June 14, 1988 (33rd Parliament, 2nd Session)


Donald James Johnston

Independent Liberal

Mr. Johnston:

Mr. Speaker, I have been asked a legal question and I have my own legal opinions, but I do agree that it would be very useful to refer the distinct society clause and a number of other clauses to the Supreme Court of Canada for determination so that Members of the House would vote with the full knowledge of what may be involved. In June of 1987,1 in fact wrote to the Prime Minister suggesting specifically that, and I wrote as well to all of the premiers because the provinces also have the right to refer matters to their respective courts of appeal for interpretation, as in fact the provinces did back in 1981 during the patriation exercise. I think there is a very serious question as to what the implication of the distinct society clause is, not only on the Charter but also on power transfers.
We have heard Members of the House say that there is a non-derogation clause, we cannot change Section 91 and Section 92. However, some of the most important powers in our Constitution, their distribution and application, including communications and much of trade and commerce and the application of the peace, order and good Government clause, have been brought about through the interpretation of the Constitution. As Professor Beaudouin, a proponent of this particular Accord, said-

"It is an interpretation rule that has changed the Canadian federation."

This interpretation clause then is very significant.
With respect to the Senate, that is not a legal question, that is a question of political dynamics. I ask Members of this House who are practising politicians if they know any politician who would voluntarily give up the right to appoint 24 Senators to the Senate of Canada in return for an equal, effective and elected Senate in order to satisfy the concerns of western Canadians. I might say that in the amendments I have put forward, that kind of Senate is put right on the agenda of the First Ministers. The Triple E Senate should be addressed by the First Ministers as soon as possible. In the meantime, no change should be made because if the change which is provided for in Meech Lake is made, then I do not think, and I think the Hon. Member from Calgary shares my view, that we will ever see Senate reform in our lifetimes.

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