks that you have made.

I should like to respond, as I understand it, to the legal points that you have put to me. I am sorry, I did not realize that my notes, which were for myself, had been circulated, but I am happy to respond to them because they do set out my thoughts. I am happy to elaborate on what were some scribblings to myself to express some thoughts should I be asked about them. I did not really want to trouble you with my personal political thoughts. These were some speaking notes, but I am very happy to speak to them now.

I do not think that it is fencing around to say that there is an obligation to go to the table. There is an obligation to go to the table. There is a constitutional obligation. I do not think that the responsible constitutional actors, this chamber included, can say, "We are not going. We defy the Constitution." That to me is just irresponsible and it is a species of legal, constitutional and ultimately political nonsense. You cannot do that, because the country, the voice of public opinion, would turn against you were you to say, "Well, we have been insisting on the rule of law but now we are not going to follow the rule of law. We are a constitutional actor but we are not going to carry out our constitutional obligation." That would transform what is a parliamentary democracy into a laughingstock. This is what the court was saying, that the international actors would have regard to it. The constitutional law has been declared and the constitutional actors must follow it.

Can you go to the table and simply sit there and say, "I do not care what you say; I am not going to vote for anything"? You may think that, but, to me, it is not fencing around and it is not embarrassing to be called a cat to say that when you go to the table you go with an open mind. There are some people who feel very strongly about a political proposition of ultra importance to us all who have expressed themselves democratically, politically, hypothetically on a clear question. Are you going to go and say, "I am not going to listen"? No. I think that the Supreme Court said, in its language in paragraph 92, that you have to go and not be indifferent. To me, that means if you are not indifferent to our countrymen, who have expressed themselves in that way, you go with an open mind, trying to understand, to discuss and to debate and to persuade as well as to be persuaded, and who knows what will happen. I am sorry, I do not think that is fencing around. I call that democracy.

I did have some jottings to myself.

The Chairman: Might I interrupt here, Professor Magnet, to say that if we have inadvertently distributed a document that was not intended for committee use, we apologize.

Mr. Magnet: Madam Chair, that is very handsome, but my old friend Senator Joyal, whom I respect, raised a point and I am very happy to elaborate for him what I meant so that I do not leave a lack of clarity in the air.

Do I support it? My understanding of what has happened in this country for the last 40 years is that nationalism incubates when you have a polity divided, in our case by language, but in others, as in Northern Ireland, by religion, or in others by race, when you have a polity divided along fundamental lines -- in our case, linguistic -- and as a result of the division, one part of the polity has a lower status, and that was our situation in 1960. In this town, in this federal civil service, the French language was not spoken. In the incomes in the province of Quebec, the French-speaking workers were paid very substantially less. There was an inequality. Some honourable senators have referred to Canada being the greatest country in the world. Our capacity to adapt to that and to change that over the last 40 years has been absolutely dramatic. Those incomes have risen and are at par. By law, the federal civil service has had to come to proportionality with the English and French languages. We have done it and people have supported it. There has been an absolutely dramatic adaptation made.

We had real causes of nationalism in our polity, in our society, that gave rise to that adaptation. It was a rational thing to grow in the province of Quebec. We have addressed it and it simply does not go away that quickly. That is what I think. In addition, nationalism can be rekindled by some political events, such as the failure of the Meech Lake Accord and some other problems. It not only did not go away as expected; it was revivified.

I have jotted down in my notes causes of nationalism. We have made tremendous progress and this is the way to address the difficulties that have given rise to these events, the Quebec Secession Reference and Bill C-20. By addressing the causes of nationalism, the inferior status attributed to a linguistic group, we have made spectacular progress. I think that is how we should do it.

I do not support a bill that says, as the Charlottetown round attempted to say, that we either vote for this or our country will be lost. We cannot scare people into wanting to stay in Canada. To the extent that this bill attempts to do that, I do not think that this is a particularly great strategy. I understand the difficulties the federal government faced through the two failed constitutional rounds. I can see how this bill arises and I sympathize and I understand, but my experience is that trying to scare people is not a good thing.

There is a second problem. We are astonished to find out that the Government of Quebec may actually have been planning to get a corrupt mandate through a confused question and then to do some very unpalatable political acts to get recognition. To that extent, I would support this bill because it attempts to address that action by Quebec.

I am sorry, senator, that my notes seem to you to be "on the one hand/on the other" or "cat and dog" or fencing. Those are the thoughts I was trying to stimulate in my own mind by those comments. I hope those thoughts will be of assistance to you in understanding my position. I want to say again how much I appreciate the passion and the eloquence that you have brought to the question as a great patriot. I was moved to see the way you addressed the question in your speech in the chamber.

Senator Taylor: I want to come at this from an entirely different angle. We have discussed separation and the Senate being left in or out. You felt that leaving out the Senate would establish a bit of a precedent but not a horrible one. It could perhaps be surmounted in the long run.

I want to throw something else at you. This bill is basically an executive decision, with Parliament added to the decision. In that way, they do not really need the Senate.

This bill does establish a precedent for other questions. Bear in mind that Ontario and Quebec today have around 59 per cent of House of Commons members. Through the census, it looks as though they will go up to about 65 per cent. It is impossible for them to go any higher than 48 per cent in the Senate.

The precedent in Bill C-20 may give to the executive and the House of Commons the power to make decisions in other areas, perhaps on linguistic questions, or maybe even a national energy policy. They need not ask in the Senate where the normal regional check and balance is in place. What about that kind of precedent?

Mr. Magnet: I agree with the Chair's take on this. This is an extraordinary event. It is difficult to take an extraordinary event as one of a series of events. In other words, I do not see it that way. Then again, you are asking me a question about the future and what may happen if the Senate is left out of certain other events. Would it set up a chain? What can I say except that I cannot see into the future.

This is an extraordinary event. Perhaps it is too much to say it is a one-shot deal, but I see it as an extraordinary event. If you were concerned, in the future, that a similar technique were being used in an event that was not extraordinary and that did not have the defences that some have made for this mechanism, you, of course, retain a full veto to defeat it.

Senator Taylor: I am talking about executive decisions that need not come to us at all. A bill may not come forward. A national energy policy, for example, need not be in a bill. It is just an executive decision that would be supported by the House of Commons, because the deciding vote would come from the two provinces.

Mr. Magnet: I may not fully understand your question in that case.

Senator Taylor: I am saying that this bill was not necessary. It is nothing more than an attempt to get the imprimatur of the whole of Parliament on what is simply an executive decision.

Mr. Magnet: I see.

Senator Taylor: Suppose, down the road, the executive decides it does not need a bill the next time? They may use a resolution. The House of Commons, which is dominated by Ontario and Quebec, can make a decision on a resolution and nothing need come through to the Senate. In other words, the country could be run by resolution and without using the Senate.

Mr. Magnet: Thank you for clarifying that. I do not see that as a realistic possibility, particularly the example that you gave of a national energy program. In other words, this bill implements an existing constitutional obligation. It implements something that is there, but it requires detail.

This is legislation to put that detail there. There is no obligation, no ability to have a national energy program except for legislation. Money changes hands. Structures are set up. Legislation would be required. I do not see how such a program could be done by the administrative process alone. This chamber would be a full participant, as I understand that example. The actual National Energy Program of the past was set out in an act.

Senator Christensen: I am following on Senator Taylor's question. This issue has been raised by a number of other senators and I think you have answered but, hearing your answer to Senator Taylor, now I am not quite sure.

To put it in layman's terms -- and perhaps you could reinforce it -- this Bill C-20 is a statute. It is not a law. It is a resolution that could have been made in the House of Commons, passed by the House of Commons.

From your presentation, it would appear that the executive does not have that authority to go into negotiations and to decide on the clarity of the question and the majority question. It does need a statute to do that. That is why we have Bill C-20; it is going through the process of the two Houses of Parliament to get that authority for the executive to make those decisions down the road.

Having said that, it was a requirement that Bill C-20 must go through the Senate. The Senate must give assent to Bill C-20 in order to legitimize the contents of this bill. One would think that the importance of Bill C-20 would pale compared to the importance of what would happen if a referendum succeeded and we had to proceed to negotiations.

It begs the question of why the Senate would not be included in that important decision, which is far greater than this one.

One other thing must be said. I know that senators are concerned that the Senate is not expressing a view, but it is not out of a feeling of affront to our dignity as senators but a fear for what may in fact happen in the future, over which no one will have a counterbalance.

Mr. Magnet: Thank you for putting it that way. I think it is true, as you have suggested -- and perhaps I did not fully take that from the previous question -- that this mechanism could have been done without legislation. I believe it could have been done without legislation, and I think perhaps I did not see that point in the question. Thank you for clarifying it.

That is a matter of speculation. I can only offer my own thought about it. I think part of the reason for the legislation is that it is part of a coordinated strategy to say to certain people, "We can make it very difficult for you. Do not assume that things will be very easy if this event comes to pass. We can make it very difficult for you, and we will need to talk about very difficult things that you have said we do not need to talk about. We will have to talk about them." I believe that is one of the motivations for this bill.

I do agree that the purport of this, in other words to implement the obligation to come to the table, could have been done without legislation. I do not think that necessarily means that something like a national energy program could be done, because this is an outstanding obligation. It does require detail, and that detail can come in the administrative way. Other things that get into it, such as the creation of structures or vesting of power and authorities or expenditure or appropriation or things like that would require legislation, and this chamber would be a participant. I hope that is responsive to the point you were putting to me.

Senator Finestone: I must tell you that whether Quebec leaves or not, for me, this is one of the most important bills I have seen, and one with the most historical potential. I seem to sense that the wrong actors are being left out, and it bothers me. I listened very carefully to what you had to say, but that is not the focus of where I want to go.

The other thing that I do not like is the fact that we always use the word "secession." Why do we not just use the plain old word "independence," which I think everyone understands much better.

I want to go back to the point raised by Senator Gauthier. I should like some clarification from you. The preamble indicates that democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession, and that a qualitative evaluation is required to determine whether a clear majority in favour of secession exists in the circumstance. That is in the preamble. You then go to the bill itself. I want to know how I am supposed to go to the table with an open mind when I find that we do not see the re-expression of the qualitative undertaking of analysis.

Again, still in that preamble, we talk about the principles of federalism, democracy, constitutionalism, the rule of law, and the protection of minorities. Then you move into the substance of the bill, and in clause 1 you do not see anything about it. In subclause 1(5), we have a whole list of who we are going to consult with, whether it is the provinces or the federal government in the different structures, the various resolutions and representatives of aboriginal people, and especially those in the provinces whose government is proposing the referendum on secession, and any other views it considers to be relevant, but it does not mention the minorities.

Those points were in the preamble in two different places. I have to tell you that I am a minority, both an Anglophone and an ethnic, and I remember Mr. Parizeau only too well.

Subclause 1(5) does not mention minorities. When you look at subclause 2(3), there is nothing in that list either. Subclause 2(4) has nothing. When you move to subclause 3(1), you have nothing.

Finally, in subclause 3(2), you have the reference to "no minister of the Crown." We are not talking now about the Senate, the House of Commons, or the other provincial legislatures. We are now talking about "no minister of the Crown." Well, no minister of the Crown has any role anyway under what you described at the beginning of your exposé. The Constitution only sees the House, the Senate, and I guess the Queen.

The Chairman: Do you have a question?

Senator Finestone: It is coming. The question is on subclause 3(2): No minister of the Crown shall propose a constitutional amendment until "the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances," and they add at the end, "the protection of minority rights." If they have to consult and include the protection of minority rights, are you comfortable that in the qualitative evaluation that is needed to say that not only have we had a clear question but we have a clear majority, the minorities will have been heard and have the obligation to be heard?

I sit here with three hats: first, as a Quebecer with worries about the referendum; second, as a minority; and third, as an ethnic. I forgot the first one -- as a Canadian. I took it as a sine qua non.

I should like to know how you would have understood and applied the qualitative analysis if we were in Alberta with their economic desire for separation. How would they look at the francophone protection in Alberta, never mind the anglophone protection in Quebec? What is the obligation here?

Mr. Magnet: The qualitative language comes from the secession reference. In other words, the clear majority is a qualitative evaluation. It is not simply counting.

Senator Finestone: I counted 56,000 not counted, so I am counting.

Mr. Magnet: As I understand your question, it is whether there is an obligation, either constitutionally or because of things set out in the bill, to include the advice of the official language minorities in coming to that qualitative evaluation. I understand your concerns, and I understood them also from Senator Gauthier. I do not think that there is a constitutional obligation to consult with the official language minorities or with anyone. I do not think there is a constitutional obligation to do that. I do not think that the bill is contradictory within itself -- in other words, that it is unintelligible in what it sets out. It seems that it is communicated very well to you in that you have expressed how eloquently you feel as a minority, as an anglophone from Quebec, and as an ethnic, at being left out. I think that the bill cannot be considered to be contradictory or unintelligible from that point of view.

It is true, as you have observed, that there is no obligation to consult the official language minority or the ethnic populations. Some may form the view, in agreement with you, that this is a desirable thing to do. On that, I really am quite agnostic. I am not ducking your question. When you get into this question of who to consult and all of that, you are into a very high stakes political game in which these strategies have been examined and calculated for many years by the government. I am quite agnostic about that because I am not sure that there is a tremendous status in being consulted in this high-stakes faceoff that would come about in these circumstances. I regret that my answer will be cold comfort to you, but I can really only assist you with the constitutional advice you have asked me for, which is cold comfort, and my political comments are quite agnostic.

Senator Kinsella: Many exciting principles have been identified, but there is one in particular that I have focused on. It relates Professor Magnet's views on which amending formula would apply. Did I understand you correctly to say that in your opinion it would be the unanimity formula?

Mr. Magnet: Yes, Senator Kinsella.

Senator Kinsella: I believe this is very important, honourable senators. For me, it is one of the points of convergence of the several dynamics that we have been dealing with in our debate at second reading. My preferential option is a vision of Canada under which the fundamental principle is that Canada is indivisible. That is a preferential option.

However, the convergence I see is in terms of that principle that I embrace as an option, the reality of this bill that is before us, and in your judgment the unanimity formula must be applied. Clause 3(1) of the bill, on page 5, says: " ...therefore, an amendment to the Canadian Constitution would be required ..." If our bill were amended at that point to say, "therefore, pursuant to the unanimity formula, an amendment to the Constitution of Canada would occur," the convergence for me is that the principle of Canada as indivisible is being met by the constitutional requirement that you have spoken to, that there must be unanimity in amending our Constitution.

In other words, in a typical Canadian way, maybe that is where we find the converging of some waters. I wonder if I could get your reaction to that.

Mr. Magnet: Thank you for putting it that way, senator. This is in fact my view. I believe it is extremely unlikely that you would have unanimity where you have the two federal chambers and each of the 10 provincial legislative assemblies having an effective veto over the secession. It is extremely unlikely that you would have that.

That being said, I have been surprised in the past constitutional rounds by the unanimity that we have had about certain things. I was stunned in 1985 by the unanimous agreement to the Meech Lake Accord. I was stunned also by some of the unanimous agreement to the Charlottetown Agreement. My personal view is that you would never have unanimous consent to a resolution for secession. I must be humble in saying that I have in the past formed that view on other things and have been proven wrong.

Senator Kinsella: In the famous American case of Texas v. White, which I take it you are familiar with, effectively the United States Supreme Court ruled that the union was not divisible. Are there not many lines in that decision that, if everyone really all agreed, then it would be? Would that same logic, therefore, not apply in this instance?

In other words, our position can be one that Canada is indivisible provided that we put in the bill, if we are to express this for the first time in our history in statutory law, that it will be done by the unanimity rule? Would that not be a wise thing to do?

Mr. Magnet: That is actually a fascinating way to look at it. Every American school child begins class by pledging allegiance to the flag, with his or her hand over their heart, to one nation, indivisible, with liberty and justice for all. This is something that is cut very deep into the American character structure, and reinforced by the experience with the bloodiest war in history fought in defence of that principle.

I believe that our character structure is not there. That is not how we feel about the matter. Some of us do; some do not. We are not brought up in such a way that each of our children goes off to school with that thought in mind. It may be, and it would be a great thing, if in our constitutional evolution we were to get there. It may be that your suggestion of the slow accretion of these thoughts in some of the debates, and the eloquent debates in this chamber, will build that into our character structure and into our political morality over time.

Senator Beaudoin: I agree that this question is important. In the United States, when the Texas v. White case was decided by the Supreme Court, the conclusion was that the United States of America were indivisible. If you say that the unanimity clause of the formula of amendment is necessary for the secession of a province, it is not exactly the same thing. It is going in the same direction, but Texas v. White is even greater than that because there are very few constitutions in the world where you may have one or two topics that can never be amended.

I think Senator Joyal has expressed that view before, that the concept of indivisibility really exists, but whether it is supranational or whether it is a unanimous formula that is applied, of course, it is a great protection. There are others who say that if you get into Canada by 7/50 why then can you not get out of Canada by 7/50. Your argument, and you may be quite right, is that it relates to the monarchical system and the presence of three judges at the Supreme Court for Quebec, and both are in the unanimity section.

Senator Joyal: In the amending formula.

Senator Beaudoin: In the amending formula. Is that what you say exactly?

Mr. Magnet: Yes, senator, particularly the monarchy and the office of the lieutenant governor of Quebec.

Senator Beaudoin: The Supreme Court as well.

Mr. Magnet: Yes, but I think Canada could agree that its Supreme Court would continue, although it would be strange, to be peopled by three people who came from the Bar of Quebec. Perhaps it would change that later. As I say, it would be very strange, and for that reason I tend to think 41(d) is an additional reason. Definitely, if you were eliminating the office of the lieutenant governor of Quebec, that requires unanimity.

Senator Beaudoin: We have made some progress in that area.

The other point that still worries me is that you say that section 44 may be used at the organic level and at the same time as a constitutional amendment. I have always thought that Bill C-20 was never intended to be a constitutional amendment. If you want to amend the powers of the Senate, under the Constitution you have to follow the formula of 7/50, not an ordinary bill.

Mr. Magnet: Yes.

Senator Beaudoin: I see some contradiction there.

Mr. Magnet: Yes. I tried to explain this before. Perhaps I was not up to the task. What we call the Constitution of Canada includes measures such as what you have mentioned, namely, the powers of the Senate. It also includes much more humble matters, such as the representation acts and the boundaries of the electoral districts, which are done by ordinary statutes. Those statutes are part of the Constitution of Canada as defined in the jurisprudence. Those constitutional statutes, like the boundaries of legislative districts, are amendable as constitutional amendments under section 44 as part of shaping the organic nature of the federal authority. My point was that Bill C-20 is simply that as well.

Senator Beaudoin: Not more than that?

Mr. Magnet: Not more than that.

Senator Beaudoin: The independence of a province?

Mr. Magnet: No. Regarding how the qualitative judgment will be formed as to whether there was a clear question to which a clear majority gave an answer that obligates the federal authority to go to the table, someone must decide whether or not we go.

Senator Beaudoin: That was not my question. If you give a power to the House of Commons to say, "We order you, the government, not to negotiate if the question is not clear," can you find me a statute like that in the history of Canada? I have never found that before. I am in favour of clarity, but it is the way that it is used. They say the House of Commons will have that power but the Senate will not. I still think that they are violating the principle of bicameralism that has been enshrined in the Constitution.

Mr. Magnet: I will try again, senator. I appreciate the energy with which you are putting this forward, but the obligation to go to the table does not come from Bill C-20. The obligation to go to the table comes from the Constitution.

Senator Beaudoin: Where in the Constitution?

Mr. Magnet: In the secession reference, paragraphs 84 and 85.

Senator Beaudoin: That is in the advisory opinion.

Mr. Magnet: I think I have expressed myself on what the advisory opinion is.

Senator Beaudoin: It is important that I agree with you?

Mr. Magnet: It is constitutionally obligatory, in my humble opinion. That is where the obligation comes from. Bill C-20 then says, "We have an obligation. We must get organized. How do we organize ourselves?" It is that organization that I take as the humble organic constitutional statute, which is what Bill C-20 is. That is to say, we will get organized, but first we must decide whether there is a clear question and we must decide if there really is an obligation. That is how we will decide.

The Chairman: First, following on Senator Kinsella's question, would it be constitutionally appropriate for the Parliament of Canada unilaterally to state which constitutional amending formula should apply in the event that we get to a minister of the Crown tabling a constitutional amendment referred to in clause 3(2)? Can we do that unilaterally?

Mr. Magnet: You could do that, but it would be subject to the opinion of the Supreme Court if it were to be challenged. There is a certain precedent for doing that, with the constitutional amendments bill of 1996, saying, "We will not exercise our authority unless these conditions are met." You could do a similar thing that would be beyond constitutional question.

The Chairman: It seems to me that the constitutional amendments procedure that was outlined in that bill did not say which formula had to apply. You could apply that either to unanimity or to 7/50, whereas we could indicate whatever we might say. Senator Kinsella's preference would be for unanimity and the preference of others might be for 7/50. I think that would be legally debatable, but I am not a lawyer.

Mr. Magnet: You can definitely state in the statute that "the unanimity formula would apply in these circumstances." I do not think I am wrong; but should I be proven wrong in the opinion of the court, that statute would then be invalid.

The Chairman: Saying it would not make it so, in other words?

Mr. Magnet: Right.

The Chairman: Second, are you for or against this bill?

Mr. Magnet: I fear that Senator Joyal will be calling me a cat. There are certain aspects of it that commend itself to me and there are certain aspects that I do not think are particularly helpful. The aspects that commend themselves to me are to prevent subterfuge of the kind that we saw forthcoming. The aspects that do not commend themselves to me are the inspiration to say, "We can make things very difficult for you, so do not try anything funny."

The Chairman: Thank you.

Senator Joyal: Clause 1 of the bill says that the House of Commons expressed itself through a resolution, but that resolution is binding upon the government. In other words, when the resolution says the majority is clear, then the government is bound to go to the second step. At the second step, there is another resolution that is also binding on the government and then the government will negotiate.

I am not asking for an immediate opinion, because you might not have had time to look into this, but for the benefit of all of us around the table could you look into your opinion to see if that resolution is of such a legal nature comparable to a statute and, as such, could require the concurrence of the Senate because it is a legislative act or the nature of a legislative act and, as such, would be submitted to the concurrence of the two Houses and the Crown to be valid?

Mr. Magnet: I would be happy to do that, Senator Joyal.

Senator Joyal: Thank you.

The Chairman: Do you think you could communicate to the clerk when you have an opinion on that?

Mr. Magnet: I would be happy to do that. It would be my pleasure.

The Chairman: We thank you very much. This has been an extremely interesting session, Professor Magnet, and we are very grateful to you.

The committee adjourned.