Bill C-20 (39th Parliament, 2nd Session) Committee on May 7th, 2008

[Pierre Paquette, Bloc, Joliette, QC]

Thank you.

The possibility has been raised that the regions of Canada could use the legislative provision that was passed after the Quebec referendum of 1995, that is, the right of veto. Quebec, which has already come out squarely against Bill C-20, would have the right to veto it because of the legislation passed after the 1995 referendum.

What do you think?

[Prof. Andrew Heard]

Are you asking whether the regional veto legislation would be followed?

[Pierre Paquette, Bloc, Joliette, QC]

I am not talking about the right of veto that we lost in 1981-1982. Professor Mendes told us that a bill was passed in 1995 giving a right of veto to the five regions of Canada. In his view, the Government of Quebec could use that right of veto to block the bill we are presently studying.

[Prof. Andrew Heard]

That veto right would only apply to the process for a formal amendment to the Constitution. I don't think in this context the Quebec government could try to exercise that veto. It could have a reference question on whether or not there was a convention that required provincial consent for a change like this. We have precedent from the patriation period, where the Supreme Court was quite willing to discuss the content of constitutional conventions relating to federal institutions in the Constitution.

[The Chair, Liberal, Albina Guarnieri]

We'll proceed to Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Madam Chair. I thank the professors for being here and Professor Simeon for being here by remote.

Professor Heard, I'd like to go back to the constitutional convention--and, Professor Simeon, perhaps you could also comment on this. We don't have a constitutional convention, as I remember from constitutional law, unless we actually go through a process and begin to use the procedure--in this case, the consultation process. So if we, as Professor Simeon is recommending, had a reference to the Supreme Court, there would be no convention for them to consider. Is that correct?

[Prof. Andrew Heard]

They would not be able to talk about a convention per se, in the sense that the traditional view of convention is that you need some precedent as well as discussion in principle. So you need a constitutional principle that is being protected, some statement by the actors that they feel bound by a rule, and some precedent. That's the formula the Supreme Court looked at in 1980.

I think they would carry on and examine the principle involved and any statements from politicians about whether they would feel bound by this in advance. The Prime Minister has quite clearly indicated he would follow this process. That's quite an important statement in setting the foundation for a convention.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

There's no historical precedent in Canadian constitutional law where constitutional convention has been found before it has actually been a practice and utilized for some time.

[Prof. Andrew Heard]

There is an example when the prime ministers of Great Britain and the dominions got together during the imperial conferences, where they came to a number of agreements about how Britain would interact with the dominions. They signed some formal agreements about how those processes would play out. One of them was that dominion ministers would be the ones to advise the King on who would be nominated and appointed as governors general in the dominion. The first precedent came when the Irish did that, but it was quite clear that everyone knew beforehand that's how it should be done.

So I have argued in previous work that you may not necessarily already need a precedent for there to be an obligation that exists. Those imperial conferences in the 1920s created a set of conventions where it was clearly understood that obligations occurred before the first formal uses of them.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

We're getting into a challenge here. But at that point we were accepting the constitutional conventions that were in existence elsewhere within the British empire.

[Prof. Andrew Heard]

These agreements transformed those conventions, because prior to these agreements the conventions were that the British ministers would advise the King on whom to appoint as a governor general, and they wouldn't necessarily even consult with the dominion governments. So this was quite a radical change, and a step towards our independence, to say that dominion ministers would recommend the new governors general to the King.

[The Chair, Liberal, Albina Guarnieri]

Mr. Simeon, I see that you're writing. Would you like to add something?

[Prof. Richard Simeon]

Yes, I'd like to come in on this, if I could, Madame.

First of all, I think we should note that how a convention solidifies into constitutional law is one of the great mysteries of constitutional law. I think there are different ways in which that can come about.

The most obvious way, as has been mentioned already, is through history and precedent, that this is the way it's been done, and been done over again, which then takes on a certain legitimacy and expectation on the part of all political actors. That's what the Supreme Court relied on in the patriation reference, saying that under black-letter law, yes, Ottawa, you can do it, but under convention, no, because you must have substantial provincial consent.

But the Supreme Court, in the Quebec secession reference, also displayed a second basis for developing a convention. That was not based on history and precedent but on what the Supreme Court said were the fundamental values underpinning Canadian federalism. That's what made it a constitutional convention that Ottawa would have to negotiate with Quebec.

Thirdly, there can be a catalytic event, which I think can establish a convention very quickly. Arguably, the Charlottetown reference is such an example. Some people—and I think I would be one of them—would argue that even though we've only done that once, we will never again make a substantial constitutional change without popular consent.

So there are many ways to skin the conventional cat.

[The Chair, Liberal, Albina Guarnieri]

Thank you, Mr. Simeon.

Mr. Watts, would you like to enter into the fray here?

[Prof. Ronald Watts]

No, I'll stand with what my colleagues have said.

[The Chair, Liberal, Albina Guarnieri]

Thank you very much.

Mr. Comartin, you still have some time.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

To pursue this further with all three of you, if there isn't a reference, do any of you believe there won't be a court challenge, either from the Province of Quebec or one of the other provinces, or perhaps from one of the political parties?

[Prof. Ronald Watts]

To start, I would certainly be surprised if there were not.

[Prof. Andrew Heard]

I agree. I expect there would be too.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

So going back to Professor Simeon's recommendation, the reference should flow immediately from the Supreme Court, rather than wait for the litigation to come from somewhere else.

[Prof. Ronald Watts]

I think that would be the wiser course of action—although one might consider what Richard Simeon has suggested and look first at what modifications you might make to the bill before it's referred. But ultimately I think it would be wiser to refer it first, rather than waiting for it to be challenged.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

Mr. Simeon.

[Prof. Richard Simeon]

I absolutely agree with that.

[The Chair, Liberal, Albina Guarnieri]

Thank you.

You're still under time. You have one minute.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'll pass for now.

Thank you, Madam Chair.