Thank you very much, Mr. Chairman.
First of all, I want to emphasize that I'm here with Marc-André Roche, who will be able to help me answer certain questions during the meeting.
I want to thank the committee for this opportunity to show that my bill respecting the conclusion of treaties is constitutionally valid. You've already received my written arguments, and I'll be outlining them to you in a few moments.
Bill C-486 reaffirms what the Gérin-Lajoie doctrine has asserted for 46 years: international relations are not the exclusive prerogative of the federal government, but are a jurisdiction shared between Ottawa and the provinces in accordance with the distribution of powers provided for under the Constitution.
In more concrete terms, the bill would provide that when a treaty falls within an area of federal jurisdiction, Ottawa could negotiate, sign, implement and ratify it without reference to the provinces or Quebec. Where the treaty falls within areas of provincial jurisdiction or concerns the provinces, Ottawa would be able to act only if mandated by the provinces for that purpose. The bill therefore provides that, within six months following the coming into force of the treaty, the federal government must enter into an agreement with each of the provinces to state specifically how it will consult them before taking action.
As Quebec is the only province that has challenged the federal government's power to enter into treaties in areas of provincial jurisdiction, we would allow the agreement to provide for full delegation of the provincial prerogative to negotiate and enter into treaties in areas within its legislative authority.
However, as Quebec has never acknowledged Ottawa's right to negotiate on its behalf without its consent, in its own areas of jurisdiction, the agreement between Ottawa and Quebec City will have to provide specifically, first, for Quebec representatives to be among the Canadian delegation and, second, for the Government of Quebec to give its consent before a treaty is signed.
Where an international treaty falls within the areas of Quebec's exclusive jurisdiction and does not necessarily apply to Canada as a whole, Quebec may negotiate it and enter into it on its own. Thus, to enable the Government of Quebec to enter into relations with foreign countries, Ottawa must inform them that, under the Constitution of Canada, the provinces are authorized to enter into treaties on their own.
What is known today as the Gérin-Lajoie doctrine derives from a speech delivered to the Montreal Consular Corps by Paul Gérin-Lajoie, then deputy premier of Quebec, on April 12, 1965. The speech by Mr. Gérin-Lajoie, a constitutional lawyer, was based on a strict interpretation of the Constitution of Canada according to which, first, the federal government is not superior to the governments of the provinces; second, that the distribution of powers must be absolute, and, third, that the provinces are fully sovereign in their areas of jurisdiction, whether they exercise it or not .
In a way, international relations must be conducted as an extension of domestic jurisdictions. All Quebec governments since that time have subscribed to the Gérin-Lajoie doctrine. Consider what Jean Charest said about the matter in 2004: "Whatever is a Quebec jurisdiction here at home is a Quebec jurisdiction everywhere."
In fact, even the current Prime Minister of Canada subscribed to the doctrine before he decided to maintain a grip on all powers that he holds or believes he holds. Here's what he said during the election campaign that brought him to power in 2006: "I am ready to discuss mechanisms to enable the provinces to extend their jurisdictions on the international scene." And I emphasize "to extend their jurisdictions on the international scene."
And this is very specifically what Bill C-486 does. The constitution does not state which government, the federal government or those of the provinces, has the power to enter into treaties, and rightly so. In 1867, that power belonged to the British Crown. In 1931, with the Statute of Westminster, Ottawa believed it had inherited all the treaty powers of the British Crown. If that had been the case, it would have exclusively held treaty powers, including powers over implementation, as provided by section 132 of the British North America Act. However, that was not the case. That was determined by the Judicial Committee of the Privy Council in 1936. On the contrary, the committee held that the legislative powers of the provinces remained intact and that the provincial legislatures were not bound by Ottawa's signature.
As to whether the federal government or the provincial governments has the power to negotiate and sign treaties, the tribunal did not rule. In fact, no court has ruled on the matter to date. However, one point has been well settled in constitutional law: executive powers are distributed between Ottawa and the provinces in the same manner as legislative powers.
The sovereign power that London held in 1867 was, in the words of the Supreme Court in 1998, transferred from Westminster to the federal and provincial capitals of Canada. I emphasize: nothing in the Constitution or the case law states that the federal government has full and exclusive power with respect to treaties—nothing.
Some say that, since Ottawa does have that power, it is because it has that right. That is the position asserted by constitutional expert Peter Hogg in the 1992 edition of his treatise on constitutional law.
The Supreme Court responded to that argument in 1998, in Reference re Secession of Quebec. It held:
A distinction must be drawn between the right of a people to act, and their power to do so. They are not identical. A right is recognized in law: mere physical ability is not necessarily given status as a right. ... A power may be exercised even in the absence of a right to do so, but if it is, then it is exercised without legal foundation.
In short, the fact that Ottawa has seized exclusive power over treaties does not mean that it had the right to do so and that the provinces did not. There are no doubt some of you around this table who think it would be a bad idea for the provinces to play a role in the process of entering into treaties in their areas of jurisdiction. I agree with those people, and I intend to take advantage of the debate on Bill C-486 to convince them. However, that is a matter of political debate, not of constitutional right.
I would remind committee members that private members' bills may be automatically put to a vote unless they do not meet the criterion that the committee must apply: they "should not clearly violate the Constitution Acts, 1867 to 1982." In the absence of any constitutional enactment or case law contradicting my bill, I find it hard to see how this committee could find that my bill clearly violates the constitution. It does not concern the distribution of powers between the executive and legislative branches. Nor does it concern the distribution of legislative powers either. It merely enables the provinces to exercise the powers that are already theirs under the constitution.
With that, I am prepared to answer your questions.
Thank you, Mr. Chairman.
