Mr. Speaker, I want to say how cordial this debate has been and I believe that all Canadians appreciate that. When they see parliamentarians debating without derision and discord, it is something that we can all be congratulated for. We are representing all the parties here and we are having a very practical and productive discussion. Although this will not be my most riveting speech or presentation, I am sure it will contribute to this evening.
When we talk about the historical source of the disallowance and reservation powers, we know historically both these powers have their origin in the British colonial system. The power of reservation had its origin in the instructions given by the Crown to the governor of a colony as to the exercise by him of the power to assent to bills passed by the colonial legislative body and both these powers are referred to in the Colonial Laws Validity Act of 1865, something we are all quite familiar with.
The legal source of the actual powers as they exist today in relation to provincial bills and legislation is as follows. With respect to the reservation power, the Constitution Act of 1867 confers upon the lieutenant governors of the provinces the power to reserve a bill for the Governor General, who may then decide whether or not to grant assent to the bill.
With respect to the disallowance power, as my hon. colleague has mentioned, the Constitution Act of 1867 also confers a separate power upon the Governor General to disallow provincial statutes. There are some particular points to note about these powers.
First, the powers of reservation and disallowance continue to exist in law and apply to all provincial statutes without exception. As a matter of political reality, however, their use would now be considered by many to be unacceptable and some constitutional authors go so far as to suggest their use would be unconstitutional in the conventional sense.
Second, these powers can be exercised only in relation to an entire bill or statute. It is not possible to reserve or disallow only a part of a bill or a statute.
Third, the Minister of Justice is responsible for advising on the reservation and disallowance of provincial bills and acts in accordance with the Department of Justice Act, which provides that Minister of Justice “shall advise on the legislative Acts and proceedings of each of the legislatures of the provinces...”
There was a recent comment by the Supreme Court of Canada. In it the nature and scope of these powers were accurately reflected in the following comments by Mr. Justice La Forest, when he had the occasion to note that the federal declaratory power “is not the only draconian power vested in the federal authorities”. He went on to state:
The powers of disallowance and reservation accorded the federal government by ss. 55-57 and 90 of the Constitution Act, 1867 give it unrestricted authority to veto any provincial legislation. The exercise of this authority is wholly a matter of discretion for the federal government, and in the Reference case just noted, it was stated that the courts are not constitutionally empowered to express an opinion about its exercise--
He further commented on page 372:
It is the very breadth of these powers that protects against their frequent or inappropriate use. It was not the courts but political forces that dictated their near demise. They are, as was said of the power of disallowance, “delicate” and “difficult” powers to exercise and “will always be considered a harsh exercise of power, unless in cases of great and manifest necessity”...Their inappropriate use will always raise grave political issues--
Those issues time will not permit me to continue to discuss.