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Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference -Second Reading of Bill C-20

Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Hon. Serge Joyal: Honourable senators, I should first like to say a very quick word of thanks to the Honourable Senator Michael Pitfield, with whom I share experience in the other place. I am very much indebted to him for his extensive understanding and knowledge of Canadian institutions.

I support the objective of Bill C-20. Four years ago, I supported the government's decision to refer to the Supreme Court the constitutional principles involved in the issue of secession.

When a provincial premier and his ministers vow to ignore the rule of law and the Constitution of the country to achieve secession, it is the responsibility of the federal government to seek an opinion and to establish clearly what the law of the land is, when the sovereignty of the state, the integrity of its territory and the fundamental rights and freedoms of citizens are at issue.

Avoiding discussion of these matters will not make them disappear. On the contrary, as the former Supreme Court judge, Justice Willard Estey, observed:

First we must remember that the Constitution is the real wall between chaos and civilized progress.

The reason there are legal and constitutional requirements is, first, so that the unity debate will not founder in chaos and anarchy and, second, so that democracy, the only means of guaranteeing the rights and freedoms of Canadians, can be protected.

Now that the other place has studied this bill and has made some amendments, it is the Senate's responsibility to examine its provisions closely to ensure that the objectives of Bill C-20 will endure and achieve the government's goal to help preserve the unity of the nation and integrity of the country.

Honourable senators, there are five arguments I want to develop at this stage of our study of Bill C-20. The first is that Canada is indivisible. The second is that the Crown has the inescapable duty to protect the sovereignty of the state, the territorial integrity of the country, and the rights and freedoms of its citizens. The third is that the inseparable bond between the Crown or the state and its citizens cannot be severed without the authorization of the whole of Canada. The fourth is that the sovereignty of the state lies in the peoples of Canada, and the Constitution belongs to them. The fifth is that the Senate has the essential duty to protect the regions and the minorities' interests in any process leading to secession.

As we carry out the duty of the Senate to examine Bill C-20, we must guarantee that Bill C-20 is lawful, constitutional, morally sound, and intellectually consistent.

On my first argument that Canada is indivisible, the Canadian Constitution does not contain a formal clause similar to section 1 of the constitution of the French Republic, to the effect that "France is an indivisible republic." Unlike Canada's Constitution, the fundamental laws of many other federations and unitary countries in the world contain express provisions guaranteeing the survival of the state.

We could have entrenched such a provision in the Constitution of Canada in 1982, but we did not. Was it the right decision? Only history will teach us what the wisest approach would have been. However, does the lack of an express provision in the Constitution of Canada similar to article 1 of the French constitution mean that Canada has no rules? Does it mean that we have no principle as a nation and that Canada is nothing more than a loose association of independent parts only bound together by side or fringe interests? Is Canada as easily dissolved as a country club in which a minority of members threaten to cancel their membership because they are dissatisfied with the service? This is, in fact, the question that many of my colleagues have raised in their interventions.

Honourable senators, if we are to declare that Canada is indivisible, we must be sure we understand why, legally and constitutionally, Canada is indivisible. It is my purpose today to submit to you my conclusions.

My first point is that the silence of the text or the fact that the word "indivisibility" is not printed in the text does not constitute an absence of rules.

Second, the principle of indivisibility was enshrined in our Constitution in 1867. It was preserved and affirmed in the patriation of 1992 and confirmed in the advisory opinion of the secession reference in 1998.

The intentions of the Fathers of Confederation are well expressed in the preamble of the Constitution Act, 1867. Let me remind honourable senators of what the preamble says:

WHEREAS the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom;

The reference to the Crown was not made in a casual way. There is profound legal significance in the expression "One Dominion under the Crown...with a Constitution similar in principle to that of the United Kingdom."

Canada, honourable senators, is a constitutional monarchy. What does that mean? In 1867, the Constitution of Canada included all of the principles that lay the foundation for its indivisibility. In its advisory opinion, the Supreme Court noted at paragraph 62 that the principle of democracy "was not explicitly identified in the text of the Constitution Act, 1867 itself...."

The Supreme Court explained this apparent silence in the following way:

To have done so might have appeared redundant, even silly, to the framers....It is evident that our Constitution contemplates that Canada shall be a constitutional democracy....The representative and democratic nature of our political institutions was simply assumed.

Likewise, it was sufficient for the Fathers of Confederation to guarantee the indivisibility of the union by defining the new country as "One Dominion under the Crown...with a Constitution similar in principle to that of the United Kingdom."

Honourable senators, let me borrow the logic used by the Supreme Court of Canada to explain the lack of any reference to democracy in the Constitution Act that gave birth to a new nation called Canada. To have expressed the indivisibility of Canada in a specific article of the Constitution Act, 1867, "might have appeared redundant, even silly, to the framers....It is evident that our Constitution contemplates that Canada shall be..." indivisible. Canada's indivisibility "was simply assumed."

There is evidence supporting my view that Canada's indivisibility was simply assumed, and this is my third point. The Fathers of Confederation did not draft our Constitution in ignorance. When Confederation was being designed in 1865, the United States was emerging from a civil war. In 1861, President Abraham Lincoln interpreted the American Constitution as binding him with the duty to maintain the perpetuity of the American nation. He believed that the absence of express provisions for the dissolution of the union confirmed his view that dissolution was not legally possible. President Lincoln pledged unwavering loyalty to his constitutional duty and noted that he could only fail in his duty if his political masters, the American people, abandoned their sovereignty by actively denying him the resources needed to continue.

President Lincoln outlined his constitutional position in his inaugural speech in 1861. History teaches us that the American people did not abandon their sovereignty and that President Lincoln fulfilled his constitutional obligations.

This dramatic episode in American history could not have escaped the attention of the Fathers of Confederation, who participated in discussions leading to Confederation at the very moment the civil war was drawing to a close. If the Fathers intended Canada to be divisible, such an intention would have been given a more clear expression, given their knowledge of recent American constitutional experience. Instead, because they were witnesses to the American tragedy, they knew that the silence of constitutional drafters results in the undeniable legal presumption of indivisibility.

Honourable senators, let me elaborate the third foundation on which I submit that the Constitution of Canada has always contained a guarantee of indivisibility. Canada's indivisibility met its first test on March 14, 1868, one year after Confederation, when the Assembly of the Province of Nova Scotia passed a resolution asking the Crown to allow Nova Scotia to withdraw from the union. The response given by the representative of the sovereign authority of the day, the Colonial Secretary, the Duke of Buckingham and Chandos, is totally consistent with the principle that the new union was constitutionally indivisible:

I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen's government feels that they would not be warranted in advising the reversal of a great measure of state...

How does that case translate into the unity debate today? Because the Constitution was silent on the divisibility of Canada, the correct assumption of the legal and political authorities in Ottawa and in London at that time was that Nova Scotia could not legally secede from Canada in 1868. Nova Scotia was unsuccessful because such a secession would have been a violation of the indivisibility of Canada that was implicitly guaranteed by the text of the Constitution from the very beginning.

My fourth point is essentially based on the fact that "indivisibility" is a synonym for "territorial integrity." Indivisibility, or territorial integrity, is an attribute belonging only to sovereign states. Because Canada is a sovereign state, it has the right to international recognition of its territorial integrity. In order to maintain Canada's status a sovereign state, the Government of Canada has the inescapable duty to act for the preservation of Canada's territory. Failure to do so would be tantamount to inviting other sovereign states to recognize a unilateral declaration of independence. Sovereignty over the territory remains a fundamental responsibility of the Canadian Crown, and its advisors have an obligation to preserve that territorial integrity from any threat, whether internal or external.

My fifth point is that in the two instances of past secession referendum campaigns in 1990 and 1995, Prime Ministers Trudeau and Chrétien clearly stated that the Government of Canada did not have a mandate to preside over the breakup of Canada, either through a popular mandate from Canadian citizens or through the Constitution. Five years ago and twenty years ago, the prime ministers of Canada were right to conclude that no mandate to dismantle Canada has ever existed, either implied or in a written form.

If Canada was indivisible in 1868, in 1980 and in 1995, then Canada remains indivisible today. How is it, then, that in the opinion of some, the principles and rules in which Canada was founded have been altered? Has something changed today?

In my opinion, the constitutional principles that guarantee the indivisibility of Canada were entrenched in the Constitution in 1867 and remain intact today. In fact, they are strengthened by the advisory opinion of the Supreme Court of August, 1998.

My sixth point is that Canada is a sovereign state and is fundamentally entitled to the recognition of its territorial integrity. The right to territorial integrity is embodied in our internal law. It is recognized by the international community in a number of international instruments, such as the Charter of the United Nations, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, and Helsinki Final Act, for example.

Canada is founded to see that its territorial integrity is fully respected by foreign countries, and any debate on a secession issue is an absolutely internal and domestic matter and is recognized as such by the international community. That principle suffers no exception. No province in our country is in a so-called colonial status and no alleged condition of oppression could serve as the basis for meddling in a matter that is totally domestic and internal to Canada. Those six points, in my opinion, form the basis of the conclusion that Canada is indivisible.

Honourable senators, the second general argument that I wish to submit to you is that the Crown has the inescapable duty to maintain unity and protect the territorial integrity of Canada. What is the fundamental constitutional principle involved in any secession issue? In my opinion, the very essence of our Constitution imposes an inescapable duty on the Government of Canada to act for the preservation of the territorial integrity of the country, the maintenance of a state of law and of the continuity of the Constitution. This duty is embodied in the Canadian Crown, whether the Crown is acting on the advice of its federal ministers or of its provincial ministers. No advice from any minister can constitutionally advise Her Majesty's representative, either as the federal Crown or the provincial Crown, to act contrary to that fundamental duty.

Any Canadian governor general or lieutenant-governor, confronted with ministerial advice from a prime minister of Canada or a premier of a province who demands that the Queen's representative carry out blatantly unconstitutional action against the territorial integrity of Canada would have only one constitutional option, namely, to totally disregard such advice.

The Hon. the Speaker: Honourable Senator Joyal, I regret that your allotted time has expired. Are you asking for leave to continue?

Senator Joyal: Yes.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: Thank you.

The Crown's constitutional obligation arises from the reciprocal relationship between the citizen and the Sovereign. While the citizen owes allegiance to the Sovereign, the Sovereign has an equal and opposite obligation to govern and protect the citizen in return. This mutual bond is well established in jurisprudence derived from the common law relating to the Crown.

That is still the state of the law today, as affirmed in the Coronation oath taken by the sovereign, as it relates to Canada.

The relationship of mutual obligation between the citizen and the sovereign or the state has a very profound legal meaning because, essentially, it involves citizenship.

Honourable senators, citizenship is a serious and loyal adherence to the Canadian state in which the sovereignty of the Canadian people is organized. A twin heritage of rights and responsibilities is the inalienable birthright of every Canadian citizen. Between the Canadian state and the citizen there is a profound covenant: Just as the citizen holds loyalty and responsibility to Canada, so does Canada have the inescapable duty to guarantee the rights of every Canadian, to preserve the community, the continuity of the Constitution, and the integrity of the Canadian territory. Canadian citizenship is the seal on that covenant. The Government of Canada has no prerogative to break the seal. On the contrary, the Government of Canada has no choice but to maintain and defend the sovereignty of the people of Canada and to maintain and defend their individual and collective rights under the Constitution, wherever they choose to live in the Canadian territory.

Honourable senators, citizenship is not a privilege. Citizenship is more than a right. Citizenship is the very expression of the inseparable bond between the state and the individual.

I now come to my third point. The inseparable bond between the state and its citizens cannot be severed without the authorization of the whole of Canada. The decision of the executive government to negotiate the determination of the citizenship rights of Canadians is of the utmost gravity and certainly cannot be triggered by a simple majority in a vote in the House of Commons alone.

Some Hon. Senators: Hear, hear!

Senator Joyal: By the same logic that holds that citizenship cannot be alienated by the executive government, it follows that no executive government in Canada has ever had the mandate or prerogative to terminate the obligation of the Crown toward the citizens collectively. Such a prerogative could not possibly exist in the Crown because the Crown is the embodiment of the absolute sovereignty of the people of Canada. The Crown derives its legal authority and legitimacy from the fact that it is the repository of the sovereignty of the Canadian people, which the Supreme Court said is given expression in the Constitution. In other words, the executive government has no authority to abrogate the sovereignty of the people of Canada because in doing so, the government would annul the very source of its own authority.

It is wrong, in my opinion, to maintain that the executive government has a prerogative or capacity to negotiate the dismantling of the sovereign will of Canadians to live under the rule of law and to enjoy the protection of their rights and freedoms under the Constitution throughout the whole of the Canadian territory.

As the Supreme Court has said, at paragraph 72 of the ruling in the secession reference:

Simply put, the constitutionalism principle requires that all government action comply with the Constitution....The Constitution binds all governments, both federal and provincial, including the executive branch...They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

By that very statement, the court recognized that no executive government can take the initiative of dismantling the principles of federalism, constitutionalism and the rule of law, democracy, and the protection of minority rights, without the clear consent and the concurrence of all the legislative institutions that embody the sovereign will of Canadians.

Honourable senators, the Constitution is the expression of the sovereign will of the people of Canada. There is no such thing as the prerogative vested in the Crown to annul the state. No king ever had the prerogative to terminate the Crown and dismantle the kingdom. He could abdicate, but the Crown would survive him, as would the kingdom. It is wrong, in my opinion, to sustain that the negotiations leading to secession are similar to the negotiations leading to an ordinary constitutional amendment, or negotiations leading to the ratification by Canada of an international treaty. Both of those kinds of negotiations may be entered into by the executive branch as a means of exercising prerogatives arising from the competence of the federal executive under section 91, or for peace, order and good government.

However, a constitutional amendment that would give effect to the secession of a province would be of a totally different nature and effect. It would bring down completely the present equilibrium achieved in the Constitution. It would destroy the fact that our Constitution as a whole is a functional and coherent system. It would wash away the ideals that pervade its provisions. Furthermore, it would even jeopardize the unique form of federal union that we have developed in the last 133 years.

The Crown and its ministers have a constitutional obligation to protect the sovereignty of the people and the integrity of the territory. The sovereign cannot disregard the Constitution. She does not have any prerogative to terminate Canada, and she cannot accept advice to the contrary from her Canadian ministers alone, whether provincial or federal. Instead of a prerogative, the sovereign has an inescapable duty to preserve the Constitution of Canada and the territorial integrity of the country.

Many comments have been made on the prerogative of the executive to initiate negotiations on secession. I sustain that no such prerogative exists for the cabinet of the day to initiate the termination of Canada. An argument has been made that, in Bill C-20, the government is formalizing House of Commons veto over what is ascribed as a totally unfettered executive prerogative. According to that argument, the prerogative upon which the executive relies is only limited by the responsible government convention by which the House of Commons can censor the government for inappropriate use of its prerogative. With respect, I submit that this position is constitutionally untenable.

It is simply not possible to give the House of Commons a statutory veto over the use of a prerogative that does not exist. If the prerogative existed, then the government would not need a bill to subject it to the will of the House of Commons. The House of Commons already has all the means necessary to control the prerogative. The logical conclusion we are forced to draw from that argument is that there is no need for Bill C-20 because the unavoidable result is that Bill C-20 delegates, to the House of Commons, a power to restrain the use of prerogative, a power that the House of Commons already has.

I do not subscribe to that line of reasoning. In my opinion, there is no such thing as a prerogative to commit the executive government to participate in negotiation leading to secession. The Crown could only engage in such negotiations after obtaining a formal mandate from Parliament, but only after the Canadian citizens and the provincial legislatures have formally expressed their authorization.

Honourable senators, my fourth argument is that the authorization to dismantle Canada could only come through the clear expression of the will of a majority of citizens in the five regions of Canada.

It would only be after the people had spoken that the government could, with the provinces, seek Parliament's special approval to negotiate. Such approval could come only through special legislation passed on the advice and with the consent of both the Senate and the House of Commons and introduced to deal specifically with the particular situation giving rise to the request by the government.

To say otherwise is to repudiate the fair position taken by Prime Ministers Trudeau and Chrétien in the past, namely, that they had neither the mandate nor the constitutional authority to break up the country.

Bill C-20 is the means by which Parliament will eliminate for the first time the legal obstruction that has up to now prevented the government from participating in any negotiations on secession. The bill proposes that Parliament eliminate this obstruction without knowing the situation in which the government of the moment will take part in such negotiations.

To obtain the consent of the Senate, the sponsor of the bill is asking a lot. First, he is asking us today to give the House of Commons alone full power to free the Crown of its constitutional obligations in an unknown future and in just as unknown circumstances. Second, he is asking us to trust in a third of Parliament and to leave the Crown and the Senate aside. Third, he is asking us to have faith in the outcome of a vote in the House of Commons, where the decision will be made on the basis of a simple majority of votes. Fourth, he is asking us to have faith in a House in which four of the five parties have held that 50 per cent plus one vote is enough to breakup the country. Fifth, he is asking us to accept that Canada's fate may be decided by a single vote, if the Speaker were to have to vote in the event of a tie vote.

Before agreeing to all that is asked of us, we must assess how the logic underlying these requests fits with the opinion of the court, according to which, and I quote:

Democracy...means more than simple majority rule.

We must resolve all contradiction before we can responsibly give our consent.

In a country where the rule of law prevails, we must, honourable senators, protect the interests of all Canadian citizens in every province and region and ensure the maintenance of constitutional order. It is for this fundamental reason that we need a law in due form, passed on the advice and with the consent of both Houses of Parliament in order to establish these principles. The Crown could never contemplate giving up its inalienable right to protect its citizens without rigorous compliance with the rule of law and the Constitution, which, according to the Supreme Court, is the expression of the sovereignty of the Canadian people.

The purpose of Bill C-20 should be to ensure that the collective interests of the Canadian people, the interests of all regions of Canada, and the interests of individual citizens are protected by the institutions to which this fiduciary responsibility has been given. It is unthinkable that a province could enjoy sovereignty exercised at the expense of the sovereignty of other provinces and regions, or of the sovereignty of the Canadian people as a whole. The sovereignty of Canada and the right to enjoy the benefits to Canada as a whole that flow from constitutional rights and freedoms belong to each Canadian citizen individually.

Before permanently extinguishing the rights and freedoms of individual Canadians anywhere in its territory, the Crown will have to seek the support and approval of all citizens throughout the country.

The Constitution of Canada belongs to each and every one of those citizens.

So held Chief Justice Rinfret of the Supreme Court of Canada in 1950, in Attorney General of Nova Scotia v. Attorney General of Canada. I refer to page 34:

The Constitution of Canada does not belong either to Parliament, or to the Legislatures: it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled.

In 1992, Prime Minister Chrétien said that the Constitution belonged to the Canadian people and that the Canadian people would have to be consulted before any substantive changes were made to it.

I quote from The Vancouver Sun of October 29, 1992,page A-5:

Chrétien added that all future constitutional proposals will have to be put to the people.

The then leader of the opposition stated:

We've given the Constitution to the people of Canada and that's going to be the test of any change in the future.

Honourable senators, is there any constitutional change more fundamental than the dismantling of a country and the irrevocable extinction of the rights and freedom of its citizens?

The present government, moreover, acknowledged the vital importance of this question, in its Throne Speech of February 27, 1996. In it, the Governor General of Canada set out the priorities of the federal ministers, four months after the last referendum on secession. The Throne Speech made the following commitment, and I quote:

But as long as the prospect of another Quebec referendum exists, the Government will exercise its responsibility to ensure that the debate is conducted with all the facts on the table, that the rules of the process are fair, that the consequences are clear, and that Canadians, no matter where they live, will have their say in the future of their country.

Bill C-20 is the means by which the Government of Canada is following up on that commitment. If it is to be fully respected, the measure must ensure that the will of Canadians in all regions is fully expressed, and not through the imperfect means of a simple majority vote in the House of Commons, in which the principle of simple representation by population heavily marginalizes the less populated provinces and regions of the country.

Moreover, the simple majority rule does not take into account the rights of linguistic minorities. It does not fully recognize these rights and it does not fully recognize aboriginal ancestral and treaty rights. It is these people, who are in a vulnerable position to negotiate, who would pay the price of secession.

In its opinion, the Supreme Court refers to a majority among all Canadians. In a constitutional federal system, the sovereign will of the Canadian people should not be dependent on a simple majority of a population concentrated in one or two regions. This is the reason why Canada became a federation instead of a unitary state. Senators from Atlantic and Western Canada will have to think about their fiduciary responsibility to ensure that their regions are heard in the institutions designed to express the sovereign will of the populations they represent.

The idea that a simple majority from Central Canada, representing only a fraction of the Canadian population, could dictate negotiations on the breakup of our country, at the expense, for example, of the Maritime and Western provinces, is in direct opposition to the federal principle underlying the fundamental condition whereby the three founding colonies accepted to form a single state under the Crown.

I believe that Bill C-20 is a sincere attempt to promote Canadian unity. Is it not ironical, therefore, that it attempts to do so by violating the very condition that made Quebec delegates to the debate on Confederation agree to take part in the union: the permanent embodiment of the federal principle in Parliament based on an effective Senate which reflects regional equality and which has real power to protect the interests of Quebec and its minorities, something an elected house could not guarantee, in accordance with the principle of representation by population.

To quote Ridges' Constitutional Law of England:

...while Parliament alone is the legal sovereign, the electorate is the political sovereign.

Only the Canadian people can, by expressing its sovereign will through a national referendum supported by the majority of votes in each of the regions of Canada and by its representatives in both Houses of its Parliament, allow the Crown to give up its inalienable duty to preserve Canada, to ensure that it can legally prevent the dismantling of the country and the abolition of the sovereignty of its people.

In my opinion, the best way to ensure the indivisibility of Canada is to guarantee the sovereignty of the people of the Canadian federation by ensuring that its sovereign will must be expressed at each decisive stage of any process liable to lead to the secession of a part of its sovereign territory. Each stage of the process, the first of these being the decision to enter into negotiations, involves the risk that a decision may have an irreversible impact on the people's sovereignty.

The solution which consists in protecting the indivisibility of Canada cannot be implemented except by the expression of the sovereign will of the Canadian people, through a national referendum and subsequently the most stringent adherence to the federal principle, that is, the right of every region to make its voice heard in one of the two Houses of the Canadian Parliament, which will decide the future of this country's sovereignty.

As the Supreme Court rightly stated, the Parliament of Canada, with the legislative assemblies of the provinces, constitutes the only legal authority by which the Crown could be released from its inalienable duty to ensure the permanence of the Constitution. It is the only entity that may authorize the Crown to abolish forever the rights and freedoms of the people of Canada, once the population of Canada has clearly expressed its desire to no longer be united within a single state.

No more, one under one dominion.

This is where the indivisibility of the Canadian federation lies.

Honourable senators, I arrive at the fifth argument. The Senate embodies the federal principles. It has the essential duty to protect the regions and minority rights in any secession decision leading to secession.

In order for Parliament to bind the Crown, three elements must come together to enact the statute. The first of these is the Crown itself, but only with the advice and consent of the Senate, which embodies the federal principle, and of the House of Commons.

Honourable senators, the Senate is an essential element of that group of three. The Senate is in fact the only perpetual element. At least every five years, seats in the House of Commons are vacated for a general election. The Crown's ministers may come and go. Some governments have endured for as little as four or five months, but the Senate membership is much more constant. Our turnover is much more gradual, approximately three our four times slower than the five-year maximum of the House of Commons. Our membership is subject to a progressive renewal on a regular basis as a few seats at a time become vacant and new senators are summoned to fill them. The Senate is the institutional memory of Parliament and the embodiment of the federal principle designed to protect regional and minority interests against a simple majority rule in the House of Commons, which is most of the time drawn from Central Canada with a minority of the national vote in the general election.

It is because of the federal nature of Canada that the House of Commons was not made sole and supreme. The House of Commons has never had the capacity by itself to place any legal bond on the Crown. Ultimately, the House of Commons can control the advice that is given to the Crown, but the House of Commons alone cannot vary the extent of the Crown's authority that is subject to that ministerial advice.

Honourable senators, Bill C-20 provides that at some future time, a legal bond could be placed on the Crown by a simple, unqualified majority in the House of Commons. However, no precedent exists for such a practice. I submit that the Constitution does not allow the House of Commons alone to bind, in the future, the Crown in relation to its inescapable duty to maintain the territorial integrity of Canada and the protection of the fundamental rights of its citizens.

Bill C-20 is proposed legislation leading to a determination whether a future referendum process results in a clear expression of a will to secede by a clear majority of the Canadian citizens of a province. Under Bill C-20, the determination of the clarity of the process will lead to one of only two possible results.

The first possible result is that one or both of the question and the majority is unclear. In such a case, Bill C-20 prohibits negotiations. In other words, the House of Commons, acting alone, will establish a legally binding prohibition on negotiations, which restrains the Crown perpetually - not just the Crown's minister in office on the day of the vote in the House of Commons, but all ministers thereafter.

The other hypothetical result is that both the question and the majority are clear. In such a case, Bill C-20 is silent. Where is the expression of the sovereign will of Canadians throughout the federation? Bill C-20 does not call upon the will of a majority of Canadians in all of the five regions of Canada to express their sovereign will, but the advisory opinion of the Supreme Court quite clearly asserts that such a determination by "political actors" leads to a duty to negotiate. In other words, the House of Commons would act alone to declare that the referendum process is totally free of ambiguity. The House of Commons could make such a declaration on a simple majority vote. That simple majority vote would trigger the duty articulated by the Supreme Court of Canada that would oblige the Government of Canada, however unwilling, to take the irreversible step of entering into negotiations for secession.

Honourable senators, nowhere in its advisory opinion did the Supreme Court exclude the Senate as a political actor to determine the clarity of the question and of the majority.

Hon. Senators: Hear, hear!

Senator Joyal: Quite the contrary. It underlined its role as the institution at the heart of the compromise that led to the creation of Confederation.

As the consent of the whole of Parliament would be needed to relieve, finally, the Crown of its duty to unity and territorial integrity, the Senate cannot be excluded from Bill C-20. In fact, that very point is already embodied in an act of Parliament. I refer to the Emergencies Act, adopted by Parliament in 1988, which deals with the preservation of the sovereignty, security and territorial integrity of the state. This act recognizes and affirms and the obligations of the Crown. I insist in stating "the obligations of the Crown," not the prerogatives of the Crown. What are they? Let me quote the preamble of the Emergencies Act.

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament -

- I repeat, "subject to the supervision of Parliament" -

- to take special temporary measures that may not be appropriate in normal times;

Honourable senators, not only does the Emergencies Act recognize the inescapable duty of the Crown to preserve the sovereignty and territorial integrity of Canada, it also provides full equality for the Senate in the process governing the state of emergency at each step where Parliament exercises its supervision responsibility.

Could there be a greater issue related to Canadian sovereignty, the rights of Canadian citizens and the territorial integrity of the state than the authorization given to the executive government to initiate secession? How can we require the concurrence of both Houses for any decision related to emergencies, yet we can part with the Senate when we are to decide the very future of the sovereignty of the whole Canadian people and the obliteration of the fundamental rights and freedoms constitutionally guaranteed to them throughout the Canadian territory?

I contend that if the Senate should be excluded fromBill C-20, it will require formal constitutional amendment as was the case in 1982. In 1982, the Senate was given a real role with real power in relation to constitutional amendments. There is much more than the consultative role proposed in Bill C-20. Senator Ray Perrault explained this important point very well in his address to the Senate on December 3, 1981, when he was leader of the government in the Senate. I have advised Senator Perrault that I will quote him at length in this connection. He stated at that time:

The Senate will have a key role to play in the amending process. Constitutional amendments can be initiated in this chamber....the consent of the Senate will normally be required for future constitutional amendments.

It is true that the views of Senate will be subject to being overridden by the House of Commons.

However, to override the Senate, the House of Commons will have to pass its resolution again after the expiry of 180 days. It will not be possible for the Senate to be overridden by executive fiat. There must be a second debate in the Commons and the members of the other place will have before them the views of the Senate and the Senate's reasons for refusing to accede to the proposed amendment. In seeking to override the Senate, the Commons will have to justify, before the people of Canada, its reasons for not accepting the views of the Senate.

This procedure safeguards an historic function of the Senate which has been used a countless number of times to the benefit of Senate: the process of sober second thought.

The Senate will have a suspensive veto of six months and, in their seeking to override that veto, the Commons will have to address the concerns raised in this chamber.

Honourable senators, the amending formula adopted in 1982 provided that the Senate could be overridden essentially - and I insist upon this - because the provincial legislatures were recognized as defenders of regional interests in the amending formula. The provinces are empowered to participate directly in the amendment of the Constitution, either through the federal principle of seven provinces representing 50 per cent of the population, or by unanimity of provincial legislatures and the federal Parliament, which is certainly the level of consent needed in the dismantling of Canada.

To exclude the Senate from Bill C-20 is to make Canada more easily divisible. It is certainly not the reason why any of us were summoned to serve in the Senate. It is certainly not the purpose of any senator in this chamber in the consideration of Bill C-20.

Our role as senators is to look beyond the current circumstances, because if this legislation ever becomes operable it will most probably be under a different set of political actors. What we have to do as legislators is make sure that Canada remains indivisible. We need to recognize the distinct role of each House of Parliament entrenched in the Constitution. We could never consent to a secession project unless the sovereign will of the Canadian people formally authorized us to do so. A national referendum requiring majorities in all five regions at each decisive step of any process that could irrevocably extinguish the sovereignty of the people would be the only means by which it would be possible to absolve the Crown of its strict obligation to preserve Canadian sovereignty.

At best, the indivisibility of Canada can only serve the interests of French-speaking Canadians in a world where national boundaries are continuous and where cultural diversity requires strategic alliances among countries in order to counterbalance the overwhelming influence and weight from the culture of our southern neighbour.

Quebec is the centre of French language and culture in Canada and its commitment to maintaining and developing its unique character can only benefit from Canada's integrity, just like aboriginal peoples and official language minorities will always be better protected in a united country governed by a generous and effective Charter of Rights and Freedoms.

The proposed legislative committee charged by the Senate with the responsibility to examine Bill C-20 must take great care to ensure that Bill C-20 is secure. No government - not the premier of any province nor the Prime Minister of Canada - must be able to take steps to terminate the sovereign will of the people to enjoy common rights and freedoms within a common territory. Only through the full participation and consent of its citizens, expressed directly in a national referendum, through their provincial legislatures and, finally, through the whole of Parliament, can the stewardship of that sovereignty be surrendered.

It is my deep conviction that the committee will need to include formally a set of governing principles to recognize the direct involvement of all our citizens in a national consultation and to guarantee the proper role of Parliament. This is why I will propose at the appropriate time, among other amendments, that clause 1 be amended so that at all times the Government of Canada act with the principle that Canada is one and indivisible.

As the current Prime Minister of Canada has acknowledged, this is the most serious and fundamental subject that our Parliament and legislative assemblies will ever have to decide.

There is no doubt honourable senators will want to reflect in their souls and consciences how their vote on Bill C-20 will help to keep Canada united and indivisible.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I commend Senator Joyal for his clear argumentation in his assessment of Bill C-20 and, in particular, his assessment of the role of Parliament, the Crown and all Canadian citizens in protecting the indivisibility of this country and its territorial integrity, as well as for recognizing the sanctity of its citizenship. I also hope that his remarks will be heard outside this chamber, in particular by the authors of this bill.

I want him to clarify, however, what he meant when he said at the beginning of his remarks that he supported the objective of the bill. I believe those were his words. That, to my mind, is a challenge to the indivisibility theory because it permits, under certain conditions, discussions leading to the division of this country. It certainly challenges its territorial integrity and puts in jeopardy the citizenship of Canadians who would be affected by the division.

What other objectives of the bill, if there are any, does the honourable senator support?

Senator Joyal: My approach in this debate, honourable senators, has not been political. I have listened very carefully to all my colleagues who have stood up in this chamber to speak to Bill C-20. Some of them have made political arguments for or against the bill. I believe that there is a case to be made on political grounds. For one simple reason, I decided to concentrate my intervention at this stage of the debate on the constitutional and legal principles at stake: It is that having been part of the unity debate, to put it in even broader terms, in the last 30 years, it seems to me that there are some aspects of our institution which have never been the object of a clear discussion. In that regard, I would like to use one word, "indivisible." This is a new word in the political vocabulary of the unity debate in Canada. The word does not exist otherwise. To pronounce it would have been to be provocative or to have created some kind of turmoil so dividing that the political situation would have been more difficult to solve.

Honourable senators, as I said to you this afternoon, we now have legislation - we have a bill. This bill contains some elements and some principles that help us understand the fundamental constitutional bases of our country and what principles we can part with, through a simple act of Parliament, through a resolution in the House of Commons, through an act of both Houses, or essentially with the concurrence of the Canadian people. To have avoided opening that debate with you today would be to miss an opportunity.

When I had the privilege to co-chair the special joint committee on the patriation of the Constitution in 1981 and 1982 with the late senator Harry William Hays, I raised the issue that Canada should be one and indivisible and said that this notion should be put in the Constitution. At the time, however, it was as if I had pronounced a word that should not have been pronounced because we were just coming out of the referendum in Quebec. Of course, it would have been seen as a provocation to the secessionist party in Quebec to have had affirmed, immediately after the referendum in 1980, that Canada is one and indivisible, so we avoided it.

In my opinion, honourable senators, we cannot avoid it any longer. We must look at the reality, "en face," once and for all, if we are to discuss the process that would lead to the dismantling of this country.

I feel that Bill C-20 is a good opportunity, if I can speak in lay terms, to put the cards on the table. If we are to vote, we will know exactly what we are voting on, not under some perception that we should not go too far because there will be a reaction in Quebec and the Premier of Quebec will nudge the referendum wheel one more turn and we will go more in that direction. If this Parliament, in doing its inescapable duty, legislates on the process that would lead to the dismantling of the country, then I do not think we can avoid the questions I have raised today.

As I said in my opening remarks, honourable senators, I support the principle and the goal of Bill C-20 because it allows us this debate.