EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 5, 1995

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[English]

The Chairman: We'll start the meeting for this morning. We have before us the officials from the Department of Justice. We have Mary Dawson, associate deputy minister; Warren Newman, senior counsel, constitutional and international law section; Louis Davis, senior counsel, constitutional and international law section; and Stephen Zaluski, counsel, human rights law section.

We continue today with Bill C-110, an act respecting constitutional amendments. Having discussed this with you, Miss Dawson, it is my understanding that the comments made by the minister yesterday cover an opening statement and if there are questions of the officials with respect to the legislation they can proceed at this time.

We do not have a member from the Bloc here this morning, so Mr. Ramsay will start.

Mr. Ramsay (Crowfoot): Thank you, Mr. Chairman.

Welcome to our committee meeting on the examination of Bill C-110.

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Did any of you present here this morning have anything to do with the creation of this bill? Did you have input on this bill?

Ms Mary Dawson (Associate Deputy Minister, Department of Justice): Yes, we did. All of us are part of the team of constitutional advisers for the government and we were involved.

Mr. Ramsay: Okay. I see that the bill has no penalty section.

Ms Dawson: No.

Mr. Ramsay: So it doesn't matter if this bill is violated by the federal government. There's nothing anyone can do about it. There's no penalty.

Ms Dawson: I think it would matter. First, we don't put bills in with the intention of not complying with them. We do think this bill has legal effect and that it could be taken to a court. The sort of remedy one might be able to get from the court is a declaration.

Mr. Ramsay: What impact would that have upon the constitutional amendment that has been proposed? What impact would that have? What would the impact be of a court's decision on the failure to adhere to this bill, if and when it becomes law?

Ms Dawson: It would have no direct impact on a constitutional amendment if all the constitutional requirements were met, but the government would be faced with a court declaration that they had failed to comply with one of their pieces of legislation.

Mr. Ramsay: That wouldn't alter the constitutional amending process.

Ms Dawson: I'd have to think that one through, but off the top of my head I don't think it could because the constitutional amending process is supreme.

Mr. Ramsay: So this doesn't really have much of a legal impact upon the constitutional process.

Ms Dawson: It's not intended to affect the constitutional amending formula. If it did, it would be unconstitutional. It is addressing the behaviour of the Government of Canada in developing its constitutional resolutions.

It's an area that's not easy, but I think a court, if faced with a failure to comply with this act, would at most issue a declaration that the particular piece of legislation had not been complied with.

Mr. Ramsay: Okay. I'd like to move on to another point, which I attempted to cover with the justice minister last night.

There is no definition of ``province'' in this bill. In this clause you say what Atlantic provinces mean and western provinces mean, but there's no definition. This does grant significant power or influence to the provinces with regard to constitutional measures or amendments.

Perhaps I could begin by asking you what it means. It says: ``unless the amendment has first been consented to by a majority of the provinces that includes Ontario, Quebec'' and so on. What does that mean? Who has the power to grant consent or withhold consent?

Ms Dawson: The word used there is ``provinces''. It's a term that is deliberately not made precise in order to give the government the capacity to determine what would constitute the consent in the circumstances.

Mr. Ramsay: What government?

Ms Dawson: The government of the day.

Mr. Ramsay: Of the province?

Ms Dawson: The federal government.

Mr. Ramsay: All right. My question is very specific.

Ms Dawson: Right.

Mr. Ramsay: I'm asking you if you would give the committee your opinion as to who is being granted the consent by clause 1. Who is being granted the consent unless the amendment has been first consented to by a majority of the provinces that includes Ontario and Quebec? If we take Ontario or Quebec as an example of the provinces being granted this authority or this power, what does that mean? Who is being granted? Is it the government of Quebec? Is it the government of Ontario?

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Ms Dawson: I prefer not to think in terms of granting a power to the provinces, which is why I responded in the way I did the first time.

The federal government will determine when the consent of the provinces has been acquired. Let's say that it was, for example, Ontario; the normal meaning of the term ``provinces'' is that one would look to the government of the province.

But we feel that there are other types of indices of provincial consent that might be appropriate, depending on the circumstances. The most obvious one is the legislative assembly. We believe that if the legislative assembly gave consent, as they do normally in the constitutional amending resolution process, then that also would constitute the consent of the province.

But it's a word that is deliberately left open. So the circumstances would determine what the Government of Canada considered at that time to be adequate consent.

Mr. Ramsay: When a federal act such as this grants powers and authorities, it grants those powers to someone who's going to exercise them. I'm asking who will be exercising these powers.

Ms Dawson: As I said before, to characterize this as a power that we've granted to somebody is not quite accurate. The power remains with the federal government. It is the federal veto that we're talking about. What this act says is that, in exercising the federal power, we have set some internal conditions, which involve determining whether the various provinces as set out in paragraphs (a) to (d) have consented. So it isn't a power in the province, but it's a condition.

Mr. Ramsay: Who has the power within the provinces either to consent to a constitutional amendment or to veto it?

Ms Dawson: Again, I don't like to use the term ``power''.

Laying that aside, the normal meaning of the term ``province'' would be the government of the province. We feel there's little doubt that the legislative assembly of the province could also be the entity that gave consent, and there might be other ways of acquiring the consent, depending on the circumstances.

Mr. Ramsay: So you're saying that the right to either consent or withhold consent is granted to the governments of the provinces named here?

Ms Dawson: It's not the way I would put it, but yes, basically. It's granted to the governments of the provinces.

Mr. Ramsay: To follow up on that, from what I understand, if a constitutional amendment is proposed, we first go through the seven and fifty formula, where the legislative assemblies decide whether they support or reject the amendment, and if seven out of the ten provinces with 50% of the population agree, it goes forward.

Let's say that we are dealing with an amendment to the Constitution and the seven and fifty formula is engaged. Let's say that the Province of Ontario rejects it, but, because of the other provinces approving it with 50% of the population, it would pass. On the second level, which is now what we engage in here, if we're granting the power to the Government of Ontario, then they get a second crack at it, which is the veto power. They can stop it.

The point I attempted to make with the Minister of Justice last night - I think you were there - was that we're overlooking the most significant stabilizing factor within our society, which is the well-informed will of the majority. That's what we saw occur in the Quebec referendum, and that's what really kept Quebec at least stabilized within the country. It was the people.

If, as you have suggested, we're granting that power to the governments of the provinces - and it seems to me very clear that's what's happening here - then the governments of those provinces need not go beyond their own powers to either withhold or grant consent and they need not go to the people, as was done in the province of Quebec.

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Ms Dawson: They need go to the people, but in fact for example Alberta and British Columbia have a mechanism within their own legislation whereby they do go to the people before they proceed with a constitutional resolution of their own.

I'm saying that each province will handle their constitutional amendments in the way it sees fit. We know that Alberta and B.C. see fit to proceed with this type of process through a referendum, but that's not necessarily the way each province would proceed.

Mr. Ramsay: I'll come back to it.

The Chairman: On that point, before I go to Miss Barnes, if a province refused to deal with the matter of consent or if it was felt that the province was acting against the interests of the population under this section, the federal government could go directly to the people and hold a referendum in that province, couldn't it?

Ms Dawson: I think whether or not this clause would be interpreted that way would depend on the circumstances.

The Chairman: It's open to that interpretation.

Ms Dawson: It's a possible way of interpreting it.

The Chairman: I see.

Miss Barnes, you have ten minutes.

Mrs. Barnes (London West): I think our minister was fairly clear last night, so there are three different areas I'd like you to address this morning. The first two are technical and are more or less for the record.

I'd like you to outline what combinations of western or Atlantic provinces have a veto under the regional formula. Could you sort of spell out who goes with whom and can block or...?

Ms Dawson: I'm not sure I can be exact, but as for the western provinces, we know that British Columbia is in the order of 43%. So basically - my colleagues have the pages here that lay it all out in detail - if British Columbia combined with any other province, that would satisfy the requirements. As I recall, it would be necessary for the other three provinces - Manitoba, Saskatchewan and Alberta - to combine in order to get the 50%. I guess that's the top and bottom of it. It's British Columbia with any other province and the three....

Mrs. Barnes: Would Alberta with B.C. be sufficient?

Ms Dawson: Yes. It's B.C. with any other province or all three of the other provinces.

Mrs. Barnes: What about the Atlantic? Let's go to the other end of the country.

Ms Dawson: In the Atlantic, I believe Nova Scotia and New Brunswick would exceed the 50%, Nova Scotia and either New Brunswick or Newfoundland, New Brunswick and either Nova Scotia or Newfoundland. In other words, it would basically be any combination of two of those three I mentioned, Nova Scotia, New Brunswick and Newfoundland. Prince Edward Island would not really make a difference. You'd need two others in order to get the 50%.

Mrs. Barnes: Okay. The next question has to do with the types of future amendments that would be blocked. As I understand it, the real impact would be on the amendments that are covered by the seven-fifty rule. For the record, I'd like you to outline what types of amendments these generally are.

Ms Dawson: Do you mean the ones that are excepted?

Mrs. Barnes: Yes.

Ms Dawson: The ones that are excepted are excepted for one of two reasons, either because there's already a veto for every province under the Constitution because of the unanimity formula under section 41 or because of a bilateral requirement that when there's an amendment that relates to any particular province they have to be involved. Sections 41 and 43 are excluded for veto reasons.

The other exclusion is under section 38. There is a capacity to opt out of the effect of certain amendments, primarily those that divest provinces of any proprietary or legislative right. Any situation where a province may opt out is not covered by this provision, because they have a sort of veto under subsection 38(3).

Mrs. Barnes: Okay. This is my last question. Does this bill, as it's written now, permit MPs and senators, other than ministers, to introduce amendment resolutions?

Ms Dawson: Yes. The prohibition is against ministers of the crown.

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Mrs. Barnes: Okay. So if the government of the day.... How would that operate?

Ms Dawson: Basically any MP has the power to table a motion. The rules of the House would then govern what happened to that motion.

Mrs. Barnes: So it's regular private members' legislation and the lottery system and all that.

Ms Dawson: Yes.

Mrs. Barnes: All right, thank you.

The Chairman: There are six minutes left of Mrs. Barnes' time. Did anyone want to share that? If not, Mr. Ramsay, five minutes.

Mr. Ramsay: Thank you, Mr. Chairman.

Under our existing amending formula, is it only the federal government that can initiate a constitutional amendment?

Ms Dawson: No. Anybody can initiate a constitutional amendment - any province or the Senate.

Mr. Ramsay: Before we went over to the government side we were discussing the whole principle of the provinces that have the veto under this bill. Through the seven and fifty formula, although Quebec or Ontario could oppose a constitutional amendment and lose, they could come back and have the veto to stop the amendment, granted this power under Bill C-110. You mentioned that B.C. and Alberta both have requirements to go to the people by way of a referendum, but the two provinces specifically named here, Ontario and Quebec, do not have that provision for their people.

The point I'm making is there's nothing in this bill that grants the right or places a requirement upon the government of any province who will be granted this power of veto or power of consent to go to their people by way of referendum. There's nothing here that urges the provinces to do that or compels them to do that. What we're doing is simply reinforcing the seven and fifty formula in that sense, in that it is not the people who will be deciding in Quebec or Ontario, unless it's at the pleasure of those legislative assemblies. Do you think that is wise?

Ms Dawson: First of all, I think that's correct. I think this bill is intended to be a bridging mechanism in the short term. The intention of the bill is not to impose any new systems such as referendum systems on the constitutional amending formula at this time. We're in a holding pattern until it will possibly be discussed and moved on in 1997. The intention here is simply to give some comfort to the various regions of Canada that nothing will proceed in this interim period in conflict with their wishes.

Mr. Ramsay: But this bill grants the province of Quebec and the province of Ontario the power of veto. It is not given to the people of those provinces, but to the legislative assembly or the cabinet, if you will, of these provinces.

Ms Dawson: That's correct.

Mr. Ramsay: A handful of individuals can veto a constitutional amendment that might be in the best interests of the people.

Ms Dawson: If I may, they are the elected representatives of the people.

Mr. Ramsay: Yes, but we've seen a constitutional amendment in one province that led up to the demand for a referendum, which was not supported by a vast majority of the voters of that province. Yet because the premier's signature was on the constitutional amendment, that thing was simply pushed through against the wishes of their people and not in what they considered to be the best interest of not only the province they lived in but the nation they lived in.

Ms Dawson: I think those are questions that are intentionally left for the 1997 discussions. It was not the intention in this piece of legislation to change the rules of the game.

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Mr. Ramsay: So we're hoping a constitutional amendment won't come up before that, so that this thing won't be exercised until 1997? Is that what this bridge is for?

Ms Dawson: No. If a constitutional amendment should come up in the intervening period, this gives us a mechanism that goes some way toward giving regional comfort that nothing will be done against the wishes of any particular region.

Mr. Ramsay: But it grants that kind of power to just a handful of individuals.

Ms Dawson: To the government of the day.

Mr. Ramsay: Yes, and not to the people.

Ms Dawson: It's not particularly focused at the people. As I said earlier, I think there is some room to determine how we would decide whether adequate consent had been given, depending on the circumstances.

Mr. Ramsay: Okay. The federal government has the authority to hold a national referendum on a constitutional amendment, don't they?

Ms Dawson: Yes, they do.

Mr. Ramsay: Okay, thank you.

The Chairman: I'd like to clarify one matter, Ms Dawson, and this arises from the question by Mr. Ramsay. If a province did not consent, the federal government could go to the people of that province and hold a federal referendum in that province to determine if the people consented to an amendment, and then the federal government could interpret that as a consent to an amendment under Bill C-110, could it not?

Ms Dawson: I don't think there's a 100% clear answer to that question. I think it would depend on the circumstances.

The Chairman: Okay. I thought it was clear, but I guess we're of a different opinion on that.

Ms Phinney, five minutes.

Ms Phinney (Hamilton Mountain): Could you please tell me what power this bill gives the federal government that it doesn't already have?

Ms Dawson: In fact it's in a way the opposite. It puts a constraint on the federal government that didn't exist before. The government is undertaking to make public what would otherwise perhaps be a government policy decision as to how they would exercise their federal veto. It has laid out in a piece of legislation the rules of the game it wishes to abide by over the next year or two in exercising its veto.

Ms Phinney: So it does not give any more powers.

Ms Dawson: No.

Ms Phinney: I have phoned several people in my riding in the last two or three days, and from questions that have come up from different people the feeling they seem to have is that government is superimposing something that is giving it more power. As you've just said, it doesn't; it just says how the government is going to exercise its veto.

Ms Dawson: That's right.

Ms Phinney: The public didn't realize, nor did some of the elected representatives here in Ottawa, that the federal government has a veto, and that nothing is going to change. They don't realize this.

How are we going to get this across to the public, and possibly to the opposition, that there is not a change, that it is just putting on a constraint? We need a tremendous PR job here with the public, just to realize we already had this power and we're just constricting it.

Ms Dawson: I'd hate to characterize this bill as making no change at all. I mean, we are setting up some rules.

Ms Phinney: Putting restrictions on ourselves.

Ms Dawson: That's right. But we are certainly not adding to our powers, and we couldn't - that would require a constitutional amendment.

The Chairman: Thank you, Ms Phinney. Just before we go to Mr. Harper, I guess I'm just thinking of the odd question of mine.

I guess the problem is on the interpretation of what ``province'' means. I'll just indicate to you that Bill C-110, as I look at it, refers to ``the legislative assembly of a province'' midway through subclause (1). Then when it goes down to consent, it says ``consented to by a majority of the provinces''; it doesn't say consent by the majority of the legislative assemblies of the provinces. From that I interpret that ``province'' has a wider scope than ``legislative assembly'' and therefore provincial consent may be a referendum within the province, but you're saying that's subject to interpretation. Correct?

Ms Dawson: That's correct. As I said before, the first meaning you'd give the word ``province'' in the middle of a piece of legislation would be the government of a province. You'll see examples in the Constitution, for example, of the province of X or the provinces and the federal government.... Normally it refers to the government, but it's not defined in a precise way. Very often it will say the legislative assembly of a province, the government of a province, the people of a province, or the legislature of a province. Here it just says ``the province'', which leaves it open for interpretation.

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The Chairman: Thank you. Mr. Harper.

Mr. Harper (Calgary West): I don't know whether this was answered before I got here, but it does say in the bill - this is just a drafting question - that no minister of the crown shall propose a motion for a resolution, etc. If Mr. MacLellan or I were to propose a constitutional amendment and it were to receive the support of the government in terms of its weight in the House of Commons and be passed, would any of the provisions of Bill C-110 apply?

Ms Dawson: No, they wouldn't.

Mr. Harper: So by introducing legislation through a government backbencher, a provision for veto for provinces or regions could be avoided.

Ms Dawson: Yes, it would be possible, although I suggest unlikely.

Mr. Harper: I have learned not to say anything is unlikely around here.

Ms Dawson: I didn't say impossible.

Mr. Harper: You make reference to sections 41, 43 and subsection 38(3), but it doesn't make specific reference - I think it's in section 44 - to the ability of the Parliament of Canada to change its own executive powers or the legislative role of the Senate in the House of Commons.

Ms Dawson: That's right.

Mr. Harper: Does that mean this is intended to cover those kinds of constitutional amendments?

Ms Dawson: No. There's no intention to cover either section 44 or section 45. Neither involves resolutions. They're simple acts of either Parliament, under section 44, or the legislative assembly, under section 45.

Mr. Harper: My last question follows what Ms Phinney asked about whether this gives more power to the Parliament of Canada. Does it give more power to the National Assembly of Quebec?

Ms Dawson: I don't think so. I don't think we're talking about powers. We're talking about making transparent the policy the government intends to follow over the next few years with respect to how it will exercise its own veto. It's not a question of giving anybody else powers.

Mr. Harper: Thank you.

The Chairman: Mr. Regan.

Mr. Regan (Halifax West): I'd like to ask you more about this question of a decision of a particular province and whether or not it was consenting to a change.

What would happen if the federal government decided it was going to be governed by a federal referendum it held in a particular province, and based on that referendum approving the changes it would enact a bill to make the changes part of the Constitution? What would prevent the federal government from doing that? What action could anyone take, or what would be the remedy to that?

Ms Dawson: The remedy would be an action before the courts to have a declaration stating that particular activity was not contemplated by this particular provision.

Mr. Regan: But surely if the provisions of the bill that came forward in the future were different from this bill's provisions it would have the effect of amending or revoking these provisions.

Ms Dawson: I'm a little unclear. What we're contemplating here is constitutional resolutions. We're not talking about bills. This bill doesn't operate on future bills.

Mr. Regan: But a constitutional resolution would also have to be a bill of the House, would it not?

Ms Dawson: No. It's a different animal.

Mr. Regan: The federal government could certainly legislate in the future to amend this bill, in the case where it had approval through referendum in a province. That would be appropriate for this bill.

Ms Dawson: It could make that kind of amendment to this bill.

Mr. Regan: It could amend any future law.

Ms Dawson: Yes, but that's not being proposed in this particular piece of legislation.

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Mr. Regan: So you're saying it's your view that if someone brought forward an application for a declaration that this action of the government is outside the intent of this bill, they would succeed. Is that what you're saying?

Ms Dawson: No, I'm not saying that they would succeed. I'm saying that's the action they would take if they wanted to challenge it.

Mr. Regan: Okay. What would be the likelihood of success?

Ms Dawson: It would depend on the circumstances, as I say.

Mr. Regan: What do you mean, the circumstances? Can you elaborate on that, please?

Ms Dawson: No, I can't really elaborate in too much detail because I can't foresee the future, but what I can say is that it's apparent on the face of this legislation that there was an intention to leave certain flexibility to the government in determining just how the consent of the provinces would be determined. What I've said is that to me it's evident that it would include at least the consent of the government of the day and of the various provinces, and it's quite evident to me that it would also include the legislative assembly's action.

What's a little bit more difficult to determine is whether it would include, for example, a direct referendum to the people. I think one could argue that this is encompassed here or one could argue that it isn't encompassed here. I think there are arguments on both sides, but the circumstances surrounding the particular event would colour the chances of success.

Mr. Regan: Let me ask you this. Let's say the Government of Quebec had declined to give support to particular measures relating to constitutional change, and there was referendum in Quebec and the people voted to support those changes. Can you actually argue that the court would hold that in fact Quebec had not given its consent? It's hard to imagine.

Ms Dawson: I could imagine the court going either way. I really couldn't foresee, particularly not knowing the circumstances, how they would be likely to hold. I think it's an open question.

Mr. Regan: Thank you.

Mr. Ramsay: I'd like to follow up on this point Mr. Regan has put his finger on, because what he has pointed out I think is very clear here, and that is the question of who speaks for the provinces on a constitutional amendment under Bill C-110.

If the federal government has the authority to go into Quebec or Ontario, one of the two provinces mentioned here, and ask the people directly by way of a referendum as to their support or non-support for a constitutional amendment, if they have that right and also the legislative assembly of that province has that right, then who is speaking for the province? Is it the majority of the people by way of the federal referendum or is it the legislative assembly of that province?

This is a very important aspect that has not been dealt with here, because this bill doesn't tell us or anyone who gets the power. And I wish to emphasize that there is power being granted here. You grant the province a power of veto, and that is power. Who is being granted the right to exercise that veto? Is it the people or is it the legislative assembly?

Ms Dawson: I think I have to answer your question by pointing out that there's nothing in this legislation that forces the federal government to act. Therefore, even if (a) to (d) were obviously in place, nothing in this bill says that the federal government has to proceed with its resolution. This is a negative condition, so it would be within the power of the federal government to determine whether, given the surrounding circumstances, it wished to proceed with the amendment.

If there were a situation where the elected government of the day and the people were in disagreement, the Government of Canada might well want not to take action in that particular circumstance.

Mr. Ramsay: That's not my question, and that's not the question I think Mr. Regan was getting at. The problem is because you have not defined province you have not told us who you're granting the right of veto to, whether it's the legislative assembly of that province or whether it is the people by way of a referendum ballot created by the federal government. I see the power in both areas to emerge in this kind of a situation, and this has not been defined within the act. The province, the government, the legislative assemblies of Quebec and Ontario, have the right to veto according to this bill.

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We also understand that the federal government, if they are not happy with perhaps an arbitrary decision by a handful of cabinet members in one of those two provinces, can say that in the best interest of the people of the province and of the nation we're going to ask the people by way of a referendum, and we'll be guided by the will of the majority on that. Then the question arises, who is speaking for that province?

Ms Dawson: That would be for the government of the day to determine. I can't underline enough that this is not a power that is being given to the provinces; this is a power that is being retained by the federal government. These are conditions that are being set out in this legislation to say what self-imposed conditions are being established by the federal government without the accomplishment of which the government undertakes not to proceed with the constitutional amendment. But in no way are we granting powers to anybody else. We're setting up conditions, and whether those conditions are met will in the first instance be determined by the government. So depending on the circumstances, it would determine whose say goes with respect to whether the provinces' consent has been given.

Mr. Ramsay: I accept your comments, and they're on the record. But for the record, I don't think you have addressed the issue, and the issue is the fact that this does grant veto powers. That is a real power when it comes to constitutional amendments. It creates a situation that could arise whereby we do not know who would be speaking for the province, whether it would be the legislative assembly of that province, a handful of people, or the will of the majority as expressed through a federal referendum. You have not answered the question of who would be speaking for the province under those circumstances.

That's all I have.

Ms Dawson: Can I just maybe make one more comment? I think it would be very unlikely, should the legislative assembly agree to go forward with an amendment, that this would be characterized as non-consent. So the only circumstance that remains less easy to determine is if the legislative assembly or the government does not consent; that, I'm suggesting, is something one would have to look at in the circumstances of the day to determine whether there was another way in those circumstances to determine the consent of that province.

Mr. Ramsay: Thank you.

The Chairman: Ms Torsney.

Ms Torsney (Burlington): I suppose an example, although it wasn't exactly a constitutional amendment or anything, was our recent gun control bill. Initially, the Province of Alberta said they were going to appeal this to the Supreme Court or wherever, because it was unconstitutional. Then, of course, the province did a poll of the people of Alberta and found out that there was overwhelming support for it. They could have chosen to ignore the will of the people in Alberta, but they chose to back off on that. I suppose initially the federal government could have backed off and said the elected officials of the Province of Alberta aren't supportive of gun control so maybe we shouldn't proceed. But we knew from having polled and from discussing with people that they were supportive. If they aren't, we have misguessed that one.

I'd like to ask you two questions about process. Why did we not go to ten provinces and the three territories automatically having the power to have this veto? Why did we choose to use regions? Secondly, once this is in place, it's my understanding that these issues are going to come up and they're going to be discussed in the public, that there's going to be some timeframe to work the issues out and it's not going to be the federal government saying it's Tuesday morning, I think we're going to make a constitutional amendment and then the provinces will have five minutes to respond and the legislation's passed. This is a fairly lengthy, involved process we're into.

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This is going to be in place until it's changed, perhaps. If we assume this goes through, this would be in place. Constitutional discussions are coming up in 1997. If this system hasn't worked for that year intervening, certainly it would be open for discussion as part of those discussions. If people aren't happy with it, it could be worked out at that time. Maybe other suggestions would take place at that point.

Can you tell me if I am wrong in my thinking? How many issues is it likely we are to...? We can't gaze into that crystal ball, but are we looking at millions, or even handfuls, of issues that are going to come up and be resolved in the next year?

Ms Dawson: There are two or three questions there.

I can't really comment on why we didn't go to a unanimity requirement, except to say we're already adding an extra overlay on this, and if one had gone to a unanimity overlay, it would be an even more stringent set of conditions, which, I would suggest, are probably not necessary to accomplish what needed to be accomplished here. But that is a matter of policy.

Ms Torsney: Okay.

Ms Dawson: About whether we are likely to have very many constitutional amendments in the next year and a half, I guess the comment would be that even in the simplest possible constitutional amendment, such as the P.E.I. fixed link, it still took probably towards a year, in one way or another, to get from beginning to end of that process. So we certainly aren't talking about an awful lot of constitutional amendments.

I think this is an indication by the federal government that they do wish to take into account, in the exercise of their constitutional powers, regional wishes in the interim period. It is as much an indication of intent as an expectation of actual application in the next year or two, I would suggest.

The Chairman: Mr. Harper.

Mr. Harper: I get more and more confused about what the purpose here is. Last night the minister said this is designed to deal with constitutional amendments but it is not a constitutional amending formula. Then he said it was a bridge to 1997. He also said no constitutional amendments were contemplated in that period.

Today I want to follow up on these questions of Mr. Regan and Mr. Ramsay on the reference to provinces. First of all, by way of a preamble, I was a bit surprised by the interpretation that ``a province'' may mean something other than the province as a legal entity; because that's how I would have understood it. In any case, you've indicated today you're not clear yourself on how the court would interpret that, should a federal government go to a province directly, via a referendum of the people of a province, without necessarily having the consent of the province as a government.

Last night I asked the minister that question. He indicated that was not the intention of the legislation. I could review the transcript, but I understood that was not a case foreseen here. If that's not foreseen, why isn't it drafted that way? And if it isn't clear, why isn't it drafted to be clear one way or the other?

Ms Dawson: I don't believe the minister was that categorical on that question. I think he left the possibility open that it might be a mechanism.

But as I said, a number of instruments, either constitutional or legislative, just refer to the term ``province''. The usual meaning of that is the government of the province; but as I've suggested before, I think it has a broader meaning. Normally some other words go along with that. It's deliberately been left flexible.

Mr. Harper: Let's then clarify what you're saying here. It is deliberately left this way so that option is possible. That's the intention of the drafting. The intention is to allow the federal government to consult the people of a province or a number of provinces and consider that to be approval under Bill C-110. That's a deliberate option left open by the deliberate drafting of the bill.

Ms Dawson: I'm not sure I'd say that particular option was focused on as the reason why it was left flexible, but it was left flexible so whatever option may arise in the future could be accommodated if it seemed reasonable in the context of this provision.

Mr. Harper: I won't respond. Thank you.

The Chairman: Mr. Knutson.

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Mr. Knutson (Elgin - Norfolk): I just have a short question on the issue of challenging the bill in the courts. Do you think the Supreme Court would even entertain a challenge to this bill on the argument that we're trying to do indirectly what can't be done directly? Would they just see it as more of a political issue and say that if Parliament in its wisdom has decided to define how it's going to exercise its own constitutional veto based on what the provinces are saying, that's perfectly legitimate and it's really not the court's business to interfere with that?

Ms Dawson: I think there's a possibility that the court might say just that. I think there might well be situations in which the court would make some kind of a declaration, but I think there could possibly be circumstances where the court would say no, we take what the government has determined to be the appropriate action in the circumstances and we'll not inquire further behind it.

I think there's room for argument in both directions about the extent to which a court would get into this provision. It's our feeling that there may well be circumstances where they would make a declaration, but that's by no means certain.

Mr. Knutson: Thank you. That was it.

The Chairman: Mr. Ramsay.

Mr. Ramsay: If we go back to the Charlottetown Accord, we saw a constitutional amendment proposed by the federal government and agreed to by all the premiers. In order to make that accord a part of the Constitution, all that was required was for seven of those premiers, whose provinces consisted of 50% of the population, to pass a resolution in their assembly. But because Alberta had a referendum requirement, B.C. talked about the same thing, and Quebec was going to go by way of referendum, a federal referendum was ordered. The result of the federal referendum was that 51% or more voted against the Charlottetown constitutional amendment.

However, the federal government had the option to ignore that. Legally they could have ignored it and gone forward and asked the provinces to approve it. They could have pushed that through.

When we look at this bill, again we do not know who in the long run would be speaking legally for the provinces. We do not know whether it will be what the federal government will accept because we were told last night by the Justice Minister that the federal government has the final veto over any constitutional amendment. Regardless of what the provinces do or say or how they do it or say it, the federal government can still veto it.

That tells me that the federal government could justify overriding the decision of a legislative assembly by going to the people and gaining 51% or more of the voice of the people and saying that is the voice that represents this province on this amendment.

Ms Dawson: The Charlottetown example you give is actually a good one, but it's a negative example. It's where the federal government did not go forward with something that it might have gone forward with because it had heard in a referendum from the people that they did not want them to go forward.

That's the easier situation and that's why it's very important to recognize in this legislation that the government does retain the power for itself. There isn't a vesting of power in anybody else. At the end of the day, even if all these conditions are met and the seven and fifty conditions are met, it's still open to the federal government to decide not to put its resolution in the House. One of the primary reasons it might opt not to do that is that it determined by way of a referendum that the people of Canada did not want that amendment to go forward.

Those examples work better in the negative situation than in the positive situation.

Mr. Ramsay: Then I guess the point is clear that a constitutional amendment offered by the federal government or anyone who has the authority to do so could be turned down by the legislative assembly of the Province of Quebec. If the federal government wanted to, and if that were to kill it under this bill, they could say they do not accept that as the voice of Quebec. They could then go by way of referendum to the people directly.

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So I say again, and I'll say again and again until this thing is amended, if it is not amended, it will mean very simply to me that we do not know who speaks for these two provinces. We do not know, because it's possible that two voices could be speaking for the province.

Ms Dawson: Then it would be up to the Government of Canada to determine which voice they thought was the legitimate voice.

Mr. Ramsay: Then this bill is somewhat ambiguous when it comes to who is being granted the power to speak on behalf of the province, in particular Quebec and Ontario.

Ms Dawson: I prefer the word ``flexible''. It's deliberately left somewhat flexible.

Mr. Ramsay: Have you ever considered going into politics?

Some hon. members: Oh, oh!

Mr. Ramsay: Thank you.

The Chairman: Mr. Regan.

Mr. Regan: What is the nature of the cases that have defined ``province''? We're talking here about the word ``province'' or the different provinces being undefined as to whether it's the government, the legislative assembly or the people.

Have the cases in the past that have defined ``government'' involved decisions relating to what can make a constitutional change and what can't, or have they involved more things on the matter of powers between the federal and provincial governments, what's intra vires and what's ultra vires? What kinds of cases have they been? What's been the nature of them?

Ms Dawson: I couldn't answer that question off the top of my head. We've not done that specific kind of research.

The usual way a province is referred to in legislation is in the context of other words, such as ``the government of the province'' or ``the legislative assembly of the province.'' We'd have to go back and search the word ``province'' to see.

Mr. Regan: But I'm assuming you've looked into the interpretation, because you indicated earlier that the courts would interpret it, generally speaking, as the government, but might interpret it otherwise. That suggests to me that you're telling me normally they interpret it as the government. Based on what you told me, I assume you've looked at cases saying the courts have decided ``province'' means the provincial government.

Ms Dawson: I'm told one of our officers did a search on the word ``province'' and didn't come up with very much.

The Chairman: Ms Phinney.

Ms Phinney: The Constitution requires consultation with aboriginal people when changes are made to certain provisions of the Constitution. Does this include an amending formula? Do the aboriginal people have a role in the amending formula?

Ms Dawson: The provision is 35.1. It says:

The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the ``Constitution Act, 1867'', to section 25 of this Act or to this Part....

None of those listed are, per se, the amending formula.

Ms Phinney: So is the answer no?

Ms Dawson: The answer on the face of it would be no, but that's not to say one couldn't develop some kind of argument of an indirect effect. I'd have to think that one through. But the general answer would be no.

Ms Phinney: So that's why the bill doesn't have a veto for aboriginal first nations?

Ms Dawson: Yes. They have no specific rights under the Constitution that are affected by this bill.

Ms Phinney: Okay. Thank you.

The Chairman: Thank you, Ms Phinney.

Thank you very much for appearing before the committee today. It was interesting looking at such a short bill, and the discussion it did generate today.

We'll take a few minutes while they ready the teleconference with the other witness.

Thank you again.