Winnipeg Free Press

Winnipeg Free Press (Newspaper) - September 29, 1981, Winnipeg, Manitoba Winnipeg free september 1981 focus provincial consent not needed court Ottawa Are heavily edited sections of the supreme court of can Adas landmark Constitution Al some explanation is required to make Reading at the heart of the judg ment is the question of whether provincial consent is needed before constitutional which would affect provincial Are the lineman court ruled 7to2 that the As a matter of is the question came to the High court through lower court cases in Manitoba and a similar formulated Dif was routed through a Quebec the supreme court talks in its judgment about ques Tion 3 and question question 3 comes from the Manitoba and Newfoundland courts and reads is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects Federal provincial relationships or alters the rights or privileges granted or secured by the Constitution of Canada to the their Legislatures or govern ments question b question from the que Bec reads does the Canadian Constitution whether by convention or other the Senate and the House of commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of in such a manner As to affect i the legislative compe tence of the provincial Legislatures in virtue of the Cana Dian Constitution ii the status or role of the provincial Legislatures or governments within the Ca Nadian federation Here Are the supreme courts reasons for judgment on the main ques Tion they have been edited heavily because of length and difficult Legal Jar Here Are the reasons by the seven justices saying that As a matter of Law provincial consent is not re coming now to question 3 in the Manitoba and Newfoundland references and b on its Legal Side in the Quebec by reason of the use of the words constitutionally required in question the question imports both Legal and conventional As the lat Ter Are dealt with in separate what follows is concerned Only with the Legal Side of question 3 in the Manitoba and Newfoundland defences and b on its Legal Side in the Quebec refer which meets the sub missions of All counsel on this separate issues there Are two Broad aspects to the matter under discussion which Divide into a number of separate issues 1 the authority of the two Federal houses to proceed by Resolution where provincial Powers and Feder a provincial relationships Are thereby 2 the role or authority of the parliament of the United kingdom to act on the Reso the first Point concerns the need of Legal Power to initiate the process in Canada the second concerns Legal Power or want of it in the parliament of the United kingdom to act on the Reso Lution when it does not carry the consent of the prov the submission of the eight provinces which invites this court to consider the position of the British parliament is based on the stat Ute of in its application to the submission is that the effect of the statute is to qualify the authority of the British parliament to act on the Federal Resolution with out previous provincial con sent where provincial Powers and interests Are thereby two observations Are pertinent we have the anomaly that although Canada has International recognition As an ind Epen autonomous and self governing yet it suffers from an internal deficiency in the absence of Legal Power to alter or Amend the essential distributive arrangements under which Legal authority is exercised in the country profound problem when a country has been in existence As an operating Federal state for More than a the task of introducing a Legal mechanism that will thereafter remove the anomaly undoubtedly raises a profound second the authority of the Brit ish parliament or its practices and conventions Are not matters upon which this court would presume to pro the proposition was advanced on behalf of the at Torne general of Manitoba that a convention May crystallize into Law and that the requirement of provincial consent to the kind of Resolution that we have Al though in origin has become a Rule of in our this is not no instance of an explicit recognition of a convention As having matured into a Rule of Law was the very nature of a Conven As political in inception and As depending on a consistent course of political recognition by those for whose Benefit and to whose detriment if any the convention developed Over a considerable period of time is inconsistent with its Legal the attempted assimilation of the growth of a convention to the growth of the common Law is Misc on the latter is the product of judicial based on justiciable issues which have attained Legal formulation and Are subject to modification and even re Versal by the courts which gave them birth when acting within their role in the state in obedience to statutes or constitutional no such parental role is played by the courts with respect to conventions draft statutes turning now to the authority or Power of the two Federal houses to proceed by Resolution to Forward the address and appended draft statutes to her majesty the Queen for enactment by the parliament of the United there is no limit anywhere in either in Canada or in the United kingdom to the Power of the houses to pass resolutions the Federal parliament May by statute define those immunities and so Long As they do not exceed those held and enjoyed by the British House of commons at the time of the passing of the Federal it is that where the Resolution touches provincial As the one in question Here there is a limitation on Federal authority to pass it on to her majesty the Queen unless there is provincial if there is such a it arises not from any limitation on the Power to adopt resolutions but from an external limitation based on other considerations which will be although the British North America act itself is silent on the question of the Power of the Federal houses to proceed by Resolution to procure an amendment to the act by an address to her Majes its silence gives positive support As much As it May reflect the Quebec question b suggests in its formulation that there is the necessity of affirmative proof of the Power assert but it would be equally consistent with Constitution Al precedent to require Dis if the two Federal houses had the Power to proceed by How is it that they have lost it for the it is relevant to Point out that even in those cases where an amendment to the British North America act was founded on a Resolution of the Federal houses after hav ing received provincial con there is no save in the British North America where such consent was recited in the the matter in a conventional one within without effect on the Validity of the Resolution in respect of United kingdom action at the Chal Lenge to the competency in Law of the Federal houses to seek enactment by the parliament of the United King Dom of the statutes Embo died in the Resolution is based on the recognized supremacy of provincial Legislatures in relation to the Powers conferred upon them under the British North America a supremacy visa is the Federal Parlia or perhaps the foundation of this supremacy is said to lie in the nature or charac Ter of Canadian taken alone the supremacy taken needs no further justification than that found in the respective formulations of the Powers of Parlia ment and the provincial Legislatures in sections 91 and 92 of the British North America Federal Paramountcy the general Rule in the actual exercise of these this the exclusiveness of the provincial Powers cannot be gain the Long list of judicial decisions provide Ade quate support for the Princi ple of exclusiveness or supremacy of within the limits of the Brit ish North America there is not and can not be any standardized fed eral system from which particular conclusions must necessarily be refer ence was made earlier to what were called unitary features of Canadian federalism and they operate to distinguish Canadian federalism from that of Australia and that of the United allocations of legislative Power differ As do the institutional arrangements through which Power is sex this court is being asked by the provinces which object to the so called Federal package to say that the internal distribution of legislative Power must be projected external As a matter of although there is no Legal warrant for this assertion what Legal authority exists denies this provincial Federal action at it is this Distri it is the allocation of legislative Power As Between the Central parliament and the provincial Legislatures that the provinces rely on As precluding unilateral Federal action to seek amendments to the British North America act that whether by limitation or provincial legislative the attorney general of can Ada was pushed to the extreme by being forced to answer affirmatively the theoretical question whether in Law the Federal govern ment could procure an amendment to the British North America act that would turn Canada into a unitary that is not what the present Resolution envisages because the Essen tial Federal character of the country is preserved under the enactments proposed by the it is is no reason for conceding unilateral Federal authority to a through invocation of legislation by the United kingdom the purposes of the there is an unprecedented situation in which the one constant since the enactment of the British North America act in 1867 has been the Legal authority of the United kingdom parliament to Amend the Law knows nothing of any requirement of provincial con either to a Resolution of the Federal houses or As a condition of the exercise of United kingdom legislative in the the third question in the Manitoba and Newfoundland cases As a matter of be answered in the negative and question b in its Legal be answered in the nothing said in these Rea sons is to be construed As either favouring or disapproving the proposed amending formula or the charter of rights and freedoms or any of the other provisions of which enactment is the questions put to this court do not ask for its approval or disapproval of the contents of the so called chief Justice of the supreme court Bora Laskin delivers the courts for All those people thinking of buying a1082 car Many 1982 Dat suns have now a few81 Dat suns Are still sitting on the which Means a traffic Jam is about to happen at Dat Sun dealers All Over Dat Sun dealers Are 1981s and Price is right and so Are the hurry on look around they be got 1981 and 1982 lots of and some very Sharp ;