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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.