After the Tories nattered their way into a seventh day of filibuster in the Commons two floors below, New Democrat Ed Broadbent quietly slipped into Joe Clark’s office last week hoping for a deal. Broadbent had just hung up the phone after getting Pierre Trudeau’s assurance that the government would accept the NDP’s formula for ending the constitutional stalemate. Now he would put the same proposition to Clark: the Tories would let the House vote on opposition amendments to the Liberal package, the government would await a Supreme Court of Canada ruling on its legality and then Parliament would vote on final passage. Clark heard Broadbent out and gave his reply: an adamant no. The filibuster, which had seemed by turns an impressive show of opposition moxie and a ludicrous waste of time, was proving intractable. To a puzzled public, it seemed inexplicable.
To the MPs taking part, the Conservatives’ strategy was simplicity itself. Commanding a Commons majority, the government would win any vote on its proposed motion to shut down the constitution debate after four final days. So, using House rules, the Tories managed to prevent debate on that motion just by raising enough points of order and questions of privilege to consume all the hours between question period and the nightly adjournment. A weary but remarkably unfrazzled Speaker Jeanne Sauvé was driven to remark last week that never in Parliament’s history had it taken so long to reach orders of the day; not even in the famous pipeline debate of 1956 had a speaker spent such
long hours in the chair without relief from a deputy. Day upon day she has ruled on points by the score—complaints of misleading answers from ministers; a senator using the letters “MP” after his name; offences by the Metric Commission; the inaccuracy of Commons clocks; the use of unparliamentary language (raised by a Tory MP who didn’t like being called a “simpleminded hypocrite”). One point was Clark’s own: that the constitution resolution was sub judice because the Supreme Court had agreed to hear the issue April 28. Sauvé dismissed that on the grounds that Parliament may, in effect, debate what it likes and cannot be blocked by any court.
Already in full flight, the Tories got a powerful lift from the Newfoundland Court of Appeal, which ruled unanimously last week that Trudeau’s project is unconstitutional because it does not carry provincial consent to changes in provincial powers (in the new charter of rights, for instance). In a 65-page judgment, the court declared the provinces are sovereign in their own fields. For Parliament to seek a change in provincial powers through a British amendment to the British North America (BNA) Act “would be arrogating to themselves an authority they do not possess, an authority that would negate the plenary and exclusive power of the provinces to legislate on matters within
their competence____” Such action, said
the court, “could defeat the whole scheme of the Canadian federal constitution.”
The judgment was greatly encouraging to the six provinces that had taken the issue to court in St. John’s in February, arguing that Trudeau was breach-
ing a convention that provinces must agree before the British Parliament is asked for an amendment to the BN A Act altering their powers. It contradicts, however, the Feb. 3 judgment of the Manitoba Court of Appeal, which ruled in a 3 to 2 split decision on the same questions that “there is no such constitutional convention in Canada, at least not yet.” It is this Manitoba case which goes to the Supreme Court this month; a third Appeal Court decision is still pending in Quebec City.
First word of the adverse Newfound-
land judgment was handed to Trudeau in a meeting of the cabinet’s powerful priorities and planning committee, which immediately began to consider possible federal responses. Shortly after, Trudeau announced his move in the Commons: he agreed to delay pressing the package upon the British Parliament if the Tories would permit its passage in Canada in time for the Supreme Court hearing. After consulting his caucus, Clark countered next day with a plan of his own: all three parties would bundle up their proposed amendments and send them with the Trudeau resolution down the street to the Supreme Court for an opinion. There the dispute stuck all week, Trudeau arguing that the high court should receive “something certain and final,” Clark insisting that until the Supreme Court renders judgment the whole package is illegal under Newfoundland law. Declared Clark: “We are not prepared to have the House of Commons vote on a matter which has been declared illegal by the Supreme Court of Newfoundland.” Continual closed-door meetings among party House leaders failed to break the impasse; cadaverous New Democrat Stanley Knowles and burly Tory Walter Baker would emerge from Liberal Yvon Pinard’s office into the waiting curiosity of reporters, speaking of hope but no
progress. Then, in an extraordinary round of public bargaining Thursday, Trudeau, Clark and Broadbent looked as if they were approaching compromise. What if, asked Broadbent in the House, the Commons voted on two agreed amendments (on native rights and women’s legal equality) and promised quick action on the whole package after a favorable Supreme Court ruling? Trudeau said yes. Clark said no— he would not even vote on amendments. There was, just before the weekend, one good sign: Baker agreed to hustle a government borrowing bill through the House in two days, giving both sides a breather from the filibuster.
Profiting most from this parliamentary warfare are the noncombatants. The eight premiers opposing Trudeau, for instance, have been left more time to agree on an alternative constitutional proposal; they are to meet again April 16—three days after the Quebec provincial election. The justices of the Supreme Court can now count on hearing a case that might have been left moot had Trudeau’s package reached London before reaching the court. And the British government would have an easier time in the Westminster debate to come if Trudeau’s constitution arrives in London with the Supreme Court’s approving judgment. <£>
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