Volume 26, Number 1, 1985 La réforme des institutions fédérales canadiennes

EN:

This speech was given by the Prime Minister at the closing banquet of the Conference on the Reform of Federal Institutions in Quebec on March 30, 1984.

He suggested that Reform is desirable because Canadian Federalism is capable of evolution and renewal. Canada needs institutions in which a national consensus on its fundamental options can be developed frankly and openly. The federal government's representativeness and its authority to speak and act in the name of all regions and of all Canadians must be strengthened.

The proposed reform of the Upper House conducted by the Special joint Committee on Senate Reform indicates that provinces and regions should be represented adequately, not the provincial governments. These governments, because regional interests were not perceived to be adequately represented within the federal institutions, have had a tendency to present themselves as the only legitimate representatives of the regions.

The idea of a second chamber elected directly by the people would enhance the independence and authority of senators in their role as regional representative.

Mr. Trudeau indicates that the institutionalization of federal-provincial conferences ought to be looked at with the aim of harmonizing the policies of the two orders of government. This should establish coordination and effective management in areas of shared jurisdiction.

EN:

The author suggests various answers to two questions dealing with constitutional reform in Quebec and Canada. The first question is : What can be learned from the experience of Quebec and Canada in the field of constitutional reform ? The author makes two suggestions which underscore the following : the concern with constitutional matters has been greater in Quebec than anywhere else in Canada i.e., in part because the conception of federalism in Quebec differs from that of English-Canada, despite the use of the same words. In discussions about constitutional reform, priorities have been different for Quebec and for the rest of Canada. None of the serial discussions about constitutional reform has given Quebec the type of federalism that it wants ; Ottawa falls back upon federal official language and bilingualism policies as a placebo for an in-depth reform of federalism.

The second question is : what is the present perspective for Quebec ? Here, a distinction must be made between what should be done and what could be done. What should be done includes, among other things : recognition in the Constitution of the existence in Quebec of a distinct society ; new separation of federal and provincial powers : veto right for Quebec to constitutional amendments excepting in matters regarding federal institutions ; selection of members of the Senate by the provinces. As to what could be done, let it be said that most of these reforms would probably not be accepted by the other governments in Canada because they would probably modify Canadian federalism.

EN:

The author seeks to identify why Canada, as a country, has not faired out well in recent years and finds that the source of our problems lie deep in the mechanisms of federal-provincial relations. Four factors make these relations difficult : the differences flowing from distinct ethnic and linguistic origins, inadequacy of various institutions of our central government, the unclear and uneasy balance of federal-provincial powers and the extent of activity by our governments that are pressing at the outer limits of their jurisdictions.

EN:

In this article the author presents a view on federal-provincial relations which he sees as characterized by constant change and a lack of discipline both of which have recently resulted in a degradation of the system itself.

Hence, there is a need to return to a reasonable level of predictability in federal-provincial relations which may be characterized by moderation. Roy points out that English Canada and Quebec are not mutually exclusive societies and there exists a variety of mechanisms which could contribute to common understanding.

As publisher of the daily « Le Devoir », Roy points out that his paper was staunchly opposed to the Constitutional Law of 1982. Yet, due to the majority of Quebecers who rejected the sovereignty option as well as the recent ruling on a veto prerogative for Quebec, a new outlook must be adopted.

Quebec must ask itself three questions. First, has it given sufficient consideration to the existence of its various partners ? Secondly, could Quebec be moving too fast towards its goals ? Thirdly, has Quebec capitalized on all the positive elements in its relationships ?

The author concludes by affirming that regardless of other elements, Quebec and Canada have the obligation to negotiate with their neighbors

EN:

In this article the author comments on the feasibility and urgency of adopting propositions from the seventh and the last chapters of the report from the Special Committee on Senate Reform. These chapters deal with the selection of senators, their mandates, the powers of a nominated senate and the internal organization of the Senate. He has choosen these reforms because they could be achieved relatively easily and quickly by the power of the Senate itself, that of the Parliament, the initiative of the Prime Minister or the senator and their political groups.

Tremblay suggests that these reforms would not radically change either the essential order of things or serve to restore the image of the Senate. However, he cites the committee's non-renewable nine year mandate, the change in the number of senatorial seats and fair regional representation as in-depth reform measures which could only take place after certain constitutional modifications.

The author concludes by saying that due to the present constitutional climate and the history of shelved reform reports, a modest and realistic approach to senate reform should be adopted. The reforms proposed in chapter seven of the Committee's report would be best undertaken by the Senate itself.

EN:

After dealing with the West German Bundersrat in a double-chamber system, the author, following the Basic Law of the country, depicts the varied powers of this Chamber. The participation of the Bundersrat in federal legislation is examined through its suspensive veto over every bill adopted by the first chamber — the Bundestag. The Bundersrat also has the power to approve certain categories of Bills.

The participation of the Bundersrat in the federal administration, contentious powers and the nomination process are ideas also developed in this article. The author examines the political role of the Chamber and shows that the Bundersrat has a counterbalancing effect between the Bundestag and the federal government. The importance of the roles of the parties in developing the political position of the Bundersrat is also discursed herein.

Professor Bothe concludes by saying that the Bundersrat is an important element of West German cooperative federalism and wonders if exporting this institution to Canada would be a wise move.

EN:

In recent years, many political analysts as well as the Special Joint Committee on the Reform of the Senate have been proposing the Australian system as a model for the reform of the Canadian Senate. Some of the proposals of the Joint Committee, and their implications, are discussed here, particularly proposals concerning how senators are elected, duration of their mandate, and the powers of the Senate. One important problem about an elected Senate is that the senators might rapidly become more preoccupied with party lines than with an adequate representation of regional interests.

EN:

Professor Rémillard questions the failure of the Senate after dealing with the debate on its reform within the context of Rapatriation of the Constitution. The Fathers of Confederation intended the Senate to represent and protect regional interests. It has enough powers to be effective but fails to manage its very own powers. The passivity might explained by the fact that senators have been too bound by party discipline to be reliable.

An extended reform of the Senate would certainly be better than its abolition. First, the Senate should fight to keep democracy alive and to counterbalance the powers of the House of Commons. It should be an effective guardian of regional interests in the dual Canadian context.

The author suggests that the reform of the Senate should be done within the limits of an entire reform of federal institutions. This would help Canadian federalism preserve its parliamentary system.

EN:

The rules of procedure in the House, the powers of the Speaker, the vote of non-confidence, the proportionnai representation vote as well as the future of parliamentary government, are some of the questions the author deals with when expounding upon the reform of the House of Commons.

More powers should be given to the Speaker, and there should be a system where sessions and votes are held on a more regular basis, even if the principle of responsible government is maintained. The proportionnai representation vote is not for the immediate future and the author wonders whether a presidential system as in France would be appropriate for Canada.

FR:

Le Parlement évolue constamment et si l'on veut qu'il soit efficace, il faut que ses pratiques reflètent l'évolution de la société. L'auteur propose des changements dans le processus législatif la surveillance de l'exécutif, la représentation et l'organisation de la Chambre des communes car la société et l'appareil gouvernemental se développent plus rapidement que les mécanismes de cette chambre.

EN:

The reform of the House of Commons must remain faithful to the main objective of making it more representative. None of the reasons given in support of the present electoral system can erase the fundamental injustice of it, at least for those who believe that in a representative democracy elections primarily serve to represent voters, and not just to form a government. The present system must be replaced by a more proportionate system.

EN:

The author deals with the question of the Supreme Court's entire jurisdiction over all subject matters. Is the amount of work, especially with the arrival of the Charter of Rights and Freedoms, too much for the Court to handle ? He also questions the number of judges, their nomination process, the inequity of their remuneration and the problems inherent in a dual judicial system.

The thrust of the article is that it is not the Supreme Court that is in need of reform, but rather the attitude that the government has towards it.

FR:

L'auteur nous trace l'évolution de la Cour suprême du Canada créée en 1875 ainsi que des implications pour cette Cour, de la venue de la Loi constitutionnelle de1982, spécialement des articles 41(d) et 42(l)(d). Il exprime son point de vue quant au nombre de juges qui doivent siéger, aux quotas régionaux, aux méthodes de sélection. Il examine aussi la question de savoir si la Cour suprême doit continuer d'être le tribunal général d'appel au Canada ou si elle devrait se spécialiser en droit public et constitutionnel.

EN:

The comparative analysis of political societies can provide some models for those who are concerned with the reform of an institution. Three comparative models are presented here in the context of the discussion about the role and organization of the Supreme Court of Canada : the American model of a Supreme Court, the Belgian model of an Arbitration Court, and the German model of a Federal Constitutional Court. The different types of jurisdiction of these Courts as well as the different modes of designation of their members are discussed.

EN:

L'objet de cette étude est de proposer les changements qui pourraient être apportés à l'article 96 de la Loi constitutionnelle de 1867 et d'examiner les propositions du Gouvernement canadien à cet effet. L'accent est mis sur une vision équilibrée des facteurs suivants: un examen du rôle légitime des tribunaux administratifs et des cours inférieures dans notre système judiciaire, le respect et la sauvegarde du rôle des cours supérieures et la nécessité d'indépendance et d'impartialité des tribunaux.

EN:

In this paper, the author demonstrates that section 96 of the Constitution Act, 1867 is a source of political tensions. The « rules of the game » in construing section 96 are well known but are neither clear nor precise. The government has proposed a section 96B which should be relevant today as well as in the next century, but the new section should not be an obstacle to necessary changes in the judicial and administrative systems. Nevertheless, the new section 96B runs the risk of replacing one constitutional problem by another one.

If section 96B was to be enforced, the Legislature could give any judicial function, old or new, to an « authority other than a court », subject to judicial control of the function. By writing an amendment to section 96, consideration must be given to sections 97 to 101, which are also part of the « Judicature » Chapter in the Constitution Act, 1867.

In keeping with the author's thinking, some changes may be made to present law, which would be preferable to the proposed amendment.

FR:

L'objet de cette étude est d'identifier la véritable fin de l'amendement proposé par le gouvernement. L'article 96B prétend-il détruire l'hégémonie des cours supérieures ? Le but recherché par cet article est-il de permettre aux provinces de créer un vaste réseau de tribunaux spécialisés ? Le seul effet de l'article 96B serait-il d'imposer une barrière au pouvoir de surveillance des cours supérieures ?

L'article 96B semble déficient et mal rédigé. La promulgation de cet amendement entraînerait une multiplication de tribunaux inférieurs dont la structure laisserait à désirer en plus d'encourager une vaste distribution de juridictions ainsi qu'une délégation subjective de pouvoirs. Même si l'on croit que l'article 96B(2) protège les attributs distinctifs des cours supérieures, la porte est néanmoins ouverte aux provinces pour exploiter l'amendement. Il en découlerait une politisation accrue des cours supérieures.

Les articles 96 à 101 de la Loi constitutionnelle de 1867 ne procurent pas une garantie constitutionnelle de l'indépendance judiciaire. L'auteur, après avoir étudié l'amendement 96B, conclut qu'il ne peut être considéré sérieusement comme étant une solution valable aux problèmes soulevés par ces articles.