The Future of Our Constitution.

MR. DERRY:

Distinguished Past Presidents, members and friends of The Empire Club of Canada: It seems to me fitting, though coincidental, that our topic today - the day after Pierre Trudeau's announcement of plans to resign as prime minister - is "The Future of Canada's Constitution." For regardless of each of our political preferences or our views on what was or was not done well during Trudeau's sixteen years as our prime minister, few would deprive him of credit for his leading role in the patriation of our Constitution.

It is now almost two years since the proclamation of the Constitution Act. There are not many issues that have caused such strong feeling as this one, as the federal and provincial governments wrangled intensely over the composition of the Constitution, their relative powers, and the formula for its amendment. No constitutional case as important has been considered and judgement given by the Supreme Court of Canada, since it became Canada's final appeal body in 1949, as the judgement in September 1981 over the legality and convention of unilateral patriation of the Constitution by the federal government. The barristers involved were the best in their field - those who knew more than anyone else about constitutional law - and the man on the forefront arguing for Ottawa was John Robinette, the person regarded by many as the finest courtroom lawyer Canada has ever produced. One of what seems to be an increasingly rare breed of Torontonians - one who was born in Toronto and has always lived here - John Robinette graduated with the gold medal, first from the University of Toronto in political science, and then in law from Osgoode Hall. He was called to the bar at the age of twenty-three and stayed on at Osgoode as a lecturer for several years, prior to entering private practice in 1932 to do litigation work, increasingly in the criminal area. One of these cases was a murder trial in the late 1940s - a women had been found guilty of murdering her husband and was sentenced to hang, and John Robinette was asked to appeal the case. Few trials have had such media attention as the acquittal, against seemingly impossible odds, of Evelyn Dick. From that point on, J. J. Robinette became a household name.

Over the next half-dozen years, Mr. Robinette defended sixteen more Canadians accused of murder before shifting increasingly toward the broader area of civil litigation and appeal work before the provincial courts of appeal and the Supreme Court of Canada - where issues of greater intellectual stimulation are more likely to arise. It is this interest in the intellectually challenging cases that moved John Robinette toward a wide variety of cases including anti-combines work, cases on behalf of citizens' groups, including those opposing the Spadina Expressway and the airport at Pickering, and also toward constitutional law. For fifteen years, he has frequently acted for the federal government, in defence of the AntiInflation Act, the Official Languages Act, and as mentioned a moment ago, the government's constitutional resolution.

John Robinette was appointed a King's Counsel in 1944, and was Treasurer of the Law Society of Upper Canada from 1958 until 1962. He has received honorary degrees from four Canadian universities and in 1973 received Canada's highest honour - being made a Companion of the Order of Canada. Two months ago, his appointment as Chancellor of Trent University was announced. Ladies and gentlemen, I pointed out a few minutes ago that it is almost two years since the Proclamation of the Constitution Act. In that time, a number of questions and issues have arisen that affect the future of the Constitution and its interpretation and amendment. So it seems a very appropriate time to contemplate the future of our Constitution, and I cannot think of a better person to address us on it than today's speaker. I ask you to join me now in welcoming John J. Robinette.

MR. ROBINETTE:

Mr. President, honoured guests, ladies and gentlemen: My audacious topic today is "The Future of Our Constitution." It is perilous to predict much about the future of anything these days but I do propose to mention a few problems.

The late Mr. Justice Frankfurter of the Supreme Court of the United States said in his reminiscences, "Talking constitutionality is a professional disease, not only among lawyers, but it is also a kind of magical field of ignorance that attracts the laity. Everybody likes to talk about constitutionality." So hopefully, I may have selected a popular subject, and to carry a little further what the President said, it is a timely topic because I glanced quickly at today's newspapers and there seems to be some slight difference of journalistic opinion concerning Pierre Elliott Trudeau but I join with him in saying that if it were not for his drive, his imagination, and intelligence we would never have had the repatriation of the Constitution. He singlehandedly brought home to Canada, to the Canadian people, their own Constitution, and that may survive as the greatest single event in his term of office.

My fundamental thesis this afternoon is that the future of our Constitution lies primarily with the courts and not in the process of amendment now available to the people of Canada, and I want to illustrate what I mean, first of all by discussing briefly the division of legislative powers between the federal parliament and the provincial legislatures. The Constitution Act of 1967 conferred on the Parliament of Canada by the famous Section 91 in its opening words the right to make laws for the peace, order, and good government of Canada in relation to all matters not assigned exclusively to the legislatures of the provinces. Then, the section goes on to list, in addition to that, a number of enumerated heads of legislative power. Section 92 deals with the exclusive powers of the provincial legislatures and confers on provincial legislatures the exclusive power to make laws in relation to sixteen enumerated matters, including property and civil rights in the provinces and all matters of a merely local or private nature in the provinces. Now, that is a broad outline, but the interpretation and application of those two sections in what I call the British North America Act, now the Constitution Act, have given rise to innumerable cases in the Supreme Court of Canada and in the Privy Council, before the abolition of appeals to that body.

The Privy Council said on one occasion that Sections 91 and 92 established between the federal Parliament and the provincial legislatures "watertight legislative compartments." However, contrary to what the Privy Council said, the cases decided in the Supreme Court of Canada in more modern times show that very frequently the compartments are by no means watertight, that they frequently leak and sometimes nearly burst. Despite what the Privy Council said - and the Privy Council really didn't know very much about Canada - it is fair to say that the general approach by our courts to the Constitution Act is that it is not an ordinary sterile statute and that it should be treated as a living tree capable of growth and expansion in the light of ever-changing economic and social conditions.

The first step in determining the constitutional validity of a statute is to characterize the statute, which means - what is its true purpose and object? What is it aimed at? And what is the pith and substance of the act? Those tests are broad and flexible. Now, views may differ in various cases as to the pith and substance and the purpose of a particular piece of legislation but there is no question that the Supreme Court of Canada in recent years has exercised a range of intellectual and practical judgements based often on policy considerations as to where, in a given situation, the line should be drawn between the powers of Parliament and the powers of the provincial legislatures.

Let me illustrate this by an example. There is no doubt that the legislative power to regulate radio and television rests exlusively in the federal Parliament. In one case in 1977, the Supreme Court of Canada held that this federal power included the exclusive authority of Parliament to control the content of broadcast and television programs. In a case a year later, the majority of the Court held that Quebec legislation prohibiting advertisers from using cartoons in any advertising intended for children, whether by television or otherwise, was valid because it related to the property and civil rights of the advertisers in the province.

These two cases in relation to one field illustrate the dichotomy. Was that legislation in relation to broadcasting or was it legislation in relation to the property and civil rights of advertisers? There is always in that sort of situation an opportunity for a divergence of judicial opinion and I think one can safely say that what does influence some judges (and quite properly) is, which is the better choice, which is the more practical, the federal Parliament or a provincial legislature? In other words, in constitutional matters in the Supreme Court, the characterization of laws is an act very frequently of judicial statesmanship.

One other matter I would like to mention, while I'm on this subject, is in relation to Canada's treaty-making power.

In a case in the Privy Council many years ago dealing with labour treaties to which Canada was a party with other nations, it was held that in order to implement a treaty made by Canada as a nation, federal legislation is necessary with respect to federal fields or powers of legislation but that provincial legislation is also necessary if the subject matter happens to

come within provincial legislative powers. This means that today, Canada cannot make effective treaties without the consent and co-operation of the legislatures of all ten provinces because under the ruling of the Privy Council, these provinces must legislate if the treaty relates in whole or in part to provincial powers of legislation.

The last vestiges of colonialism were removed in 1982 when the Constitution was patriated to Canada. Canada is an independent sovereign state in a world of sovereign states and it is absurd that the Canadian Parliament does not have the power to legislate to effect treaties solemnly entered into by Canada with other nations. The fact is that nations will hesitate to make treaties with Canada if the Canadian Parliament cannot implement those treaties by effective municipal or internal legislation within Canada. A few years ago, the Supreme Court of Canada indicated that it would overrule or refuse to follow judgements of the Privy Council or prior judgements of the Supreme Court when necessary with the warning that any such action would be comparatively rare. Surely, if the question ever arises, the Supreme Court of Canada will have to give serious consideration to overruling the judgement of the Privy Council in the Labour Conventions case and restore the Dominion's power to implement treaties under the peace, order, and good government clause.

Now, I come to the Charter of Rights and Freedoms. The Charter of Rights and Freedoms is part of the Constitution of Canada and the Constitution in turn is stated to be the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of that inconsistency, invalid. Is the Charter of Rights and Freedoms mere political decoration or is it a meaningful and salutary restraint on our legislative bodies? Is it a Pandora's box of horrors? I suggest that, if given a proper and balanced interpretation by the courts, the Charter will prove to be a desirable and effective restraint on the excesses of Canadian legislative bodies. Some unreal and ridiculous arguments have been made in our lower courts as to the effect of the Charter.

It is too early to be definitive about the effect of the Charter because the Supreme Court of Canada has not yet given judgement on several important cases coming before it. However, we do have now the benefit of some thoughtful and balanced judgements as to the scope and operation of the Charter from our own Court of Appeal in Ontario and also from the British Columbia Court of Appeal.

There was a case decided by our Court of Appeal in the last year which dealt with the requirement in the federal Juvenile Delinquents Act (that is, under eighteen or sixteen as the case may be, depending on the provincial act), that all trials of juveniles be held privately. The press were excluded. The press in Ontario decided that this section in the Juvenile Delinquents Act was bad. It went too far, it denied reasonable access. The Ontario Court of Appeal held that the right of public accessibility to the courts must be considered integral to and implicit in the guarantee given by the Charter to everyone of "freedom of opinion and expression, including freedom of the press." The Court held that the section in question of the Juvenile Delinquents Act was far too broad and was unreasonable. The Court pointed out that the section was an absolute one, giving a judge no discretion whatsoever, irrespective of the nature and importance of the case. The Court said there might be a rational basis for the exclusion of the public from some hearings of charges against juveniles but an absolute ban in all cases, irrespective of the circumstances, constituted an unreasonable interference with the guaranteed freedom of expression, including freedom of the press.

There is one more case in Ontario I want to mention, and that is the motion picture censorship problem. Under the Ontario statute dealing with censorship of motion pictures, a Board was empowered to prevent the public exhibition of any motion picture. The Act did not define any standards. There was no reference to obscenity - no reference to any standards whatsoever; it was entirely within the judgement of an appointed Board to determine whether the public should or should not see a particular motion picture. Now, the validity of that statute came before our Court of Appeal and the Court held it to be invalid. It was clearly a violation of the Charter of Rights. It empowered a Board to stop a picture for political reasons, maybe for religious reasons - maybe the Board didn't like the colour of the star's eyes. There was no standard at all so the Court said that in the absence of standards, to give a body the right at their whim, so to speak, to prevent the exhibition of a motion picture publicly was in contravention of the Charter.

There is nothing wrong, of course, with giving the Board the right and the power to classify pictures, to rate them for the advice of parents, to keep parents informed of the type of picture. I mentioned the balanced treatment by the Ontario Court of Appeal and by the British Columbia Court of Appeal and the only prediction that I would care to make about the Charter is that the Supreme Court of Canada will likely, in my opinion, exercise the same type of restraint and judicial statesmanship that the provincial courts of appeal have demonstrated.

Now, finally, I want to turn to one constitutional matter which is somewhat controversial, and it has nothing to do with the courts, and that is reform of the Senate.

At the present time, the legal position of the Senate may be outlined briefly. It is composed of one hundred and four persons appointed by the Governor General on the advice of the federal Cabinet. Twenty-four persons must come from Ontario, twenty-four from Quebec, a total of thirty from the four Atlantic provinces, twenty-four from the Western provinces, one from the Yukon, and one from the Northwest Territories. The members of the Senate when appointed hold office until they attain the age of seventy-five years. A senator at the time of appointment must be of the full age of thirty years and he or she must be the owner of real property in the province for which he or she is appointed, of the net value of four thousand dollars. He or she has to be a resident of the province for which he or she has been appointed. All of this is in the Constitution Act of 1867 as amended, and it is all applicable today.

At Confederation, the concept behind the Senate was that there should be a second legislative body of mature and solid citizens and that they be appointed as representatives of particular provinces. They were to be a legislative check on the vagaries of a popular or demagogic assembly such as the House of Commons and, in addition, the senators would represent the areas for which they were appointed as a protection against the then-overwhelming voting power of Ontario and Quebec in the House of Commons.

The Senate has been maligned and misunderstood. Although it has the legal power to refuse to accept a bill passed by the elected House of Commons, the Senate has only rarely rejected or amended in substance government bills approved by the Commons. Today, it is really a convention that they will not do so. In fact, the Senate over the years has done very useful work, particularly in its committees in proposing changes in the details and structures of bills so as to make them fairer, more workable, and understandable. The work done by the committees of the Senate is important but it does not make good copy for the media.

People are inclined to look at the Senate of the United States, which is one of the most respected political deliberative bodies in the world, as an example of what our Senate ought to be. However, there is a very important distinction between the American system and the Canadian system. In Canada, we have responsible government; that is to say, the prime minister and his Cabinet are dependent for retention of office on the will of the House of Commons. On the other hand, in the United States, the members of the Senate are elected for fixed terms and the President is also elected for a different fixed term. In short, theirs is a presidential system and not a system of responsible government.

Reform of the Senate should be approached with caution for fear of creating a situation far worse than we have today. It may be better to have an appointed Senate which by convention acts with restraint, than to jump into the possible morass of two elected bodies, both with legislative power. The only other Senate in a federal state which also has responsible government is the Australian Senate and the experience there has not been entirely happy because of the strong political conflict that may result from two elected bodies, and the fate of the government of the day depends on the co-operation of two elected bodies for continuance in office. The Australian experience would tend to show that we are more likely to have reasonable legislative co-operation between an elected House of Commons and an appointed Senate than between two elected bodies, which if the Australian experience is correct, gives rise to awesome and lengthy deadlocks. It is far better sometimes to have matters decided reasonably quickly than to survive two or three years of deadlock. However, some amendments should certainly be made with respect to the Senate. The distribution among various areas of Canada of members of the Senate is most unfair to the West. The four Western provinces have twenty-four members - the same number as Ontario. Possibly, the three Prairie provinces should be treated as one unit and the number increased and British Columbia treated as one unit. But in all events, the Western provinces do have a quite justifiable complaint that they are under-represented in the Senate.

I think the requirement that a senator has to be thirty years of age at the time of his appointment should be abolished and reduced to twenty-one years. A few twenty-one- or twentytwo-year-old men and women would be rather beneficial for the Senate; it might do the Senate a lot of good. Of course, the requirement that a senator be resident in the province in which he is appointed cannot be changed, because the very purpose of the Senate is that the appointees for a particular province represent that province or the area from which they come. These are the obvious required amendments but before anything beyond these is done, much greater consideration has to be given to the problem of creating two elected representative bodies - if our concept of responsible government is to continue.

Mr. President, there are other interesting questions, but I am very grateful to you for the opportunity and the pleasure it affords me of having been invited to discuss with The Empire Club some of the important issues of the future. Thank you very much.

The appreciation of the audience was expressed by H. Allan Leal, a Past President of The Empire Club of Canada.