On August 6, 1987, a Special Committee of the Senate and House of Commons examining the Consitutional Accord considered a proposal for a new institution, a Joint National Committee on Constitutional Amendments. This is an abridged version of the discussion. For the complete transcript see Minutes of Proceedings and Evidence, Special Joint Committee of the Senate and House of Commons on the 1987 Constitutional Accord, No. 4, August 1987. John Holtby was a former Chief of Staff of the Special Committee on the Reform of the House of Commons.

 

John Holtby: My brief to this committee addresses the issue of process for future constitutional revisions and it is not intended to interfere with or delay the present process regarding the Meech Lake Accord. Its relevance to your work comes from the fact that the procedures which are established in this early phase of constitutional renewal will set the parliamentary pattern for future constitutional amendments. I respectfully suggest that you should examine how parliamentarians are to be involved in this next round.

Over the past five years the House of Commons has been involved in significant alteration of the procedures of this House and you have asserted the powers of the House of Commons in new ways. This has also happened in a number of the legislatures. But left unaddressed in these reforms was the parliamentarian's role in constitutional change. It is urgent that you address this question or you will risk being bypassed, thus moving the people further from their fundamental law. It is legitimate for you and your fellow parliamentarians in other Houses in Canada to ask yourselves where do we fit in the next round. I think that parliamentarians have a role other than ratifying the agreements of First Ministers.

Public participation in this process is best done through a parliamentary body. I believe that parliamentarians have a public responsibility to be an early influence in the constitutional developmental process, to act as advisers to governments, to teach Canadians what they do not know; to condition the thinking, and to be the link between the people and the constitutional reform process prior to the First Ministers signing their agreements.

How do we do this without getting in the way of the present accord approval process and without usurping the very legitimate role of the First Ministers? My suggestion is for a national joint committee on constitutional amendments which would have the same powers as any parliamentary committee to conduct hearings and to report to its assemblies. It should be composed of two senators, four members of the House of Commons and two members from each provincial and territorial assembly, thus bringing the territories to the parliamentary constitutional table.

Some persons have suggested that we do not need another creature involving itself in this process prior to agreements or that Ministers might be jealous of the parliamentary committee. However, it is a fundamental right for Parliament to be involved and I think I need make no defence of the rights of parliamentarians to this body. But listening to these hearings and reading commentators one gets the sense that parliamentarians in Houses across the country do feel left out of the process.

Your electors assume that you are part of the action before the accords are reached, yet the reality is quite different.

Those who would fear a national joint committee might somehow muddy the waters ought not to see the work of parliamentarians in a negative light. Time and again, parliamentary committees have produced positive results where other avenues have failed. Your work is of necessity sensitive to public feelings.

It seems to me that parliamentarians, no matter where they sit, supporting the government or in opposition, want to be part of a constructive process of nation building. Constitution making is not likely to be successful if it is seen only as part of the partisan process; it really is above that. You are a necessary part of the consensus-making process which gives the constitution its community acceptance.

So, to involve the parliamentarians in a constructive process before future meetings of the first ministers, entrenched or otherwise, before these meetings lock any doors, I propose a national joint committee. Join your fellow parliamentarians from all across Canada, from both sides of the provincial and territorial houses, at the parliamentary table and make the second round the first round for closer public parliamentary participation.

The place where a new senate should be discussed initially is not in the Privy Council Office, not in the Department of Justice, not in the Inter-governmental Affairs offices, but here in Parliament, with parliamentarians from all houses. This is where the base for a national consensus can be created for senate reform.

You need some new rules in your respective houses setting out the process to be followed for examination of motions for constitutional resolutions. A constitutional resolution needs to be treated differently than a resolution to extend the luncheon recess, but at present you have not imposed any special requirements and you should. These should be known to the public in advance. I have put forward two options, and I further suggest that each House specify in its rules that such resolutions be in the form of an address to the Crown, which is not presently required, with an order for the Speaker to present them to the Crown.

This leads to a final point. On previous amending occasions, the full panoply of the Government of Canada was in evidence. But with the exception of ministers, I did not see much evidence of the provincial assemblies, which are now major players in the events leading to the proclamation. I would like to see the speakers from each of the participating assemblies present, with their address, with their respective lieutenant-governors and leaders of the various parliamentary parties, to make the constitutional proclamation a fully Canadian parliamentary occasion.

 

André Ouellet: MP: Mr Holtby is not dealing with the substance of the Meech Lake Constitutional Accord. Rather, he is dealing with the process as such, what is commonly referred to as the Langevin text, secretly signed behind closed doors, in the wee hours of the morning, in the secret offices of the Prime Minister of Canada in the Langevin Block. This is an incorrect procedure totally wrong in its form. I think that this witness is proposing a much more open way of doing things that would be in the interest of all Canadians.

A number of observers of the political scene are worried, and rightly so, by the frequency of federal-provincial conferences involving first ministers. The Meech Lake agreement now requires that this procedure become a regular event. In fact annual constitutional conferences on the economy are practically entrenched in the constitution. The effect of this will be to create a sort of supranational committee that will sidestep the provincial legislatures and the Parliament of Canada.

We, the Liberal opposition, hope to propose some worthwhile amendments to improve this accord. But it appears to us that this procedure is practically unrealistic from the outset because, in order to amend the existing text, it will be necessary to request the First Ministers of the ten provinces and the Prime Minister of Canada meet again to agree to these amendments. This is an excessively long, excessively difficult process.

It is obvious that if the members of Parliament were involved from the very outset it would be easier to agree spontaneously to a certain number of amendments that could improve a constitutional text such as the one submitted to us.

I believe this proposal becomes all the more impotant since the Meech Lake agreement reinstates the unanimity rule in a host of constitutional areas. Unanimity will now be required to amend the Constitution. This proposal to involve from the very outset the members of all the provincial legislatures and the federal Parliament has become almost a necessity because of this new requirement for amending the Constitution in the future. It will be necessary for the Parliament of Canada and each legislature to decide in favour of an amendment...

 

Robert Kaplan, MP: When the government finally gave in and decided that there would be hearings, I was preparing to make the point that hearings are legally required and that some parliamentary participation is required.

I was going to make the argument that normal resolutions of the House of Commons are resolutions which express the opinion of the House but which do not have any legislative effect. In other words, a normal resolution says that the House is in favour or against something or sending birthday greetings to the Queen or the President of the United States, but to have any legal effect some legislation is required in the form of a Bill.

The resolutions contemplated by our Constitution are different. They are not just an expression of the will of the House, they actually change the law of our country. I was going to make the argument, which you have made in your brief, that because they do, some process ought to be required; and I would have argued that it was required by the Constitution that there be some process, some hearings, some stages. I am very receptive to the idea and I do not think, that it is just a nice thing to add. I think it is an essential component of resolutions which have such a fundamental effect contrasted with the normal resolutions of the House of Commons. Therefore, I support the idea.

To look at the two alternatives, to me, each legislature having its own process is overwhelmingly the proper one to choose. It would be nice to have a committee in which all governments, all legislatures participated, but I see some difficulties. You would need all of them on board before you could start it. Whereas, with the idea of each of the legislatures having its own committee, if only half of them agree to the idea, you have still got a good start, where half of them could do it. The other one requires unanimity before you can start.

Point number two: The territorial participation which you have suggested in the national joint committee is an excellent idea. I think the territory legislatures should be involved in the process, but I think that putting that forward and requiring that the committee include the territories will raise a lot of problems with some provinces because there is a certain chemistry now about decisions made for constitutional reform and if the territories are brought in and given a voice equal with that of the federal government or the other legislatures, you might have a hang-up there.

Finally, I like the idea of the joint committee being relatively small but if there are only two participants for the Parliament of Canada, let us say, I cannot help thinking that they would tend to be spokesmen of the government and that it would be very difficult to see after this process got going that you were dealing with a different level of participation than the level of actual government itself.

So for all those reasons, I think the idea ought to proceed but that it ought to proceed with each of the constituent legislatures establishing its own committee and I hope that the government members are sympathetic to the idea of a committee being established at our level with our own participation in it to give substance to the kind of important resolution that we deal with when we are talking about amending the Constitution of Canada.

 

Albert Cooper, MP: I have had some time to reflect on this proposal and the more I reflect on it, the more I become enthralled with the idea. I think that we need something like this.

I take quite a different position from Mr. Kaplan because I think if you have each province working with its own committee, you have nothing more than each being interested in their own concerns, pushing forward its own ideas and no building of a national consensus. I think the whole thrust of what Mr. Holtby has put forward today is to bring the national consensus, that national perspective which I think is so important as we begin to build our nation.

The few things that I would like to look at and I would like Mr. Holtby to comment on relate, first of all, to the structure of this committee and I know that he cannot respond in terms of each province across Canada I know his knowledge of the rules here in the federal Parliament.

First of all, we would require, would we not, some changes to the Standing Orders to set up such a committee? Secondly, I would like to know what kind of authority you feel that this committee would have and from where it would draw its authority. Thirdly, I think it is important to look at where it would report and what kind of authority or what kind of credibility those reports would have. The other questions related to the size of the committee. Is thirty members enough or is it in fact too many? I would like to have a little more discussion on that particular area.

Your responses to Mr. Ouellet regarding whether it would be a committee that would be struck only as there is a proposal on the table or whether or not it would be permanent I think you have dealt with and certainly the reforms of Parliament recently and the new roles of committee that no longer simply respond to an order or a direction from a Minister or department but do their own work would I think, demonstrate very well what you are talking about there.

Now we come to one other area that I would like you to comment on a little bit and that is in the area of what Mr. Ouellet has referred to as "secrecy". He talked about the secrecy on how the Meech Lake Accord came about. The reality is that secrecy has played a very large role in any constitutional negotiations and we had the so-called "kitchen collection" that pulled it together in the 1982 series and part of that, even though we may have some difficulties with the concept of secrecy I think we will all have to admit that without those "in camera sessions", very often these agreements would have been impossible. I am wondering now where you are suggesting moving into the public domain what kind of an impact you see that having on the potential or the possibility of an agreement?

The final thing that I would like to see you respond to is the whole process of how that committee will work. Will it come to a consensus? Would it just simply report and therefore you may have minority reports? Where does that fit into the role of the First Ministers? Do they tend to lead the First Ministers? Do they tend to follow the First Ministers?

 

Pauline Jewett, MP: I agree that it would be very desirable to have federal parliamentarians and provincial legislators meet together. In my own experience, and I am sure this is true of other M.P.'s, where I have two provincial constituencies in my federal riding, the M.L.A.'s and I frequently hold joint public hearings and it is extremely valuable, partly because the public does not readily differentiate federal and provincial issues and partly because so many are joint issues and partly just to inform each other, of our own perspectives on various issues. Ever since we started holding these public forums it seems to me I have learned a great deal more of the perspective of a provincial legislator and vice versa. I also agree that it could effectively be fairly non-partisan, as we hope this committee will be.

My questions are not ones of detail. By the way, my preference is also for the national joint committee rather than separate ones for all the reasons Mr. Cooper gave.

I worried that there would be only four M.P.'s and two Senators. As opposed to twenty-four from the provinces and territories, I think that would be an unfortunate imbalance. One of the good things about the hearings I was just describing that we hold in my constituency is that we are roughly on equal footing, the federal and provincial legislators. So I think it would have to be substantially larger than that to accommodate larger numbers from the federal house and I wonder if Mr. Holtby would tell us whether he thought of a committee that might be as large as 40 or 45 and whether that is workable?

Secondly, I take it he would have the committee, the national joint committee, meet in Ottawa. Perhaps it should meet elsewhere, and I would like to know what thoughts he has had on where.

Thirdly, I assume, since one of the main purposes of this, in addition to bringing together federal and provincial legislators on these issues, is to bring the public into the process, that there would be public hearings. He has not said a great deal about that in his paper. How would he envisage the hearings, and where would they be held?

In that connection, and this is the one thing that troubles me about the proposal, since it is not going to examine, constitutional amendments per se, what is it going to examine? What will structure the work of the committee? It simply cannot examine the public issues of the day relating to constitutional issues in a vacuum. So, I would like to have further comment on how the work of the committee would be structured and how its purposes would be more clearly spelled out.

 

John Holtby: I see the committee working at least a year in advance of the work of the first ministers' conferences, which are apparently to be enshrined in the Constitution. It seems to me that the consensus building process has to take place before those final meetings, whether they take place in public or in secret. Obviously, I have no problem with a parliamentary committee meeting at times in closed session; it is an everyday fact of life around here and I propose nothing different. But your great talent is to hold public hearings to be part of the public educative process, to be part of the consensus-building process.

If it emerges that there is a consensus in the National Joint Committee for an amendment to the Constitution on senate reform, it seems to be that it makes much easier the type of work that the first ministers are going to do. The first ministers may choose to differ, that is their right. Just the same as a Minister of the Crown may choose to differ with the advice that he gets from a parliamentary committee on external policy, or what-have-you. That is all part of parliamentary life. You have the right to advise; they have the responsibility to act. And I do not envisage any change there.

If you cannot get a consensus in the National Joint Committee, it is doubtful that you are going to get a consensus from the first ministers that is going to be viable through the parliamentary ratification process which occurs later. I do not envisage the National Joint Committee as being part of the ratification process; every house has to do that on its own.

Mr. Kaplan raised the matter of the territories, and he suggested that it might be a problem for some of the provinces. I have never encountered that in Parliament, either in this House or in any of the other houses that I have been involved with. Parliamentarians are respectful of other parliamentarians, and you come to your house with a writ of election and that gives you your equality at the table. I see the problem with the executive; I see a legitimate problem for the first ministers, but not for parliamentarians sitting down with their fellow parliamentarians from the territories. They do it all the time, and there is a sense of equality. Part of the reason that is possible, is because of the lack of stakes, if you will, in the parliamentary discussion.

Mr. Kaplan also, or Mr. Ouellet, raised the matter of the role of the members o the House of Commons as government spokesmen, and that will be a problem if people come into that room thinking that they are ambassadors from the executive. But I have never seen that as a problem in parliamentary committee life. Some people will try it for a little while but they will soon learn that it is really unacceptable conduct and it just does not work. It is not a productive exercise.

Similarly, Mr. Cooper, you talked about consensus reports versus minority reports, and who does the committee report to. It reports to its mother Houses; the House of Commons, the Senate, the provincial legislatures, the territorial assemblies. The reports go back to those Houses.

On minority reports, and I suppose it is going to depend on the issue, I question how useful that process would be if you are into a situation where you are taking votes and attempting to block the situation. It seems to me if you reach that stage the process is not being productive. You are not creating the community of interest for change, and so your party positions or provincial positions are not very useful. In a way everybody on the committee has a veto. You remember how we have operated in previous committees and every one of you who have sat down around the table, if you wanted to dig in your heels, that was the end of the thing really because there had to be a consensus for it to go forward. To use a cliché, your strength is in your unity.

I did a rough count last night, and I am not positive that this is accurate but it might be helpful, using the present political structure of the country and the formula of two, four and two, for membership of the committee. You would end up with a committee of 13 Conservatives, 8 Liberals, 7 New Democrats, 1 Socred and 1 P.Q. That assumes that each House has a balance from both sides of the House. The province is sending one member from the supporters of the government and one from the opposition. That is a pretty good balance of the political thinking in the country I think. You cannot predict how that is going to change with the makeup of the provincial Houses particularly. So there is not much point in coming to the table saying, I am the ambassador from Ontario. There are enough of those in the executive area.

Is thirty large enough? Miss Jewett, you also referred to the size. I am not wedded to any of this but I think there is a point where the relationships become difficult because of size. The lesson is, I think, the smaller the better. But I understand that there may be a desire to have more members of the House of Commons on the committee.

The question is where it should meet, I treat it somewhat jocularly in terms of Victoria in March but I do think if it is to play a role in the public educative process, it certainly has to move out of Ottawa. If it is to have any sort of support structure or secretariat, I think it has to be pretty mobile. Obviously there have to be public hearings.

Another matter that I think Miss Jewett raised was the agenda setting and that is a difficult question There has to be obviously a symbiotic relationship between what the First Ministers are doing and what the parliamentarians are doing. We know now that the issue of Senate reform is supposed to be high on the list of priorities. Obviously, you have to address that and you have got to get in on the action early or somebody else is going to decide how the Senate is going to reformed and you are going to be stuck with an agreement.

There are other issues mentioned in the proposed amendment to the Constitution. But also in that proposed amendment, every legislative assembly has the ability to put things on the agenda and I think you have to allow that same sense of ability to prevail.

Realistically, you are going to have a normal consultative process going on. You people are going to know what is on the mind of the Government of Canada. The members in the other provinces are going to know what is on their mind as well. And I think you cannot have the premiers setting the agenda for the national joint committee but there is going to be a relationship there and an informal relationship. Just how productive is this work going to be if you go down this road and the other player in the concert does not bring his music that day.

Benno Friesen, MP: I guess one of the concerns that I have is of anybody becoming institutionalized and when it comes to government, it not only becomes institutionalized, it tends to grow inexorably. Do you have concerns about the provision in the Meech Lake Accord that would provide seemingly endless constitutional meetings and make a permanent cottage industry of the whole process? Will the house ever be finished?

 

John Holtby: Is there still money to add an addition? I had attempted as much as possible to steer clear of the content of the accord because quite frankly I do not know enough about it but I heard with interest the suggestion that if you put fisheries into the Constitution, 2,000 years from now, we are going to be talking about fisheries once a year.

I have a problem with putting something in a Constitution that says we will have a meeting once a year but maybe we will not decide anything and I think there is somewhat of a sense of disappointment in some of the native communities when they had an agreement in the Constitution to talk about their issue and then nothing happened other than we talked about their issue.

There are certain things in the present Constitution that I do not think have any business being there. I do not think the present Constitution needs to talk about the quorum of the House of Commons. And at some point, I would hope that a working party of the national joint committee would go through that document and get rid of a lot of things that simply do not need to be there any more. I suppose they had to be there in 1867, but I do not think they have to be there now.

I think if you had a national joint committee there might be less of a sense of urgency to put that sort of thing in the Constitution because you have a parliamentary avenue t open those discussions and that seems to be to be lacking now.

Principally, the agenda tends to be set from the Privy Council Office, the Prime Minister's Office, various premiers get to put things on the agenda, and then the old thing happens as with any meeting; sorry, we did not get to fisheries this year, maybe we can get there next year; so, all right, we will guarantee you we will put it in the Constitution. I have trouble with that, but I understand why it happened, and I think it is something that can be fixed later.

 

Albert Cooper, MP: There is just one more question on one more area that I want to pursue. First, I want to say that I do not think we, as parliamentarians, have much choice in what Mr. Holtby has put before us. Because if we do not do it, we are going to be behind the eight ball significantly, in the sense that you are going to have the bureaucracy who are going to set up a group that will perform this function. Unless we, as parliamentarians, lead on that, then we are going to be one step behind in the process. I think it is very important that we consider very seriously his proposal.

I want to use a specific example because of the one concern that I have about this whole business of being able to negotiate a consensus. I want to take the area of senate reform; that is an issue that is very near and dear to my heart. As I understand it, if we went through this process, this committee would make a recommendation ultimately of the kind of senate it would envision, that would then become the property of the first ministers; the first ministers would then sit down and start to work it out.

My concern is that once that committee reports, their proposal becomes public and immediately you have the forces in opposition to that particular proposal starting to build up their battleground and set out the kind of war that they want to put forward to block it. All they would have to do then to be successful in blocking it would be to convince one premier of the failure of that particular proposal. My concern is that with consensus approach through the committee you may well destroy the possibilities of an agreement. This would not be so if you apply the whole concept of the kitchen cabinet, the Langevin Block meetings that go late into the night, where there are negotiations and trade-offs, but ultimately a deal.

 

Mr. Holtby: In response to Mr. Cooper's first remarks, I think that the federal-provincial bureaucracies are already there. There is a lack of a parliamentary counterpart which is what I am talking about and which I think you agree with. That is not saying that the bureaucracy has done something wrong; what I am saying is that you people now have the challenge to meet; you have to put in place the same countervailing structure for the use of Parliament and to provide for public access.

To go to Mr. Cooper's example on senate reform. You have a situation now where a proposal will come for senate reform from somewhere, from the bureaucracy, and it will come here or elsewhere, and it will be picked apart. You are in a negative process at that stage. It will be picked apart from within Parliament and without. It seems to me we need a vehicle to go to the people and ask what kind of Senate would you like? What sort of Senate do we, as parliamentarians, think should be? Have that wedding. Do your discussion before you go into the room and say this is the final outcome of it.

If you have done that work adequately, if you have listened to people, if you have considered and reached your best judgement, people will respect that as the best judgement and you have the ability to create the climate of acceptance in the community, which the present exercise does not do and cannot do. You cannot expect the premiers to go across the country for three months holding public hearings.

If you make your recommendations and they are unacceptable to the First Ministers and you are unanimous, I suspect that somewhere along the line you need a little more talking. You need a little more consultation. I do not expect that you are going to answer every constitutional question in the country, and I think at some point you would have friction between the committee and the First Ministers or at least those who are occasionally advising them. But we have seen what Parliaments can do.