Mr. Speaker, the motion that is put forward today by the hon. member for Lanark—Frontenac—Lennox and Addington for the repeal of the constitutional disallowance and reservation powers deals with a matter that, to the best of my knowledge at least, has not been much of a concern or priority for anyone recently.
However, it is a subject that has often been formally, or informally, raised at federal-provincial constitutional reform discussions going back over 100 years. In that sense, it remains a relevant topic for consideration at the appropriate time and in the appropriate context.
The Minister of Justice and Attorney General of Canada does not support this motion for a number of reasons. I hope the sponsoring member and all members of the House who have an interest in the continuing of Canadian federalism, as opposed to dismantling of federalism as we know it, will find these reasons compelling.
Indeed, I dare to hope that after hearing these reasons, the hon. member might consider withdrawing his motion. If not, then I hope I can convince our colleagues here in the House, or at least those who believe in our federal system, to vote against it.
To begin with, I think it is safe to say that in modern times no federal government would ever consider exercising these powers, except perhaps in the most extraordinary of circumstances.
As I indicated a moment ago, these powers and their possible repeal or, for that matter, the creation of limitations on these powers or the examination of other alternatives remain a relevant topic for consideration when the time and forum are right. At the moment, there does not appear to be a need for fixing this provision and no observable consensus that we should be dealing with this at this time.
Repeal of these powers might be considered in the context of the development of an integrated and coherent set of proposals for constitutional reform. In such a context, the powers of disallowance and reservation could be considered amongst others dealing with modernizing or generally improving the federal-provincial balance of powers and related matters.
It has not been a part of our constitutional reform tradition up until now for the federal or provincial government to put forward constitutional motions unilaterally without some prior discussion and without some give and take in developing a comprehensive proposal. From the federal perspective there are good reasons for this based primarily on the federal government's concern that it guard and exercise its powers in the interests of all Canadians from a national perspective.
Social, economic, political and other related developments of modern life are often complex and interconnected. These developments have an impact on the constitutional vision that guides our political leaders when proposals are put forward, usually after much consideration, for the constitutional amendment. In addition, progress towards constitutional peace, if not always change, often involves informal understandings in the context of cooperative and practical federalism.
The federal government has never been prepared to acquiesce in the proposed repeal of these powers except in the context of a comprehensive discussion where give and take on all sides leads to a constitutional agreement acceptable to a broad range of Canadians throughout the regions of the country.
Pending such a broader constitutional deal, these powers, unexercised for decades for good political reasons, are hardly a high profile and pressing irritant that require priority repeal, as would eventually follow from the adoption of this motion.
As noted by Mr. Justice La Forest in the 1993 Supreme Court of Canada decision in 3 S.C.R. Ontario Hydro v. Ontario (Labour Relations Board):
The power of disallowance, which had long been in decline, has not been used since 1942...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--
Members can also see in Severn v. The Queen, 1878, 2 S.C.R. 70, through Chief Justice Richards at page 96 and Justice Fournier at page 131:
Their inappropriate use will always raise grave political issues, issues that the provincial authorities and the citizenry would be quick to raise. In a word, protection against abuse of these draconian powers is left to the inchoate but very real and effective political forces that undergird federalism.
If we cast our minds back to the mid-1980s and the five conditions put forth by Quebec's then Premier Bourassa for Quebec's acceptance of the Constitution Act in 1982, the repeal of these powers was not one of them. The resulting discussions that led to the Meech Lake accord also did not generate a call for the repeal of these powers.
In the early 1990s an even more ambitious attempt at constitutional reform led to the Charlottetown accord. In that context, such a proposal was balanced by others that maintained and strengthened the equilibrium of the federation and the balance between federal and provincial powers, as well as the protection of the fundamental rights and freedoms of Canadian citizens.
It would be inappropriate and, indeed, unwise for the federal government to support the piecemeal repeal of the powers of disallowance and reservation at the present time without any quid prop quo from the provinces with a view to strengthening the federation and enhancing the protection of the rights and interests of Canadians everywhere.
I see no more logic in a motion to deal with these powers independently than for any other individual item that might appeal to a particular member, constituency or lobby group. In a nutshell, the federal government does not support and does not recommend that we should unilaterally give up any federal powers even if their existence is mainly, if not entirely, historical and theoretical.
I would also note that unlike a bill, the details and technicalities of which would be examined in committee, the adoption of a motion at this time would bar technical analysis and possible improvements.
Constitutional amendments to our federal structure are inherently significant and important, and proposals for such amendments should not be embarked upon in a hasty, ill-timed and ill-considered way. I suggest to hon. members that a motion fast-tracking a constitutional amendment should be contrary to every instinct that we have as legislators. Therefore I would encourage all members not to support the motion.