Procedure and House Affairs Committee on March 10th, 2011

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

I want to make three points.

First of all, the member will recognize that the Constitution does not grant the federal government a plenary power with respect to treaties.

Second, when Canada obtained what could be called an international personality on the international scene, the Statute of Westminster of 1931 resulted in no change to the distribution of powers.

Third, it seems quite clear to me that executive powers are distributed in the same manner as legislative powers. That has been confirmed on at least two occasions. The Privy Council confirmed it first in 1892, and at least 50 Supreme Court judgments have confirmed it as well. I will only cite one, the 1978 judgment in Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, in which it held that the executive powers, or prerogatives of the Crown, are distributed in accordance with the distribution of legislative powers.

Having regard to the constitution, the international personality attributed to Canada under the Treaty of Westminster, the Privy Council decision and the some 50 Supreme Court decisions on the matter, it seems to me that there is material to inform us, to enable us to come to the conclusion that the bill is entirely constitutional. I understand that it may give rise to various opinions, but it at the very least merits debate in the House of Commons.

[The Chair, Conservative, Joe Preston]

Thank you.

I'm being fairly flexible with time, just because it's important that we get the points done today.

Monsieur Paquette, would you like to go for seven minutes?

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Mr. Chairman. I'm going to share my speaking time with my colleague Mario Laframboise.

First of all, I'd like to go back to the summary of the distribution of executive and legislative powers that you made in response to Mr. Reid. It's now so true that, in the context of the negotiations for the Canada-Europe free trade agreement, the Europeans themselves have asked that the provinces be seated at the bargaining table because they know very well that jurisdictions respecting government contracts, for example, belong in large part to the provinces. All matters pertaining to education are currently the subject of considerable discussion. Even this example shows the extent to which the provincial jurisdictions are now re-emerging onto the international scene.

Further to Mr. Reid's remarks, I'm going to ask the question differently. From the moment Canada's Constitution is silent on certain matters—you very clearly demonstrated that point—and very clearly establishes the distribution of powers, why doesn't Quebec simply take the initiative of developing its own international relations? It's already doing so, but they could lead to the signing of treaties with sovereign countries.

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

That, among other things, is the purpose of the bill. Before Quebec or any other province can negotiate and sign agreements, it requires the authorization of the Government of Canada, and we have to indicate to the international community, at negotiation meetings, that those states can undertake the negotiations. Something is therefore lacking to enable the provinces to act on the international scene. That's what's required; that's what the bill requests. It naturally requires the authorization of the Government of Canada. That's not contained in the present act.

In addition, I would like to go back to an argument raised by Mr. Reid. Earlier, he told us that, to his knowledge, only one country was making this type of delegation. He mentioned Switzerland, but there are many others, in particular Belgium, Germany, Argentina and Austria. I'll cite only the example of Belgium. Among other things, I'll cite article 167 of the Belgian constitution, which states: "The community and regional governments contemplated in article 121 enter into treaties, each in areas that pertain to it, concerning matters that fall under the jurisdiction of their Parliament."

So you're entirely right, Mr. Reid, to say that Switzerland is an example, but there are many others in the world, at least among the federated states. There is the example of Switzerland, but we could also cite the examples of Belgium and Germany.

[Pierre Paquette, Bloc, Joliette, QC]

In a way, it's not up to other countries to come and tell the Canadian government with whom they are going to negotiate. Currently on the international scene, other countries assume that it's the Canadian government that negotiates the treaties. In that sense, your bill is useful, but it's not so much as a result of the Constitution of Canada as it is the result of the customary practices of the international community. It might possibly be seen by the Canadian government as interference, if a government directly negotiated a free trade agreement with, for example, the province of Quebec.

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

That's correct. From a reading of the bill, you'll see that one clause provides that the Government of Canada will inform the governments of foreign countries that a province is able to negotiate and enter into a treaty on its own. You asked me why Quebec wasn't doing it. That's precisely because Canada has to inform foreign countries of the fact that the province is able to negotiate and enter into a treaty.

[Pierre Paquette, Bloc, Joliette, QC]

I'd like to ask one final question before handing over to my colleague Mario Laframboise.

How much time is left, Mr. Chairman?

[The Chair, Conservative, Joe Preston]

You have two and a half minutes.

[Pierre Paquette, Bloc, Joliette, QC]

So I'll ask it very quickly.

Among the criteria that must be used to determine whether a bill can be considered as non-votable, the following has been stated: Bills and motions should not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms.

The mere fact that we are holding this debate here today shows that this is not clear. In that sense, the bill does not clearly violate the Constitution of Canada. In my opinion, we should allow the political debate to be held in the House, as was done with regard to the French Language Charter that would apply to the federal institutions.

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

Very good idea.

[Pierre Paquette, Bloc, Joliette, QC]

We agreed that it could be debated, even if it was rejected, but that's another question.

I now give the floor to my colleague Mario Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Ultimately, Mr. Paquette is talking about the criteria that the Standing Committee on Procedure and House Affairs adopted in 2007. They are the criteria of our committee. We aren't outside our borders; we're in Canada.

My question is simple. Has there ever been an international treaty bill in Parliament that was ruled non-votable?

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

The answer is yes. In 2000, Bill C-214 by my former colleague Daniel Turp was introduced and had a similar purpose. Many members supported the bill. So it will be understood that this is not new. The debate was held in Parliament in 2000. The people around the table clearly were not all in agreement, but at least this type of bill, which introduced nothing new, was debated in the House of Commons. This is essentially what we're asking. My Liberal colleague was entirely right earlier to say that we do not have to take a position on the merits of the bill. We simply have to determine whether it is possible to debate it, to the extent that it is not all clear.

[Pierre Paquette, Bloc, Joliette, QC]

It seems to me, Mr. Chairman—

[The Chair, Conservative, Joe Preston]

You have 30 seconds.

[Pierre Paquette, Bloc, Joliette, QC]

Yes, but I'd just like to clarify that matter. At the time, the Conservatives, the NDP members and us, the Bloc Québécois, had voted in favour of the bill.

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

It was in camera.

[Pierre Paquette, Bloc, Joliette, QC]

No, I'm talking about the meeting of the Sub-committee on Private Members' Business.

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

He's talking about Bill C-214.

[Pierre Paquette, Bloc, Joliette, QC]

I'm saying that, in 2000, the Conservatives and you, with your colleagues from the New Democratic Party, voted in favour of the bill introduced by Daniel Turp.

[The Chair, Conservative, Joe Preston]

Thank you, colleagues. We are not discussing the substance of the bill today; we're discussing the votability of the bill. We may in fact get to the substance, but we are discussing the votability of the bill.

Mr. Godin, for seven minutes.

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

Thank you, Mr. Chairman.

Thank you, Mr. Bigras, for being here to present your definition of all that.

It was said that we did not have to discuss the substance of the bill, but we have no choice because it is the substance that will indicate whether or not it is constitutional, at least in part. Here's that the bill states, in clause 4:

Not later than six months after the coming into force of this Act, the Government of Canada shall inform foreign governments that a province is able to negotiate and enter into a treaty that: (a) is in an area within the exclusive legislative authority of the legislatures of the provinces;...

That could be education, for example. New Brunswick negotiates agreements with Africa. All kinds of agreements are entered into, and that didn't start just recently. Your bill states that the federal government is responsible for informing countries that there will be negotiations in areas of provincial jurisdiction.

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

Absolutely.

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

It's true that similar bills have previously been debated in the House, and the House has had to decide. I see no problem in submitting that kind of bill to the House again today.

Frankly, I believe it will be up to members to decide on the fate of the bill before us. Parliament will decide this matter.

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

I wanted to say thank you to you.