Mr. Speaker, my question today for the Minister of Justice relates to an item of business that arose in question period on February 18. I asked a question at that time. I will read it and then ask for his response to it. At the time, I asked:
Mr. Speaker, earlier this week the government reversed half a century of Liberal policy by declaring that the Minister of Justice favours retaining the power of disallowance--
That is Parliament's power to disallow or strike down provincial laws.
--under which his cabinet can unilaterally strike down provincial laws.
It was explained that his position is that the federal Liberals are prepared to use this power under what were described to the House as extraordinary circumstances. I invite the minister to explain to the House which provincial laws, actual or hypothetical, he would categorize as being sufficiently extraordinary to be disallowed by his cabinet.
I should mention that a cabinet power is a power that is not exercised by the House. It is exercised by the federal government. This is a power which has fallen to disuse and I will speak about that in a second. His response was simply to say:
--I am not speculating on when such a power would be used or if, even, such a power would be used. The power is there. I do not speculate on hypotheticals.
Surely that is one of the most inadequate answers ever recorded in the House.
The power of disallowance is an antiquated, colonial vestige, a holdover of the period during which Canada was a British colony, the immediate post-Confederation period. The imperial government in London had the power to strike down federal laws and the government in Ottawa was seen in a sense as a colonial power that wanted to move over the provinces. This was at a time before there were was any form of a charter of rights and this was seen as a means of protecting rights through essentially colonizing lower orders of government.
This is an antiquated power. It has not been used in Canada since 1937 and has not been contemplated since the 1940s. It is really 60 years of Liberal policy that has been reversed.
I thought I would take a moment to talk a bit about the last time this power was considered to be used. That is the only guide we have to the suggestion by the Minister of Justice that he would be willing to revisit and reuse this power.
In 1944 the CCF government in Saskatchewan was elected, the first social democratic government in North America. It proposed a series of pieces of progressive legislation, which would now be regarded as essentially middle of the road pieces of legislation, and Mackenzie King's government considered striking down those laws. This prompted Tommy Douglas to go on the radio in Saskatchewan to make certain points.
He said, “If the federal government has any doubts about the constitutionality of our legislation, this is a matter for the courts to decide. Certainly it is not a matter which comes from the duties of the federal government.
He also pointed out that in 1937 when the Quebec government passed the padlock law, which was an infringement of the rights of a free people, the federal government refused to take any action on the grounds that it could not interfere. However, when Alberta endeavoured to pass certain pieces of legislation affecting large corporations, the federal government acted with a swiftness and a ruthlessness that was amazing.
Eugene Forsey commented that one could always count on the federal government using its power to intervene on the side of the big guns, as he put it. It seems to me this power remains a great danger for this reason and it seems to me it is appropriate and indeed incumbent upon the Minister of Justice to say that he would never under any circumstances use this power.