Procedure and House Affairs Committee on March 10th, 2011

[The Chair, Conservative, Joe Preston]

Thank you all for coming today.

We are here today pursuant to Standing Order 92(1)(a). The Subcommittee on Private Members' Business agrees that the following item of private members' business should be designated non-votable on the basis that it contravenes a criterion that bills and motions should not clearly violate the Constitution Act. This was the report from our subcommittee on private members' business.

Mr. Bigras is here today, as is his right to come and talk to us within five days about why he believes it to be the alternate of that.

Mr. Bigras, we're going to have you give us an opening statement. We'll then have a round of questions from the members.

[Pierre Paquette, Bloc, Joliette, QC]

How much?

[The Chair, Conservative, Joe Preston]

I was just going to finish that. We're going to have what it takes to get it done.

I'd like to spend an hour on this, at most. We'll excuse the witness at that point. The committee will then go into committee business, where one of the discussions will be about the ruling on this, and then I think you all know we have some other committee business we probably should look at today. So we'll try to keep it that way and see if we can keep the timeline.

I'll be as flexible as I can with Mr. Bigras. It is his right to defend his bill, so I'm saying an hour, but if we're on one side of that or the other, we'll be a bit flexible if we can.

Mr. Bigras, I understand you have an opening statement. Please take your time and give it to us. The committee will listen intently.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

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.

[The Chair, Conservative, Joe Preston]

Thank you, Monsieur Bigras.

Mr. Proulx will go first.

For the first round, let's do seven minutes and see how we do.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

This will be very short.

[The Chair, Conservative, Joe Preston]

It will be good if you can do that.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Good morning, Mr. Bigras, and welcome.

We understand that we are not here to discuss the content of your bill, but rather to determine whether your bill is votable.

You have been summoned here following a decision by a subcommittee of this committee. I won't claim to be a constitutional expert or specialist, something that I am not, but I would like to ask you a question. Have you consulted experts on the constitution, constitutional specialists, who are of the view, based on their interpretation, that your bill can be debated and subsequently voted upon?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thanks to the member for his question. A clear question deserves a clear answer. I'm also used to asking questions when I'm on the other side of the table.

The answer is yes. I consulted three constitutional specialists, the best known of whom has addressed the issue as a whole. That is Hugo Cyr, professor of constitutional law at UQAM. He has considered the matter in a book entitled Canadian Federalism and Treaty Powers. Those three constitutional experts have come to the conclusion that my bill is irreproachable in that respect.

Of course, a political debate must be held, but those three constitutional specialists stated that this bill was irreproachable from a constitutional standpoint.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

If I may take the liberty of asking you the question, Mr. Bigras, who are the other two?

[Marc-André Roche, Counsellor, Bloc Québécois]

They preferred to speak to us confidentially. However, I imagine we can have them come as witnesses during the study.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

One of the other two persons is a very well-known constitutional expert in Quebec whose name you probably know, but I have to keep quiet on that for the moment.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

I understand. You're telling us you consulted three, but if you can only name one, in fact it's as though you had only consulted one. I understand that this is clear in your mind because you consulted two others. However, that's not at all a problem for me.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

No, I confirm that we consulted three constitutional experts, but we can only disclose the name of one of the three for the moment.

However, if the bill receives the consent of the House in the study on second reading, those constitutional experts will definitely be pleased to come and appear in committee.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

All right. However, you understand my question, in that it concerns the restriction, if I can call it that, that might prevent you from submitting your bill for debate and then to a vote—and that's the entire question—having regard to the Constitution.

You're telling me that you have in fact verified the matter and that there was no problem, according to your experts, although you can only name one of them.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

That's it.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

That's enough for me.

Thank you.

[The Chair, Conservative, Joe Preston]

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chairman.

I believe it's appropriate for Mr. Bigras not to give us the names of the other two constitutional experts without their consent. I have no doubt he has consulted three constitutional experts on this matter.

I was the one in the subcommittee who raised constitutional concerns about the validity of this private member's bill. To explain why that's the case—

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I have a point of order, Mr. Chairman.

[The Chair, Conservative, Joe Preston]

I caught it too. Mr. Reid, that was an in camera meeting.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

My apologies.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

We don't want to hear who's the hero.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

All right. My apologies for revealing that.

What I want to do is to explain the logic of why I have concerns about its constitutional validity.

What I would like to do is start with a citation. Unfortunately, it's quite a lengthy citation from Peter Hogg's book on the constitutional law of Canada, section 11.6, which is under the heading, “Provincial treaty-making”. And I apologize, as it's quite a long citation.

He says:

There have been claims that the provinces have treaty-making power under the Constitution, and at international law. So far as international law is concerned, it seems that the provinces would be accepted by foreign countries as having treaty-making capacity if the Constitution of Canada clearly accorded that capacity.

I'll pick up the quote in a second, but I just want to emphasize here that there is one country I know of, Switzerland, where there is a clear treaty-making power for its subordinate units, its cantons, clearly stated in the constitution. That is not the case here in Canada.

So now I return to my quotation:

And so the question comes back to the Constitution. The Constitution is completely silent as to the power to make treaties. As explained earlier, this is because the framers did not envisage that Canada would acquire the power of an independent nation to make treaties. Section 132 confers the power to implement British empire treaties on “the Parliament and Government of Canada”--a provision which is hardly encouraging to the proponents of provincial treaty-making power. However, in the 1960s Quebec asserted that the provinces did have treaty-making power. The primary argument for this position is that the exclusive right conceded to the provinces by the Labour Conventions case

--that's a 1937 case of the Judicial Committee of the Privy Council, then our Supreme Court--

to implement treaties upon subjects within provincial legislative competence must carry with it the power to make treaties upon subjects within provincial legislative competence. As the treaty-making power devolved from the imperial government to Canada, the federal government acquired treaty-making power with respect to s. 91 subjects, and the provinces acquired treaty-making power with respect to s. 92 subjects. This conclusion was not affected by the broad delegation to the federal government in the Letters Patent constituting the office of Governor General [in 1947] because the doctrine that within Canada executive powers are distributed on substantially the same basis legislative powers, which normally means that the provincial governments have executive powers which match the provincial legislative powers. So the argument runs.

And that's the end of the quote.

I look at that and I say the appropriate way to determine what the courts have actually said--Professor Hogg, of course, is merely a scholar on the subject--is to turn to the relevant case and to that question, the specific question, do the executive powers and legislative powers always line up? If they always do, then Quebec has the right to make treaties, and all the provinces do. If they don't, then Quebec does not.

In the Labour Conventions case--and I have a copy of the ruling in front of me--the Chief Justice of Canada and two other justices, exactly half of the six-member panel ruling on this for the Supreme Court, held that not only did the federal government have the exclusive treaty-making power, but so did the Parliament have the exclusive ratification power. Three other justices took a different point of view on the ratification part, or, more to the point, the legislative enactment of enabling legislation part of that decision. And the judicial committee of the Privy Council then issued a decision, unanimous as they always were, which reiterated that particular point on which the entire membership of the Supreme Court had agreed.

Lord Atkin, speaking for the judicial committee, says:

It is true, as pointed out in the judgment of the Chief Justice [of Canada], that as the executive is now clothed with the powers of making treaties so the Parliament of Canada, to which the executive is responsible, has imposed upon it responsibilities in connection with such treaties....

And he then goes on to describes that. He then says, however, that there is a distinction; the two are not firmly linked together. It is not the case that executive powers are limited in all cases by the legislative powers of the Parliament to which the ministers are responsible.

He says specifically, and I'll just follow from where I left off the quote. If the Parliament were to disapprove of the ministers, “they would either”--meaning the treaties--

not be made or the Ministers would meet their constitutional fate. But this is true of all executive functions in their relation to Parliament. There is no existing constitutional ground for stretching the competence of the Dominion Parliament so that it becomes enlarged to keep pace with enlarged functions of the Dominion executive.

In other words, the two are not linked, and therefore the constitutional basis of the case for provincial treaty-making does not actually exist.

Thank you, Mr. Chair. I apologize for the fact that it took so long. I know it eats into the time to respond, but I had no way of getting the point across without fully citing.

Thank you.

[The Chair, Conservative, Joe Preston]

There are about 30 seconds left of Mr. Reid's time, if you'd like to respond at all.