Mr. Speaker, we have some problems with this resolution and I will treat them very quickly.
There is a failure to study empirically Canadian practice and to recognize the distinction between self-executing and non-self-executing treaties. About 99% of the treaties made by Canada since the war are non-self-executing. That is to say, to be implemented in Canadian law they require laws passed by parliament.
I am amazed to hear the official opposition say they do not know anything about it. Have they been asleep? They have had a foreign affairs committee. It is competent to hear these matters. Its members are competent to raise the matters when the laws come before the House. Somebody has been playing Rip Van Winkle and it does not reflect very credibly on the opposition people to say that.
In Canada we have in a certain sense fused what used to be the highly formal act of ratification with the legislative implementation. I confirm this with the land mines treaty when there was an issue we wanted to be the first to ratify because we sponsored that treaty. However, it had to wait on our legislation by parliament and we ended up, I think, number three. But, there is the fact. Every treaty made in effect comes before parliament and before the foreign affairs committee.
The second point which I will make is I am amazed again by this study of comparative law. It is the first lesson. I am reminded of what Sir Austen Chamberlain said “Comparative law is a trap for the unwary and a signpost for the guilty”. He was saying it to something else, but there it is.
How can you compare positive law snatched from one society to another society unless they are congruent in terms of their legal systems?
The Canadian system and the German system are totally different from the British, Australian and anything else. The member who introduced this bill would be horrified if he had the American, Australian or other systems in force here. Those systems establish the supremacy of federal law implementing a treaty. By the very fact of making a treaty, one gets the power to legislate. The Canadian is in the inverse and in 1957 the German court studying our experience said it would follow the same.
So every treaty for implementation requires federal legislation and, if it touches provincial powers, provincial legislation. When one gets to issues like fisheries, it will take several years of patient negotiation, frustrating negotiation sometimes, with the provinces. Let me simply make that point.
The third position I would make is simply this. It is not a good plan to seek to do by indirection what can be done by the front door. I read this very carefully and I find that article 6 of the bill on treaties either is uttered per incuriam with a lack of knowledge of Canadian constitutional law, which I do not believe, or it is an exercise in espièglerie.
Let us face the facts. There is no such thing as a treaty made by a province under Canadian law. It just does not exist. Therefore, in the interstices of a clause buried in the middle of a projected law, how can one purport to make a constitutional amendment? It just cannot be done.
So much of this is an act of supererogation, of stating what parliament already does. I look at those several hundreds hours in the foreign affairs committees on the MAI. Backward and forward, it was exhaustively discussed. There was the landmines treaty with input from the official opposition and others, which the minister acknowledged.
I would have said that apart from clause 6, this is an example of what Quintus Horatius Flacuus said, “Parturient montes, nascetur ridiculus mus”. Briefly translated, as Shakespeare did somewhat freely, it means “Sound and fury signifying nothing new”.
I am also tempted by the suggestion that it was perhaps an interesting exercise in doing by the back door what should have been done by the front door. It is an interesting exercise.
I would advise the hon. member, whom I respect for his qualities and his sense of humour, to come back again with a better draft. I would also suggest putting students to exercises more fully rooted in sociological jurisprudence. That is to say, he should make sure the societies they study are cognate before taking away their positive law. Comparative law is not an exercise in butterfly collections as one has here, with one monster butterfly from one society and one from another. There has to be a certain relevance.