[Recorded by Electronic Apparatus]
Monday, December 4, 1995
.1914 
[English]
The Chairman: Order. Tonight we start our meetings on Bill C-110, pursuant to Standing Order 108.(2), consideration of the subject-matter of Bill C-110, An Act respecting constitutional amendments. Appearing before us is the Honourable Allan Rock, Minister of Justice and Attorney General of Canada.
Mr. Rock, welcome. Please proceed with whatever you have to inform us on. Then we'll proceed to questions and answers.
[Translation]
The Honourable Allan Rock (Minister of Justice and Attorney General of Canada): Thank you, Mr. Chairman.
I would like to begin with a few words before responding to the committee's questions. I would like to remind you that last Thursday I told the House Commons, during the debate on Bill C-110, that this measure was being taken for the purpose of confirming the Prime Minister's undertaking to ensure that no constitutional amendment concerning Quebec shall be made without the consent of that province.
The bill expresses, as well, the federal government's opinion that constitutional amendments affecting the entire country should not be made without significant support in all the regions of Canada.
Although it represents an important step for our country, the bill itself is very short. It has only one clause, in fact.
Before examining some particular aspects of the bill, I would like to make a few general observations so as to identify the major points and to address those that have been raised in regard to its purpose and its administration.
.1915
[English]
Bill C-110 represents the compliance by the Canadian government with three undertakings made by the Prime Minister during the referendum campaign. The other two undertakings concern the resolution on the distinct society and the commitment to the devolution of worker-training responsibility contained in the employment insurance legislation tabled last Friday by the Minister of Human Resources Development.
As I emphasized in the House, Mr. Chairman, these initiatives do not by any means constitute the full or complete response by the Canadian government on the question of unity, but they represent important first steps in that regard. Clearly, they will not satisfy the Parti Québécois or the Bloc Québécois; nothing short of dismantling the country will do that, and so those parties are bound to be disappointed.
What is the effect of Bill C-110 and how does it satisfy the Prime Minister's commitment during the referendum?
[Translation]
During the referendum campaign, we guaranteed to the people of Quebec that the Constitution of this country would not be amended again without their consent. This was a solemn undertaking. The government of Quebec is obstructing us in our efforts to modernize the federation by simply refusing to participate, and is keeping aloof.
Now that Canada is commencing this process of renewal, we need some practical means to assure Quebeckers that we will not proceed without them. We have made a very strong political commitment, supported by the force of a law that guarantees that we will use our veto in relation to any change that Quebeckers or the people of any other region think is contrary to their interest.
This is simply a recognition of the reality. There is no use adopting changes that do not enjoy substantial support in all regions of the country.
[English]
May I emphasize, Mr. Chairman, that Bill C-110 does not represent a constitutional amendment. Indeed, part V of the Constitution Act, 1982, remains unchanged by this legislation. It remains the case for those amendments falling within the general amendment formula, it will be necessary to garner the support of seven legislative assemblies of the provinces, comprising 50% of the population of the country. But what Bill C-110 does affect is an assurance that federal participation in the amendment process, even where seven provinces comprising 50% of the population are in support, will only be engaged where there is a broad regional consensus in favour of the proposed change.
May I spend just a few moments touching upon the nature of part V, the amending process, as it's provided at present in the Constitution in order to put this initiative into the proper context.
Mr. Chairman, as you and as members of the committee know, there are already significant powers of veto available to the provinces in respect of a wide variety of constitutional amendments.
To begin with, section 41 of the Constitution, contained in part V, provides for categories of changes that require unanimity, such as the proportional representation of provinces in the House of Commons, the use of the French and English languages, and the amending formula itself, changing that requires unanimous agreement. So any province, such as British Columbia, Newfoundland, Ontario, may, simply by withholding its consent, block completely any amendment contemplated by section 41. This is an absolute and unconditional veto, as it were.
Furthermore, in section 43, changes are contemplated that affect one or more, but not all provinces. For example, if there are boundary concerns between bordering provinces and if they are to be resolved by constitutional amendment, that would only take place with the agreement of those provinces affected. Or, as in the case of the fixed link with Prince Edward Island, where it was necessary to change the terms of union to accommodate that development, the change only occurred with the agreement of Prince Edward Island as the province affected.
.1920
Those are two examples of circumstances in which categories of change can be proposed but subject to the veto, absolute and unconditional, of in the first case any province, in the second, any province affected by the proposed change.
Then there are the provisions of section 38, the general amending formula, within which it's also provided that where a change under that formula constitutes a derogation from the rights or the privileges of a province, where, in other words, there's a diminution of a provincial authority in favour of the federal government, any province affected by such a change may opt out of the proposed arrangement. That constitutes a virtual veto, a negative veto, if I may put it that way. In the case of changes relating to either culture or education by virtue of section 40, any such dissenting province has the right to financial compensation from the federal government.
Categories of change that are provided for in sections 41 or 43 or 38.3 of part V already involve the right of veto, virtual or actual, on the part of the provinces. That, of course, leaves the general application of the amending formula in section 38, those proposed amendments that are not covered by the sections to which I've referred. What of them?
It's the seven and fifty formula made simple, but in view of the undertaking by the Prime Minister to confer a veto for the benefit of the province of Quebec and in view of the scope of this legislation, which provides for that veto not only in relation to Quebec but also in relation to other provinces as described in Bill C-110, there is now an additional right of veto in effect on the remaining changes contemplated by part V of the Constitution Act, 1982.
That is to say that the federal government is prescribing in this legislation the criteria it will apply in determining whether it will participate in that category of change. It's specifying that its participation will occur only when the conditions set out in Bill C-110 are satisfied.
[Translation]
One question that has been raised in regard to the bill is that of its constitutional validity. This can be examined in detail later, but I would like to explain clearly and forthwith my conviction concerning the conformity of this legislation with the Consti-tution.
Naturally, one can find different opinions and points of view, as on the other legal or constitutional issues, but we believe that this legislation is not an unconstitutional fetter on Parliament or on the government of Canada, and that it makes no change in the present amending procedure set out in Part V of the Constitution.
[English]
So, Mr. Chairman, I express my conviction that Bill C-110 is valid federal legislation. It does not amend the Constitution in any way; indeed, it's complementary to the constitutional amending provisions. Simply stated, the House of Commons is the only legislature in Canada with a complete veto over almost every conceivable type of constitutional change. That is so because as a practical matter no such change will occur if the House of Commons opposes it.
Bill C-110 simply represents a reflection in legislative form of the policy of the Canadian government with respect to the circumstances under which it will lend its support to constitutional change where the provinces do not already have a veto.
.1925
In my respectful view, this legislation is in the same category as those provincial statutes by which certain provinces have bound themselves to support constitutional amending proposals only after, for example, referenda have been held within those provinces expressing support.
In the provinces of Alberta and British Columbia, just such legislation has been enacted governing the circumstances under which the legislative assemblies will determine whether they will express support for proposed changes governed by the amending formula. The federal government has, by this statute, enacted legislation that invokes similar principles.
[Translation]
This bill is a first significant step in that it gives Quebec the protection it has long been seeking against undesirable constitutional amendments. I am confident that those who desire constructive change in the relationships between Quebec and the rest of Canada will support it for this reason.
I also wish to recall that this bill does not claim to be the final answer to the concerns surrounding the present amendment procedures. Rather, it should be regarded as a provisional solution while we await the time when we can establish a more durable mechanism.
[English]
It is, in effect, a bridge to enable the Canadian government to act now on this commitment, but in the full expectation of the conference, which by the Constitution itself must be convened before April 1997, when they put on the agenda for discussion among the premiers and the Prime Minister a more durable and perhaps a more complete approach and solution to the question of the veto in the amending formula.
With that introduction, Mr. Chairman, I invite your questions or the questions of my colleagues on the committee, and I shall do my very best to respond.
The Chairman: Thank you Mr. Minister. Before we start with the questions, I would simply like to indicate to members of the committee that when we're done with the questions and answers with the minister at 8:45 p.m. we should remain here to have a meeting to determine some of the witnesses to be called with respect to this bill.
Mr. Langlois.
[Translation]
Mr. Langlois (Bellechasse): Thank you Mr. Minister for your presentation. I do not have the same analysis as you. It is very fortunate that our system allows us to have differing opinions on the implications of the bill that you are presenting today to this committee.
The present Constitution, the Canada Act of 1982, clearly states in its preamble that Canada is founded upon principles that recognize the supremacy of God and the rule of law.
Now, the rule of law that is established in the 1982 Constitution is located in particular in section 38, which is the general constitutional amendment provision, and which reads as follows:
- 38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by
the Governor General under the Great Seal of Canada where so authorized by
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.
So the 7/50 clause, which is constitutionally entrenched, and which is the constitutional rule of law, does not come under the jurisdiction of either the federal Parliament or the provincial legislatures. If we wanted to amend this clause, we would have to resort to the provisions of section 42, which requires the unanimous consent of all the legislatures and of the federal Parliament.
Today you are presenting to us a bill that the ordinary citizen, relying on the Constitution of his country and the entire constitutional law since 1867, and in particular on the amending formula that we have had since 1982, does not understand very clearly.
So, with the adoption of this bill, which is not constitutional and, as you mentioned earlier, does not formally affect the Constitution of Canada, the ordinary citizen who reads section 38 will not know what the actual status of the law is.
.1930
While your bill is not constitutional, it is nevertheless quasi-constitutional. I would like to know whether it creates a constitutional convention. I think not, since today only the Liberal party voted in favour of the bill in the House, while the Bloc Québécois which is the Official Opposition and the Reform party voted against.
I do not think there is a constitutional convention that has been created. There is an opinion that has been expressed by a single party in the House of Commons.
The second sticking point is that in addition to not formally amending the Constitution of Canada«while nevertheless affecting it indirectly, since you are undertaking not to present any constitutional amendment without the agreement of Quebec, Ontario, two Western provinces representing 50 per cent of the population of that region and two Atlantic provinces your bill collides head-on with section 52 of the 1982 Constitution, which states that the Constitution of Canada is the supreme law of Canada and that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Here is an example, Mr. Minister. You are presenting us with a bill that, if it is adopted, will collide head on with section 38 of the Constitution of Canada. Since section 52 tells us that any law that is inconsistent with the provisions of the Constitution is of no force or effect, your bill is prima facie of no force or effect.
If we want to legislate just for the sake of legislating, let us adopt this bill. I think the purpose would have been more effectively achieved if, instead of presenting a bill, you had presented some amendments to the House Standing Orders saying that in constitutional matters the clerk of the House must satisfy the Speaker as to whether he has received the consent of Quebec, Ontario, two Western provinces and two Atlantic provinces before a bill amending the Constitution of Canada can be received in the House of Commons. That would perhaps be more debatable.
But you will allow me to criticize the way in which you have chosen to do this, Sir.
Another question concerns me and, if you will allow me, I will make a presentation that will perhaps raise some questions that you can subsequently address.
You say there will be no amendment to the Constitution of Canada unless Ontario, Quebec, two Western provinces and two Eastern provinces representing at least 50 per cent of the population have first consented. However, the mode of consent is not provided, Sir. Is it a letter from the province's premier? Is it a provincial order-in-council? Is it a resolution of the province's legislative assembly? Is it a referendum held under the authority of the province's referendum legislation? In what form is a province to present its objection?
As you have been very vague, I would like to know who is to speak on behalf of a province. Could a premier ask his lieutenant-governor to send you a fax informing you of his opposition to the amendment? Would this be valid?
Mr. Chairman, in 1940 the Constitution of Canada was amended in relation to unemployment insurance, a power that had been held to be within provincial jurisdiction.
On June 25, 1940 Prime Minister Mackenzie King announced to the House of Commons that the nine provinces since Newfoundland was not then a member of the federation had finally reached agreement on the amendment proposed by the federal government in relation to unemployment insurance. However, it should be noted that in eight of the nine provinces only the Cabinet had expressed its agreement through a simple letter from the premier to the federal prime minister.
Thus there was not even an order-in-council. It was discussed informally and a missive was sent by mail, since there were no fax machines at the time.
Only one legislature out of the nine voted that of British Columbia, which ratified the constitutional amendment. Do we want to go back to the lack of clarity that existed prior to 1982? That is another question that I am raising.
Thank you, Mr. Chairman.
[English]
The Chairman: Mr. Langlois, I'm wondering if you want the minister to answer. You've already used about seven minutes of your time. You should allocate some of that for the minister to answer.
[Translation]
Mr. Langlois: I might finish the first round with these few questions. I will have others for Mr. Rock later.
.1935
Mr. Rock: To begin, I do not at all agree with you on constitutional validity. You say that the bill is not constitutional because it contradicts section 38. But section 38 remains unchanged in this bill. We still have the 7/50 rule and, what's more, the federal government is adding some criteria that would structure its power to participate in an amending process. The 7/50 rule is not changed at all and this bill guarantees that no change in the Constitution will be adopted without the consent of the people of Quebec and of the other regions of Canada.
[English]
It is possible to have both section 38, the seven and fifty formula, and a regime under which the federal government says it will not participate in the process of change unless certain criteria are adopted.
I invite Mr. Langlois to agree with me that if the Canadian government were to simply say that as a matter of policy it will not participate in constitutional change in which the seven and fifty rule is engaged unless certain criteria are satisfied, that's entirely within its power.
Short of legislation to articulate it as policy, all we have done with this bill is take that one step further and codify those criteria to spell out that policy and legislation binding ourselves, at least until the legislation might be amended or repealed, to those criteria.
That's not to say the seven and fifty rule or section 38 have changed. It's not that at all. After seven legislatures of provinces comprising 50% of the population pronounce themselves in favour, the Canadian government has said it will determine whether six of the favourable provinces derive in the manner described in Bill C-110. If they do, then it will participate by providing the Canadian government's involvement in the amendment process.
That doesn't change subsection 38(1). It simply adds a feature to the process that ensures regional support. I disagree that it is inconsistent with section 38. If anything, I say it's consistent with the spirit of the process of amendment.
The second item has to do with
[Translation]
the process by which the provinces' consent is determined. In the bill we have used the words consented to by a majority of the provincesä in accordance with the criteria expressed in the bill. In my opinion, it is possible to obtain the expression of this consent through the provincial government, through the provincial legislative assembly or perhaps through a referendum in the province or by a federal referendum. The three things are possible, but at the end of the day a resolution of the legislative assemblies of seven provinces is still necessary in order to comply with section 38. It is mandatory.
[English]
The Chairman: Thank you. Mr. Harper is next.
Mr. Harper (Calgary West): As you say, Mr. Minister, this is not strictly speaking a constitutional amendment, or even a constitutional amending formula. But is it the government's position that this is what the general amending formula should look like?
.1940
Mr. Rock: For now we say these are the criteria that should govern our involvement in the general amendment process. As I mentioned earlier, Mr. Chairman, it's rather a bridge to the point in 1997 when there's going to be perhaps a fuller examination of the amendment process as a whole by the provinces and the Canadian government.
Mr. Harper: Let me try again. This looks like the Victoria formula. Does the Government of Canada, the Liberal Party, advocate the Victoria formula as the general amending formula for the Constitution?
Mr. Rock: It looks more to me, Mr. Chairman, like the policy resolution of the Liberal Party of Canada expressed in the convention of February of 1992 as the preferred method of amendment.
Mr. Harper: So this would be the Liberal Party's preferred method for the general amending formula?
Mr. Rock: Well, it also looks to me like the Beaudoin-Edwards formula from 1991 when that committee examined the whole process of amendment. There have been many suggestions over the years on how amendments should be dealt with. This combines some of the elements of various formulas suggested from time to time.
Mr. Harper: So I'm to gather that when you say it's a bridge from what we have today to something else, you could well go back over to the other side again?
Mr. Rock: I guess that depends on what the premiers and the Prime Minister discuss and perhaps decide in April of 1997. As you know, the Constitution requires a conference on the amending formula itself by April of 1997.
Mr. Harper: Hasn't that provision been spent?
Mr. Rock: In what way?
Mr. Harper: On at least two occasions not only have the premiers and the Prime Minister met to discuss the amending formula, they've actually arrived at alternatives. So that conference has already been held on at least one occasion.
Mr. Rock: But the Prime Minister has made it clear that he regards that requirement as still very much alive.
Mr. Harper: So this is a commitment of the Prime Minister, rather than section 49 of the Constitution Act of 1982?
Mr. Rock: Well, it's the Prime Minister's position in respect of that section.
Mr. Harper: The Prime Minister is not the legal interpreter of the Constitution Act of 1982. Is that not correct? It's the Supreme Court of Canada.
Mr. Rock: But as a political reality, the Prime Minister has said he intends to convene such a meeting for the stated purpose.
Mr. Harper: Is it not correct that if Bill C-110 were submitted to the formula proposed in Bill C-110, it would not pass? In other words, I understand that the Province of Quebec as well as two western provinces, Alberta and British Columbia, having over 50% of the population, would reject this proposal you have today. Because of that, is it not correct that a formula like this would fail to pass the criteria laid out in Bill C-110?
Mr. Rock: I'm not sure. It's true to say the Government of Quebec has expressed itself uninterested in any discussion of these matters. Indeed, the Bloc in the House has voted against the bill at second reading. I suppose it comes down to how you interpret the consent of the provinces.
Mr. Harper: Could consent here mean that consent of a province could be expressed without the consent of the government of that province? Is that what you're suggesting?
Mr. Rock: Don't forget that for any constitutional change you'd need the seven and fifty formula satisfied. So before you actually achieve -
Mr. Harper: I'm talking about the satisfaction of Bill C-110's criteria. Does this require the consent of the Government of Quebec?
Mr. Rock: What I'm saying is that I think before you address that question you have to bear in mind that before any amendment is going to happen you have to get the legislative assemblies of seven of the provinces expressing support for it. That's the requirement of section 38 of the Constitution Act.
So presumably before Bill C-110 is engaged, before the federal government is called upon to determine whether it will participate, seven provinces have expressed, through their legislative assemblies, support for a proposed amendment. Then the Canadian government would look to see if six of them are as described in Bill C-110.
Mr. Harper: You're confusing me a little bit, because my understanding of the amending formula is that nothing requires the Government of Canada.... The House of Commons can initiate a constitutional amendment. I would assume the Government of Canada could also initiate something under Bill C-110 before a resolution was proposed to the legislatures.
.1945
Mr. Rock: But one thing is certain: you're not going to get an amendment under section 38 unless you have the legislative assemblies of seven provinces, comprising 50% of the population. That's important.
Mr. Harper: So let me go back to my question. I don't understand why you're avoiding it. Does Bill C-110 require the Government of Quebec to consent to constitutional amendments or not?
Mr. Rock: It requires the consent of the province of Quebec, Mr. Chairman.
Mr. Harper: Is the province of Quebec a legal entity -
The Chairman: Mr. Harper, please let the witness finish giving his answer when the answer's started.
Mr. Rock: I hope I'm not avoiding your question.
I've said that in determining what is the consent of the province of Quebec, I think one could imagine circumstances in which an expression of agreement by a government of the day would suffice. I think one could imagine circumstances under which you'd want to have a legislative resolution to that effect. I can image circumstances in which it's possible that a referendum might be held to determine it .
Let me come back to a question that I also want to answer directly, if I may, Mr. Chairman. It's whether this bill would meet its own requirements. In other words, would it pass the test contained within Bill C-110? Of course. It's not subject to that test because it isn't a constitutional amendment.
Mr. Harper: Yes, I realize that. It still may be a recipe for deadlock, though, if it doesn't pass those requirements.
Take the referendum to which you referred. Could this referendum be held in the province of Quebec or some other province without the authorization of the government of the province?
Mr. Rock: I can't imagine that. That's a very hypothetical situation, and it's highly unlikely. I don't know that it's useful to speculate on it, but I think by far the more common case is either an expression of support by the government of the day or a resolution adopted by the legislative assembly of the province.
Mr. Harper: Go back to this question, then. I think we're getting there, in that it is an expression of the provincial government in some way. Does it not at all concern you that this is, in fact, a recipe for deadlock in that regard? It is clear under two of the four criteria listed in the bill that not even this bill would be adopted.
Mr. Rock: But this bill is not a constitutional change, so it's not subject to that formula.
Mr. Harper: I realize that, but doesn't it worry you about the adoption of future constitutional amendments?
Mr. Rock: Amending the Canadian Constitution is always an undertaking of singular difficulty. That has been established before our very eyes during the past 15 years. Nonetheless, the people of Canada have seen fit to adopt a formula by which it might be achieved. That formula includes, so far as it applies generally, the expression of agreement by seven provinces through their legislative assemblies.
All this does is to say that the Canadian government, before participating in such a change, even when there is the seven and fifty rule satisfied, is to determine that of those at least seven, at least six are as described in Bill C-110. It's a smaller number than that of the seven and fifty rule. It has no general population threshold. So I don't know that it's a recipe for gridlock. I think it's rather a method for double-checking broad regional consensus before action.
Mr. Harper: Why did the government choose to delegate its amending formula power to the legislatures of the provinces rather than to the people of Canada through a referendum mechanism?
I'll put out two arguments in that regard.
One is that, of course, there already is, as you stated many times, under section 38 and others, a formula for provincial involvement in any case.
Second, the Prime Minister himself had indicated to the House on November 1 that when he was talking about consent from the province of Quebec, he meant explicitly the people of Quebec rather than the Government of Quebec.
.1950
Mr. Rock: I don't know that it can be fairly said that we've delegated anything. The Canadian government reserves to itself the decision of whether to participate in constitutional change.
Second, you suggest that delegation has been made to legislative assemblies of the provinces. That language has been specifically avoided in this bill. It talks about the consent of the provinces.
I've already made it clear that at least so far as I'm concerned, that's sufficiently broadly defined to include the government's expression, the legislative expression, or even a referendum, in probably unusual circumstances.
The Chairman: Sorry, we're already a minute over.
Mr. English, ten minutes.
Mr. English (Kitchener): Thank you very much, Mr. Chairman. Thank you for your presentation, which has been most informative. I just wanted to expand on some of the points I made earlier.
Those of us who followed the Canadian constitutional process over the years have seen in the last 40 or 50 years greater protections, not simply for Canadians as individuals through the charter, but also for provinces and regions. If we recall the remarks of the Canadian Prime Minister about 45 years ago, theoretically the federal government could act alone at any time for any constitutional provision; but it would not.
We've seen a situation develop in which there are much greater protections, not simply for provinces, but with a system of amendments that offers protection for a wide range of regional interests.
In this respect, some people may ask why is it that the Canadian government has re-granted, if you like, a veto, for example, that Premier Lévesque presumably took off the table in 1982. Why, at this point, have we acted in this fashion to restore the veto? Perhaps to follow Mr. Harper's question, why have we placed further constraints on the Canadian government's freedom of action?
Mr. Rock: The process leading up to the referendum of October 30, and certainly its results, demonstrate to the Canadian government a broad desire in the land for constructive change. The campaign also brought into sharp focus the desire on the part of the population of Quebec for measures that would address concerns it has expressed for some time, including a recognition of the distinctness of its society and the restoration of a clearly expressed veto over constitutional change.
Accordingly, the Prime Minister, on behalf of the Government of Canada, made certain commitments in that campaign such that those matters would be addressed. This bill is simply the fulfilment of one of those commitments. It is, at the same time, a means to address the desire for change and to address a longstanding concern expressed by the population of Quebec.
As to whether it's a further constraint, I think it's a practical matter. It's difficult to imagine circumstances under which the Canadian government would participate in an amendment process, for there was substantial regional opposition. This bill, therefore, simply reflects reality to that extent. It is codifying an approach in which the regions are respected in the views they might take of such change.
Mr. English: In previous constitutional rounds, with with we're all familiar, there were very many groups involved in that process. It was not simply the provinces, but aboriginals and others.
In this particular case, we are not going through that process. But you have said before that this is a bridge to 1997. I wonder if you would expand on that concept of this particular bill as a bridge to the discussions at the first ministers' conference in 1997 and how you might see those further interests being involved in 1997.
.1955
Mr. Rock: This is not a constitutional round like Meech or Charlottetown; this is a legislative initiative to fulfil a commitment with respect to a specific element of the amendment process. It's not attended by the elaborate, inclusive and broadly based consultation process we've seen in the past.
If I may presume to say so, the Canadian people are impatient to see this government get back to its agenda of jobs, economic growth and all of the other challenges we face as a government. It was therefore necessary to find a means to fulfil the Prime Minister's commitment to address this important matter without getting into that constitutional process, particularly since it's going to be addressed squarely in a formal meeting in 1997.
This is a bridge in that sense. It's a practical way to fulfil the commitment to confer the veto without us spending the months required for a full constitutional round. It produces the practical result. It deals with the matter in the interim until it can be addressed more formally, and it's on that basis that it has been introduced.
Mr. English: You've been a minister in this government for two years. In a broader sense, when this government took office it talked about approaching federalism flexibly; it talked about the flexibility of federalism that could be achieved outside of the Constitution. I wonder if you would evaluate that concept now that we're two years from the government's formation. Clearly even countries without written constitutions, like Britain, are now talking about it because of external influences upon the British political regime. In our case, could you comment on the ability of the Canadian political system to operate within the broader constraints of the Constitution in the two years our government has been in office? In other words, what are our limits? Are we gridlocked? Are we in some way limited by our constitutional process?
Mr. Rock: I can refer first to the meeting that took place in December 1993, just a month after the government took office, and at which the Prime Minister and provincial premiers signed action plans identifying dozens of areas that officials would follow up to determine how duplication and overlap could be eradicated through administrative change between levels of government, redistributing either to the Canadian government or to the relevant provincial governments responsibility for specific tasks that could more effectively, more efficiently or less expensively be performed by one or another layer of government. That work continues. My colleague, Marcel Massé, the Minister of Intergovernmental Affairs, is addressing a broad range of changes that can be undertaken without any constitutional change to improve the federation and its efficiency in that way.
Furthermore, there are agreements that could be entered into between the federal government and the provinces. One thinks of the immigration accord between the federal government and the Province of Quebec.
There are also statutory changes that can be introduced and that will reallocate responsibility. One thinks of the reconfiguration of the worker training provisions in the employment insurance legislation.
Then there are initiatives such as Bill C-110. Although it touches upon the Constitution, in and of itself it is not constitutional legislation in the sense that it effects change without the elaborate, ponderous, difficult process of formal amendment.
So I think there's a great deal of scope for dynamic, functional flex without the dead weight of the full constitutional process. At least, that's my perspective.
The Chairman: You have a minute and a half if you wish. If you don't, we can move on.
Mr. English: I'll pass.
The Chairman: You'll pass for now.
[Translation]
Mr. Langlois.
Mr. Langlois: Let's take it easy, since I have a lot of questions to put to you, Mr. Minister. But things became clearer as Mr. Harper asked his questions and my colleague Mr. English had some as well.
.2000
We understand that the Constitution of 1982, which the Parliament of the United Kingdom was asked to adopt, in accordance with the process then in effect, with the amending formula that was included, could not be presented to London in 1981, since it weakened the powers of the legislatures, and in particular that of Quebec.
The same thing applies to bill C-110, which fails to satisfy the criteria established in the Constitution. Indeed, Quebec, British Columbia and Alberta at least would veto such an amendment if an attempt were made to introduce it into the Constitution.
This restores the provision to its true dimensions. It is nothing more than a ministerial statement, as you mentioned earlier. It is an undertaking by the Liberal Party of Canada to function within the operational framework of respecting the will of Quebec, Ontario, two Western provinces and two Atlantic provinces.
This reassures me to some degree, because there is nothing more to it than a ministerial statement. It would have been much shorter to do it in the House, at 3:00 p.m., after question period, which would have enabled the critics from the different parties to make a brief reply. The effect would have been the same, basically, if Mr. Chrétien, from his seat, had said he would not be presenting any resolution to the House of Commons without having the consent of Quebec, Ontario, two Western provinces and two Atlantic provinces, full stop. Then we would have been sure. We would have taken the Prime Minister's word and he would have kept it.
This bill, C-110, fundamentally, is described by you as being [Technical difficulties]. So one thing is certain, and that is that absolutely nothing in terms of constitutional reform will happen between now and 1997. This is a perfect recipe for ensuring there is no constitutional change.
Yet, last October 30, the message conveyed by the people of Quebec was that they wanted constitutional changes. Now, when you want constitutional changes, Mr. Chairman, you start by making some constitutional amendments, by establishing a devolution of powers, by saying what are the powers of the federal government and what are the powers of the provinces, and when you have agreed on the devolution, you ratify it all and you put in an amending formula to confirm the devolution you have achieved.
What you are doing at the start is to close the door and lock it, thus making any devolution impossible. This is the perfect recipe for ensuring that it will not work. This is not a Bloc member speaking; the Globe and Mail, in its editorial this morning entitled Walls Against Amendment, was saying it would now be necessary«you must have read it«to have the support of seven provinces representing 50 per cent of the population. In the case of your bill, which is basically only a ministerial statement, this would amount to requiring the support of governments representing about 22 million people in Canada. Any constitutional amendment would thus be rendered impossible.
Moreover, you explained, as did my colleague Mr. English, that in 1997, it would simply be a review under section 49 of the Constitution Act, 1982, thus a review of the amending formula. There is no question of devolution there. There is nothing that necessitates talking about anything other than the amending formula. Do you want it to be changed or not changed? To change it, you need unanimous consent. The obligation is not one of achieving results, but an obligation to sit down. The 1997 obligation is not very stringent. We are certain there will be virtually no changes and, with C-110, you are making any amendment impossible.
What is particularly surprising, Mr. Chairman, is that the Minister is proposing at the same time a resolution on the distinct society. How can you give Quebec powers consistent with its status as a distinct society, a different society, a different people, while adopting a constitutional amending formula that makes the thing impossible, that prevents the additional powers that Quebec needs so much from being put in the Constitution? How can you give Quebec full powers in agriculture, immigration, fisheries, and unemployment insurance? How could you do it by attaching C-110 to section 38 of the 1982 Constitution? It is impossible, for all intents and purposes. We are confronted with two contradictory resolutions in the House of Commons: a distinct society that is meaningless because you cancel it out with C-110, which says you can no longer amend.
Mr. Rock: First, let us say that I am somewhat surprised to hear Mr. Langlois say that in his opinion the people of Quebec indicated on October 30 their desire to obtain constitutional changes. In fact, his party, and in particular the leader of the Opposition, Mr. Bouchard, stated clearly that it was refusing to consider any constitutional change.
.2005
If the people of Quebec want it, why have Mr. Langlois and his colleagues refused to consider any constitutional change? This is curious.
Second, Mr. Langlois says that all changes in Canada must be constitutional changes. This is not true. It is necessary, in this federation, to be able to evolve, that we have some flexibility, and that we be able to make changes without constitutional amendments. That is exactly what we proposed last Friday, with the bill on unemployment insurance. In other matters, as I told Mr. English, we have accomplished some changes through administrative means, without constitutional amendments.
If we wait for constitutional changes, we will be waiting a very, very long time.
[English]
So I say we should not think of such changes only in constitutional terms. This government doesn't, and I urge Mr. Langlois to free himself of that stricture so we can serve the people in a more effective way.
Ms Cohen (Windsor - St. Clair): Thank you, Minister, for coming tonight.
I have two questions that are jumbled together in my mind, but I'll try to work my way through them and at least articulate them to a certain extent.
During the referendum, roughly 51% of Quebeckers voted to stay in Canada, but we know, from social scientists and political scientists and from polling results we're getting, that a lot of the people among the 49% were not saying that they want to leave Canada as much as they were saying that they want a different federation or a different deal.
When you look at constitutional history from the history of Canadian constitutional negotiations, we know one thing - you can't negotiate constitutional changes with separatists, because they don't want constitutional change. They want an end to the federation.
What do we say now to the people of Quebec? What does this bill say to them about their region and what we're prepared to do for them?
Secondly, as the Minister of Justice and the Attorney General for Canada, what do you say to the people of the west who are concerned about the way in which this veto power is shaped in Bill C-110? How do you explain it to them and what do you say to them about it?
Mr. Rock: In answer to the first question, we have been confronted with a government in office now in Quebec that says...at least the person who's very likely to become the next premier has said that he has no interest in discussing any constitutional change, that he wants no part of it. What I would say is that with this legislation the Government of Canada has acted to fulfil the commitment made by the Prime Minister to ensure that at any time in the future no constitutional change will occur without the consent of the province of Quebec. We've done that in a practical, concrete way that allows us to act notwithstanding the refusal by the next premier to participate on any constitutional level.
The second thing I would say in response to your question about the west is that first of all, I would express profound respect for the perspective being expressed - understanding and concern about the position of the British Columbia government, for example, concerning its status. But at the same time I would say this bill is not proffered as a permanent constitutional solution. It is simply tabled as a present means of permitting compliance with an important undertaking.
.2010
The undertaking was to ensure there's a veto for the population of Quebec. I suppose it would have been possible to table a bill that referred only to the province of Quebec in clause 1. Instead, the Canadian government determined that the more appropriate way of proceeding was to broaden the ambit of this undertaking and to make it applicable to other regions of the country. Now there's debate about whether British Columbia should be seen separately.
Let me first of all make it clear that the Canadian government does not regard the west of Canada in a monolithic way, undistinguished or unseparated, each province from the other. At the same time, I think what has been attempted here as a bridge until more formal discussions can take place is a formula that will include all regions when the Canadian government determines whether to participate in constitutional change to ensure broad regional consensus.
The other thing I would say is that, however imperfect, this bill in important ways represents an improvement over the seven and fifty formula just by itself. Just applying seven and fifty...it's conceivable there would be an amendment that could become effective, notwithstanding that British Columbia and two other western provinces might oppose such an amendment even if in the aggregate those provinces represented more than half the population of the provinces between Ontario and the Pacific Ocean.
To that extent the approach reflected in Bill C-110 gives a more significant voice to British Columbia, for example, because under Bill C-110, British Columbia, with any other province between Manitoba and British Columbia, could block or prevent constitutional change according to the formula spelt out in this bill.
The Chairman: Mr. Harper, you have five minutes.
Mr. Harper: Thank you again, Mr. Chairman.
On November 5, 1981, we know ten of the eleven first ministers reached an agreement. The agreement was that the general amending formula would require the consent of two-thirds of the provinces, representing at least 50% of the population. Subsequent to that agreement they all adopted resolutions and measures in their legislatures to ensure enshrinement of that agreement in the Constitution Act of 1982.
The government is coming forward here with Bill C-110, which would require in effect the agreement of provinces representing roughly 80% of the population of the country. How is that not a contravention of the agreement enshrined in the Constitution Act of 1982?
Mr. Rock: I suppose what I would say is that no constitutional change can take place without the participation of the House of Commons. That is also in the Constitution. So it doesn't matter whether two-thirds of the provinces, with 50% of the population, or all the provinces, with 100% of the population, are in favour of a particular change; it's not going to happen unless the House of Commons passes a resolution for an amendment to that effect. That's in the Constitution.
What this bill does, as a statement of policy could do, is to spell out the circumstances under which the government will invite the House of Commons to participate in any constitutional change. It's in the Constitution. We could do it by policy statement. We have chosen to do something more than that, which is to codify the policy in legislation.
.2015
It doesn't change the seven and fifty formula. It doesn't amend the Constitution. It doesn't add to or detract from the Constitution. All it does is spell out the circumstances in which the single player who is essential to any constitutional act will actually take part. It's in the Constitution.
Mr. Harper: Well, I would submit to you, Mr. Minister, that if the premiers had wanted the consent of provinces representing 80% of the population, they would have put that in there rather than putting in the House of Commons, since they address specifically that issue.
You've conceded that you had these concerns about the constitutionality, you considered them, and you rejected them. You've also conceded that other experts - and I would not include myself as one - could have other opinions. Given those considerations and some of the debate that's already occurred among informed opinions about this bill, would it not be appropriate to refer this to the Supreme Court before passage?
Mr. Rock: I don't think so. I can see how that view could be expressed and I do acknowledge that there are those who might contend that this is unconstitutional in the sense that it's an attempt to do indirectly what cannot be done directly. But for what it's worth, I've concluded that the better view is that this is entirely lawful and valid, particularly because it is a bridge to a more durable formula approached through a constitutional conference. I don't think it would serve the purpose to refer the matter to the Supreme Court of Canada.
It might be different, Mr. Chairman, if there were specific amendments imminent or under discussion so that in the period between now and 1997 there were going to be changes proposed in respect of which this bill would be engaged. That might make it a different matter. But there are no such proposals on the horizon. The constitutional conference is 15 months away. This is a measure that is intended to fulfil the commitment in the interim, and in those circumstances I don't see that it would serve the public interest to have the court's attention engaged on this matter for the month it would require.
Mr. Harper: I'll try to put it all together in one more question. I don't know whether the government consulted the provinces in the drafting of this legislation, but my own conversations with some of them would seem to imply that they weren't consulted, or at least not carefully. You can comment on that.
You can also comment once again on whether you reject this as a legal matter. I ask you to give me your answer on this question as at least a political or a moral position. When you present a bill that has as its purpose the consent of the provinces to achieve something, do you not think it is appropriate to get that very consent in order to pass the legislation?
Mr. Rock: First of all, in terms of consultation, as I mentioned, this is not a constitutional round, so the elaborate process of Meech and Charlottetown obviously wasn't followed. But there was a level of consultation, which at least satisfied the government that it was appropriate to proceed.
As to whether consent ought first to have been obtained from all of the provinces, I think if we approached legislation, if we approached the discharge by the government of its obligations to the public generally on that basis, very little would get done. We've already seen in days past the controversy that can break out as different positions develop on political issues, and I wonder whether anything would get done if we waited until unanimous consent was forthcoming before acting. I don't think very much would get done.
The Chairman: Thank you.
Mrs. Barnes, you have 5 minutes.
Mrs. Barnes (London West): Thank you, Mr. Chair.
Welcome, Mr. Minister.
Many people from all over Canada expressed goodwill towards Quebec during the referendum, and I think that was reciprocated in the vote on the referendum day. Bill C-110 is going to be a bill of the federal Parliament.
I'm going to follow up on Mr. Langlois's point a bit here. Because it is a bill of this Parliament, it could easily be repealed at any time. I want you to address the issue that if this is so, what's the real value of doing the bill in the first place?
.2020
Mr. Rock: As I mentioned earlier, it's a fulfilment of a commitment. As I also mentioned earlier, it is a method of determining regional consensus. And I suppose I would add that we have to bear in mind what else is happening in the country.
The separatist government of Quebec is not wasting any time. They're arranging to have a change in leadership, and the person who's going to become the premier of the province is already organizing himself to very aggressively address his own agenda of separation and the destruction of Canada. So there's little time to wait and there's little time to waste. It's time to act in renewing the federation. It's time to act decisively on commitments. In my respectful view, at least, it's not a time to spend months trying to develop consensus or unanimous consent on this piece of legislation. It's a time when we have to get in gear and act.
I suppose we should bear that context in mind in assessing how and when the government is introducing this change. You know, we not only have to worry about the fact that the separatist government is organizing itself for the next effort to destroy this country, we also have a Canadian public that's very impatient to have this government return to its agenda of economic growth and job creation, and we're anxious to do that as well.
Mrs. Barnes: Do I have some time?
The Chairman: You have two and a half minutes.
Mrs. Barnes: Oh, good.
Would the provisions in Bill C-110 mean that any one of the regions could now block the creation of a new province out of the territories? Or to put it in a more positive way, how would this bill affect the creation of new provinces?
Mr. Rock: The creation of a new province is a matter that would fall to be determined by an amendment under the general formula. So yes, the provisions of Bill C-110 would be engaged, and the Government of Canada would not participate in such a change unless its terms were satisfied.
I ask the committee to bear in mind that on such a matter - the creation of a new province, the addition of an eleventh province to the Confederation - with all of the implications of such a change for the various formulae - from amending the Constitution to redistribution - would require broad consensus in any event. I can't imagine a federal government acting on such a change in the absence of regional consensus, which is all that this bill contemplates.
Mrs. Barnes: That's fine.
The Chairman: Thank you, Mrs. Barnes.
[Translation]
Mr. Langlois.
Mr. Langlois: I would first like to thank my colleague, the member for Windsor - Sainte-Claire, who clearly defined the objective of the Quebec sovereignty movement, which is to remake a new constitutional order and not to break up Canada. It has never been our objective to break up anything, and certainly not things that we helped to build.
Mr. Minister, listening to you, one can be sure of two things. On the one hand, you are presenting us with a bill that tells Quebec: ÀWe implicitly recognize your right to a veto because we are going to exercise it on your behalfä, but at the same time you tell Quebec ÀRest assured that there will be no constitutional amendments between now and 1997 because that's not on our agenda.ä In fact, the only thing on our agenda, politically, is the Prime Minister's commitment to hold a constitutional conference on the amending formula, thus to sit down without any obligation as to result.
What is a veto granted to Quebec worth when, on the other hand, you tell Quebec you have nothing to offer it?
Mr. Rock: These provisions have a concrete and practical effect. The Prime Minister make an undertaking and we want to respect it. As the leader of the Opposition refuses to consider any constitutional amendment, we have found a practical and concrete solution, which is to give a real veto to the people of Quebec.
.2025
Given the refusal of the Bloc Québécois and Mr. Bouchard to participate in any constitutional amendment, the government of Canada is doing what it can in the circumstances. It is a practical solution.
Mr. Langlois: Last May, I myself proposed a constitutional amendment which was within the jurisdiction of the federal Parliament. We didn't need the 7/50. It was within Parliament's jurisdiction. It was to guarantee Quebec 25 per cent of the seats in the House of Commons even if this no longer fully corresponded to the population we have according to the 1991 census. Everyone, apart from the Bloc members, the member from Beauce and the member from Burnaby - Kingsway, voted against this minimum guarantee.
You vote against this minimum guarantee and now you pay lip service to it by telling us you are giving us the right of veto. Why, a few months ago, did you refuse to allocate 25 per cent of the seats in the House of Commons to one of the two founding peoples? You refused, and now we are supposed to take your word for commitments that deal with nothing specific but with some wishes that might be listed on the agenda of the 36th or 37th Parliament.
[English]
Mr. Rock: It depends on who is interpreting the demands of the province of Quebec. As this government sees it, what first has to be addressed are the matters in respect of which the Prime Minister made commitments during the referendum campaign: recognition of distinct society; a right of veto over constitutional change; and administrative changes to reassign to the appropriate level of government responsibility for certain specific matters such as worker training.
I suppose it is a subjective matter; what are the demands of the people of Quebec? They are not the same as the demands of the Bloc Québécois. They're not the same as the demands of the Parti Québécois. As has been observed,
[Translation]
the vast majority of the Quebec population clearly expressed a profound desire for renewal during the referendum campaign. It is up to us as well to determine the demands of the people of Quebec.
[English]
What we're saying here is that we are addressing one such matter, and that is the matter of a veto over constitutional change. We're doing it in a very practical manner, albeit not a constitutional manner.
But I think the hon. member is estopped from complaining that the measure is not constitutional because he and his colleagues themselves have made any such constitutional change impossible. So it does not lie in their mouths to complain about the nature of the veto. The fact of the matter is, this bill presents a practical veto and thereby achieves the very purpose for which it was intended.
The Chairman: Thank you, Mr. Langlois.
I thank my colleagues for allowing me to take one turn. It's more of a comment on the matter, Mr. Minister.
With the seven-tenths formula that we have now with 50% of the population, I can see variables under that rule where you can effectively have ganging up by provinces. In other words, you can have seven provinces but three provinces, such as Quebec, may be excluded. British Columbia and one smaller province could be excluded and an amendment could still be approved in the seven-tenths formula. I look at it and see that if the four provinces in the Maritimes got together, they could effectively stop an amendment, four provinces in western Canada could stop an amendment, and Ontario could stop an amendment. But Quebec could not under the seven-tenths rule. In other words, the only region in Canada that cannot stop an amendment under that seven-tenths rule would be Quebec. Am I missing something?
Mr. Rock: No, I think that's quite right.
The Chairman: So under the new proposal under Bill C-110, we now have regions. Since I come from western Canada, I'll use it as my example. As much as I'm concerned that Quebec be treated fairly - and I believe Quebec is being treated fairly in Bill C-110 - I also have to be concerned that my own region of western Canada is being treated fairly and to stop an amendment the west may not want.
.2030
Under the seven and ten rule we require four provinces, but under this rule, with British Columbia, Saskatchewan can stop an amendment. Or if B.C. improves its population - and it just has to take a few more people from Saskatchewan and it may be there - B.C. could stop an amendment. But then only three prairie provinces could also have the same position, because it would require the consent of two of the western provinces. But if Saskatchewan, Alberta, and Manitoba withheld their consent, they could stop an amendment.
In other words, Bill C-110 is very favourable to parts of the country such as the Maritimes. I would suggest it is extremely favourable to Quebec, because Quebec would now have that veto provision. In western Canada, not only would B.C. have a veto if it reached 50% of the population, but the three prairie provinces would be in the same position.
I don't think I've missed anything under that. Yet all provinces now appear to be treated a lot more fairly under Bill C-110 than under the seven and ten provision.
Do you have any comments?
Mr. Rock: I think you've put it very well. The only quibble I have is that it is pointed out to me by Mary Dawson that Ontario cannot stop an amendment by itself under the seven and fifty formula, because according to the 1991 census it has 36.9% of the population. If it stood alone, it would not block an amendment.
The Chairman: All right. With that simple difference in the facts being changed, the region does have it.
I have nothing further. I just thought I might be missing something in my thought process here. I can see that Saskatchewan is being treated as well as I could expect, I don't think Manitoba is being treated harshly at all, and B.C. and Alberta certainly are in a much more favourable position than they have been.
Mr. Ramsay.
Mr. Ramsay (Crowfoot): Mr. Minister, your bill does not define ``province'', although it grants a substantial, or at least significant, constitutional power or influence to the provinces, in that it grants a veto. I do not understand, from what you have said tonight and from what we have heard the Prime Minister say in the House in response to questions about whether or not there is any specific transfer of authority to the provinces to grant consent, whether it is the legislative assemblies that will be doing this, whether it is the government of the province that will be doing this, or whether it's the people of the province. Because there is no definition, and because we don't know the answer to that question, because it's not stipulated within the bill, we are moving into a situation where the Province of Quebec or the Province of Ontario can simply not move on a constitutional amendment; or, if we have to go through the seven and fifty formula first and either one of the legislative assemblies of those two provinces votes against the bill, or the amendment, the thing is dead.
In the referendum, we saw that the Government of Quebec wanted to take Quebec out of Confederation, but the people stopped it. Why is it that you are not stipulating to whom this power of veto is granted? Why is it the bill is silent on that?
I think that is extremely important in that if we look back to what happened under Meech Lake, where the provincial legislatures ignored their people...they certainly did in Alberta, where the vast majority of voters in Alberta had serious concerns about that amendment, yet our legislature went forward against the will of that majority.... We see here you're not changing that.
.2035
Yet the very fact that the Government in Quebec has been denied its wishes by the people, through a referendum vote...and that is the big and the great protection we have in Quebec. Why is it you haven't stipulated in the bill the power of the people to decide?
Now, if you do that, if you said...and I don't know how you'd do it, because the Government of Quebec would not have to grant a referendum to the people. The only other alternative, if you're going to really grant this power to the people who can exercise it in the best interests of Canada and themselves, is to tell them the federal government will grant the people of Quebec, and the people of the provinces or the regions, a referendum. Why have you not specified to whom you're granting this power?
Mr. Rock: The language of the Constitution, when it comes to amendment, refers to legislative assemblies. Indeed, in section 38 it's necessary to have the resolution of legislative assemblies in seven of the ten provinces before you can act.
I would have thought Mr. Ramsay and his colleagues, because they so often praise the referendum process as direct democracy, would welcome the formulation in this bill, which departs from the legislative assembly language and instead speaks just of the consent of provinces. It leaves open, with the flexibility I described earlier, the possibility that consent might be expressed either through the government of the day, the legislative assembly, or conceivably referendums.
The flexibility is there to provide for future unforeseeable circumstances, without limiting it to action by the legislative assembly alone.
Mr. Ramsay: But the province, the Government of Quebec or the government of any of the regions, may not wish to go to the people for political reasons. We saw what that means if you grant power to the Government of Quebec - the kind of power where it can circumvent the will of the majority. In the referendum we saw it was the will of the majority that kept the province within Confederation.
Why would you grant the powers to the provinces and have them exercise a discretion that may not be in the best interests of the bill you're proposing?
Mr. Rock: Don't forget that no change will take place without the seven and fifty formula being complied with. This bill doesn't change that.
If Mr. Ramsay's concern is about future constitutional change that may not be in the national interest, no such change will occur until seven legislative assemblies of the provinces, comprising more than 50% of the national population, are in favour of it. So it's not likely that the legislature of Quebec is going to hijack the national Constitution. I think it has to be kept in that context and seen in that perspective.
Mr. Ramsay: But there is no suggestion in your bill whatever that the people of Quebec, or any other region, will have the power to decide on a constitutional amendment, including the great constitutional amendment that would take Quebec out.
Mr. Rock: It's not ruled out. Don't forget, the constitutional amendment to take Quebec out would not itself be -
Mr. Ramsay: Constitutional?
Mr. Rock: - constitutional.
The Chairman: Thank you, Mr. Ramsay.
Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): Mr. Minister, in this whole debate in the last few weeks we've heard the language of the Constitution. One of the words I keep hearing here this evening and elsewhere is ``enshrinement''. Of course, we heard it in 1958. The problem with Mr. Diefenbaker's Bill of Rights was that it was not enshrined in a Constitution and therefore it was dealt with by the courts in a way whereby it would often be declared subservient to other legislation.
This evening we've heard the word ``enshrinement'' used many times in the course of questioning. I wonder if you can tell us all this evening whether Bill C-110 is enshrined in the Constitution of Canada.
.2040
Mr. Rock: No, it's not.
Mr. Gallaway: That being the case, as Mrs. Barnes raised earlier, at some point in the future - assuming this bill is still on the books - the government of the day could then unilaterally revoke it, I assume.
Mr. Rock: Yes. As with any piece of legislation, a future government, or this government, could amend or repeal it.
Mr. Gallaway: If we compare that with the acts of 1867 and 1982, that is clearly not the case; there cannot be a unilateral rewrite of those bills.
Mr. Rock: That's correct.
Mr. Gallaway: So those bills are enshrined.
The other word I keep hearing about is ``consultation''. We've heard that word used this evening. We've also heard the adjective ``careful'' added in front of it; ``careful consultation''. I'm not certain how consultation differs from careful consultation. But I would ask you, if we assume this bill is a delegation of federal powers, powers that are exclusive to the federal government in some way are being delegated to certain provinces or regions, is it incumbent on the federal government in every case, in terms of powers that are within its purview, to enter into consultation with the provinces and/or regions?
Mr. Rock: First of all, I don't agree that it's a delegation by the federal government. Second, there is no such absolute requirement of consultation, as you have put it.
Just to be more specific on each of those responses, I don't regard it as delegation, because the bill is entirely consistent with the Government of Canada reserving to itself the decision whether to participate in constitutional change. It simply records the criteria that will be used as the Government of Canada determines whether to participate. Even if those conditions are met, it's still up to the Government of Canada to determine whether to take part. The conditions might all be met and the government might still decide for one reason or another that it's not in the national interest, as it sees the interest of Canada, to proceed.
So it's not a delegation or an abdication or a gift from the Canadian government to the provinces of its constitutional power. It's simply a checklist of criteria to be satisfied as a condition precedent to acting.
Second, consultation is a good thing. I can recall having been told not long ago in the House of Commons in Question Period that I'm not the Minister of Justice, I'm the ``Minister of Consultation''. It was derisively used at the time. But I'm all for -
Mr. Harper: But not ``Careful Consultation''. No one ever accused you of that.
Mr. Rock: I'm all for consultation, careful and otherwise. But there comes a time to act. The Prime Minister gave a commitment on behalf of the Government of Canada in Verdun, Quebec, on October 24 of this year. This government is acting quickly to comply with that undertaking. This government is acting quickly on an important matter in circumstances in which a separatist government is doing everything possible to remove the province of Quebec from Confederation. This government is acting quickly on a matter well within its jurisdiction so it can return to the broader agenda of jobs and economic growth that Canadians expect us to deal with.
In that context, taking six or eight months out to consult carefully to determine the views of all about which formula for amendment is best is inappropriate, in my respectful view, particularly when we're looking at, in fifteen months, the constitutional requirement to hold a formal first ministers conference on the very subject.
The Chairman: The last minute for Ms Cohen, and one question.
Ms Cohen: I sometimes like to tie things up in neat packages. I think it comes from spending too much time in provincial court.
Rather than trying to talk about Bill C-110 or mis-characterize it as a constitutional amendment or as a way to amend the Constitution, wouldn't it be better to characterize it as a legislative threshold that has to be crossed in order to get to the next step, which is the Constitution - a step we've imposed on ourselves to show good faith?
.2045
Mr. Rock: I think that's a fair description.
Ms Cohen: Good question, huh?
Mr. Rock: Yes.
Some hon. members: Oh, oh!
The Chairman: With that comment, I think we should end this.
Thank you, Mr. Minister, for coming here today and helping us deal with Bill C-110.
I simply ask that the committee remain so we can deal with a few matters for the days to come.
Thank you, Mr. Minister.
Mr. Rock: Thank you, Mr. Chairman.
[Proceedings continue in camera]