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Speech in Senate Chamber: Senator Cools speaks to an amendment to Bill S-4, A First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.

Hon. Anne C. Cools: Honourable senators, I rise to speak today on Bill S-4, to harmonize federal law with the civil law of the Province of Quebec and to amend certain acts in order to ensure that each language version takes into account the common law and the civil law. In particular, I wish to support the amendments to and/or the deletion of the preamble to this bill. I agree with Senator Jerahmiel Grafstein and Senator Serge Joyal in their concerns about the legal impact of the preamble and its words "the unique character of Québec society."

I listened carefully to Senator Lowell Murray. I understand that Senator Murray's position arises from the fact that he was once the minister responsible for this particular area. At that time, this was his position and that of the Conservatives. Therefore, I understand what is being said. As honourable senators will recall, Liberals had enormous problems with the concept of "distinct society."

Honourable senators, the magnitude of Bill S-4 combined with the differing conceptual frameworks of the Quebec civil law and the common law have made comprehension and study of this bill difficult. They keep saying "civil law." They should be saying "roman law." Further, when Minister of Justice Anne McLellan appeared before the Standing Senate Committee on Legal and Constitutional Affairs on March 14, 2001, she informed us that Bill S-4 was the first of several bills that will harmonize federal law with the Quebec Civil Code. She gave no indication of the contents of those future bills or the effect of those future bills on this first one. The minister has asked honourable senators to take her and the government on faith and to pass this bill without knowing what the future bills will contain, that is, to pass the first of several bills with no knowledge or insufficient knowledge of the bills following.

Honourable senators, Bill S-4 is an omnibus bill that will amend 49 federal statutes. Its preamble is most unusual, all the more so since it is an omnibus bill. That unusualness lies in the fact that this preamble appears to cloak this omnibus bill in an air or a sense of constitutionality. Being well acquainted with the parliamentary experiences around the collapse and defeat of the Meech Lake Accord on June 22, 1990 and the Charlottetown Agreement on October 26, 1992, and also the social and political divisions and the conflicts so engendered, I submit that this preamble is ill-conceived, unwise and ill-placed, if not misplaced, in this bill.

Honourable senators, during our Senate committee's study of Bill S-4, some senators expressed enormous difficulty with the preamble's substance, form and legal intention. One portion that was especially troubling is the preamble's second paragraph. It reads:

WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Quebec, reflects the unique character of Quebec society;

The words "the unique character of Quebec society" caused some Liberal senators much anxiety, in particular Senators Joyal, Grafstein, and myself. The government told us that the words of the preamble were based on both the Calgary Agreement of September 14, 1997 and the parliamentary "distinct society" resolution of 1995. The "distinct society" resolution of 1995 was introduced in the Senate by then government leader, Senator Fairbairn on December 7, 1995. It read in part:

Whereas the people of Quebec have expressed the desire for recognition of
Quebec's distinct society;

I have the quotation in my speech. I shall not bother to repeat the entire thing. It has been read many times.

The Senate adopted this resolution on December 14, 1995 without a recorded vote. That absence of a recorded vote is a significant fact. For myself, I left the chamber during the vote. I also wish to state here again for the record that I did not speak in that debate. The reason was that I did not support it. I did not then and I do not now support the concept of the "distinct society" as an independent, legal concept capable of collecting new distinct meanings. In response to those who claim that resolution as the guiding purpose, I must remind them that this resolution is of no force or effect. Such a parliamentary resolution is of effect only during the life of that Parliament and has no force and effect after its dissolution. Consequently, it is of no effect in our deliberations on this bill.

Honourable senators, Senator Pierre Nolin's speech of yesterday took issue with my assertion of a well-established fact of Parliament and the life span of parliamentary orders and resolutions, particularly the life span of the force of this distinct society resolution of 1995. Simultaneously, Senator Nolin raised the issue of Prime Minister Jean Chrétien's recent reliance on the 1919 Nickle Resolution to veto Conrad Black's proposed appointment to the House of Lords in the United Kingdom. Senators will recall that I spoke to my inquiry on Mr. Black here in the Senate on November 4, 1999. I shall respond to Senator Nolin by citing some authorities. The first authority is our learned former colleague Senator John Stewart in his 1977 book The Canadian House of Commons Procedure and Reform. I would submit, honourable senators, that Senator Stewart knew something about Parliament. John Stewart wrote:

The fact that the House is an active body only during a session is also of great importance in the conduct of parliamentary business. On the one hand it means that a new beginning must be made in each session: no bills and no motions carry over.

I repeat: "no bills and no motions carry over." Bills and motions must become acts of Parliament to acquire permanence, the kind of permanence of which Senator Nolin is speaking. I would have thought that the mere fact that these sentences have made their way into a statute, though only in a preamble, would indicate that permanence is being sought and that the previous resolution had been unsatisfactory, insufficient and incomplete.

The second authority is former Conservative Prime Minister Robert B. Bennett. For Senator Nolin's sake, I shall cite Prime Minister Bennett, first as a Conservative, and second, because Prime Minister Bennett's words are about the Nickle Resolution and its expiration on dissolution. I thought I would please Senator Nolin doubly. Remember that the Nickle Resolution was passed in 1919. Prime Minister Bennett was speaking in 1934. Speaking about the Nickle Resolution and the life of resolutions, on January 30, 1934, Prime Minister Bennett said:

It has been a matter of passing comment, as pointed out by an eminent lawyer not long ago, that a resolution of a House of Commons which has long since ceased to be, could not bind future parliaments and future Houses of Commons.

He continued:

The power of a mere resolution by this house, if acceded to, would create such a condition that no principle which secures life or liberty would be safe. That is what Judge Coleridge pointed out.

Honourable senators, we must understand the kind and quality of permanence of which Senator Nolin speaks. A resolution would have to be agreed to threefold because the actions of a chamber usually take the form of a motion; they are either orders or resolutions. Every bill entails so many motions and resolutions, but to have permanence a resolution must be agreed to by this house, the House of Commons and Her Majesty; that is, an act of Parliament. They are all resolutions.

Senator Nolin: You are wrong.

Senator Cools: Simply to assert that I am wrong is insufficient. You must prove it. I invite all senators to check my references.

In addition, the previous year, on May 17, 1933, Prime Minister Bennett had also stated clearly that the Nickle Resolution was of no force, saying: being the considered view of His Majesty's government in Canada that the motion, with respect to honours, adopted on the 22nd day of May, 1919, by a majority vote of the members of the Commons House only of the thirteenth parliament (which was dissolved on the 4th day of October, 1921) is not binding upon His Majesty or His Majesty's government in Canada or the seventeenth parliament of Canada.

On January 30, 1934, in speaking about his responsibility as Prime Minister to advise the King and about his reviving the King's honours, Prime Minister Bennett said:

The action is that of the Prime Minister; he must assume the responsibility, and the responsibility too for advising the crown that the resolution passed by the House of Commons was without validity, force or effect with respect to the sovereign's prerogative. That seems to me to be reasonably clear.

Honourable senators, it is odd and provocative that the government should draft into a statute, even in a preamble, resolutions that have no legal or parliamentary force, particularly when those resolutions are divisive to the nation and the government's own supporters. I ask the Senate to ponder the necessity and wisdom of this preamble, particularly the words "unique character of Quebec society."

Honourable senators, I shall now examine the definition, use and legal purpose of preambles in bills. The renowned legal text Jowitt's Dictionary of English Law defines a preamble, stating:

The preamble of an Act of Parliament is that part which contains the recitals showing the necessity for it. It, unlike the marginal notes (q.v.), is part of the statute and may be used in order to ascertain the meaning, ...but only when the preamble is clear and definite in comparison with obscure and indefinite enacting words...

Every lawyer is this chamber understands what "indefinite enacting words" means.

Jowitt's definition continues:

The preamble serves to portray the interests of its framers, and the mischiefs to be remedied, and is a good means to find out the meaning of the statute.

Further, this provocative legislative drafting action of placing the words "unique character of Quebec society" in this bill's preamble has the effect of submitting these words to our courts for judicial interpretation and judicial elaboration. Some argue that the phrase "unique character of Quebec society" has no meaning in law or that it only reflects and recites the experiential history of Quebec. I submit that these words do have a meaning and that the meaning is legally flexible and will result in many and huge problems. It is wiser in law to enact no preamble at all than to enact a legally, politically and judicially malleable, nay mercurial, preamble.

Honourable senators, I have always opposed and will continue to oppose the legal use of the term "distinct society" — not the concept of people conducting their lives as they see fit, but the use in law of the term "distinct society" — or any equivalent term intended to have the same legal and constitutional consequence and effect. Liberal senators here know the enormous difficulty that the term "distinct society" has caused us. Liberal senators will know the pivotal role that our former Liberal Prime Minister, the late Pierre Elliott Trudeau, played in this country on this question. Mr. Trudeau opposed it to the day he passed away. He was right then and is still right now.

I wish to place on the record one relatively recent newspaper account of Mr. Trudeau's perpetual and abiding opposition to the legal use of the term in legal and constitutional drafting. I speak of the January 10, 1997, Calgary Herald article headlined "Trudeau says distinct society status flawed." It reported:

Former Prime Minister Pierre Trudeau has sharply criticized both federal and provincial Liberals for endorsing "distinct society" status for Quebec.

In an interview with the editors of Cité Libre, Trudeau said federalists are wrong to suggest that the "distinct society" status for Quebec would help to protect French-Canadians in Canada.

"I think that they're not aiming for the equality of francophones and anglophones, but rather for the superiority of one language over another in one province," Trudeau said.

What's more, they're "looking to obtain privileges that others don't have. They want to increase, in a fashion I would call politically pernicious, a democratic and parliamentary disequilibrium."

Prime Minister Jean Chrétien and federal Liberals have endorsed the idea that Canada's 1982 Constitution should be rewritten to declare Quebec a "distinct society."

The remainder of this day's Senate Debates available here.