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.