Jacques Viau

Viau was active in the Canadian Bar Association throughout his career. He was president of the CBA's municipal law section from 1966 to 1968, and vice-president of the Quebec Branch of the CBA from 1969 to 1970.[4][11]

Viau was national president of the CBA in 1977-78, a time of political turmoil in Canada. The year before, the Parti québécois had won the provincial general election in Quebec and formed the government, on a platform of separation from Canada. At the annual meeting of the CBA in the summer of 1977, the outgoing president, Boyd Ferris, proposed that the CBA should recognise the need for national unity and a strong federal government. A resolution to that effect was introduced by Paul Fraser, the president of the British Columbia branch of the CBA and seconded by Robert Lesage, the president of the Quebec Branch.[12] The resolution proved controversial, since some members of the CBA did not think the organisation should take part in political issues, while members from Quebec thought that the motion was attempting to impose a particular view on the sovereignty issue as a condition of membership in the CBA.[13] After considerable debate and negotiations, the resolution was amended on a motion by Yves Fortier, a past-president of the Quebec Branch, and Bryan Williams, the incoming president of the British Columbia Branch. The amendment removed the language calling for the CBA to support national unity and reject provincial separatism. Instead, the resolution created a committee to study and make recommendations on the Constitution of Canada.[14]

The resolution called for the Constitution to be re-written "so as better to meet the aspriations and present-day needs of all the people of Canada and to guarantee the preservation of the historical rights of our two founding cultures."[15][16] The resolution also set out the mandate for the Committee, which was to undertake "the search for a definition of the essential constitutional attributes of a Canadian federalism", with a final report to be presented at the next Annual Meeting of the CBA in 1978.[16][17] The members of the Committee were drawn from each province of Canada, and included two future provincial premiers, a future Supreme Court justice, two future provincial chief justices, and a future Canadian Ambassador to the United Nations.

In addition to Viau, who acted as chairman, the members were:[18]

• John A. Agrios, Edmonton, Alberta, later a judge of the Alberta Court of Queen's Bench[19]
• Douglas McK. Brown, Q.C., Vancouver, British Columbia, a leading civil litigator[20]
• George D. Finlayson, Q.C., Toronto, Ontario, later on the Ontario Court of Appeal[21]
• L. Yves Fortier, Q.C., Montreal, Quebec, later Canada's Ambassador to the United Nations[22]
• Joseph A. Ghiz, Charlottetown, Prince Edward Island, later Premier of Prince Edward Island and then on the Supreme Court of Prince Edward Island
• William L. Hoyt, Q.C., Fredericton, New Brunswick, later Chief Justice of New Brunswick
• Robert Lesage, Q.C., Quebec City, Quebec, later on the Superior Court of Quebec
• David Matas, Winnipeg, Manitoba, a noted civil rights lawyer
• John P. Merrick, Halifax, Nova Scotia
• D.E. (Tom) Gauley, Saskatoon, Saskatchewan, a leading lawyer in Saskatchewan[23]
• Clyde K. Wells, Q.C., Corner Brook, Newfoundland, later Premier of Newfoundland and then Chief Justice of Newfoundland.

The Executive Vice-Chairman and Director of Research was Gérard V. La Forest, Q.C., of Ottawa, Ontario, later on the Supreme Court of Canada. The Director of Research was Joel E. Fichaud, later a judge of the Nova Scotia Court of Appeal.[18]

The Committee had a budget of $250,000.[24] Funding came from the CBA itself,[25] and also from the Donner Canadian Foundation, the Alberta Law Foundation,[26] the British Columbia Law Foundation,[27] and the Ontario Law Foundation.[28]

The members of the Committee met nine times over the course of the year, with one final marathon meeting for five days at Charlottetown, Prince Edward Island, the site of the first Confederation Conference in 1864.[24]

As the deadline for the Committee report approached, rumours began to fly about the Committee's recommendations, particularly the possibility that the Committee would call for the abolition of the monarchy. Viau appeared to confirm that speculation several months before the report was released, at a joint meeting of the councils of the Ontario and Quebec Branches of the CBA.[29] Speculation continued right up to the day before the report was released, with Viau stating that he had nothing personally against the monarchy, and noting that even Premier Lévesque had said much the same.[24][30] However, Viau also commented that the idea of a Canadian head of state "... is really nothing new", noting that a joint Senate-Commons committee had suggested a Canadian head of state some years previously, in 1971.[24]

The Committee released its report for consideration by the annual meeting of the CBA in Halifax on August 27 to 31, 1978.[30] The report recommended that:

1. A new Constitution be established for Canada;
2. The new Constitution include a Bill of Rights to protect fundamental freedoms, including freedom of religion and of speech, legal protections for the accused in criminal proceedings, and equality;
3. The new Constitution recognise the English and French languages as official languages, both federally and provincially, the right of individuals to use either language, and the right of parents to have their children educated in the language of their choice;
4. The monarchy be abolished, with a new Canadian head of state at the federal level, and new chief executive officers at the provincial level. The federal head of state would be chosen by the House of Commons, and the provincial chief executive officers would be chosen by the provincial legislatures;
5. The Senate be replaced by a new House of the Federation, appointed entirely by the provincial governments. The federal government could appoint individuals who could speak in the House of the Federation, but would not have a vote;
6. The new House of the Federation have an oversight role in matters affecting provincial interests. Certain topics which related to areas of provincial jurisdiction would need an approval from the House of the Federation, on a two-thirds vote, to ensure that there was a national consensus;
7. The Supreme Court of Canada be constitutionally entrenched, along with its composition and powers;
8. The division of powers between the federal parliament and the provincial legislatures keep the same broad outlines as currently established, with some modifications. Some of the changes would be to recognise a greater provincial role in cultural matters; the transfer of the jurisdiction over divorce from the federal government to the provinces; and a reduction in the federal power to legislate for matters of general national concern.
9. The new Constitution have an amending formula which would allow amendments to be made entirely in Canada, ending the role of the British Parliament. The proposed formula would require the assent of the federal Parliament and a majority of the provinces. Amendments would also require the assent of any province which currently or previously had 25% of the national population, effectively giving vetoes to Ontario and Quebec. Amendments would also require the assent of two of the Atlantic provinces, and two of the western provinces, including at least one of the two most populous western provinces (either British Columbia or Alberta).[31]

The federal government had recently released its own draft amendments. Viau indicated before the report was released that he and the other committee members did not see anything in the federal proposals which would lead them to change their recommendations. In particular, Viau said he completely disagreed with the federal proposal that the upper house be chosen half by the federal government and half by the provinces. Earlier that year, with respect to the division of powers, he had said that in his opinion, the provinces had to be given near complete control over cultural and educational matters if Quebec was to stay in Canada. Another member of the Committee, John Agrios, commented that the points in contention in their internal discussions were not really where he had expected them: "Language and so forth was not a difficult area, but the Senate was very, very difficult, and we spent a lot of time on the court system and international relations.[24]