Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 12 (25 November 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 12 (25 November 1980).
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HOUSE OF COMMONS
Issue No. 12
Tuesday, November 25, 198O
Senator Harry Hays
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Tuesday, November 25, 1980:
Mr. Henderson replaced Mr. Harquail;
Mr. Epp replaced Mr. Thacker;
Mr. La Salle replaced Mr. Speyer;
Mr. Dinsdale replaced Mr. Beatty;
Mr. Baker (Gander-Twillingate) replaced Mr. Lapierre;
Mr. Halliday replaced Mr. McCain;
Mr. Lang replaced Mr. Irwin;
Mr. Young replaced Mr. Robinson (Burnaby);
Mr. Smith replaced Mr. Corbin;
Mr. Irwin replaced Mr. Lang;
Mr. Corbin replaced Mr. Smith;
Mr. Lapierre replaced Mr. Baker (Gander-Twillingate);
Mr. Flis replaced Mr. Lapierre;
Mr. Gimaiel replaced Mr. Flis;
Mr. Lapierre replaced Mr. Henderson;
Miss Carney replaced Mr. Fraser;
Mr. Fraser replaced Mr. Epp.
Pursuant to an order of the Senate adopted November 5, 1980:
On Tuesday, November 25, 1980:
Senator Asselin replaced Senator Balfour;
Senator Roblin replaced Senator Muir;
Senator Leblanc replaced Senator Petten;
Senator Goldenberg replaced Senator McGrand;
Senator Neiman replaced Senator Connolly.
MINUTES OF PROCEEDINGS
TUESDAY, NOVEMBER 25, 1980
The Special Joint Committee on the Constitution of Canada met at 9:45 o’clock a.m., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Hays, Lamontagne, Lucier, McGrand, Petten. Roblin and Tremblay.
Representing the House of Commons: Messrs. Baker (Gander-Twillingate), Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dinsdale, Epp, Fraser, Halliday, Henderson, Irwin, Joyal, Lang, Lapierre. La Salle, Mackasey, McCain, Nystrom, Smith and Young.
Other Member present: Messrs. Blaikie, Miller, Mrs. Mitchell and Mr. Roy.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witnesses: From Association culturelle Franco-Canadienne de la Saskatchewan: Irene Chabot, President; Mr. Florent Bilodeau, Director General; Claire Doran, Political adviser. From Coalition of Provincial Organizations for the Handicapped: Monique Couillard, Member, National Council; Yvonne Peters, Member, Executive Committee; Ron Kanary, Vice Chairman; Jim Derksen, National co-ordinator. From Mennonite Central Committee (Canada): Mr. Ross Nigh, Vice-Chairman; Mr. William Janzen, Director General of the Ottawa Office; and J. M. Klassen, Executive Secretary.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings. Thursday, November 6, 1980, Issue No. 1.)
Mrs. Chabot and Mr. Bilodeau made statements and with Mrs. Doran answered questions.
Senator Hays assumed the Chair.
Mr. Kanary made a statement and with Mr. Derksen and Mrs. Peters answered questions.
Mr. Joyal assumed the Chair.
Messrs. Nigh and Janzen made statements and with Mr. Klassen answered questions.
At 12:50 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met at 3:37 o’clock p.m., this day, the Joint Chairman. Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin. Austin, Goldenberg, Hays, Lamontagne, Leblanc, Lucier, Neiman, Roblin and Tremblay,
Other Senator present: The Honourable Senator Adams.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp. Flis, Fraser, Henderson, Irwin, Ittinuar, Joyal, Mackasey, Nickerson, Nielsen and Nystrom.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witness: From Government of Northwest Territories: The Honourable George Braden, MLA, Leader of the Elected Members of the Executive Committee.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen representing the Constitution of Canada” published by the Government on October 2. 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
Mr. Braden made a statement and answered questions.
At 5:46 o’clock pm., the Committee adjourned to the call of the Chair.
EVENING SITTING (24)
The Special Joint Committee on the Constitution of Canada met at 8:05 o’clock pm., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Goldenberg, Hays, Lamontagne, Leblanc, Lucier, Neiman, Roblin and Tremblay.
Representing the House of Commons: Messrs. Beatty. Bockstael, Miss Campbell (South West Nova). Miss Carney, Messrs. Corbin. Epp. Fraser, Gimaiel, Irwin, Ittinuar, Joyal, Lapierre, Mackasey, McGrath, Nystrom and Taylor.
Other Members present: Messrs. Dubois, Ethier and Murta.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.
Witnesses: Front the Canada West Foundation: Mr. Stanley Roberts, President; Mr. David Elton, Research Director; Dr. Peter McCormick, Political Science, University of Lethbridge; the Honourable J. V. Clyne. Counsel.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980. both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respect-
ing the Constitution of Canada” published by the Government on October 2, 980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
Mr. Epp moved: That the following witnesses, in addition to others who might be suggested to appear at a later date, be scheduled to appear before this committee: Prof, John Laskin, Dr. Edward McWhinney. Prof. Léon Dion, Prof. William Lederman, Hon. J. C. McRuer, Peter Russell, Kenneth Lysyk, Prof. Richard Simeon, Robert Decary, Sidney Green, Prof. Andre Tremblay. Prof. Francois Chevrette, Prof. G. P. Browne and E. A. Driedger, Q.C.
After debate, Mr. Nystrom moved: That this Committee instruct the Sub-committee on Agenda to prepare a list of at least 10 constitutional experts to appear as witnesses before this committee.
By unanimous consent, the motion of Mr. Epp was allowed to be withdrawn.
By unanimous consent, the motion of Mr. Nystrom was amended by deleting the words “at least 10”.
After debate, the question being put on the motion, it was negatived in the following division:
The Honourable Senators
The Honourable Senators
Messrs. Roberts, Elton, McCormick and Clyne made statements and answered questions.
At 10:57 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
The Joint Chairman (Mr. Joyal): Order, please. I would ask members of the media with visual or audio recording equipment to please leave the room so that we may proceed.
I must apologize to this morning’s witnesses. We are late in starting because a number of committees are sitting this morning and some have important legislation to deal with. Other members of the committee, particularly from the Official Opposition, will be joining us later. I assure you that this is not due to a lack of interest on their part.
On behalf of the members of the committee, I am pleased to welcome you, and I hope that our discussions will be productive for all concerned.
I would like to welcome Mrs. Irene Chabot, Mr. Florent Bilodeau and Miss Claire Doran, who are here on behalf on the Association culturelle franco-canadienne de la Saskatchewan.
I believe that Mrs. Chabot has a brief opening statement to make, followed by Mr. Bilodeau, We will then throw the floor open for discussion.
I would point out to you, Mrs. Chabot, that although we have begun 15 minutes late, you will not be penalized. We will try to make up these I5 minutes at the end of the hour that is allotted to you.
Mrs. Chabot, you have the floor.
Mrs. Irene Chabot (President, Association culturelle franco-canadienne de la Saskatchewan): Thank you.
Members of the committee, we have asked to appear before you because we have reason to believe that little is known about the position of French-speaking Saskatchewaners.
We feel that those who will be called upon to make decisions on constitutional matters should have all of the information they will need to fully assess the impact of the constitutional proposals.
We are here to present the facts as we know them, and not as glossed over by the media or as retouched by certain political leaders.
We want to speak for ourselves, that is, on behalf of Franco-Saskatchewaners who are concerned about the consequences of the constitutional proposals and anxious to make their concerns known to their leaders.
Our brief is in three parts. The first part deals with the significant facts and characteristics of the French-speaking
population in Saskatchewan. ln the second part, we will explain how the constitutional proposal will affect Franco-Saskatchewaners. We then conclude with recommendations.
First, the facts. Under the heading of language rights in the province, we have had French schools in Saskatchewan and French was one of the two official languages used by the government. This was at the time of the Northwest Territories.
Before the end of the nineteeth century, an attempt was made to revoke the official status of French and it has not in fact been used since. In the thirties, after long battles, French was completely abolished, even as a subject in school.
Today, Franco-Saskatchewaners are not protected by education laws and the status of French is not recognized in Saskatchewan.
In 1980, the French-speaking population represents approximately 3 per cent of the total population of Saskachcwan, that is, some 30,000 people. They are dispersed throughout the province and more than half live in rural areas. Franco-Saskatchewaners are not concerned around any urban centre and many of them live on farms or in villages with populations of a few hundred or even a few dozen.
With the centralization and regionalization movement which has affected the educational and administrative structures of the province since the forties, small French-speaking communities have lost their autonomy and control over their institutions.
Because they are scattered throughout the province, Franco- Saskatchewaners are always in the minority in regional decision-making centres.
In education, while the situation is certainly less dramatic than it was, it remains unsatisfactory and uncertain.
In 1980, the Saskatchewan School Act states that English is the only official language of education. When our Prime Minister referred to schools that use French as a language in education, it must be understood that he is referring to what are called designated programs, most of which are offered in English schools. For all practical purposes, these are emersion programs designed to teach French as a second language.
Since 1978, the law has guaranteed access to a designated program, but regulations passed in 1979 to more clearly define this right are confusing on a number of points and provide no recourse for parents confronted with indifferent and even hostile English-speaking school boards.
Having recently have their fingers burnt at Prince Albert and Vonda, where legal action was taken to no avail, Franco- Saskatchewaners are afraid that, if the constitution is too vague on the language of education, they will again have to go through this exhausting, costly and useless process.
In Saskatchewan, government services are provided only in English. This means, among other things, that it is next to
impossible to get services in French, even in areas like health and welfare.
So far as communications are concerned, the fact that we are not very numerous seems to mean that all we deserve is one French radio and television station which does not reach all of the French-speaking communities in the province. All of the television programming comes from outside the province.
It must be realized that Saskatchewan is part of the Canadian West, the history of which was deeply marked by the massive influx of immigrants and by the problems caused by their integration into Anglo-Saxon Canada.
Fifty or 75 years ago, a concerted effort was made to abrogate the rights of French Canadians and restrict the cultural development of many groups of immigrants, because a pluralistic Canada was seen as dangerous.
They have managed to make English-speaking Canadians out of these immigrants and want to turn French Canadians into an ethnic group whose culture is based on folklore.
The notion of multiculturalism, which has been introduced and publicized over the past few years, has also muddied the waters, which were not terribly clear to begin with.
Mr. Florent Bilodeau (Director General, Association culturelle franco-canadienne de la Saskatchewan): The people we represent are worried that the constitutional proposal may be passed in its present form, since it does very little for us and may even have a negative impact. The language provisions, as they now stand, will not protect official language minorities and ensure equality and mutual respect for both groups.
What hurts the most is the way in which educational rights are dealt with. The intention of Section 23(l) is clearly positive, as it gives us the right to educate our children in French. But we are very concerned about the wording of this section, not only because of the ambiguity of certain terms that are used, but because we fail to see how we in Saskatchewan will be able to avail ourselves of this right, given the restriction placed on it in the section.
It must be realized that in Saskatchewan, there are no French schools and even fewer French school boards. There would have to be enough people to warrant providing the necessary facilities. The number will in all probability be very high and we will have trouble reaching it, since we are dispersed throughout the province and have to deal with a hostile and uncomprehending majority. We will be the ones who will have to bear the psychological and financial burden of legal action.
Even if we did take legal action, nothing guarantees that we would win. If the courts were eventually called upon to decide, without any more direction than is given in section 23. whether the number of children justifies the providing of services in a
certain area, they will more than likely defer to the opinion of legislators and school officials. This means, more or less, that the decision would be made by the majority.
The principle of access to French schools may go nowhere and it would be doubly humiliating for Franco-Saskatchewaners to know that other groups, like Anglo-Quebeckers and .
certain categories of immigrants, can exercise the right to go to a minority school, as provided for in their constitution, while they, the Franco-Saskatchewaners, cannot, under the same constitution and in the same country.
Section 20 of the constitutional proposal seems to us to be a step backwards and could have an impact on Franco-Saskachewaners access to services in French.
The very notion of placing poorly defined conditions on the provision of federal services will limit the access of Francophones to services in their language across the country and undermine the federal vision, so heavily promoted over the past few years, of French Canadians feeling at home anywhere in Canada.
ln Saskatchewan, it would be a delicate matter to designate areas where there are enough Francophones.
If the province is divided up into units that are larger than the French-speaking communities themselves, there will not be enough of us to justify the provision of services, since we are dispersed throughout the province.
Section 21 states that the official languages provisions will not abrogate or derogate from any right, privilege or obligation that exists or is continued by any other virtue of any other provision in the constitution of Canada, but no mention is made in Schedule l, which lists the legal provisions of the constitution of Canada, of the Northwest Territories Act of 1877, on which the official status of French in Saskatchewan is largely based.
The language provisions, sections 16 to 23 inclusively, do little more than recognize federal bilingualism to a certain extent and confer education rights that will not have much real effect.
We know that the survival and development of Francophone communities implies far more than this.
The proposed resolution, as now worded, also ignores a number of sectors which affect people daily, such as services that fall under provincial jurisdiction. The proposed resolution says nothing about this, as if the Canadian constitution were a federal document and not a national one that defines the relationship between all of the governments that make up Canada and provides complete protection for citizens.
This is a serious shortcoming and we know what effect it will have, since the government of English-speaking provinces have never been very inclined to respect the rights and needs of the French-speaking population.
Mrs. Chabot: In conclusion, we would like to make the following comments and recommendations.
We recognize that the inclusion in the Canadian constitution of the principle of equal status for French and English in Parliament, in legislation and before the courts confers a real right on the individual, Affirming the status of French in the constitution would certainly have a symbolic value, but it is a great concern to us that the proposed resolution falls well short of providing the strict and vital minimum for the French- speaking population of Saskatchewan. We are painfully aware of the fact that these few provisions of the proposed resolution will be a decisive and irreversible step in the history of French-speaking minorities in Canada.
We would like to dissociate ourselves from the strategy of blackmail, by which Quebec’s position on the patriation proposal makes it responsible for the misfortunes of Francophones outside Quebec.
As the only state in North America where Francophones are in the majority, Quebec has to protect its French-speaking population and it is important for us that Quebec Francophones be strong and dynamic.
Despite the intention of Section 23, the legal right to education in the language of the minority is meaningless for Franco-Saskatchewaners. If we cannot achieve this without depriving Quebec of the means of ensuring the survival of its French-speaking population, we will consider ourselves losers.
With certain exceptions, we consider that the premiers of English-speaking provinces are responsible for the watering down of our rights in the proposed constitution. This is particularly true of our premier, who, although he is aware of our position, has remained silent on the issue.
In its official position on constitutional reform, our government completely ignores its responsibility to its French-speaking population and gives the impression that the issue does not interest it in the least.
We have the following recommendations to make on the aspects of the constitution which are of particular interest to US.
First, a clear and unequivocal recognition of the Canadian duality and of the two founding nations.
Secondly, the recognition of the responsibility of provincial and federal governments of ensuring the equality of status of the Francophone population and of encouraging the development of Francophone communities through appropriate legislation and policies.
Thirdly, the recognition of the right of the minority to education in the language of the official minority, without regard to the number of students. and the recognition of the principle of control over and management of Francophone schools by Francophones.
Fourthly, a more generous and precise definition of access to federal services in the language of the minority.
Finally, the recognition of the legal status of the French
language in Saskatchewan, before the courts and in the legislative assemblies, as provided for in certain provisions of the Northwest Territories Act.
Thank you for your attention.
We are ready to answer your questions.
The Joint chairman (Mr. Joyal): Thank you very much, Mrs. Chabot and Mr. Bilodeau.
Your recommendations are quite clear and I am sure that the members of the committee have questions for you.
To start the first round, I recognize Rock La Salle. followed by Lorne Nystrom.
Mr. La Salle.
Mr. La Salle: I am pleased to have the opportunity to question our French-speaking witnesses from Saskatchewan,
I, of course, welcome them to Ottawa.
I have a general question for you, but it is also very direct. I would like to know whether you think that the federal government adequately consulted the provinces before tabling the proposed resolution, which could eventually affect all Canadians.
Do you think that your government was sufficiently consulted? Was there enough discussion at this level?
The Joint Chairman (Mr. Joyal): Mrs. Chabot.
Mrs. Chabot: Yes, Mr. La Salle. We have been discussing constitutional reform for months, even years, and I think that our government and the other governments have enough time to participate and share their views.
Mr. La Salle: I have no doubt that your recommendations and arguments are justified. I am sure that you will be willing to tell us whether you recognize provincial jurisdiction over education.
Mrs. Chabot: We certainly recognize that our provincial government is responsible for this to a certain extent, but we also believe that the federal government has a responsibility in this area.
Mr. La Salle: Would you go so far as to say that the federal government was justified in acting unilaterally, given the implications that the proposal will have for provincial legislatures?
Mr. Bilodeau: I would like to go back a little.
While we agree that our government had ample opportunity to make its position clear, both over the summer and at conferences that have been held since 1971, it is unfortunate, as we said in our brief, that it did not consult us very often,
although we have been consulted over the past few months, especially since March or April. It is clear from the minutes of the conferences held over the summer and in September that we were poorly represented as Franco-Saskatchewaners and that is why we want the provincial governments, particularly the government of Saskatchewan, to be required by law to recognize the French-speaking community in Saskatchewan and provide legislation and policies that will respect our community and provide us with the means of living in French in Saskatchewan.
Mr. La Salle: Do you think, for example, that the federal government should make a special effort to have these proposals endorsed by the provinces or would you allow the federal government to push it through without their support?
Mr. Bilodeau: The support of the provinces is certainly necessary. Once again, I think that the federal government should make the provinces talk about us and represent us, both in Saskatchewan and in other provinces. Nothing was said about us at this summer’s conferences. Unfortunately, since there are not very many francophones in Saskatchewan, the provincial government did not have to talk about us. It preferred to talk about resources, the economy and the distribution of powers.
Mr. La Salle: You said that the support and agreement of the provinces was necessary. I agree with you on that.
Given this. do you think that the committee, when it is finished with its work, should send the amended proposals, assuming that they can be amended, back to the provinces for approval before sending it to London?
Should the provinces be asked to approve the final proposal?
Mr. Bilodeau: For us, as we say towards the end of our brief, the Constitution is not a federal document but a national one and, in that context, the provinces should certainly have a chance to see and react to the final version. As the federal government said at the beginning of this summer, these are duly recognized structures with the power to make decisions regarding the new Canadian Constitution.
Mr. La Salle: You are naturally in favour of patriation, as many Canadians are. Would you prefer that the Constitution be amended in Canada, and not by a foreign Parliament?
Do you think that amendments should be made in Canada, by Canadians, instead of asking a foreign government to substantially amend the existing Canadian Constitution?
Mrs. Chabot: As long as our rights are protected in the process.
Mr. La Salle: Yes.
Do you think that our rights can be protected if the constitution is brought home and amended in Canada?
Mrs. Chabot: As long as we give it a good try and the federal government considers the recommendations that are made to it.
Mr. La Salle: Do I have any time left, Mr. Chairman? The Joint Chairman (Mr. Joyal): Certainly, Mr. La Salle.
We are listening closely.
Mr. La Salle: At one point, Mr. Nystrom made comments and recommendations to the effect that Section 133 of the British North America Act, which now applies to Quebec and Manitoba, also apply to Ontario and New Brunswick.
Do you think that he was wrong to leave out Saskatchewan?
I would like to know what your position is on this?
Mrs. Chabot: The Associations position is that this is precisely the area where they seem to want to invoke the “where numbers warrant” principle. lf certain provinces are named, for example, Ontario and New Brunswick, what happens to the others?
We think this should apply to all provinces, particularly in this day and age.
Mr. La Salle: Do you think that it would be physically and financially possible, since you represent only 3 per cent of the population of Saskatchewan, to provide education in French throughout the province, or should we recognize that there are pockets of Francophones where it would be easier to teach in French? Do you think that French could be taught all over the province for just 3 per cent of the population?
Mrs. Chabot: Anything is possible when you really want it, but I will let Claire answer the question.
Miss Claire Doran (Political Adviser, Association culturelle franco-canadienne de la Saskatchewan): At the beginning of the brief, when we described the French-speaking population in Saskatchewan, we wanted to draw your attention to the fact that not only do we represent 3 per cent of the total popula-
tion. but that we live in small communities scattered across the province. I believe that Mr. Nystrom is aware of the situation.
In education as in . . .
Mr. La Salle: Inaudible.
Miss Doran: There are no Francophones in his riding, but I believe Mr. Nystrom is aware of the situation in the province.
In education as in other areas, we favour a realistic type of bilingualism. We do not want everything in the province to be bilingual, but we do want bilingual services to be available to French-speaking communities. We could, for example, have French schools where there are Francophones and thus have control over education at the community level.
It is more of an administrative problem; we have to decentralize our institutions which, because they are regional, are controlled by Anglophones; we have to turn them over to the communities. It is not very realistic or practical, from a financial point of view, to make the whole province bilingual.
The Joint Chairman (Mr. Joyal): Thank you, Mr. La Salle. Mr. Nystrom followed by Mr. Corbin.
Mr. Nystrom: Thank you, Mr. Chairman.
I would like to thank the Franco-Saskatchewaners from my province for appearing this morning, and I would like to question them on their situation in our province.
I was very much struck by the figures from the 1971 census, which appear on page 3 of your brief. According to the 1971 census, 56,000 people are of French origin, 31,605 list French as their mother tongue, and only 15,900 give French as the language they use. This is the history of the Francophone community in Saskatchewan: many people of French origin, from France or Quebec, have no opportunity to speak French and have no French schools or facilities.
Perhaps Quebec should have special status under the Constitution, and perhaps the other provinces should as well, because the situation is different in different parts of the country. You have mentioned English-speaking Quebecers, whose situation is very different from that of Francophones in Saskatchewan. I would like to know whether you would be in favour of special status for Quebec, since the minority in that province is very different than in yours, and perhaps a different status for Francophones outside Quebec.
Last week, a group of Franco-Manitobans appeared before the Committee and spoke of special status for Francophones in Manitoba.
Do you agree with this?
Mr. Bilodeau: The Canadian Constitution should certainly take these situations into account. To go back to what Mr. La Salle was saying, the 10 provinces that make up our country will be governed by the same Constitution and the same rules. I think that both English and French should have official status in the courts and legislatures of all 10 provinces. Otherwise, we end up playing the numbers game.
To answer your question, Mr. Nystrom, I think that we would be fooling ourselves if we thought that, by enshrining broad rights in the Constitution that would allow Quebec to maintain or even withdraw certain programs, we will resolve the situation of French-speaking Saskatchewaners. We know perfectly well that English-speaking Quebecers have all of the facilities, mechanisms and institutions they need, whereas our numbers are declining because French is not recognized as an official language and we do not have the institutions or structures that would enable us to be educated or live in French. This applies, as you have pointed out, to health services, communications, the economy and other areas.
Saskatchewan is not the only province in Canada. Under the proposed resolution, exceptions can be made in certain cases, such as Section I33 for the federal government and Quebec and Law 23 for Manitoba. lf it can be done in those cases, it should be possible to require provincial governments to meet the needs of their official language communities.
Mr. Nystrom: Thank you.
Do you think that the federal government has made enough of an effort over the past eight or ten years to implement the Official Languages Act in Saskatchewan?
Mrs. Doran: I would like to answer, if I may.
it is hard for us to assess what the federal government has done. All we can do is assess the results, which in Saskatchewan, as I am sure you know, have been fairly poor.
We have no way of knowing whether the federal government devoted a great deal of energy to the program, but got no
results because of the context. This is quite possible. But it may not have done enough, and we have no way of knowing that either. Another possibility is that it did not go about it the right way.
I think that as far as the Official Languages Act and its implementation are concerned, the federal government has recently readjusted its thinking given the failure of the program, not only in Saskatchewan.
It is certain that as far as results are concerned, it is very difficult to receive federal services in French in Saskatchewan. One must really be determined to spend at least half an hour arguing and the rest of the day in a bad mood, and one does not always want to do that. So one does without.
Mr. Nystrom: But the situation in Saskatchewan is really difficult. As I said, there are not many French speakers in the smaller parts of the province. in my riding, for instance, there are about 75,000 people and perhaps only 100 of them speak French.
But in your brief, in the recommendations part, you mentioned many things which we need in our Constitution; on page 12, you mentioned the importance of Canada’s duality, including five different categories such as education, the courts, legislative assemblies, and other such categories.
There are other important categories where the principle of Canadian duality could be applied in our country; here again I am thinking of a province like Saskatchewan where French speakers only amount to 3 or 4 per cent of the population. Would you like to mention any other categories important to the protection of our country’s duality, a very important part of Canada’s history?
Mrs. Chabot: First off, Mr. Nystrom, I would like to point out, as we said earlier, that we do not expect bilingual services throughout Saskatchewan; however, we do expect those services at least in Francophone communities in Saskatchewan, who want them, deserve them, and have a right to them. We definitely do not expect services where there are only three or four people needing them, and we are quite prepared to accept this reality.
Secondly, it is often mentioned that we represent only 3 percent of the population, but that means nothing. That is no.
more than an exercise in arithmetic. Our Prime Minister’s 4 per cent of the population is just as important at the federal level, for the Canadian Government, as our 3 per cent is for Saskatchean.
So I think that this whole question of “where numbers warrant” should be dropped entirely from all regulations and acts, and that it should not apply in a country where we expect a Canadian duality and the recognition of both founding peoples.
If Canada is what it is, we should not get hung up on trying to find out whether there really is Canadian duality between the two founding peoples. The duality exists for us, it is a reality, and it should be taken into account.
Mr. Bilodeau: If I might elaborate a little…
Mr. Nystrom, you asked whether we had any other recommendations to strengthen our case.
I think that what is essential for us is that the Constitution recognize the principle of two founding peoples; as well, you asked us earlier whether you expected Section 133 to be extended to all 10 provinces. Of course. We say that in our fifth proposal in which we ask that the Northwest Territories Act of 1877, which recognized French as our official language, be included or retained.
To come back to the second proposal, you will no doubt realize that there we go even further than Section 133. We say that the Canadian Constitution should oblige our provincial governments as well as the federal government to guarantee equal status for the French-speaking population. In other words, they must provide us with the mechanisms. the possible or necessary structures within the province. So you can see that we go much further.
You made a comment on the question of the Official Languages Act. Unfortuntely, this act is limited to services provided by the federal government and to education; in Saskatchewan, structures at the level of federal institutions are not what are needed to allow us and our young people to live in French since language services do not depend that much on the federal government. Our services are at the provincial level, so it is at that level that the provinces should feel obligated to serve their population, the daily services which a Francophone in Saskatchewan needs.
Mr. Nystrom: Thank you, and good luck.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Mr. Eymard Corbin is next, followed by the Honourable Senator Asselin.
Mr. Corbin: Thank you, Mr. Chairman. First, I would like to congratulate this morning’s witnesses, the French speakers of Saskatchewan, for the quality of their presentation and the determination with which they presented us with their point of view. I share their point of view, and I understand entirely the difficult situation in which they find themselves at the present time and the oppression, as they themselves said, which they have had to accept over the years in their fight to be recognized and to obtain minimum rights, or even fairly rare privileges.
First, I would like to come back to the realities mentioned by this morning’s witnesses, the 3 per cent reality and the reality of communities scattered haphazardly throughout the Province of Saskatchewan; I would like to come back to the point made a moment ago, according to which the province start by supplying services in both languages, or, in your case, in French, where communities, if I understood correctly, are sufficiently dense. And I believe that your numbers are growing-you were realistic enough to ask that this be done first and foremost where there are enough people, here the service
can be justified according to real or potential demand. Is that in fact your point of view? New …
Miss Doran: Might I just add a nuance. ..
Mr. Corbin: Yes.
Miss Doran: … because I do not want anyone to think that we agree with the famous “where numbers warrant” notion which we do in fact reject for education because it is so vague that it can be dangerous for us.
When we speak of realism in bilingualism. what we mean to say is that in some parts of Saskatchewan there are almost no Francophones, or at least no French-speaking communities; an example would be the riding represented by Mr. Nystrom. For us, bilingualism should focus on the idea of community rather than number. So we have French-speaking communities, partly mixed communities which are still largely French-speaking, and English-speaking communities which are perhaps Anglo-Saxon. Ukrainian, German or whatever.
So what we are asking for are bilingual services, because even if we want English speakers temporarily in our French-speaking communities to have access to English language services, we want the services offered in Francophone communities to be bilingual and not strictly unilingual English.
As far as costs are concerned, the situation is not unreasonable; no extraordinary costs will be involved, but our French speakers will be able to have access to services in French.
So we feel that the concept of community bilingualism is important, rather than a quite different concept of numerical bilingualism, which is somewhat arbitrary.
Mr. Corbin: Could you tell us how many types of communities might benefit from the services you are claiming? If I understood correctly, in the context of realism which you mentioned, it would be possible at the level of provincial services in particular to establish a minimum number of centres where services would be provided in both languages. In about how many centres could this type of French language service be offered?
Mrs. Chabot: In about 30 communities.
Mr. Corbin: About 30. Thank you.
Mrs. Chabot: Geographically divided, perhaps, into 12 regions.
Mr. Corbin: 12 regions. . .
Mrs. Chabot: The fact is that we French speakers are scattered in about 12 geographical regions. In spite of the scattering of our population, that is the reality.
Mr. Corbin: I understand your point of view quite well. but I did want more clarification, more explanation for some people who still do not understand.
Last week the Honourable Duff Roblin, Senator Roblin who is a former Premier of Manitoba. directed a request to Mr. Chretien that Section I33 of the British North America Act be extended to provinces other than Manitoba and Quebec; this section touches on institutional bilingualism, legislative assemblies, and bilingualism in the courts. He said that that section should be extended at least to those provinces with a number, or if I remember correctly, he used the word proportion, a proportion of French speakers equal to the French- speaking population of Manitoba; he named Prince Edward Island, of course New Brunswick, and Ontario, and I think that he could have extended his example to Saskatchewan as far as the number of French speakers is concerned, because there are more French speakers in Saskatchewan than there are in Prince Edward Island at the present time.
As for Lorne Nystrom. he served notice on the committee that he intended to move a motion to extend the provisions of Section 133 of the BNA Act to New Brunswick and Ontario. As a New Brunswicker, I can tell you that Section 133 does very little for New Brunswick except at the symbolic level, because New Brunswick already has an official languages act which at the outset gives us considerably more than do the provisions of this proposed resolution.
Now could you accept having Section 133 of the Constitution extended to Saskatchewan, since you also seem to feel it has mainly a symbolic value. You say that the provisions of the Northwest Territories Act dealing with official languages should probably be extended, and you even ask why it is not included as an appendix. The answer provided by the Minister of Justice is that the Northwest Territories Act was enacted by the Canadian Parliament and is not a constitutional act from the British Parliament. That is why it is not appended. But to satisfy you, I do think that we would achieve the same result by extending the provisions of Section I33 of the present constitution to Saskatchewan. Would you agree with that initiative?
Miss Doran: Of course, I think we have already said that we agree. It was not mentioned as such in our brief because we decided on a different way of formulating our requests covering the same areas as the provisions of Section 133 and even going beyond Section 133. Because, as you yourself said, Section 133 deals with bilingualism in the courts and in legislative assemblies; as far as we are concerned, we claim to have the support of a good number of constitutional experts according to who we already have those two rights in Saskatchewan. The problem is that those rights have been flouted for the past 90 years; today we are beginning to take a serious interest in the way in which those rights could be re-established. However, it is obvious that extending Section 133 to
Saskatchewan would, to all intents and purposes. from a layman’s point of view, have pretty well the same effect, the same results.
Mr. Corbin: In any case, I for one would not hesitate to extend Section 133 to all provinces because the symbolic value of so doing is important in the present historical context. Obviously, it would be preferable that the provinces take positive action beforehand, that they obtain a resolution from their legislative assemblies to grant the federal Parliament total freedom to move in that direction as well.
What attempts have you made recently to have the governmental authorities in Saskatchewan accept your requests, the requests included in this morning’s brief? I am sure that you maintain constant contact with the Premier of Saskatchewan. What reaction do you get from him: what excuses do you get from him explaining why he is not moving as rapidly as we would like to move at the federal level?
Mrs. Chabot: Yes, we have been in constant communication with our government for the past few months and even the past few years; but in any case, recently, over the past few months, we have met frequently, as frequently as possible, and we must say that while the government seems to listen to us, our cause is always being put off until later; in other words, the buck is always being passed. The buck is often passed to Ottawa and returned to our government, and there is a constant demand for supporting evidence, and “where numbers warrant” is often mentioned; that is why that phrase means nothing for us, and why we are offended to find that once again in this bill, in this proposed resolution.
As far as our government is concerned, you know as well as we do that our Prime Minister does not consider himself responsible for …
Mr. Corbin: Which Prime Minister do you mean?
Mrs. Chabot: Our provincial Prime Minister.
Mr. Corbin: The Premier of Saskatchewan.
Mrs. Chabot: To begin . . .
Mr. Bilodeau: Mr. Corbin, I might add that we have always said that it seemed that neither our provincial nor our federal government was prepared to recognize the fact that there are two very special or identical sections in the constitutional debate; I said section, I meant two parts; first, the discussion on the distribution of powers, which include resources. the economy, and what you will: there is the Canadian cultural fact and, as the provincial government stated when making its position known, we must not talk in terms of a bargain or a package. They are identical and Canadian duality must be recognized, For us. extending the application of Section 133 is secondary. What matters is recognizing Saskatchewan through the recognition of Canadian duality.
So, our second recommendation follows upon this question of extending Section 133. We state therein that governments
should act in accordance with the Canadian reality, which is that we are two founding peoples whose cultures were enriched by the subsequent arrival of people from other countries.
To date, l would say that we have been meeting mainly and almost solely with the Attorney General who is also the minister responsible for inter-governmental affairs.
Before the end of 1980, we are scheduled to meet the Cabinet and to reiterate our position and our expectations of provincial representatives so that they realize once and for all that they are responsible for us and that they must stop making us depend entirely upon the federal government.
The Joint Chairman (Mr. Joyal): Your time has run out. I will now recognize the honourable Senator Martial Asselin and l believe Mr. Bryce Mackasey has a short question. So, if Mr. Asselin would be so kind as to limit his questions to the few minutes remaining, we will be able to follow our agenda as closely as possible.
The honourable Senator Asselin.
Senator Asselin: I will do my best, Mr. Chairman, in trying not to speak at great length.
I would also like to congratulate you on the interesting work you are doing in Saskatchewan. Recently in a Quebec newspaper I saw the claims you intended to bring before the Joint Committee on the Constitution and I congratulate you for having done so as frankly as you have here this morning.
I would like to ask you a question on the division of powers. Under our Constitution, it is the provinces who are responsible for education and, in this proposed resolution, the federal government would indirectly appropriate this provincial right through Sections 22, 23 and 24. In your opinion, must the jurisdictions remain as they are now? Must the provinces remain masters of education in their own house or should the federal government get involved in that area?
Mrs. Chabot: We would like these rights to be entrenched in the Constitution while recognizing that it is the responsibility of the provincial government.
Miss Doran: Yes, I think Mrs. Chabot has expressed our position quite clearly. It is not appropriate that we, who make up only 3 per cent of the population of Saskatchewan, decide on federal-provincial jurisdictions. The governments themselves do not even agree on power-sharing and they have been discussing the question for years now.
As far as we are concerned, the Constitution is not a federal document. It is a document which must bind all governments. We deplore the fact that the provincial governments have not taken the appropriate position on this document and have not assumed the responsibility incumbent upon them. It is a delicate state of affairs. It is not a question of blaming either the federal government or the provincial governments for not having assumed their responsibilities. There has just probably not been enough dialogue or enough pressure applied in order to make the two levels of government agree in order to provide
us with at least the fundamentals. that is, the educational services we need.
We do not intend to demand that the federal government intevene in a matter of provincial jurisdiction. That would not be very realistic nor would it be very desirable. In any case, the federal government could have intervened to correct injustices which have been inflicted upon minorities by the powers that be using some of the provisions of the present Constitution. However, it has never done so. So nothing leads us to believe that if they had more power, they would intervene more often.
Senator Asselin: We could, of course, discuss the constitutional question of jurisdictions at great length, but let us try to direct ourselves to more practical matters.
Section 24 has been raised many times during discussions in this committee. The expression ” in which the number of children of such citizens is sufficient” has, of course, been questioned by many witnesses. How would your group redraft Section 24? Do you have any ideas for a new way of formulating Section 24 which would meet the aspirations of your francophone groups? Have you given any thought as to how the section could be more explicit in order to avoid the arbitrary statement, “in which the number of children of such citizens is sufficient” which leaves everything up to the interpretation of the courts?
Mr. Bilodeau: I think you are referring to Section 23.
Senator Asselin: That is it.
Mr. Bilodeau: For us, the importance of this section is the recognition of minority language educational rights without having to have a specified number of students to warrant the provision of these rights. Majorities never have to respect that condition. It is always considered that majorities will be reasonable, realistic and practical in their demands for educational facilities. We would like to receive the same respect and be given the opportunity to use our own good judgment in deciding what is feasible and when. In other words, we would like to be able to say when it would be feasible for us, when it would be satisfactory in our community in the Northeast of the province to have a French school as there are 30 of our children in three or four classes. It should not be left up to the majority to decide whether or not the educational facilities should be provided in our community. We were told this week that the courts would base their decision on the situation in majority language educational facilities.
Consequently, if we are to be compared to the majority and have to justify our facilities with a specified number of children, we are going to lose out in Saskatchewan, unfortunately.
Senator Asselin: You mentioned 30 pupils. I would advise you to take care in fighting a number if you do not want it to be the determining factor.
Mr. Bilodeau: You did not understand what I said. I said that it would be up to the French-speaking community to decide whether the number was sufficient. I said 30, but I
could have said 10; there will always be a number, but we want to avoid assigning some magic number which will decide whether or not we receive a school. Once again, that would be a case where the majority would decide what is in our best interest. We do not want that and it is unacceptable.
Senator Asselin: I would like to talk to you for a few minutes about another aspect of your minority situation in Saskatchewan.
When you claim that you make up 3 per cent of the provincial population, that figure may have come from a census. Do you feel that 3 per cent is on the rise or not? Do you feel that Francophones are becoming increasingly assimilated by the English language? In your milieu, given the situation, do you find that people prefer learning English and that the young are becoming more anglicized? There is a second part to my question: when a Francophone from Montreal or Quebec, for example, comes to work in Saskatchewan, where does he or she settle? Would he or she become integrated with the French-speaking or English-speaking community?
Mrs. Chabot: In answer to your first question, if we are so concerned, it is certainly because we feel, we know, that our people are becoming assimilated. One only has to look at the document published a couple of years ago by the Federation des Francophones hors Quebec entitled «Les Heritiers de Lord Durham». The situation is an alarming one; four population is becoming assimilated it is because means have been taken to that end, means have been taken to deprive the group of its rights to direct its own institutions. That is precisely the point which we want to emphasize: the recognition of the principle of control and management of our own institutions, beginning with the schools.
Secondly, you have asked . . .
Senator Asselin: Regarding the mobility of manpower.
Mrs. Chabot: Quite naturally, Francophones from Quebec or New Brunswick usually end up in English-speaking communities in the major cities like Regina, or Saskatoon. If they come to earn a living, they will per force find themselves in large cities because that is where the work is in Saskatchewan. Exceptionally, there may be some work for very limited periods in rural areas during the summer months. These people could have some influence in our communities if more of them emigrated to the province and to the Francophone communities in particular. As we have mentioned, half of the French- speaking population lives in rural areas.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Asselin. Mr. Bilodeau: May I . . .
The Joint Chairman (Mr. Joyal): Go ahead, Mr. Bilodeau, of course.
Mr. Bilodeau: I would just like to make two points on that question, Mr. Asselin. First, if there is one thing which has come out of this constitutional debate, it has been to give a
second wind or boast to our community. When people learn that the Association is touring the province on a type of public consultation mission, people become hopeful again and have regained a certain strength which we did not see in them a few years ago. They now want institutions. They are ready to put in a claim to the federal government for French schools, school boards and so forth.
Regarding your second question, there was reference made earlier to 12 regions. We are hearing more and more from La Ronge which is a rapidly growing community with quite a few employees, as well as from the community or Uranium City that there is a desire to study the possibility of establishing Francophone institutions in those areas. So, all this discussion, the representations we have made to our government and especially at the federal level are letting people outside the province, whether they be in New Brunswick or Manitoba, know that Saskatchewan is not completely Anglophone and that there are centres where one can live in French there. Rather, I should say there are communities in Saskatchewan where one would want to live in French.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Bilodeau. Thank you, Mr. Asselin.
One short and last question from the honourable Bryce Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman. I welcome our witnesses. As there is not much time left, 1 would simply like to hear your opinion on the alternative proposed by Mr. Nystrom and by others two weeks ago of extending Section 133 and Section 23 of the Manitoba Act to include the provinces of Ontario and Manitoba. Do you agree or do you feel that this amendment should also include the Province of Saskatchewan?
Mrs. Chabot: In our opinion, these rights should not be extended to include Ontario and New Brunswick in particular, but all the provinces, without exception. There is no reason why they could not fall under those provisions. Neither Ontario nor New Brunswick would suffer from every other province being included in the resolution and it would be up to the provincial governments to do their share to make sure it was respected.
Mr. Mackasey: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, very much, Mr. Mackasey for your co-operation.
On behalf of the honourable members of this committee, I would like to thank Mrs. Irene Chabot, Mr. Florent Bilodeau and Miss Claire Doran for having appeared before us this morning to present the recommendations of the Association culturelle Franco-canadienne de la Saskatchewan for the consideration of all members of this committee.
Thank you very much.
Mrs. Chabot: Thank you, Mr. Chairman. We would also like to thank you for having agreed to meet with us and allow us to present our opinions and comments to the committee. We leave in the hope that our representations will be kept in mind when the committee makes its recommendations and that in the very near future we will be able to live as we want to, as a true French-speaking Saskatchewaner at home in Canada. We hope that the Canadian duality will be recognized and that we will be respected as one of the two founding peoples in Saskatchewan just as Francophones have been respected elsewhere.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Chabot.
I would now like to ask the representatives of the Coalition of Provincial Organizations for the Handicapped to come to the table.
In particular, I would like to invite Mrs. Monique Couillard, Mrs. Yvonne Peters, Mr. Ron Kanary and Mr. Jim Derksen to take their place at the witnesses’ table.
The Joint Chairman (Senator Hays): I wonder if the coalition of provincial organizations of the handicapped would please come forward. You may proceed, Mr. Kanary.
Mr. Ron Kanary (Vice-Chairman, Coalition of Provincial Organizations for the Handicapped): Thank you, Mr. Chairman. On behalf of the Coalition of Provincial Organizations of the Handicapped, I would like to express our appreciation for this opportunity to participate in what we believe is one of the most important deliberations in Canadian constitutional history. Our National Council is pleased to be represented here today by this delegation representing all our members and associates across Canada, united in determination to see the rights of disabled Canadians recognized in the constitution.
The Coalition, as some of you may know, is a national alliance of nine independent provincial organizations of variously disabled persons functioning democratically so as to represent their views and concerns. At the local level, these nine provincial organizations encompass about 80 chapters representing some 15,000 to 20,000 disabled Canadians.
We gladly endorse the constitution of Canada and whole-heartedly welcome entrenchment in the constitution of a Canadian Charter of Rights and Freedoms.
However, we believe there are several amendments which should be made to the proposed Charter. Of most importance to disabled people in Canada is that disability or handicap should be included as grounds protected from discrimination under Section 15(1) and we recommend this amendment to you.
We recognize and thank members of Parliament, Peter Lang, Therese Killens, David Smith, Stanley Knowles and Neil Young, who spoke for this amendment during the House of Commons debate prior to the striking of your Committee. The all-party House of Commons Special Committee on the
Disabled and the Handicapped in its first report to Parliament in October of this year stated:
Should it be the will of Parliament to entrench Human Rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical and mental handicaps.
Chief Commissioner Gordon Fairweather, in his presentation on behalf of the Canadian Human Rights Commission to your Committee, said any list of prohibited grounds of discrimination in Section 15(1) is incomplete and does not offer adequate protection if it does not include physical or mental handicap. The presentation of the Canadian Jewish Congress to your Committee last week also called for this amendment. The Royal Canadian Legion and the Canadian Labour Congress, we are pleased to know, also support our position; and most likely, many more who will come before you will.
This level of support for our inclusion in the non-discrimination rights section of the Charter demands that the objections to this amendment cannot be vaguely stated, drafting or definition concerns as at present; surely this level of support demands that objections to the amendment must be clearly demonstrable and justifiably sound ones.
The growing awareness and concern about this in society is based on a true understanding that disabled people are a minority who have suffered discrimination which has limited their participation in society and who therefore. require protection of the law. This social understanding calls on you to include disability or handicap as a prohibited ground of discrimination in Section 15(1) of the proposed Canadian Charter of Rights and Freedoms.
There are three kinds of advantages in amending the Charter to include protection for disabled people.
Firstly, constitutional protection of the rights of disabled people would give high symbolic profile to the social concern to recognize and protect these rights. It would set the tone for an improved future. When we are denied service in a restaurant simply because of our blindness, or employment because of deafness, or housing because of a spastic movement disability, we are often injured twice—once by the act of discrimination itself and again by the shocking realization that the state offers us no protection from such discrimination. This situation still pertains in three provinces of Canada; in the other seven provincial jurisdictions, the provinces have taken, to various degrees, a leadership role in providing human rights protection. It will be a profound joy in such circumstances to substitute, for the helpless feeling of being relegated to the refuse. as if with no value or right to expect better than the prejudice or discrimination offered to us in the past, the reassuring knowledge that we are protected from such prejudice and discrimination by the Canadian constitution.
The Canadian Charter of Rights and Freedoms will articulate the most basic and cherished values of our society and place them in the basic legislation of the land. This alone will set a new tone which of itself will do much to redress the injuries of exclusion and prejudice that have been our inheritance.
Secondly. the inclusion of disability as a prohibited cause of discrimination. as it applies to the substance of the law, will do much to change existing laws at municipal. provincial and federal levels which do discriminate against disabled people. A good example of such a needed change is the legislation which denies disabled people the protection of minimum wage legislation in various provinces and in the federal labour code.
No longer will we remain the only category of adult Canadians whose labour and productivity cart be bought for twenty-five cents a day and less. Lest this example should be misunderstood, the constitutional change we recommend to you will not mean that all centres offering daytime activity for disabled people will be required to pay minimum wages. but it will mean a distinction will have to be made between daycare. activity centres where people do not work and which are therefore exempt from minimum wage standards. and settings where people work which will be subject to such standard protections from exploitation.
The amendments we are recommending to you would also help preclude any future legislation at municipal. provincial or federal levels which would discriminate against disabled people. Forty years ago Nazi Germany enacted legislation which called for compulsory sterilization of certain disabled people in the name of racial eugenics. Other disabled people were murdered although the word used was euthanasia. Even today in this country. compulsory sterilization is sometimes talked about for certain disabled people and the Ontario Association for the Mentally Retarded is required to have a public policy against any form of passive infant euthanasia.
The Canadian Jewish Congress, in its presentation to you a week ago today. speaking for the inclusion of handicap in Section 15(1) referred to a brief they submitted to the Special Parliamentary Committee on the Disabled and Handicapped wherein they made the same recommendation. They said, in that brief. that the ramifications of our failure to firmly establish equal legal rights for our handicapped and of our near automatic exclusion of them from the mainstream, resulted in events in the not-too-distant past which still cast shadows over us dark enough to send cold shivers running through our souls.
For those of us who still remember, or who have taken the trouble to learn about it, it was in Hitler Germany that the retarded, the gypsies, the physically and emotionally handicapped. so easily became early fodder for the destruction machine.
It is interesting how little is said about this dimension of the holocast. This neglect to recall or analyze this particular dimension of the holocaust gives us a frightening insight as to the state of our present moral crisis in respect to what we describe as â€˜the disposables of our society.
We value the dignity of the individual and his right to life and security of the person, and have already articulated these values in our draft constitution Section 7. However, in light of history and the ongoing association with disability, of concepts such as racial eugenics and passive euthanasia, disabled Canadians deserve the same reassurance of the amendment we recommend to ensure
the right . . . to the equal protection from the law without discrimination because of. . . disability or handicap,
So that forty years from now such atrocities could not so easily be perpetrated in Canada. Disabled Canadians need to know they are secure from such dangers and that their fellow Canadians hold values which embrace the right to life and security of the person for everyone. including disabled people. The amendment we recommend would articulate and help preserve these most important values which are held by the Canadian people today.
The third general advantage that the inclusion of disability or handicap as a prohibited ground of discrimination would produce, as applied to the administration of the law. is to reinforce human rights protection as an ordinary legislation level. We have struggled for and achieved this in seven of the ten provinces, and have it at the drafting stage in the remaining three. This ordinary legislation level protection, through setting up Human Rights Commissions as courts of first recourse in matters of discrimination, represents the major means by which non-discrimination rights are implemented for the individual who experiences discrimination.
We agree with Chief Canadian Human Rights Commissioner Gordon Fairweather that the Charter of Rights and Freedoms should apply to both the substance and the administration of the law.
We believe that Section 15(1) of the proposed Charter will then make it possible for the decisions of human rights commissions to be appealed to higher courts on constitutional grounds. This will do much to improve the quality of protection on grounds which are listed in Section 15(1). The listing of disability or handicap in Section 15(1) then will be important to disabled Canadians as it will improve the protection already available at ordinary legislation levels.
The omission of disability as a listed category in Section 15 cl) would probably significantly damage the quality of protection already achieved at the ordinary legislative level for disabled Canadians. It seems obvious to us that once the Charter of Rights and Freedoms is in place, together with Section 15(1), human rights commissions, when allocating their necessarily limited staff and legal resources will give
higher priority to complaints of discrimination on grounds which are listed in the constitution because of their potential for appeal to higher courts on constitutional grounds.
Hence, if disability is not among the listing in Section 15(1), complaints of discrimination on grounds of disability will be dealt with using whatever resources the commissions have left over after dealing with complaints on grounds which are listed in Section 15(1). Inadvertently, the Canadian Charter of Rights and Freedoms will create a first and second class of rights to protection from discrimination.
We believe we have a compelling case for the inclusion of disability or handicap as a prohibited ground of discrimination in the proposed Canadian Charter of Rights and Freedoms.
Mr. Chrétien indicated in your Committee meeting of Wednesday, November 12, in response to a question from Mr. Bockstael that the difficulty in adding “handicap” to the list of prohibited grounds was one of draftig a precise legal definition for incorporation into the Charter.
In our view, the Charter of Rights and Freedoms is not an appropriate place for definitions. Neither is it necessary to define disability or handicap or degree of these in the proposed Charter. We note that it has not been necessary to define “religion” in the Charter, despite the plain fact that we will continue to discriminate against religions which practice human sacrifice. We have prepared a rather lengthy document refuting this definitional and other objections to the inclusion of disability or handicap in Section 15(1). This is attached as an appendix to this brief and includes eight quite similar definitions presently found in non-discrimination statutes at federal and provincial levels. We have decided to separate this lengthy section from our presentation, but will be happy to
answer questions in this area or read our document into the record if desired.
Mr. Chrétien suggested on November 12 to your Committee, as had the Prime Minister earlier in the House of Commons, that the inclusion of disability or handicap in Section 15(1) should wait until it could be done in Canada by amending the patriated constitution, We wish to note that, indeed. the inclusion of the entire Charter could wait until such a time-but in fact as Mr. Chrétien indicated on page 77 of Proceedings for the Committee meeting of November 13, there are some reasons why entrenching a Charter of Rights and Freedoms for all Canadians should be done now. We believe these reasons also apply for the inclusion of handicap in Section 15(1) now, and not after patriation.
Mr. Fairweather and others have spoken to your Committee about the advantages of fitting the Canadian Charter of Rights and Freedoms to the international context including the international covenants Canada is party to.
We call your attention to the fact that Canada was one of fifty co-movers at the United Nations at the Universal Declaration of the Rights of Disabled People in 1976. Canada was also one of two co-movers of the resolution in the United
Nations which established l98l as the International Year of Disabled Persons with the themes of full participation and equality. Including handicap in Section 15(1) of the proposed Charter would be a good demonstration that our domestic actions are in line with the policies we are promoting in the world.
As you can see by our delegation, disabled Canadians are also men and women, Mennonite, French. Irish. and so on; indeed disabled Canadians are all colours, races, religions and ethnic origins. For this reason, our concerns about the proposed Charter naturally go far beyond the inclusion of “handicap” in Section 15(1).
We have studied the whole of the Charter and the various recommendations and concerns that have been brought to your Committee. We find the package of recommendations brought to you by the Canadian Human Rights Commission overall of most value, and therefore, generally endorse and comment it to you.
We do this with only one caveat, that we prefer the Commission’s second option for the wording of Section 15. as found on page 5A:4 of the record of your Committee meeting of November 14, 1980 and listed on that page as point 2.4. The relevant parts of this then read:
15.(1) Everyone has the right to equality under the law and to equal protection of the law without discrimination on grounds such as . . . physical . . . handicap . . .
While our concern and recommendation to you can be reduced to the idea that “handicap” be included as a ground protected from discrimination, we also commend generally the Canadian Human Rights recommendations to you because we feel they have much merit overall, and because we feel the time has come to reach for a consensus and wish to contribute to this consensus process.
A constitution is most basic and fundamental legislation. As such it deals with basic and fundamental issues. The issue as to whether Section 15(1) of the charter of rights and freedoms in the constitutional bill should be amended to include “disability” is also a basic and fundamental matter.
Some disabled people in Canada apply the label TAB to Canadians without disabilities. TAB is an acronym for temporarily able-bodied and is used to remind society that disability is a condition which can occur to anyone at any time. at any level of society. Transport Canada’s demographic study indicates that 34 percent of all persons who reach the age of 80 are disabled in relation to mobility. It may be useful to think of the amendment we propose as a kind of insurance or assurance. It is in fact an assurance that the society we live in will continue to progress toward a society which is supportive and open to the continuted participation of people who are or become disabled. It is an assurance that in the event of disability, one will not be relegated to inferior education, low income and the poverty of eitperience and life style symbolized by the institutional residence and attached historically to the condition of disability.
We who are already disabled know better than to imagine any legislation, even a constitution, is an instant cure-all for our problems. However, we do believe that the basic and fundamental legislation of a constitution must point to a new standard, and in a direction of orderly change toward that standard whereby the whole of society will benefit.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Kanary. I shall ask the Honourable Walter Dinsdale to question the witnesses.
Mr. Dinsdale: Thank you, Mr. Chairman.
I would like to begin by welcoming the COPO delegation here this morning, Ms Peters, Mr. Kanary and Mr. Derksen, who, as we have heard in the brief presented, are providing and have provided very creative leadership in the campaign for a charter of human rights for the disabled.
I have only one comment to make about the brief. I notice in the names that you presented on the first page you excluded any reference to one party in the House of Commons and, Mr. Chairman, I can only say that is because we were working under closure and we were in the speaking line-up to take part in the debate that set up this committee and we did not have an opportunity to make our representations but I would say, Mr. Chairman, that I think it is well known that there has been a campaign going on in the House of Commons for at least a decade to set up a special parliamentary committee, and one of the key areas of concern was human rights for the disabled. I might say, by way of introduction, that since this special committee was set up just about a year ago now, there has been a marvellous change in the attitude across the country, in Parliament. to the Bill of Rights for the disabled.
I think you are aware, and this has not been mentioned in the brief, that Canada hosted the Rehabilitation international Congress for the Disabled in Winnipeg last June. That was a congress that was planned over a period of four years by the Canadian Rehabilitation Council for the Disabled and I think everyone will agree that its theme of integration had a profound impact on the media, on the press and on the people of Canada. and I am sure COPO will agree. too, that the theme we are espousing in our special committee on the disabled of de-institutionalization, getting the disabled into the community, integrating the disabled into the community, came to a head at that congress in Winnipeg.
Also, of course, Canada has been sponsoring the International Year for the Disabled. It was just a year ago that I had an opportunity to speak at the United Nations and one of the points that l made there at the time as a response to the IDYP Resolution was that human rights should be at the fore, it always has been at the U.N. since 1975, at the 30th Session of the General Assembly when the human rights code was passed, when the provincial governments responded and we had hoped that the federal government might respond in 1977 when the Human Rights Act was passed but, as you know. there was a considerable degree of reluctance at that time to embrace the United Nations code that does include most of the recommendations that you have made in your excellent brief here this morning.
Well now, you have before you, and it has been circulated. the first report of the Special Committee on the Disabled and we have felt so strongly about the human rights issue that we have made a primary concern the recommendation that the Human Rights Act be amended as quickly as possible to include human rights for the disabled.
Having said that, Mr. Chairman. I would like to ask the witnesses this morning if they are as concerned as Mr. Fairweather, who is the Commissioner for administration of the Human Rights Act, if you are concerned as he was about the conflict as it was outlined in Section I of the resolutions that we are considering, which defines the guarantees of rights and freedoms subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. The point at issue is that it is only recently that there has been wide acceptance that the disabled should be included in a charter of human rights. Do you share the same concern as Mr. Fairweather that you can drive a truck through art article of that kind with respect to human rights?
Mr. Jim Derksen (Coalition of Prineial Organizations for the Handicapped): Well, Mr. Dinsdale. I would like to say first of all that we are certainly aware of our efforts on our behalf over the years and the efforts of many other people from the Conservative Party on the many fronts that are facing disabled people today. We did, however, confine our remarks in our brief to the issue of entrenchment of the Charter of Rights and Freedoms.
Mr. Dinsdale: This is what always happens under closure, Mr. Derksen.
Mr. Derksen: However, regarding Section I and the other recommendations that were made by Chief Commissioner Gordon Fairweather, we did agree that his alternate wording seemed to us. and we are laymen, a better safeguard or a better series of safeguards for the rights of Canadians overall and so we decided to give a general endorsation to his package of recommendations.
Mr. Dinsdale: I take it from that reply. Mr. Chairman, that you are satisfied that your amendment proposed for Section 15(1) would overcome the deficiencies of Section 1, that there would be no loopholes created as it result of the rather vague wording. This is the first section of a most important document, a very profound revision of the constitution of Canada and there are several authorities in the field of human rights that have focussed in on the deficiencies and the loopholes of Section 1.
Mr. Derksen: It did seem to us that the wording of Section 1 was unncessarily broad and perhaps covered too much of the Charter itself and that non-discrimination rights, as Chief Commissioner Gordon Fairweather recommended, should be exempt from Section 1, but should, rather, have a separate caveat in the form of Section 15(3) as proposed by the Human Rights Commission, which would enable a reasonable application of non-discrimination rights and a narrower interpretation than was made available through Section 1.
Mr. Dinsdale: I would take it, Mr. Chairman, that Mr. Derksen and the others are in tune with the recommendation of our Special Committee, notwithstanding what might happen to the resolutions before us, that we proceed immediately with amendments to the Human Rights Act of l977. They were brought into effect only three years ago, Mr. Chairman, and I do not know whether you were in the House of Commons at that time, but you will remember the strong resistance towards general acceptance of the principle of human rights.
I presume that our witnesses are strongly in favour of the recommendations of our Special Committee which we have given high priority to by the very fact that we have issued an interim report before coming down with our final report.
Mr. Derksen: We are very pleased by the urgency indicated in the submission of the preliminary report on this matter. This matter of amending the Canadian Human Rights Act is not at issue in this Committee, however, but l should say that having pressed for this ordinary legislation amendment for many years. having received promises of support from both present opposition parties and a commitment in the Throne Speech from this government, we feel that this amendment is far overdue and is not really open to debate any longer. We are really only waiting very anxiously to see it done.
We are now concerned about the constitution and the inclusion of disability in Section 15(1), which we believe is a very important matter before the nation today.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale. Mr. Young.
Mr. Young: Thank you, Mr. Chairman.
I, too, am a member of the Special Committee on the Disabled and the Handicapped and as you know we spent most of the summer months going across the country hearing deputations and witnesses, and by the time we were finished going across the country we heard from over 400 deputations, and without exception each one of those witnesses argued very strongly for inclusion of the disabled and handicapped in any human rights legislation. That is not surprising, I think, when you consider there are something in excess of 800,000 Canadians who are disabled or handicapped in one form or another, which totals about 10 per cent of the workforce and is probably in excess of that. At the present time under human rights legislation there is some protection against discrimination in employment and yet the evidence shows that out of that 10 per cent of the population there is still a 70 to 80 per cent unemployment level amongst the disabled and handicapped community.
I remember when we were in the United States we were told by both government officials and people from the disabled community that there was never a real commitment on behalf of government or its agencies or the private sector towards employment programs for the disabled and handicapped until
amendments were made to their human rights legislation down there. It was only after these amendments were made that any real commitment came forward. Is that what you hope for here if those amendments are made to this legislation, that it normally increases public awareness and it forces government to give leadership to the private sector, in particular to employ disabled and handicapped people?
Mr. Kanary: Well, again, the amendment to the Canadian Human Rights Act, is that what you are referring to?
Mr. Young: Yes.
Mr. Kanary: Again, as Jim mentioned, as far we are concerned it is no longer up for debate, we are just waiting for it to come. However, the experience in the United States has indicated that constitutional protection is most essential to reduce; that 80 per cent unemployment rate to a reasonable figure.
Mr. Derksen: I would just like to add to that by saying that in America of course the Bill of Rights has been around for a long, long time, but it does not specify the number of minorities that have recently become discernible as needing protection. In America, in fact, it was the Rehabilitation Act of 1974, Section 504, which provided for non-discrimination of disabled Americans, and it was a very broadly-worded section, but the regulations that were subsequently written as to the implementation of Section 504 were very stringent and they resulted in dramatic kinds of changes, changes such that if I go camping in America I can count on an accessible washroom in every campground I get to; changes such that if I drive from Winnipeg, which is my home, the 80 miles to the border, I know there is not one deliberately accessible washroom on the way to the border, neither is there at Canadian customs, but as soon as l cross that invisible line there is a big sign, “Handicapped Parking”, and there is a ramp and there is an accessible washroom. I go to a small town of 500 people and I find that the town hall and the State building and what federal buildings exist in that small town are all accessible to me.
It is that kind of change that has occurred over six years that I think we hope for in Canada. This is not to say that it is going to happen immediately, but we hope there will be progress toward that goal and that in Canada the inclusion of disability in the constitution will set the kind of tone that will result in subsequent legislation and regulations which will give us that kind of access to opportunity.
Mr. Young: Well, we are not only talking about access to employment even though in all the preparations for 1981, including the work of this Special Committee, the evidence as I see it has certainly raised public awareness to the point, particularly in this year where there is an increasing number of cases coming before the Canadian Human Rights Commission from the disabled and handicapped community about discriminatory employment practices within government bodies and government agencies. We are also talking about equal access to services that we temporarily able-bodied people take for granted.
I used to think in this country that the rights to education were a principle, and yet we have experienced over the summer months, and in listening to people we have discovered that
there are thousands of kids across this country who are disabled or handicapped in one form or another who are denied access to education, so we are not only talking about access to education, we are talking about accommodation, transportation and other goods and services that, as I say, we take for granted.
Would you like to comment on education in particular because it seems to me that that is a key area for the disabled and handicapped people. without having equal advantages in the field of education you are denied equal access to employment and a whole host of other services that there are in society.
Ms. Yvonne Peters (Coalition of Provincial Organizations for the Handicapped): I will just comment on that question. I think that what you have said is very true, that disabled people need to have equal access to education. Unfortunately, that is not always the case. There are not only architectural barriers that can get in the way, there are needs for facilities such as sign language interpreters for deaf people and access to Braille material and so on for blind people.
If we go back to the constitution. what we look to from the constitution is a document that will set a tone for disabled persons in this country so that we can build legislation, or at least use it as a foundation to build legislation so that we can start improving things like educational opportunities and we can start providing equal access in necessary facilities and so on.
Mr. Young: The one last area I want to touch on in particular is the whole area of de-institutionalization because I think probably in terms of society’s attitudes towards the disabled or handicapped people, it is reflected most clearly I think in how society views disabled or handicapped people.
In the past there has been a tendency to view someone who is disabled or handicapped as a sick person. and of course society keeps sick people in institutions, when the facts of life are that because you are disabled or handicapped does not mean you are sick; you are disabled or handicapped. And the thrust of governments has to be in the direction of assisting the disabled community to come out of institutions and to live as normal a life as possible within the community.
The Special Committee on the Disabled and the Handicapped have certainly developed that as a theme in our discussion.
Do you see that as playing an important role, not only in 1981 but beyond?
Mr. Kanary: Probably one of the basic reasons why young disabled people are institutionalized is that, first of all, are the attitudinal problem which has developed over so many years. Secondly, because of the lack of appropriate housing; that goes back to the accessibility problem.
As Yvonne has mentioned, we look to the constitution for a final recognition that disabled Canadians are in fact Canadians as well and that the constitution, hopefully, will set a mood so that we can become included in the planning and decision making process over the coming years; so that we could allow
for adequate housing, and support services for individuals who require such services, and the many other services, accommodations and facilities which we are presently being denied.
We are looking for the constitution to set a tone so that changes may come about, not overnight but over a period of years, that we can become fully integrated and active and contributing as a force of people in society.
The Joint Chairman (Senator Hays): Thank you, Mr. Young.
Mr. Derksen, did you want to say something?
Mr. Derksen: I want to follow that up by saying that presently disabled people and their problems are often viewed through a very biased cloud of emotional responses. This has resulted in a situation which has become clear to the Special Comittee on the Handicapped and Disabled wherein the people are institutionalized at 20, 30 or 40,000 dollars a year, where they could be integrated in the community if they had, say, five thousand dollars worth of support services.
Now, it is economically sound to de-institutionalize most disabled people who are presently in institutions.
There has also been a kind of emotional reaction to our call for human rights based upon fear that human rights for disabled Canadians will somehow have a disruptive effect on our society.
We have shown in the appendix to our brief that that fear is really not based upon any sound reasoning, and that it is an unnecessary fear generated out of the kind of bias and emotion that people feel within themselves when confronted by disabled people.
What we need is a clear-minded, objective approach to our problems; and that approach, I would suggest, starts with an articulation that disabled people are Canadians and should have the right to protection from discrimination as a matter of Canadian heritage or, if you like, of constitutional right.
The Joint Chairman (Senator Hays): Dr. Peter Lang.
Mr. Lang: Concerning the list of those protected from discrimination under Section 15(1), this Committee has had the importance of this issue stressed by Mr. Gordon Fairweather, the Chief Commissioner of the Canadian Human Rights Commission.
The first specific issue that Mr. Fairweather deals with concerning human rights if the disabled. I quote from you minutes of November 14. Mr. Fairweather states:
Now to get specific about Section 15, the non-discrimination rights section and the one that has most implications for us in the work you have given us, the list of grounds ‘ presented in that section is incomplete. in particular no promise of equality under the law is made to the disabled.
Mr. Fairweather goes on to state:
Costs are not relevant to the guaranteeing of the right to equal protection of the law.
Mr. Chairman, all parties have supported in principle the inclusion of the disabled for protection in the constitution. ln its first report to Parliament. the Special Committee on the Disabled and the Handicapped stated—and I would like to pass this report out so that you could follow it on page 1, paragraph 3:
Should it be the will of Parliament to entrench Human Rights in a patriated Constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.
There is public support, shown by Mr. Fairweather in his report of a survey of 2,000 Canadians as presented to the Special Committee on the Disabled and the Handicapped and found in their minutes at page 205. which minutes I would like to table later on.
Mr. Chairman, we know that discrimination against the disabled exists. The disabled have told us across the country. The Chief Commissioner of the Canadian Human Rights Commission has told us: the media tells us: Canada has already officially acknowledged discrimination against the disabled and signed at the United Nations on December 9th, 1979, the Declaration of the Rights of Disabled Persons.
The disabled constitute approximately 10 percent of the population. It is in the Canadian spirit to have a constitution that clearly covers 100 percent of the population.
Mr. Chairman, I would like to direct my first question to Mr. Derksen.
The argument of cost has been used against the inclusion of the disabled in Section 15(1). Mr. Derksen, I wonder if you any comments on this?
Mr Derksen: This seems to be based on the idea that simply to place disability or handicap in Section 15(1) without any limiting clauses might result in the courts imposing disruptive change on our society: for example, that all buildings without elevators be equipped with elevators.
Now, we see that religion, sex and age are also included in that section without any limiting clauses. We see that Section 1 or Section 15(3) as proposed by the Human Rights Commission, would allow the courts to interpret the reasonableness or the justifiable necessity of limiting that protection from dis crimination for age, sex and religion.
Sections 1 and 15(3) would make possible an interpretation, in regard to protection from discrimination on the basis of age, by the courts that would uphold 18 as the minimum age for, say, the purchase of liquor, firearms. voting in federal elections. There seems to be a misunderstanding that there is no comparable limiting clauses in existing statutes. and no comparable precedents in existing case law to limit reasonably. where justifiably necessary, that right to protection from discrimination.
In our appendix, we point out the fact that seven provincial human rights commissions and the Acts that they administer
include limiting kinds of clauses which take into account undue hardship for the vendor of a service; which take into account the need for the employer to require bona fide occupational requirements; which take into account and allow a mechanism whereby the commission or tribunal can determine reasonable qualification to the right.
Now, all of these things are in place. The courts will not have to. We will not desire that in a vacuum in interpreting the constitutional protection for disabled people from discrimination.
We believe that those mediating mechanisms which are already in place will enable an orderly process of change to a point where disabled people would not be discriminated against in the provision of goods, services and in their endeavour to achieve employment and so on.
We believe, in fact, and this has been shown by the strong economies of Northern Europe, that enabling disabled people to participate in society would be an extremely cost effective course of action for this country to take.
We know that in Sweden technical aids are made available to disabled people who require them for employment and for independent living within the community. The same is true in West Germany.
We believe the cost argument which underlies much of the resistance or objections to the inclusion of disability in the constitution is not a real one.
in our brief we call on those who object to the inclusion of handicapped in the constitution to come up with demonstrably clear and justifiable sound objections, not merely the kind of vague implications or references to drafting and definitional problems. The definitions exist; they are very similar from one jurisdiction to another, which tells us that they have been tested and that they work.
We believe that Chief Commissioner, Gordon Fairweather, has a good deal of experience in administering protection from discrimination for disabled people. We think that his opinion should carry a lot of weight here.
Mr. Lang: Mr. Chairman, my second question is also for Mr. Derksen.
-Are there any other governments which have provided protection from discrimination for the disabled, and as a second caveat to that. can you give us any information on the economic factors involved with these governments, and in particular whether they have presented any impediment?
Mr. Derksen: Well, I can say that Nova Scotia, New Brunswick, Prince Edward Island, Quebec, Manitoba, Saskatchewan and Alberta, all give comprehensive protection from discrimination to the disabled through the ordinary legislation of human rights acts. Some of these have been in place since 1974; others are more recent.
There is no indication that these provinces are at the brink of bankruptcy because of that protection.
Ms. Peters: I wonder if I can add to that. I am from Saskatchewan where we have had comprehensive protection in our Human Rights Code for disabled people for the past year.
As well as being a member of COPE, I am also an employee of the Human Rights Commission and I get to see different perspectives, I suppose.
In Saskatchewan for the past year we have had approximately 40 complaints based upon discrimination because of disability, 20 of which have been in relation to accommodation complaints. I might add that we have in our code a clause which exempts people or businesses or employers if making their place accessible would cause undue hardship and inconvenience.
I might say that, out of all those 20 complaints, we have not activated that mechanism, because once people have been informed that they are violating the law and how they can correct it, they are usually quite willing to do so.
If I may, I would like to refer to an example which occurred in Saskatchewan. We had five complaints laid against the University of Saskatchewan which contained a number of old buildings that disabled students were not able to have access to.
Technically. in the code, I suppose we could have—well. they were violating the code, and they could have been forced to make the building accessible immediately. This might have caused an economic hardship.
However. the agreement that was agreed upon and settled on between both the respondent and the complainant, established a timeframe in which over the next couple of years allotments from the various budgets would be ascribed to making the building accessible.
What I am trying to illustrate here is that disabled people are willing to be reasonable and that there are methods of overcoming access problems, and certainly Saskatchewan has not been brought to its knees with bankruptcy or anything like that.
We have to realize that this has to be done reasonably and with commonsense.
The Joint Chairman (Senator Hays): Thank you very much. Ms. Peters. Dr. Lang, thank you.
There are two people here who would like to be heard. I wonder if we could confine it to a short question? We have Mr. Halliday and Mr. Smith.
Mr. Smith: Thank you, Mr. Chairman,
I would like, first of all, to congratulate the committee on being here and presenting us with this brief. As a member of the Special Committee on the disabled and the Handicapped. I am aware of the real concerns that our witnesses have today in regard to discrimination.
I think I would be very remiss, as a member of the Official Opposition, if I did not support the comments which came from my colleague, the Honourable Walter Dinsdale, when he brought to the attention of people the serious ommission
certainly of his name from the list of those who have been prominent in putting forward the needs of the handicapped over the years. Indeed, the formation of the antecedent of this committee a year ago was due entirely to the efforts of Mr. Dinsdale, his approach to the United Nations on behalf of Canada has obviously been ignored, and I am surprised that our witnesses forgot that closure did prevent many members from the House of Commons from all parties, indeed, from being involved in this very debate which you have some concern about. To me, that is a form of discrimination, and I am surprised that it is coming before this committee from our witnesses today.
I think, Mr. Chairman, all Canadians are concerned about the problems of discrimination and how we should deal with it. We want to ensure that Canadians, indeed, the handicapped, will not be discriminated against.
The difficulty, however, is to know whether that can best be achieved by entrenehment or otherwise.
So I would like to ask the committee whether in their study of this whole subject they have given consideration to the possibility of amending the Canadian Bill of Rights, and giving it primacy, as one alternative and have they given consideration to the fact that some countries, such as the United States of America and Russia, do have entrenched Bills of Rights: Canada does not. What are the benefits, vis-a-vis the two which are obvious to us all?
Thirdly, they have raised the matter of minimum wages on page 3 of their report. Have they studied the recently released document by the Economic Council of Canada which throws a lot of question and doubt as to the effectiveness, indeed, of whether or not minimum wages do what they are supposed to do?
Finally, have they given consideration to the difficulties which we have seen both in Canada and more particularly in the United States where they have an entrenched bill of rights, to the difficulty that some judges may be at the extreme end of the spectrum one way or the other and cause great difficulty in the interpretation of what people really want?
Mr. Derksen: I would like to start by saying that having worked very closely with the Special Committee on the Handicapped and the Disabled, and having known Mr. Dinsdale for many years and his efforts on behalf of our constituency, we wholeheartedly are aware of the Conservative Party’s efforts on our behalf, and Mr. Dinsdale’s in particular.
it was a listing of those members who had spoken specifically for the constitutional amendment that is the substance of our brief today that was given. That was the only the reason why there was no mention of members from the Conservative Party.
In fact, I would like to point out that Mr. Dinsdale last week on Standing Order 43 called for the long-awaited amendment to the Canadian Human Rights Act and we are aware of that intervention and appreciative of it.
We are aware that there are many constitutions in the world today which are not honoured. We are also aware that there
are constitutions which do find a good deal of honour in the courts of the countries where they are in place.
We have surveyed just this past week, our National Council which is representative of each of nine provinces and we find that our organizations are in favour of an entrenched Charter of Rights and Freedoms, and that we do want inclusion in it. We can only hope. together with all around this table. that if and when this Charter is entrenched. it will be honoured by the courts. Some of us as individuals, although we have not discussed it as the larger organization that we are, are concerned about extreme judgments made by individual judges. Again. it is our hope that the judges will receive and accept clear direction from Parliament in the form of this constitution and the Charter that is intended to be entrenched in it, so that they will give good and reasonable consideration to the interpretation of the Charter.
We are not familiar with the minimum wage document which you referred to. However. I think it is safe to say to that in the area of minimum wage, as long as there is minimum wage legislation in Canada designed to protect Canadian workers from lower exploitation of wages. disabled Canadians should be protected by that legislation. At such a time that it may be the wisdom of our country to eliminate minimum wages, then we can reconsider the entire matter and perhaps need not be included at that point.
The Joint Chairman (Senator Hays): Thank you Mr. Derksen. ‘
Mr. Smith: Mr. Chairman, I appreciate the pressures of time and I think I will forego questions, but there are a couple of brief comments that I would like to make.
The members of the Committee will be aware that I am the Chairman of the Special Committee for the Disabled and the Handicapped; and one point I would like to make is that we have had an opportunity of hearing over 600 witnesses right across Canada in t8 different cities and it is quite clear to us that COPO which is represented here today by four very articulate people. is in fact the voice of disabled people in this country. They are very legitimate spokespersons for the disabled community and their headquarters is in Winnipeg. They are well organized and have been most helpful to the work of the Committee.
I thought it might be useful to give just a brief background as to the position of the Committee on the constitution. The first report was really primarily released prior to our final report which will be coming out at the end of the year in order to make our position known on it. This is found in the third paragraph of the first page. It is one sentence. and there was considerable discussion about it. but that presents the unanimous position of the all-party committee. I believe it has already been read by Dr. Lang but it is only one sentence;
Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.
I think it is important to point out that it would be unreasonable to conclude that if specific reference is not included that somehow the constitution will not cover disabled Canadians.
It is quite clear to me that it will cover everyone, but I think that our Committee was of the viewpoint that we wanted the clearest possible indication that disabled Canadians are in fact covered and all their rights are protected.
Now, I appreciate that there is some concern over the question of definition and what is reasonable. There has of course been legislative precedent in Canada in the Human Rights Act I am not aware of any difficulties that have been encountered in the interpretation the courts have given to the reference in the Human Rights Act concerning disabled Canadians.
I know that there is also the concern about, well. once specific reference is given to one minority group. does this open the Floodgates to all minority groups? I think it could be argued that the rationale that prompted the reference to disabled Canadians in the Human Rights Act would also exist in the case of the constitution.
Those are really the points that I wish to make. Mr. Chairman. I appreciate your definition problems but this is the position of the Committee and I wanted to reinforce the conclusions of the Committee.
The Joint Chairman (Senator Hays): Thank you very much Mr. Smith. And as Chairman of the Committee you might go back and tell your members that we will include the first report in the Proceedings.
Mr. Smith: Thank you.
The Joint Chairman (Senator Hays): Yes, Mr. Derksen?
Mr. Derksen: I would just like to introduce Monique Couillard, the delegate to COPO from Quebec who arrived late on the plane and had a wheelchair breakdown at the airport. She has not been able to participate in the discussion and I wanted to make certain that she was introduced as the other three of us were.
The Joint Chairman (Senator Hays): Yes. Thank you very much, and we are very, very pleased to hear from you.
This concludes the evidence and we should like very much to thank the Coalition of Provincial Organizations for the Handicapped and Mr. Peters, Mr. Kanary and Mr. Derksen. We appreciate your being here and Mrs. Couillard as well. Thank you very much.
Mr. Kanary: Thank you. Mr. Chairman.
The Joint Chairman (Mr. Joyal): Of course, I would like to join-our joint chairman in thanking our witnesses from the Coalition of Provincial Organizations for the Handicapped Although I had named you at the beginning of the hearing, Mrs. Couillard I have noted your accent, so I am very happy
to be able to welcome you and to tell you that we are very receptive to the representations we have heard from your fellow members of the COPOH.
Thank you very much
The Joint Chairman (Senator Hays): Mr. Epp.
Mr. Epp: Mr. Chairman. possibly during the period of time when there is a change of witnesses it would be appropriate for me to raise the questions as to the sittings on Thursday.
The Joint Chairman (Senator Hays): Yes. Mr. Epp has suggested that while the witnesses are changing places that we will deal with a point of order. Thank you very much. Go ahead Mr. Epp.
Mr. Epp: Thank you very much Mr. Chairman. I would like to raise this point of order at this time and I think it is important for the work of the Committee and its schedule for Thursday, the day that has been designated for the funeral of the former Governor General, His Excellency Jules Leger. I recognize that the Terms of Reference of the Committee are such that the Committee can sit during the period of time when the House is adjourned for whatever reason that adjournment takes place.
I am sure I have the concurrence of members of this Committee that in respect to the memory and the work of the late Governor General, that arrangements be made in this Committee that we pay respect to the late Governor General and that the Committee not sit. As to terms of hours, I do not have a proposal but I would ask that that decision be made quickly in order that we can plan accordingly.
The Joint Chairman (Senator Hays): Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
I would ask the representatives of the Mennonite Central Committee of Canada to join us at the witness table so we can proceed with our meeting of this morning. In answer to your question, Mr. Epp. Following the usual consultations yesterday afternoon. I think I am in a position to say that this committee would quickly agree to adjourn its proceedings Thursday afternoon at the exact time when the House of Commons will adjourn its proceedings. that is from two o’clock to six o’clock, so that the honourable members, as you have suggested, be able to pay their respects to the former Governor General, Jules Léger. We could then resume our proceedings at seven o’clock Thursday night and hear the Ukrainian Canadian Committee which was originally due to appear before the committee in the afternoon. We would be able to respect our schedule with the difference that they would be heard in the evening instead of in the afternoon. So, we would be able to join our colleagues and be present at the state funeral for the late Mr. Jules Léger.
Mr. Epp: Thank you, Mr. Chairman for those details. I will examine those details. There is general agreement on our part as you have outlined them, but obviously there will have to be one or two consultations but in general form that is agreeable and I thank you for it.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.
I would like to introduce the members of the Mennonite Central Committee of Canada. They are Mr. Ross Nigh. Vice-Chairman; Mr. William Janzen, Director General of the Ottawa office; and Mr. J. M. Klassen, Executive Secretary. I understand that it will be Mr. Nigh that will be opening the meeting with probably a statement and that after that you will be open for questioning by the honourable members of this Committee.
Mr. Ross Nigh (Vice-Chairman, Mennonite Central Committee, Canada): Thank you. Mr. Chairman, I would like to introduce ourselves; I am Ross Nigh from the Fort Erie-Niagara area. I was Pastor of the Brethren in Christ Church in that area. As you indicated, I am substituting for the Chairman of the Mennonite Central Committee as Vice-Chairman today. To my immediate right is Bill Janzen who is the Director of the Ottawa office for the Mennonite Central Committee, and J. Klassen who is Executive Secretary of the Mennonite Central Committee of Canada who serves from the headquarters in Winnipeg.
The Mennonite Central Committee is a relief and service agency of the Mennonite Brethren in Christ Churches in Canada and it represents a constituency of approximately 180,000 persons.
We would like to take this opportunity to express our appreciation, as other groups have to you, for granting us the opportunity to appear before you today. We recognize we have a responsibility in dealing with a wide range of heavy concerns. Mr. Janzen and I sat in on your Committee meeting last night quite late, and then we left and went to bed while you continued into the late hours of the evening and now you are moving over to the lunch hour. I am wondering if any group is going to present a brief calling for a statement in the constitution respecting the rights of our hard-working M.P.s to decent hours and a good night’s rest.
We wanted to assure you, and we talked at the breakfast table this morning in our room of the kind of country we have where people like us and others who have appeared before you can come from the far corners of our country and submit to you our concerns about matters that touch us and affect us, and you in government listen very attentively. We assure you of our personal interest and support as you deal with these matters which affect the structure and very fibre of our country, not only for the present generation but for those yet unborn.
So our concerns today are brief and specific. We have many other interests; we could speak to many other items. We would support the brief which was just presented by the handicapped: we could in support of items dealing with native concerns and many others, but we are speaking to the two items which are contained in the submission which has been circulated to the members of your Committee. These are freedoms of religion as
it applies to communities as well as individuals; and the other item, conscientious objection to the taking of human life.
Now. I presume the members have had access to this brief and have read it, so with your permission, I will briefly summarize. I will summarize the second concern and then Mr. Janzen from the Ottawa office will speak to the first.
Our spiritual forefathers where the anabaptists of western Europe. Over 400 years ago they felt compelled to take a stand against the taking of human life in any form and to many of them it was contrary to their understanding of the teaching of scripture. For their beliefs and practice they suffered cruelly; many died.
When our forefathers came to Canada around 200 years ago they appealed for and were promised exemption from military duty. The history of these negotiations which are very much abbreviated are contained in paragraphs on pages 3 and 4 of the brief which you have had in your hands.
In World War I, the severe test of these provisions came. In the spring of I918 the German forces made one last gigantic assault on the Western Front and for a while it looked as if the Allied front would break. It was under the stress and desperation of that time that exemptions which had been written through Order in Council by government were cancelled and the young men of our churches had their faith and their convictions severely tested; many served periods in jail.
I had hoped to bring along today a very close friend of mine who was my bishop for many years. Mr. B. J. Swalm who is 84 years of age. but he had other commitments and was not able to come. He could articulate his experiences during this war.
One thing I remember, while he served as my bishop in the
Niagara Area was that when he was visiting our area he would ask me to drive past St. Catharines Jail where he spent several months during World War I.
Bishop Swalm was one of the founders of this organization, the Mennonite Central Committee. The experience in World War II was different and here I can speak from personal experience. because I was of draft age at that time and young men of my age were being called into service. My spiritual training and upbringing, church teachings, taught me participation in war was wrong but I had to make a decision at that time that I had to know what I believed personally and I had to make a personal decision. I went through weeks of study and soul-searching which reinforced my teaching and brought me to the decision that I could not take a human life. or be part of a life-taking organization.
Now, in the Second World War, because of early representation to government by the leaders of our churches, an alternative service program was developed whereby our young
men could serve in non-military forms of service such as reforestation, road-building, fire-fighting, agricultural work and some in ambulance and hospital work on the front lines.
As l came through those years and in perspective I have two strong feelings. First of all I have a deep respect for the boys, for the integrity of the boys who were my friends and are still my friends. who did not feel as I and went into military service. and we today wish to acknowledge our deep respect for those who disagree with us in this area.
The second was a great appreciation which I also hold today for a country where conscience is recognized and where opportunity was given for alternative forms of service of national value, and service that was helpful to society. I an thankful for a country where the right to be different is recognized: where a minority view does not endanger or dehumanize. So it is for this reason that we feel now in the formulation of a constitution in peaceful times apart from emotional pressures of a wartime society, that we include a clause in the constitution that would recognize the right of conscience that would lead one to abstain from the taking of human life.
We are making this presentation today from our own experience and perspective as stated in the brief. which is prepared by Mr. Janzen and which I have briefly summarized.
We believe in light of past experience and differences of interpretation and application of past government decisions that a clear and brief. concise statement in the constitution would be helpful and we urge the inclusion of such in the Canadian Charter of Rights and Freedoms.
I might just call your attention to the statement that is written in the constitution of the Federal Republic of Germany; “No one may be compelled against his conscience to render war service involving the use of arms.”
In conclusion I would just like to draw your attention briefly to two other matters apart from military service which are included on page 5. I will just read the statement here:
A conscientious objector clause in the Charter might have implications for areas other than military service. People in police work or in medical work sometimes have to face the question of taking human life, too. The areas of euthanasia and abortion are examples but because of technological and other changes the number of areas may increase. In 1969, when the abortion issue was debated in Parliament, along with other amendments to the Criminal Code, it was emphasized that medical personnel would not be forced to be involved with them. Because of this, a conscientious objector clause, which was considered at the time. was viewed as unnecessary, However, the government’s Badgley study of 1977 found that some strong pressures are brought to bear on medical workers.
We believe the right to abstain from the taking of human life should be extended in the area of abortion as well.
Now, I would like to call on Bill Janzen to speak on the items dealing with freedom of conscience as it applies to individuals or communities.
Mr. W. Janzen (Director General, Ottawa Office, Mennonite Central Committee, Canada): Thank you. This concern is somewhat different than the one which Mr. Nigh has explained. lf that one could be covered with a clause like, “No one shall be compelled against his conscience to take human life,” then the second one might be covered with a simple affirmation of freedom for religion without specifying that it be for individuals or for groups, thus leaving that question to be decided when problems in relation to that arise.
As it is worded at the present time in the proposal, it is cast in explicitly individual terms and we are concerned that that might create difficulties which perhaps are not foreseen at the present time or even considered desirable. The written brief refers to several such difficulties and l will not go over that material, but l would say that these difficulties can arise also in relation to communities other than the Amish or Old Order Mennonites or Hutterites which are referred to in the brief. We know that for generations and centuries the phenomenon of people going off unto themselves for religious reasons to live a bit more as a community unto themselves is an experience that has been present in our civilization and probably will be present. and we would like to have that freedom respected. We are a bit concerned that by casting the provision for freedom of religion in individual terms there might be seine difficulties, as explained in the brief.
We could go on and talk further about community rights and collective rights and some aspects that relate to the concerns of the native people as well, but I do not think at this point we would want to go into that. I would point out, however, that in a number of other constitutions or bills of rights the provision for freedom of religion is not as individual as it is in the one that is being proposed. I refer to the I960 Canadian Bill of Rights and there is a simple affirmation of freedom for religion without specifying the way it shall apply. The one to which Mr. Nigh has referred also is general on that point. The American constitution, although generally an individualistic document. is general on that point. It does not specify that it is exclusively for individuals and so on.
So what we are asking basically is two clauses: one is a clause that would say something to the effect that no one shall be compelled against his conscience to take human life, and the other one would be at simple affirmation of freedom for religion without specifying that it be for individuals or communities, thus leaving that to the wisdom of the legislatures or the courts to deal with those problems as they might arise.
The Joint Chairman (Mr. Joyal): Thank you. I would like to recognize first on our list of speakers the Honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman. I want to thank the representatives of the Mennonite Central Committee for their presentation. It has not been a habit in the past for members, Mr. Chairman, to initially declare their conflict of interest but I possibly should and I would hope. Mr. Chairman, with that kind of exemplary action on my part that it will simply be followed in form and substance by others.
What I would like to ask you gentlemen is this: a number of us realize that your association for many years and in many theatres of conflict, as well as in peacetime, has argued that service is the expression of faith, either service in the domestic area or internationally, but when you present your brief to us today I find a slight dichotomy and l would like you to explain that for us, and that is this: under Section 15, specifically the word “religion”, just drawing that word out of this section, you are asking for an individual freedom and that, in terms of a Charter or in terms of the work of this Committee is something the Committee can deal with.
If I take a look at the West German Republic’s constitution. again it is on an individual basis. How do you relate that individual right, which in terms of this Committee can be dealt with, to administration in a collective right?
Mr. Janzen: Thank you.
I think l would reply to that by referring to some history. I think your concern about the provision for a conscientious objector clause and whether that should be a collective right or not; in the experience of World War II the government set up various tribunals and boards who then interviewed the individuals and tried to determine whether they held their views conscientiously and sincerely or whether their objection to war was merely opportunism. i am not sure that we could ask for much more.
There was a time in histroy when groups like ours, Mennonites, the Brethren in Christ, or Tunkers as they were then called, and Quakers, were given certain rights by virtue of being members of those groups and yet there has been a gradual evolution from the time of 1793 when the first law to this effect was passed. From that time until World War II there was an evolution, and in World War II each individual had to persuade a board that he held that view sincerely, personally, and even though a letter of reference from a church minister was viewed as an important reference by the board, it was still to be something that the person held individually and I think we would want this right to be in the constitution, so that it would apply not only to ourselves but also to representatives from various other groups, whether religious or not religious, who for sincere reasons felt conscience-bound not to take human life.
I might add that in the German constitution to which you referred there is a regulation, not in the constitution itself but the regulation spells out that there shall be a board which shall examine the person and his whole moral life and may direct him to an alternative form of service.
Mr. Epp: Do you feel that the right you ask for was better enunciated, and I am not talking about protection because the
Bill of Rights of 1960 was not enshrined, I am speaking about the technical wording only. Do you feel the rights you ask were better expressed in the 1960 bill as against the proposed resolution before this Committee?
Mr. Janzen: One part of our concern, yes. The 1960 bill does not contain a phrase: “No one shall be compelled against his conscience to take human life.” and we would like to see that in here.
The other clause we would like, yes. that one we would see as somewhat preferable. There it simply says: “there shall be freedom of religion”, and it does not quite determine whether this will be for individuals or for communities and we think that is a preferable way of stating that clause.
Mr. Epp: What is your position if this Committee would be willing to accept wording along the lines of the 1960 Bill of Rights? What effect would that wording have in light of Section I of the proposed resolution, which is a limitation clause?
Mr. Janzen: Yes. I think we have to recognize that whether a bill is entrenched or whatever the guarantees are, nothing is ever absolutely certain and we recognize that a government, a state, a society. there are elements of uncertainty and we would like some firmer protection. You are working with the Bill of Rights and that is why we are here: to seek firmer protection, but we are not sure whether we are prepared to speak in order to compare this first paragraph to the general style of the 1960 bill which was not entrenched.
Mr. Epp: So you have had no legal opinion expressed to you on the legality or the manner in which it might be interpreted by the courts as to the effect Section I might have on the specific right of freedom of conscience?
Mr. Janzen: We have not. I think it is clear in view of Section 1 such a right could be overridden but that is the way it is in both cases.
Mr. Epp: Could I ask you, in page 5, taking your position a little further, you argue that the same rights should be extended to persons working in hospitals, people in the medical field. specifically people who because of conscience cannot accept the taking of life through abortion. Do you feel that the clause that you propose would in fact given them that protection they seek?
Mr. Janzen: We are not sure about that. As it stands here we say it might have some implications for that concern, and I think it would suggest something in that direction but we are not sure of that and we have not sought a specific legal opinion. It is a concern to us that we recognize that that is not something on which we have complete clarity.
Mr. Epp: Do you have practical demonstration of members of your organization. adherents to your organization of churches that form your constituency. that people have been put into that position, namely of performing medical acts which contravene their conscience and specifically their position that they do not have the right to take life in that form?
Mr. Janzen: l do not know of specific personnel from our community. I do know that in the 1977 Badgley report there is
some rather strong testimony from doctors and so on who werer subject to considerable pressure and that is the reference for it here.
Mr. Epp: You mention alternate service in the United States which has had a period of a draft system and how has gone to a volunteer system, and Canada having only had that experience twice, both times during a period of war. You mention alternate service. What form of alternate service do you believe would be valid because I appreciated the comments that you made. and I think it should have been made, not that I am trying to dictate to you what you should say, but that it should be made in terms of people who ask for the right of conscientious objection but recognize not only the sacrifice but also the right of the alternate view of those who do not share that view. So I am asking you in light of that historical context, what kind of alternate service would you feel is valid?
Mr. J. M. Klassen (Executive Secretary, Mennonite Central Committee (Canada)): Well, as indicated, we represent churches and an organization that has had a history of service for many years. Although we were created to meet a specific need at one time in 1920, and later in Canada in 1963, we never got around to disbanding our organization because there was always an opportunity to be of further service. One of the basic tenets of our faith is that it is not just an abstract thought or belief that is held in the head or the heart, but that it is a way of life that is also to be practised and we have tried to do that in time of war as well as in time of peace.
The references to alternatives to service in the military have been given in the brief but the service has not ended when the war ended, which is demonstrated by the fact that today we have in Canada and abroad close to 300 people from our constituency and from other churches serving voluntarily, at the expense of the church, to help people in less developed countries and also in our own country, so that service is to be an expression of faith, as a way of life, that the methods we seek to promote peace is the way of peace. Peace is not an objective to be achieved but it is the method by which the objective is achieved.
I think that we would want to continue service also in time of war. I think we would prefer to do that service under the auspices of the church, and as an organization we are prepared to create those opportunities for that service but I think we would like to be clear that we would like to retain the privilege to decide how that service would be rendered and to whom it would be rendered.
We have during the intervals when Canada, at least, has not been at war but other areas of the world have been, and continue to be. serving in areas of tension and wars such as the Middle East, particulurly in Lebanon, and also in Viet Nam throughout the war and after the war. So that we are not seeking for ourselves privileges to avoid unpleasant or difficult circumstances but we would like to come with a service program that reflects the faith that we hold.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Klassen. I would like to ask now Mr. Lorne Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman.
I would like to welcome our witnesses here this morning and thank them very much for their presentation. I think they have raised with us this morning an area that is new, that has not been broached by other witnesses and I appreciate that very much.
I notice you comment in our present Bill of Rights that there is no reference to the word, “everyone”. I have had a chance to verify that and indeed the phrasing is, when it pertains to religious freedom, it says:
.. . it is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex the following human rights and fundamental freedoms, namely. . .”
And they go on (a), (b) and (c), and (c) is the freedom of religion.
I would like to ask you, though, as a non-lawyer, whether or not there is any jurisprudence in your opinion that you have been able to ascertain that would interpret the word everyone to mean just a single or individual right. Is there not a possibility, is there not jurisprudence that would say that “everyone” is really a collective right that can refer to a collectivity in a society. I am just wondering if you can give us a little bit more information on that.
Mr. Janzen: It is true that we cannot be sure of how this would be interpreted by a court. We do refer in our brief to one judgement which was rendered in relation to a case involving Hutterites, and I did discuss that with a professor of law, whether the phrase as it now stands in the proposal might have resulted in a different ruling on that. He thought there was a definite possibility that it might have. In that judgement, which you may want to pursue, there was the main judgement of the court but there was also a very strong dissenting judgement and the dissenting judge argued that in this situation the freedom of religion as it applies to individuals should involve the freedom to change your religion at will without undue consequences, and in a sense that is reasonable, and yet the main body of the court argued that if we hold to that view then we are undermining this community very seriously.
So even though we ourselves also respect both views, we do not want to rule out individual freedom by any means, but we think there is a place for communal rights and we would be sorry if it was now here predetermined that it might be prejudiced in the other way.
Mr. Nystrom: I wanted to make my position very clear that I agree with you there is a place for collective rights in our constitution and I want to make sure that we have a Charter, that indeed we go the route of enshrining a Charter that makes it clear we recognize collective rights like we do for the duality in terms of languages in our country, and I wanted to ask you whether or not you would share that point of view, that collective rights should apply not only to the freedom of religion. Would you be in favour of extending those collective rights to, say, collective cultural rights, collective linguistic
rights? I know some of the aboriginal people are talking about their rights as a collectivlty, as a people that are distinct and unique. Have you done much more thinking about collective rights beyond freedom of religion?
Mr. Janzen: We are sympathetic to that but I think we would not want to make a specific statement beyond what we have.
Mr. Nystrom: So your main concern is that the wording of “everyone” in Section 2(a) which is:
. . . everyone has the following fundamental freedoms: (a) the freedom of conscience and religion . . .
Be it collective as well as an individual right. That is your chief concern?
Mr. Janzen: Well, our main concern is that the collectivity not be precluded, even if it is not written in there; simply, that it is left vague so that it can be dealt with when problems arise.
Mr. Nystrom: My second and last question, Mr. Chairman, concerns another area where l have admired your organization- the whole question of the conscientious objector. You mentioned this morning, if I heard you correctly, two possibilities: one. enshrining in our constitution that no one should be compelled to take human life against one’s conscience, and you also referred to another option, which is in Federal Republic of Germany, that basically you enshrine that it pertains only to military service. I gather that you prefer the first option, which is more sweeping, that one of you mentioned earlier, the possibility of problems concerning policemen in their work, and firefighters in their work, and getting into the whole abortion controversy and euthanasia and so on. You did mention, I believe, two options: that no one should be compelled to take human life against one’s conscience, and the other option being what is enshrined in the German Republic which, I gather, says the same thing but as it pertains only to military service.
Mr. Janzen: We would prefer the more general one in regard to taking human life.
Mr. Nystrom: If the Committee or the government in its wisdom did not want to be as sweeping, the second would also cover a very important point, would it not?
Mr. Janzen: We would be grateful for what there is.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom.
Mr. Jean Lapierre.
Mr. Lapierre: Thank you. Mr. Chairman.
Gentlemen, I found your presentation quite refreshing because you were the first group to really pinpoint the details of freedom of conscience and religion. Before we go any further, could you tell me what is your position with regard to enshrining basic rights?
You did not make any statement on the principle itself, do you favour enshrining basic rights or not?
Mr. Janzen: Could I answer in English? I am sorry . . .
We would like firmer protection; whether it takes the form of enshrinement is best for you as a Committee. to decide. But we would mainly seek firmer protection.
Mr. Lapierre: I think that entrenchment provides the best way to ensure greater protection.
In your recommendations, and I am referring to Section 2 of the draft resolution, you asked that community rights be respected. Do you not think that Section 2(a) which refers to freedom of conscience and religion, along with the freedom of association guaranteed in Section 2(c) offers sufficient protection for community rights since freedom of conscience coupled with freedom of association would seem to cover the concept of community.
Mr. Janzen: That is a possibility. The freedom to associate is a very valuable one. In the specific judgment of the Supreme. Court to which we have already referred in our brief, there were several arguments on the side of the Hutterite community, and one of them was that the individuals had freely associated with that community and that there was a contract.
But we not too, that the dissenting judgment argued very Strongly that, in view of the background of the invididuals who had made that contract, they virtualy had no choice, and that, therefore, it was in a sense a community which was being allowed to exercise quite a bit of power over individuals who had grown up within it.
While we respect the dissenting judgment, we think there might be better protection in leaving that issue somewhat vague so that it could be studied in relation to problems as they arise.
Mr. Lapierre: I understand. My position is that we should avoid vagueness as much as possible and try to be specific. This charter is meant to provide the basic minimum and all such clarification can be added by the provincial charters and by the courts, when particular cases arise.
When you refer to conscientious objections and to the refusal to kill, I think that once again Section 2(a) and its provision for freedom of conscience does give you adequate protection. if Parliament were to pass a law on conscription tomorow, it would still be bound by Section 2(a) and would have to recognize individual freedom of conscience. Do you not think that this section is sufficient?
Mr. Janzen: I think we would reply by pointing out that there are countries which have statements in their constitutions containing these words “freedom of conscience and religion”, and yet allow for no conscientious objection.
It is true that this might be used in our favour, but we would prefer to see something a bit stronger; in the German constitution they have a number of clauses regarding freedom of religion; then, on the other hand, they also have one specifically regarding military service which would indicate that there
can be both a general provision and a specific one, and we think that would be helpful.
Mr. Lapierre: It might indeed be preferable to specify this, but I think it should be remembered, as was pointed out several times by the spokesman for my party, that this charter is meant to be a basic minimum.
With respect to Section 2, several groups which have appeared before us have expressed a preference for “every person”, to replace “everyone”.
What would you think of such a change?
Mr. Janzen: I am not sure whether I see a difference between “everyone” and “every person”.
Mr. Lapierre: The representatives of the Canadian Council on the Status of Women and some others thought there was an important difference and they were the ones that asked for the specific change so that women would be included. If we were to recognize community rights in a constitution, I would have some concerns,about its effect in my own province, where there is a group known as the Apostles of Infinite Love. Do you think that there is a danger that groups of this type might be legitimized?
Mr. Janzen: Yes; there is a possibility that groups like that may be legitimized, but they are already. I think it is easy to think of terrible things which might happen. It is easy to imagine situations of group tyranny over individuals, and that the state must protect the individuals.
We fully recognize that in some extreme situations, the government may need to step in. We do not want to defend all extreme or fanatical situations, but I think the issue before us is not whether there shall be or whether all communities shall be recognized but only that all disputes relating to such communities shall not always be resolved in favour of the individuals, sort of at the other end of the extreme.
Mr. Lapierre: I can understand your position in the circumstances. I would like to thank you for haivng brought these points to our attention. I cannot say that I have been convinced of the need since I believe that Section 2 is sufficiently clear and broad in scope.
Other members of this committee may perhaps succeed in convincing me of this need.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.
I would like now to recognize the Honourable Bryce Mackasey. I think you have a short question, Mr. Mackasey.
Mr. Mackasey: I think, Mr. Chairman, Mr. Lapierre asked 21 question, but I’m not at all sure I was happy with the answer. It was a question of entrenching the rights versus the non-entrenchment of rights; only because, ironically some months ago, while visiting one of the senior citizen’s homes in the area of St. Catharines, where I called for ten minutes, I spent two hours discussing everything from the abolition of the death penalty to this very issue.
It is obvious that when the Mennonite community arrived in Canada many years ago. they did so on certain presumptions, and one of them was clearly the right to abstain from taking life in any form. That right eventually disappeared towards the end of World War I.
Would that by itself be a determining factor in your desire to see the rights entrenched in the constitution rather than non-entrenchment?
Mr. Janzen: Yes. That is why we are here, and Mr. Nigh referred to that situation where these rights had disappeared; that is why we are seeking firmer protection.
Mr. Mackasey: Therefore, in the way of rights, you prefer to see it entrenched rather than not entrenched?
Mr. Jansen: We would like to see it as firm as possible, yes.
Mr. Mackasey: Mr. Epp referred to Section I. I think it is the general wish of the whole Committee that Section I(b) be revised to take into consideration the views of witnesses such as yourselves. So I think it is safe to presume that Section I will not appear in that document as it is presently written. I gather that is the view of the Liberals as well as the opposition.
Well, I wanted to clarify the situation that. all things being equal, he would rather see the rights entrenched.
The Joint Chairman (Senator Hays): There being no further people who wish to ask questions, Mr. Nigh, Mr. Janzen, and Mr. Klassen, we appreciate your being here this morning. I can assure you that the Committee will examine your brief very closely in its deliberations.
We wish to thank you very much for being here this morning.
The Joint Chairman (Mr. Joyal): I would like to join Senator Hays in thanking you, especially, to use the words of Mr. Nystrom, as you are the first group of witnesses who raised the issue of the interpretation of Section 2(a), (b) and (c) of the proposal, in conjunction, as was said by Mr. Mackasey, with Section I of the Charter. We are most grateful to you for that. It is one of the most fundamental questions we will have to settle at the end of our meetings.
Thank you very much.
The meeting is adjourned until 3:30 this afternoon, when we will hear the representatives of the Government of the Northwest Territories.
The meeting is adjourned until 3:30 this afternoon, when we will hear the representatives of the Government of the Northwest Territories.
The Joint Chairman (Mr. Joyal): Order, please.
I would ask the honourable members of this committee to take their seats around the table and 1 would ask the members of the press who have taping and filming equipment to leave the room.
I have the pleasure this afternoon to welcome on behalf of all the members of this Committee, the Government of the Northwest Territories represented by the honourable George Braden and Mr. Stien Lal. I understand that they have a written brief that they have circulated among the honourable members of this Committee and that they will have an opening statement. They will be agreeable after to answer questions from the honourable members of this Committee.
Mr. George Braden (M.L.A., Leader of the Elected Member of the Executive Committee, Government of the Northwest Territories): Thank you.
As co-chairman representing the Senate and House of Commons and members of the Joint Committee, 1 would like to begin this afternoon by thanking you for the opportunity to appear before your Committee and to make this presentation on behalf of the Legislative Assembly and Government of the Northwest Territories.
My name is George Braden and I am a member of the Northwest Territories Legislative Assembly where I represent the constituency of Yellowkknife North. I am also a member of the executive committee of the Northwest Territories government and I am appearing before you today in my capacity as the leader of the elected members on our executive committee.
I am sure that the members of this committee are aware of the tremendous progress made by the Northwest Territories towards responsible government over the last decade. We have progressed from the stage of a legislature consisting of mostly appointed members, to a legislature which is fully elected and whose members are answerable to the electorate. We have also a House in which Native members are in the majority, in keeping with the racial structure of the territories.
in the executive committee, which is the equivalent of an executive council in a province. we have seven elected members and two federally appointed officials. We believe that the Northwest Territories has made great strides in constitutional development and in the development of local governments throughout the Northwest Territories.
At the last session in the Legislative Assembly in Frobisher Bay. the House debated at length the question of the division of the Northwest Territories into two new territories. It was resolved to accept the principle of division of the territories subject to adequate public consultation and approval by plebis-
cite in which all permanent residents of the territories can vote. The question of division of the territories was initiated by members from the eastern Arctic area of the Northwest Territories. who feel that the division would create two more manageable entities better able to provide government to their respective residents.
I have deviated briefly from the subject at hand, not to waste the Committee’s time, but to indicate to you in a nutshell that the Northwest Territories have made substantial progress in constitutional development and. as a natural flow of this progress. whether we remain as one territory or two. we will look forward to the attainment of provincehood within Canada in the foreseeable future. It is therefore of vital interest to us to participate in the shaping of the constitution of Canada, to be given an opportunity to speak for the residents of our vast region and to bring to the attention of this Committee the concerns of the people of the Northwest Territories.
The Legislative Assembly has also considered the Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada. The provisions of the proposed Constitution Act, 1980, affecting the people and institutions of government in the Northwest Territories were closely scrutinized by the assembly and, in this submission, I propose to draw some of those provisions to your attention.
In general terms however, let me state that we support the idea of it Canadian constitution. It is. in our view, totally unacceptable that a sovereign nation, such as Canada, should come within the legislative jurisdiction of the Imperial Parliament in Westminster. We have received much from Britain in the way of parliamentary traditions and other organs of government. but the fact remains that if we are to assert our sovereignty today. then it is absolutely imperative that Canadians or any part of Canada should not be subjected to the laws enacted by a parliament whose members were not elected by Canadians. The proposed Canada Act would ensure that after the proposed Constitution Act, 1980 comes into force, no act of the Parliament of the United Kingdom would extend to Canada as part of its law.
As indicated to you earlier, I now propose to deal with some of the provisions of the proposed Constitution Act, 1980 which are of particular concern to the Northwest Territories. The first such concern relates to the very status of the Legislative Assembly of the Northwest Territories. As members of this distinguished Committee are aware. the legislative assembly has full legislative competence to enact legislation in respect of various areas listed in Section 13 of the Northwest Territories Act. These areas are roughly akin to the legislative powers of the provinces as contained in the British North America Act. The legislative assembly has, in the exercise of the power given to it, enacted legislation on a number of subjects.
Again. as in provincial legislatures, the Legislative Assembly of the Northwest Territories is a fully elected body
and its members are answerable in the final analysis to the people. We believe that it is in recognition of this status of the Legislative Assembly that Section 27 of the proposed Constitution Act, l980 is proposed to be enacted. This section provides that a reference in the Charter of Rights and Freedoms to a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
It is, however, most regrettable from the point of view of the Northwest Territories that, by implication. a reference in any other part of the proposed Constitution Act, 1980 to a legislature of a province. is not deemed to include a reference to the Legislative Assembly of the Northwest Territories. We find this proposition most unfair—we are either a legislature for the purposes of the proposed Constitution Act. 1980 or we are not. but to be deemed a legislature for a certain part of that act and not for others I would submit, is most unfair. On behalf of the Legislative Assembly of the Northwest Territories. I would urge the members of this Committee to give most careful consideration to this matter. If the Legislature of the Northwest Territories is to be bound by the constraints laid down in the Charter of Rights and Freedoms, then it must also have the right to participate actively in other areas of the constitution and must be recognized as the legitimate lawmaking body for the residents of the Northwest Territories.
The Northwest Territories may be sparsely populated, but it consists of a vast area of land covering nearly a third of Canada; an area which is rich in minerals and badly-needed hydrocarbons. I suggest to you that the interests of the Northwest Territories ought not to be ignored or treated lightly. The application of Section 27 of the proposed Constitution Act, 1980 to all parts of that Act and not just the Charter of Rights and Freedoms, would ensure that the representatives of this vast area of Canada would be able to make effective contribution towards constitutional questions affecting all Canadians.
I would therefore urge this Committee to recommend appropriate amendments to the proposed Constitution Act, 1980 so that the Legislative Assembly of the Northwest Territories can participate effectively in all other areas of the constitution, including the interim amending procedure as outlined in Part IV and the procedure for amending the constitution as set out in Part V. If it is truly the intent not to amend the constitution during the interim period without unanimous consent, then surely the Legislature of the Territories ought not to be ignored.
Section 24 of the proposed Constitution Act provides:
The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native people of Canada.
in my view, the wording of this provision is general and vague. If enacted in its present form, I suspect that its real meaning will not be clear until it has been tested and defined more clearly by the highest court in the land.
However, that aside, the Legislative Assembly and the Government of the Northwest Territories are of the view that Native rights should be clearly and categorically set out in any constitution of Canada, rather than being given no more attention than a passing reference in a provision dealing generally with acquired rights and freedoms. Native people in Canada have enjoyed a special status which must be clearly recognized in the constitution of Canada. As Mr. Justice Berger stated in his report on the Mackenzie Valley Natural Gas Pipeline, on page 23.
Special status for native people is an element of our constitutional tradition, one that is recognized by the British North America Act. by the treaties. by the Indian Act and by the statement of policy approved by Cabinet in July, 1976.
We, in the Northwest Territories, are acutely aware of the need for the special status for the Native people. We have a sizeable population of Dene. Inuit and Métis. Our legislation recognizes their special status and the need to protect their way of life. As Mr. Justice Berger has stated, special status for Native people is an element of our constitutional tradition. We would not want to demolish that constitutional tradition which is so unique to Canada, and yet the proposed Constitution Act, 1980 makes just a passing reference to it.
I would therefore submit that this Committee give very serious consideration to the entrenchment of Native rights and freedoms and the recognition of their special status in the proposed Constitution Act, 1980.
A matter closely related to Native rights is that of Native languages. The Charter of Rights and Freedoms preserves English and French as the offical languages of Canada with equality of status. The Legislative Assembly and the Government of the Northwest Territories both support the preservation of English and French as the official languages. However, the reality in the Northwest Territories is that the people of that area speak several Native languages, the preservation of which is far more crucial to them than the preservation of English or French.
I submit that the recognition of the right of Native people to use Native languages is in keeping with their special status. The preservation and indeed the propagation and advancement of Native languages should be an aim to be recognized clearly in the constitution of Canada.
If I may now turn to the subject of mobility rights guaranteed under the Charter of Rights and Freedoms. The Northwest Territories has a small population consisting largely of Native people, many of whom are only now beginning to develop the skills in the trades which will enable them to compete in the southern Canadian job market.
Now, with the probability of substantial activity in the oil and gas field in the Northwest Territories, there is every likelihood that a sizeable labour force will be required. In the absence of any legislation to give preference in hiring to northern residents, it is most probable that companies engaged in such economic activity in the territories will import labour from the south and may make little or no effort to train and employ northern residents.
The concept of mobility rights would be acceptable if there is indeed going to be an equal exchange of labour between various parts of Canada. I am afraid however, that in the north-south context, the traffic is going to move only one way, that is, southern labour coming north. There will be hardly any movement of labour going south. Economic conditions for northern residents are difficult at the best of times.
In my view, the constitution should recognize the reality of the northern frontier with its delicate balances. ln their present stage of development, the Native people of the Northwest Territories are simply not able to compete with an unrestricted flow of labour from the south, and I would urge you to find some means by which the territories could be exempted from the mobility rights provisions.
My last comment deals with Part III, Constitutional Conferences. Members of this Committee may be aware that, for the last several years, the Government of the Northwest Territories has sought participation in the First Ministers’ Conference. Up until last September we were told that we would form part of the federal delegation and that the Minister of Indian Affairs and Northern Development would protect our interest.
Last September at the First Ministers’ Conference, we were accorded an observer status, which, though an improvement on earlier invitations, was far short of being given the opportunity to participate in a conference that was of vital importance to us.
The Government of the Northwest Territories is a legitimate government established pursuant to an act of Parliament. It is able and willing to speak for the residents of the Northwest Territories, yet, with one quick decision, the federal government chose to deny nearly 65,000 Canadians in the two territories the right to be represented at a constitutional conference, the outcome of which would have affected them directly.
What Part III seeks to do, from our point of view, is to perpetuate the disenfranchisement of northerners for all time to come, or at least until the territories attain provincehood. It is ironical that a constitutional proposal that champions the freedoms and rights of individuals denies to a very substantial number of those individuals the right to be represented at a
constitutional conference. I would therefore urge this Committee to recommend appropriate amendments to Part III to ensure that the elected leaders of the territories are invited to attend the annual conference.
I thank you and the members of your distinguished Committee for having given me time to make these submissions to you on behalf of the Legislative Assembly of the Northwest Territories. If you or your Committee have any questions, I shall be glad to answer them.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Braden for your opening remarks. I would like to recognize first on my list Mr. Nickerson, followed by Mr. Peter lttinuar. Mr. Nickerson.
Mr. Nickerson: Thank you, Mr. Chairman. the testimony of the witness gives a very disturbing picture of the state of affairs as they exist in the territories. It seems that there, and I must say I know this from personal experience, that the rights and privileges enjoyed and taken for granted in southern Canada are denied these people who reside in the northern territories.
Now, in my review of the constitutional document we have before us, and that is the subject of a study by this Committee, it would appear in the view of the witnesses that to a significant extent what is happening here is that the colonial, or semi-colonial status of the territories is somehow being entrenched in the proposed new Canadian constitution. So I would like to ask the witness, Mr. Chairman. whether he would agree with that remark and whether he himself thinks that what we are doing here is entrenching the existing semi-colonial status, and if he has any suggestions as to how this can be avoided.
Mr. Braden: Thank you, Mr. Chairman.
I think that our honourable member of Parliament from the western Arctic, if I can call him that, has raised a genuine and general concern of people in the Northwest Territories. I might disagree somewhat with his use of the word “colonial”. I think it is probably a term that has been a little bit over-used from time to time, but nevertheless his points about the Northwest Territories being from time to time considered as somewhat of an afterthought in various actions taken by the government is valid.
I believe generally, and if I can say this we will probably get into more detail later on, that the people of the Northwest Territories, through their institutions of government and, I think l might add, also through some Native organizations. are very capable of representing the interests of the people of the Northwest Territories, and I think in response to what Mr. Nickerson has asked, I would say generally we would just like the opportunity to participate and this to a great extent is reflected in the kind of comments and recommendations we have made here today. We feel that if the Government of Canada recognizes this privilege and this right, the people of the Northwest Territories, we can represent the kinds of interests and concerns we have and I think we can also make a contribution as well to the inputs which are used to define and develop what Canada is going to be in the future.
The Joint Chairman (Mr. Joyal): Mr. Nickerson.
Mr. Nickerson: The testimony revealed that the territories would like at some point in time, presumably as soon as possible. to achieve provincial status, either for the territories as they exist today or perhaps with a possibility of division taking place.
Now. the rule as to how a territory or part of a territory becomes a province has never really in Canadian law been laid out, and in reading through the proposal here it would seem in order for this to happen in future you would require the consent of, if not all of the provinces, at least you would have to amend the constitution which says that the territories shall remain a territory until the constitution is changed, and you would have to have at least the consent of the Province of Quebec and the Province of Ontario and at a point in time when this is being raised there might be some manner of disagreement between the provinces and the federal government and they would want to use this as a tool to refuse consent for a new province to be established.
So I wonder if the witness has gone through this new document and examined it as to the new difficulties that might be imposed on the territories in achieving provincehood, whether they will be more difficult or perhaps easier under this proposal than they are at present?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Well, generally, Mr. Chairman, I think we would probably have a difficult enough time with the federal government, getting them to agree to the concept of provincial status and I do not make that remark in a flippant manner. I recognize that adding new members to Confederation is it significant decision that has to be made at some point in time by the Government of Canada. So I see that generally we have a lot of work to do with the federal government.
I will admit honestly that I have not looked at the resolution from the point of view of what kind of roadblocks or support we may get from the provincial governments, although I think I can safely say that we have from time to time in the past looked for support from provincial governments, particularly with respect to participation in the constitutional conferences. and I think I can safely say that we have not always had 100 per cent support, so there probably is some concern among provincial governments about where the territories fits into the total picture of Canada.
I am not quite sure of what exactly those concerns are. I suspect that the provincial governments. like the federal government, are looking at the massive resources in the Northwest Territories and the possible use that they may be sometime in the future to the larger industrial and populated basin in the Canadian south.
Mr. Nickerson: If we compare the American approach to the establishment of new states with the Canadian approach. I
guess you will find in the United States the idea has been to encourage territories to become states, whereas in Canada the very opposite seems to have been the case, if you look back in history at the difficulties and the birth pains of Manitoba, the difficulties experienced with the prairie provinces of Alberta and Saskatchewan. I wonder, Mr. Chairman, perhaps the witness would like to comment on this, whether or not it would be a good idea to have in the Canadian constitution a set of guidelines or possibly even a requirement whereby a territory could become, through due process. a province. At the present time there does not seem to be anything laid out; whether or not we might want in our constitution a system that is laid out whereby a territory could achieve provincehood?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Thank you, Mr. Chairman. Well, there are probably some provisions that could be made. I think that one would possibly be or could possibly be a demonstration on the part of the residents of a territory that they are seeking provincial status. and I think right now in the Northwest Territories you would find almost unanimous support for the concept of provincehood. There would be a lot of differences on the timing of it. but l can see where perhaps that factor could be considered.
I think one other factor which perhaps may be somewhat difficult to deal with has to do with this matter of finances. Now, I would see that in l980 some measure of fiscal self-sufficiency or fiscal autonomy would be very important in any deliberations made by the Government of Canada and the provincial governments on whether or not to give provincial status to one, two or three existing territories.
Now. I think that subject to some analysis we are going to be doing in the near future. that with the kind of resource base we have in the Northwest Territories and the kind of population we have in the Northwest Territories, that if fiscal self-sufficiency is to be a criterion that is written into any constitution, l am sure at such time as our resource base is properly developed and we share in the kinds of revenue and benefits that all provinces do, lam sure we could meet that criterion.
So there are two answers, Mr. Chairman, to the question which Mr. Nickerson has raised.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Braden. I will keep you in mind, Mr. Nickerson and come back to you in the next round if you wish.
I would like now to recognize Mr. Peter lttinuar followed by Senator Lucier. Mr. Ittinuar.
Mr. Ittinuar: Thank you, Mr. Chairman.
Nuvavut. I have just exercised my unconstitutional right to speak my native language, Mr. Chairman.
The Joint Chairman (Mr. Joyal): You are most welcome to speak it, Mr. Ittinuar.
Mr. Ittinuar: I would like to make some brief comments about your brief. I believe it was a very fine one and congratulations. Mr. Braden. I would like to comment on the statement you made on the first page:
We have also a House in which native members are in the majority in keeping with the racial structure of the territories.
Well, that may be the case but in the executive committee on which you comment in the next statement, the natives of the Northwest Territories are under-represented, especially from the eastern Arctic, and i believe you have just now appointed one of the members of the eastern Arctic caucus to the executive committee, or two, but they will be the only members of that executive committee. As well, one of the federally appointed officials has veto power over the whole council. which gives the federal government veto power over the Northwest Territories government as a whole, and I wanted to make that comment for the clarification of these statements here.
I would like first of all to come to the participation of the territorial government in this constitutional process. i have a letter here I would like to quote from, it is a letter from the Prime Minister of Canada to me dated October 3rd, and this has to do with the attendance and participation of the territorial government at constitutional conferences, wherein he said that on the question of the attendance of the territorial representatives, we have been trying to find for some time a way in which they could be given some opportunity for more meaningful participation without at the same time according them the same status as the representatives of the provincial governments.
Further, he said that now that the conference is over we are looking at this question again to see what might be worked out.
Now, I interpret that to mean that they would like to give you a status at constitutional conferences somewhere between observer status and the status that the provinces enjoy in representing their people. Can you perhaps expand on this and could you also tell us whether the fact that you are appearing here today before this Committee is the only action that the federal government has accorded you in regards to the constitutional process?
The Joint Chairman (Mr. Joyal): Mr. Braden,
Mr. Braden: Thank you, Mr. Chairman. We first started our initiative to achieve some enhanced status in the constitutional conferences last April or May, I believe. I am sorry, I am not quite sure which month, but in ii joint meeting of the Cabinet of the Yukon government and the executive committee of our government in Pangnirtung we resolved that we would request representation at the June meeting of First Ministers and any other constitutional conferences that took place thereafter. I believe we got a reply to that telex by a question from Mr. Nickerson in the House a few days later.
However, we did establish some communication with federal officials over the summer and in one case we were told very bluntly, look, you are not a province. therefore you have no right or privilege to sit with these other First Ministers of our eouiitry. Nevertheless, we forged ahead and were on one occasion promised that we could send representatives to the meetings held by the continuing committee of constitutional
ministers. I believe that is what it was called. However, there was some mix-up in communications there so we were turned down on that one, and finally after some discussions with officials of the office of Federal-Provincial Relations we were told that we would have observer status at the last constitutional conference in September.
Now, that did not give us much of a chance to say anything, although I must admit I did have the opportunity to speak informally with some of the first ministers of the provinces and also some of the delegates from both federal and provincial governments. We decided that it would be a very opportune time for us again to make our pitch for greater representation when we heard that this Committee was going to be established and that you would be hearing briefs from governments and interest groups on various provisions in the constitution.
So if I can say, Mr. Chairman. that very, very briefly wraps up the kinds of initiatives that we have taken over the last few months.
The Joint Chairman (Mr. Joyal): Mr. Ittinuar.
Mr. Ittinuar: Thank you, Mr. Chairman. I would like to follow up on that. Would you be sending members of the legislative assembly to these conferences if you were given a status somewhat above observer status? Would you be sending members of the legislative assembly or the commissioner?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Thank you, Mr. Chairman. I suppose in theory the Commissioner of the Northwest Territories could indicate to all of us that he was going to attend, but in practice I doubt very much that he would do that. In fact, I could say he would not do that. There would be representatives; I would suggest largely the government, although our legislature and our government is a little different than you people have down here. We do not have party politics and we attempt to operate on a consensus basis, which makes things difficult at times, but I can say I feel quite confident knowing that I have a mandate from all 21 other members of the legislative assembly to say what I am saying today. So to conclude, Mr. Chairman, it is difficult to say just who might form such a delegation at a constitutinal conference should we have this opportunity. It could be just the government or it could be a combination of government elected officials and legislative assembly officials.
The Joint Chairman (Mr. Joyal): Go on. Mr. Ittinuar, you still have time.
Mr. Ittinuar: Thank you, Mr. Chairman. Another point I would like to very briefly touch on is the fact that you mentioned mobility rights, which is something I have personally been concerned about. This is in view of impending development of the north and the fact there may be an influx of people from the south which would preclude residents of the Northwest Territories total enjoyment and job opportunites and so on and so forth.
Now, would you give this Committee or would you submit specifically worded amendments or proposed amendments to that part of the resolution
Mr. Braden: Mr. Chairman, lam not prepared at this point in time to make specific representations in this area although if it is the wish of this Committee I am sure we could have something developed for your consideration. I do have some comments here from officials in the Department of Economic Development where they do propose a manner in which various formula using the unemployment rate in various regions in Canada could be established, and if it was the case that high unemployment was found in one particular region of Canada, that affirmative action plans could be put into place or this mobility provision could be waived.
Our honourable representative from Nunatsiaq I think has raised a very, very important issue for us. It is not an issue just in terms of large scale development where we perceive we will have to deal with big unions and big contractors and big industry, and also big federal government, but we also see it in terms of the present where our government has some policies whereby we try to give preference in the hiring of Northern residents rather than bringing in the expertise we need from the South. So it is something that is taking place right now and we are quite concerned that by putting something like this into place it is going to be our government or perhaps even industry which chooses to co-operate by instituting a Northern preference policy, they may be in trouble as well.
Mr. Ittinuar: This brings us to a question that I felt was rather important. The territorial government, as you know, is mostly imported from the South because of expertise, training and so forth. However, there has in the last few years been an increased awareness in politics in Canada in general, and certainly in the Northwest Territories, and this has led to the Ninth Legislative Assembly of the territorial government, passing a resolution on division of the territories depending on the plebiscite sometime in the next couple of years. However, my question is: Does this mean that the Legislative Assembly of the Northwest Territories implicitly supports the concept of Nunavut which brought about or initiated this motion for a division of the Territories?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, I believe that the assembly, not the most recent one, in Frobisher Bay, but in a prior session held in Yellowknife or Baker Lake did support a motion which dealt with the principle of the new territory of Nunavut. That was discussed in great detail in Frobisher Bay.
However, in that session we supported a recommendation which recognized the concept of a division of the Northwest Territories. In some ways. and in the minds of some elected members, division, if it were to take place would hopefully produce a new territory along the tree line, which is a kind of a geographical border we have within our territory; in the minds of some of the members. that is not the case.
To conclude, we did support the concept of division and, in a more general way, that Nunavut was an issue which, I believe,
the ITC could discuss in their land claims and negotiations with the federal government.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Braden. I would like now to recognize Senator Lucier, followed by the
Honourable Jake Epp.
Senator Lucier: Thank you, Mr. Chairman. I would also like to congratulate Mr. Braden on a very good brief. It is very informative and deals with the issues. My first question deals with the division of the territory.
Mr. Braden, you state in your brief that at the last session of the Legislative Assembly in Frobisher Bay. the House debated at length the question of a division of the Northwest Territories into two territories. You say it was resolved to accept the principle of division of the territories, subject to adequate public consultation. and approval by plebiscite in which all permanent residents of the territories could vote.
What would be your interpretation of a permanent resident of the territories?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, a special committee of the legislature prepared what is known as the unity report. Ironically, it deals with division. In that report, the committee recommended that those residents of the Northwest Territories who lived in the territories for a period of five years had, in general, proven that they were committed to the territories.
In a subsequent recommendation, it is spelled out quite clearly that, in order to vote, five years residency would be one of the major criterion.
Senator Lucier: Five years continuous residency, do I take it?
Mr. Braden: Well, sir, the executive of the government asked this question of the committee, and, unfortunately, we did not get all the details hammered out. But it is going to be something we will have to develop more fully.
l think we all fully recognize this and that we will have to have another discussion and a debate in the Legislature to make sure that we are all working under the same assumptions.
Senator Lucier: I realize this would be a difficult question. I am merely asking an opinion. Would you foresee two provinces, if the territories were to split?
Mr. Braden: Mr. Chairman, I believe in the long-term, two provinces could be established in the existing Northwest Territories, should we decide that division is the only way we can live together, and should the federal government agree to this division.
But I think the Inuit people, through their national organization, have presented a very strong case, one which recognizes that it is going to take a long time for an eastern territory to evolve to the point when they are ready to assume provincial status.
In the western part of the territory. I think it is going to take some period of time as well. I generally have indicated that I hope to see it by 1990, although it may come about earlier. It cannot say.
Senator Lucier: Your brief also states that the Northwest Territories have made substantial progress in constitutional development and that as a natural flow of this progress whether you remain one territory or two, you look forward to the attainment of provincehood within Canada in the foreseeable future.
In your publication position of the legislative assembly on the constitutional development of the Northwest Territories, you state on page 12 that within the next ten years an act be prepared to establish a province of or within the Northwest
Territories. So what you have just said is that you see this as a realistic goal and something in a ten-year period?
Mr. Braden: I believe, sir, that you are reading from a publication of the old government.
Senator Lucier: it is 1979. I did not realize they change that quickly.
An hon. Member: Here, too!
Mr. Braden: We had an election last October and decided to put that constitutional paper on the back burner, so to speak. But from time to time we do some of the very valuable work that Mr. Nickerson, who was an MLA at that time. has been involved in, I believe.
Senator Lucier: You presently have some of the benefits of provincial status as a Legislative Assembly.
Now you do not have control of the non-renewable resources and finance, and I realize that you really do not have what you are after.
I understand the implications of not having that, and I understand the problem of a large territory with, in effect, no tax base. You do not have much of a tax base for the number of people and the area that you serve.
In Prime Minister Trudeau’s letter to Mr. Broadbent, he stated that therefore he would be prepared to accept an amendment which Mr. Broadbent or one of his colleagues may propose in committee which would (a) give the provinces concurrent jurisdiction in inter-provincial trade in non-renewable resources or (b) give the provinces the right to levy indirect taxation in non-renewable resources.
Section 27 states that a reference in this charter to the province or to the legislative assembly or legislature in any province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or the appropriate legislative authority thereof, as the case may be.
Your brief, at page 5, states that the application of Section 27 of the proposed Constitution Act of 1980 to all parts of the act and not just a Charter of Rights and Freedoms would ensure that the representatives of this vast area of Canada will be able to make an effective contribution towards constitutional questions affecting all Canadians. You therefore urge this
Committee to recommend appropriate attachment to the proposed Constitution Act I980 so that the Legislative Assembly of the Northwest Territories can participate effectively in all other areas of the constitution, including the interim amending procedure as outlined in Part IV of the procedure for amending the constitution as set out in Part V.
Now. I do not doubt that this is something which you would like to have, and I am not sure that I would not like to see you get it.
But my question is, really, if your recommendation were to be followed. and bearing in mind the possible amendments which have been suggested by Mr. Broadbent, would this not in effect give you control of the non-renewable resources and pretty well, in effect, provincial status?
Mr. Braden: Mr. Chairman, I could see it would certainly open the door.
Senator Lucier: I am not saying that it should not, by the way. Mr. Braden.
Mr. Braden: It would certainly open the door to a greater role. I would say, though, that our comments in the document itself reflect what we think is an end-run being done On the Legislature and the Government of the Northwest Territories.
With respect to the Charter of Rights and Freedoms, we are given some status. or equal status, but with respect to the rest of the document we do not have the status.
So I cannot see in the first place that we are going to be able to effectively give any input respecting the Charter of Rights and Freedoms. Presumably that is going to be discussed in a little more detail once patriation takes place.
I think we would like to see the Government of Canada and the provinces bite the bullet, so to speak, and just clarify what our status is to be.
I believe we have maintained right from the start that in seeking participation with other provincial and federal first ministers, and also working at the official level, we would never be seeking at this point in time that veto capability that provinces and the federal government can exercise. I think it would probably be a position that none of them would agree to at this time.
But I think that with some understanding and hard work, we can work out an arrangement which is satisfactory to all involved and which recognizes our status and the process of maturing into provincial type jurisdiction that we still have to go through.
The Joint Chairman (Mr. Joyal): Senator Lucier.
Senator Lucier: Thank you, Mr. Chairman.
My next question deals with the mobility rights clause. I do not mind telling you that I have some problems with this one as well, as it pertains to the Yukon.
You have stated very well in your brief the flow which would go south to north and not really north to south in the labour market.
The only thing is that you go probably further than I would feel comfortable with when you suggest that the territories could be exempt from the mobility rights provisions. In that light, I would ask if you would want to be exempted from all mobility rights provisions in Section 6. Would you feel you should be exempted from all of the provisions of Section 6? How would this affect the rights, the reciprocity, where the people of the territories also like to move around?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: No. I would say, Mr. Chairman. we would not want to be exempted from all of the mobility rights provisions. I think in our argument we tried to make it rather straightforward. We believe that it is necessary for our government to put into place policies, legislation and regulations which can give preference to a developing labour force.
We just do not have the kind of numbers of workers who are skilled to compete with the labour force from the south. I have seen in Alaska. where the big unions and big contractors move in. and, of course, they want to get the job done and make money. I cannot see how it is going to be any different in the Yukon than it was in Alaska.
Therefore, I suggest that. in order for training programs for local people to be effective, in order to have other affirmative action programs even having to do with the small business sector in the Northwest Territories and the Yukon, the respective governments are going to have to come up with policies or legislation which are going to, if need be, force these large, outside interests to recognize the need to make a contribution to the development of the labour force as well as the development of the business community in the two territories.
The Joint Chairman (Mr. Joyal): Thank you. Senator Lucier. I would like new to call on the Honourable Jake Epp, followed by the Honourable Senator Austin.
Mr. Epp: I wanted to welcome Mr. Braden in his responsibilities as the constitutional representative to the Northwest Territorial Government.
I also was pleasantly surprised at the intervention of Senator Lucier who I understand now has had a change of heart and now accepts not only the inevitability of provincial status for the territories of the north, but in fact has now come on side and is in fact going to encourage it. And I thought that was a step in the right direction and I want to commend him for that.
Senator Lucier: Mr. Chairman, a point of order. I might point out to Mr. Epp that I was on the side of provincial status for the Yukon long before he ever heard of the Yukon.
The Joint Chairman (Mr. Joyal): As the honourable members would have read in the proposed motion, there are sessions dealing with discrimination on the basis of age and I did not understand that you wanted to raise that issue at this point.
Mr. Epp: Mr. Chairman, I fully accept that Senator Lucier is much older than the rest of us, but the fact remains, Mr.
Chairman, that while he might have been in favour of provincial status he did not expect it in the twentieth century.
I would like to ask you. Mr. Braden, whether or not the Northwest Territorial government made at request to make a presentation to the First Ministers’ Conference that was held in September.
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, we discussed this at some length, as l have indicated to Mr. lttinuar. As I recall it, we were seeking at the time an opportunity to make a special presentation not to the First Ministers’ Conference but to the continuing Committee of Constitution Ministers, I believe at the Vancouver meeting, we did ask.
Mr. Epp: What response did you get to that request?
Mr. Braden: As I indicated earlier on, our request was rejected.
Mr. Epp: Did the Minister of Indian Affairs and Northern Development help you in that request?
Mr. Braden: Well, he initially proposed to us, Mr. Chairman, that we should seek to have officials at that meeting, not to make a special presentation but to be working with the federal group. We did talk about that particular item with him and he agreed to see if he could see that one through. Our request to make a special presentation, I dont believe he raised it, he did not raise it with us; it was something that we decided on our own.
Mr. Epp: Do you still have the same policy that the Northwest Territories should have the right to make its own presentation, rather than be part of the federal delegation?
Mr. Braden: We have been very forceful on this Mr. Chairman. We refused to have anything to do with federal delegations, although I think the Prime Minister in a letter to me did suggest that I make known our concerns to his colleague, Mr. Chrétien, and we requested some clarification on it.
Mr. Epp: What was the response to it?
Mr. Braden: We have not received any response.
Mr. Epp: Either written or oral!
Mr. Braden: No.
Mr. Epp: Mr. Braden, have you discussed with the present government the steps of the evolution needed for a decision, I am talking about a decision only, for a decision taken by the residents of the Northwest Territories on provincial status? is there a plan in place that has been agreed to by the federal government?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, no, we have not discussed the issue of provincial status with our federal minister. the Honourable Mr. John Munro. We are in the process right now of working on various significant constitutional issues; both the legislature and the government will be doing more work in the future on this issue of division, which is one of the fundamental points we have to get out of the way before we start moving any further.
So we have not developed a plan of action, but I can assure you that in the next three years, l believe that with the government in office right now in the territories and with the excellent legislature that we do have, that we will have a plan developed well within that time frame.
l just might add as well that the native organizations in the Northwest Territories are also very interested in how the north develops constitutionally, generally from the perspective of how Native rights and privileges are reflected, or entrenched in any new territorial constitution; and also what kind of wherewithal these two new territories, or possibly two new provinces are going to have to pave their own way within confederation.
So I think we have got all the actors together in the Northwest Territories and we are all eager and willing to start working on this plan.
Mr. Epp: Mr. Braden, your Legislative Assembly has discussed the question of division of the territories and specifically the proposal known as Nunavut. What is the position that has been taken?
Mr. Braden: The Legislature of the Northwest Territories has agreed that division is a very strong possibility for the Northwest Territories. Nevertheless, we recognize that it will be necessary to have a plebiscite in the near future to get a reading, so to speak, from northern residents, and we also recognize that it is necessary to do a significant amount of work on some major issues such as boundaries, the economics of each new territory and so on and so forth, and that there has to be a rather comprehensive and in-depth public information program whereby we can explain what division is and also some of the consequences of division.
Mr. Epp: ln terms of the plan that you have in mind, when would you foresee a time-frame when that plebiscite might be held?
Mr. Braden: Well, Mr. Chairman, I think it is safe to say that we would prefer to see a plebiscite held prior to October 31, 1983, which is when our term in office runs out. I believe that the Native organizations have a great measure of confidence, as well as people in the Northwest Territories, in the government and the legislative assembly, and that we would prefer to see sortie of these major issues, including this plebiscite, dealt with prior to the time that we have to go back to the people.
Mr. Epp: In the evolution of the Northwest Territories, Mr. Braden, my experience has been that your commissioner has been very sensitive to the evolutionary process that is going on in the territories. In your experience, is it possible, if I can put it quite bluntly, do you feel that you have the expertise in the elected officials now, to in fact dispense with a commissioner and effect all governmental operations with the exception of assent, through the elected officials.
Mr. Braden: We are very fortunate in having John Parker serve as our commissioner. In the last year when I have worked with him he has shown a great sensitivity to Canadian constitutional tradition, in that executive government evolves,
or has evolved in Canada through practice and convention as opposed to being implemented through law.
Mr. Epp: Or unilaterally.
Mr. Braden: Or unilaterally, well. your words, not mine. He has given a commitment that he would want to see responsible government in place by the time this present legislature ends. I might add that there were some changes made last summer in terms of transferring from appointed to elected officials various responsibilities, and he will be making an announcement in the near future respecting further transfers of responsibilities from appointed to elected officials.
Mr. Epp: Have you ever had a commitment from the present federal government on the question of resources, resource ownership, resource management, resource control, that that regime should eventually evolve to the Territorial government?
Mr. Braden: Nothing specific.
Mr. Epp: If that is the case, what is your source of revenue?
Mr. Braden: Well, at the present time we have an arrangement with the Government of Canada whereby we recover income tax as any provincial jurisdiction does. We recover a very small portion of the royalties in taxes which the large corporations pay in the Northwest Territories. based on their operations; and then we look to cigarettes. liquor.
Mr. Epp: In other words, taxes like the rest of the other governments do as well.
Mr. Braden: That is right.
Mr. Epp: Mr. Braden. in an article dated November 22, 1980 by Robert Shepherd in the Globe and Mail, the Minister of Indian Affairs and Northern Development was interviewed on the question of mobility rights. It seems not only is the question of mobility rights on this Committee table, but also from the minister himself and I just want to quote one section. The Minister added that while preferential-hiring practices for natives may withstand scrutiny by the courts, he does not feel that the same preferences could be extended to northerners as a whole. something that is expressly promised in federal pipeline legislation.
Namely. the Northern Pipeline Agency relative to the Yukon.
But obviously the same effects would be operative in the Northwest Territories. Do you feel that you need a protection for both the native and non-native northerners re the mobility rights.
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Yes, Mr. Chairman, I would make that statement. I would urge this Committee to keep this business of mobility rights in perspective. because we have a very small labour force, and by and large many of them are involved in employment with municipal governments, or the territorial government, or the clerks in stores, or private businessmen. I can assure you you are not going to see a mass migration on
the part of this labour force go into work in a mining camp or building a pipeline. I really believe on the other hand for those people who do wish to go and seek employment or training in large industrial projects that we should be in a position to give them some preference, because, as I see it, probably 90 to 95 per cent of the labour force that comes up from the south to build these large projects will have to come up from the south because we just can not provide the kind of skills and the numbers of people required. So it is not a real major factor in the N.W.T. if we look at the size of the labour force, but we just want that protection, that if somebody wants that pipeline job then we can get him in there without having to get into a big squabble with the union on a contract.
Mr. Joint Chairman (Mr. Joyal): Thank you Mr. Epp.
Mr. Epp: Thank you Mr. Chairman.
The Joint Chairman (Mr. Joyal): I would like to recognize now Senator Austin and on the second round Mr. Nickerson followed by Mr. Ittinuar and I have also on my list the
Honourable Senator Adams and the honourable Members of this Committee have agreed to hear Senator Adams after that.
Senator Austin: Thank you Mr. Chairman. I would like to join with other members of this Committee, Mr. Braden. and thank you for your brief and its many positive suggestions. On this side of the Committee at least. I appreciate your starting with the key points in your brief. and I quote you on page 3 that you support the idea of a Canadian constitution and that if we are to assert our sovereignty today that it is absolutely imperative that Canadians of any part of Canada should not be subjected to the laws enacted by a parliament whose members were not elected by Canadians.
I realize and appreciate very much that the remark that you have made this afternoon are in the context of constitution or change.
I would like in that context to ask you to clarify for me a conceptual problem which gives me a good deal of difficulty in terms of the Northwest Territories. You are well aware of the movement by Native communities in the Northwest Territories for not only the settlement of aboriginal rights and land claims, but also for some form of political status. And so if we are to appreciate and approve that kind of evolution. you would have special jurisdiction or interests of some kind, together with the Northwest Territories Legislature. or two legislatures; how would all that political development interrelate?
We start with practically none. on the ground at least, and now we have government on the ground in the Northwest Territories and suddenly we have several governments. I would appreciate your threading your way through that and assuring us of the interrelationship.
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Thank you, Mr. Chairman. I think at the outset I will have to make one thing clear. and I do not want to speak on behalf of Native organizations. In my experience with them. and it goes back quite a few years, they have always maintained that institutions of government, whether
they are local, regional, or territorial, would recognize these fundamental rights and privileges of being a Canadian citizen, and that is being able to vote in an election, or run for public office and have access to services and programs and so forth. So I will start from that understanding that I have of what the Native organizations are saying.
If I can carry it a little further from there, I think it is pretty straightforward where we are looking at development of local institutions of government in both eastern and western Northwest Territories, and we have had somewhat of a problem in the west, because quite a few years ago the government established these things called band councils and they have evolved into a form of government which the Dene or Indian residents of the west have a lot of allegiance.
Over the last few years we have been working out various ways and means in which a band council which has exclusive membership can become the agent of the government of the Northwest Territories in the delivery of municipal-type services in a community which is, let us say for example. 95 per cent treaty Indian I think we have been very successful in a number of cases in developing an interim institution. I will call it that for now, whereby non-treaty or non-Native residents of that particular community that we are talking about can sit with the band council and make decisions about municipaltype services.
So we feel that we have been able to, in this particular instance, start to a certain extent a process whereby the band council assumes greater responsibilities but there is a recognition of the need for participation by other elements of the community. So I think we are on our way. I know perhaps in theory it sounds very difficult but in practice, when you want your garbage picked up, you get your garbage picked up.
Senator Austin: What I find intriguing is the interface between the Northwest Territories government and, say, the concepts which the Dene organizations have put forward in the Declaration of Dene Nation, particularly, not in the area of services, but in the area of political authority over a fixed territory. As you are well aware, Mr. Justice Berger addressed himself in what I believe is, from his point of view, an affirmative way in encouraging the establishment of law-making bodies that are larger than municipalities, with the right to tax and so on, and is it your position or that of the Northwest Territories council to encourage the development of that type of almost quasi-provincial existence within the territory?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, at the session in Frobisher Bay we passed an ordinance which in effect gave legal status to a body known as the Baffin Regional Council; and this Regional Council is composed of the municipal leaders with their delegates from all of the municipalities in the Baffin administrative region. Our objective and their objective at this point in time is to have this regional council assume greater responsibilities in terms of delivery of programs and to services in the Baffin region of the Northwest Territories.
That gives you an example of where we have taken things in terms of devolution to a regional body. We are, however, going to be working much more in the near future in developing for
the Northwest Territories some proposals on how regional institutions could be developed and could participate in delivery of programs and services, and there are members in the House and in organizations who have indicated that it should go beyond that. It should include the legislative and regulatory responsibilities. So we will be considering that, but at this point in time I do not think that either the east or the west, that it is being proposed that we have a bunch of regional states operating independently of one another, and I believe that has always been the understanding that there has to be a central law-making, regulation-making institution that would be necessary. whether it is one territory or two territories.
Senator Austin: So what I hear you saying is that in your view any legal entities created in the Northwest Territories should be legal entities holding power from the Legislature of the Northwest Territories. In other words, you would set up as the Northwest Territories Assembly the entity that needed to be created in the opinion of people in the North, and accordingly you would have the authority to make those changes in accordance with the wishes of the people of the North?
Mr. Braden: Well, I think that is the case right now, sir. It is moving this way in respect of the Western Arctic Region municipality which the Inuit of the Western Arctic are very excited about and would like to see developed and we have by motion of Council been given the responsibility, when we are working on these regional institutions, to pay particular attention to the Western Arctic Regional municipality which, as I understand it, would derive its powers from the central government or through the central government if there was to be, say. devolution from the federal institutions.
Senator Austin: I would like to ask you a question or two about economic growth in the Northwest Territories. You are more than aware, I know. of the aftermath of the Berger Report and the disappointment of some elements in your community about their opportunities for economic growth because of the loss of the pipeline project, and you talk in your brief about the opportunity for job development of the people in the north and that would have to be around projects that are economic given the enormous potential of the resource base of the Northwest Territories it follows that it will have to be around the development of resource projects
I heard you agree, I think, with Senator Lucier that the provisions for affirmative action in the Joint Resolution on the Constitution would probably protect the native peoples in terms of a priority of access to jobs in the north, and in fact it is the case that the federal government, this one. the one in which Mr. Epp was the Minister of Indian Affairs, and governments before that, have all had affirmative action programs for native employment in the Northwest Territories, for example, Nanisivik or the programs in the Beaufort Sea, to take two examples, and a lot of job training involving bringing people from the Northwest Territories south for job training and so on.
The question that I thought was isolated between you and Senator Lucier was then the priority rights of people who are non-native in the north, and Mr. Epp asked this question also.
I wonder if, instead of asking for an exemption for those people, you could agree with this; in the answer to Mr. Epp and Senator Lucier, what I heard you say was that there should be some form of back-up for permanent residents in terms of training, the ability to compete where there are major new projects being introduced from the south.
Suppose there is another pipeline or some project that requires a lot of technical training, welding, electrical work and so on. Would that be a fair interpretation of something that would protect the permanent residents of the Northwest Territories?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Well, Mr. Chairman, in the section of the resolution dealing with non-discrimination rights there is a clause which deals with affirmative action programs, that is Section 15(2), and it states that,
…this section does not preclude any law, program or activity that has as its objective the amelioration of conditions of disadvantaged persons or groups.
Now, I am not quite sure what the definition of “disadvantaged persons or groups” is but I think that while perhaps that could be applied in the Northwest Territories to native people or non-native people, or whatever, I do not think that we would want to be described as disadvantaged people. I think we have got tremendous potential and it is just a matter of putting the right conditions in place so that we can take advantage of that potential.
In your discussion, sir, of the pipeline projects and the mining projects I think one thing that I can speak about with some experience is dealing with the major contractors and the unions in southern Canada. I spent a considerable period of time in 1975, 1976 and 1977 working with these people to attempt to translate the great plans that the oil industry had into some kind of action at the level of the contractor and the union, and I must admit that it took quite some time to educate the large contractors and the union representatives about the Northwest Territories and to indicate to them that they had a responsibility to follow through with enthusiasm and vigour the kinds of policies that either the government set down or that the industry itself set down.
I am really quite concerned, particularly in the case of oil and gas development, that the large unions will walk in and not give a kind of preference to northern residents, so I would just generally, I guess, suggest, Mr. Chairman, that the issue of mobility rights and affirmative action programs perhaps needs a little bit more development and we would like to see some special reference, if it is possible, to the preference of perhaps affirmative action programs in northern Canada.
Senator Austin: I would just like to make this observation that you can pass ordinances of the Legislative Assembly with respect to labour conditions in the north and perhaps control the big unions through your own making ability,
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Senator Austin. I would like to recognize now the Honourable Eric Nielsen.
Mr. Nielsen: Thank you. Mr. Chairman.
Mr. Braden. you worked with the Honourable Bud Drury on his one-man task force commission as he was appointed to undertake by Prime Minister Trudeau: is that not the case?
Mr. Braden: That is correct.
Mr. Nielsen: What was your responsibility in working with Mr. Drury?
The Joint Committee (Mr. Joyal): Mr. Braden.
Mr. Braden: I was, I believe it was called a policy analyst and l worked in the area of native rights. native claims and also the Legislative Assembly of the Government of the Northwest Territories. I also travelled a lot with Mr. Drury in the North.
Mr. Nielsen: How long?
Mr. Braden: This was for a period of about a year and a half.
Mr. Nielsen: You are familiar with Mr. Drury’s report to the Prime Minister, are you?
Mr. Braden: That is correct.
Mr. Nielsen: Are you familiar with the subsequent correspondence between the Minister of Northern Affairs, I believe it is confidential correspondence, and Mr. Drury?
Mr. Braden: Mr. Chairman, I believe Mr Nielsen is referring to a letter written by Mr. Drury to Mr. Munroe in about June.
Mr. Nielsen: In response to his request.
Mr. Braden: About June of this year?
Mr. Nielsen: Yes.
Mr. Braden: And that letter has been published in the News of the North. That is the one you are referring to?
Mr. Nielsen: That is the one I am referring to, and particularly Mr. Drury’s response. Do you agree with the findings of Mr. Drury as submitted to the Prime Minister, and if not. what portions of Mr. Drury’s report would you disagree with?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, I have learned a lot since my election to the Legislative Assembly of the Northwest Territories and I believe that some of the conclusions that I held at the time that I resigned from the Drury Commission, which incidentally I think was about 7 or 8 months before the report was released. some of my ideas have changed or modified somewhat.
Now, I believe that one fundamental area where I can say I do not agree with the conclusions of the report is in respect of division the Northwest Territories. I believe that, given my experience over the last year and the manner in which representatives from the eastern Arctic and representatives from the ITC have expressed their views on this issue, that it is something which we in the Northwest Territories cannot avoid any more, we have got to come to terms with it and we have got to do a lot more work on it. This I believe is in opposition to what
Mr. Drury concluded. I think he suggested that it was not something that should be thrown out all together. Perhaps in some period of time it may be considered again. but he recommended, for example, that we in the territories stay united because in that way we could achieve more in terms of the transfer of power or jurisdiction from the south to the north.
Mr. Nielsen: Do you agree with the findings of Mr. Drury, the recommendations of Mr. Drury with respect to the general economic thrust that he would urge the government to adopt? That is the transfer, for instance, globally speaking of more and more fiscal responsibility to the elected members of your legislature? Do you find any fault with those areas of his recommendations?
Mr. Braden: No. At the level of principle, I think if we are to see true responsible government evolve in the Northwest Territories we are going to have to have in place in the executive branch elected officials who are responsible for the finances of the government and generating revenue.
Now, on this business of generating revenue, we are in a rather difficult position right now because we are looking around for alternate sources of revenue and we have just about exhausted all possibilities other than raising the price of liquor again, or cigarettes or gasoline, or AV-GAS or whatever. That all has its economic and emotional impact in the north. So in my estimation, Mr. Chairman, we have reached a kind of a milestone whereby we are going to have to seek some alternative source of generating revenue for the government to operate.
Now, this summer we proposed as part of a package that we enter into an arrangement whereby we start sharing seine of the revenues which would be generated by construction of a pipeline from Norman Wells, Northwest Territories to Zama, Alberta. We felt at that time that there were significant revenues going to be flowing to the Government of Canada by virtue of its taxation and royalty collecting authority, but also they own one-third of the field there. Now, I regret to say my staff have not been able to do a calculation of what the revenue is going to be since the energy program was tabled a couple of weeks ago, but we see those revenues as fairly massive and l think that when you recognize that the operating and capital budget of the Northwest Territories government for next year is, I believe, something in the order of $365 million, and that in our calculations under the old taxation and royalty regime the Government of Canada stood to gain something in the order of $1 million a day, we might be in a pretty good position to run our own show if we had had that type of authority to generate revenue.
Really, it is getting to the point now where, without having some alternative sources for generating revenue, it is getting pretty difficult to run the government.
Mr. Nielsen: lf you agree with me that the government’s proposals for constitutional change shut the door to future acquisition of resource control in the Northwest Territories, that must alarm you. However, pending the day when provincial status becomes a reality for the Northwest Territories,
would you and your colleagues look with favour upon some sort of resource revenue-sharing arrangement which might be the subject of consideration for amendment in the constitution before us as an interim measure?
Mr. Braden: Mr. Chairman, I think Mr. Nielsen has raised a very important point and in my discussions with federal officials, particularly in Indian Affairs and Northern Development, I have stressed the compromise position of the Government of the Northwest Territories whereby we are looking for an interim revenue-sharing arrangement until such time as Canada and the people of the North decide which way they want to proceed.
Mr. Nielsen: Let me interrupt for a moment for the benefit of other committee members. At the moment the Northwest Territories gets no revenues from resources whatsoever; is that correct?
Mr. Braden: A very small portion, sir, from revenues paid primarily by mining companies.
Mr. Nielsen: In the way of taxes?
Mr. Braden: Yes, but no royalties.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nielsen. I would like to recognize now, with the consent of the honourable members of this Committee, the Honourable Senator Adams. Senator Adams.
Senator Adams: Thank you, Mr. Chairman. I would like to ask a question concerning the make up of the Legislative Assembly in the Northwest Territories. I think you have the right now about nine members elected. Native persons, to the Legislative Assembly in the Northwest Territories!
Mr. Braden: I think it is 16.
Senator Adams: How many Inuit do you have, as between the Indians and Inuit?
Mr. Braden: I believe it is 11.
Senator Adams: I would suggest about nine?
Mr. Braden: Eleven Inuit members.
Senator Adams: In any event, are the members of the Legislative Assembly in Yellowknife concerned about the constitution?
The Joint Chairman (Mr. Joyal): Mr. Braden?
Mr. Braden: Well, I think I can attest that all the members are concerned about the constitution. When we discussed the issue in Frobisher Bay I believe that the recommendations for preparation of our presentation passed almost unanimously. I think there was only one member that voted against the recommendations and not on the grounds that he did not agree with what was being said but, with all due respect to the members here, he did not agree with the process.
Senator Adams: All right. Outside of members of the legislature, have you heard locally any people express concern about the constitution?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: If I can just ask a point of clarification? Are you talking about the Canadian constitution or the constitutional development generally in the Northwest Territories?
Senator Adams: Generally, yes.
Mr. Braden: Well, I believe, Mr. Chairman, that we have a number of mechanisms whereby the issue of constitutional development, and we include development of local government, regional institutions in that whole area, is something that is being discussed constantly by municipal governments. I know for example, that Baffin Region Council, just before the Frobisher Bay Session, they had a meeting and they did discuss some aspects of Nunavut and division of the Northwest Territories, so it is an issue ongoing there constantly.
We have discussions with representatives of the major Native organizations on the issue of constitutional development. Another organization which is very active is the Association of Municipalities in the Northwest Territories. It is something which I think in all honesty I can say is discussed very openly and very often throughout the Northwest Territories, whether you are drinking tea or eating dinner or sitting in the bar or whatever. It is ongoing.
Senator Adams: But in the meantime, there are only two official languages, English and French. You are more concerned about language education in the Territories. Right now we are teaching people who go up to Grade III in the local community and who are taught their mother tongue.
Mr. Braden: I am glad that the senator has raised this point. We, as a government are very cognizant of the need to start work right now in developing further, and, in some cases, preserving native languages. We generally believe that once a group of people loses their language, they lose a very, very significant and important part of their culture.
Believe me, I see the problems that have been created, because the kids I went to school with many years ago in the Northwest Territories are no longer able to communicate in the language of their parents or grandparents.
So, what we have done as an immediate item of action within our government is to establish a small working group with a capability to deliver programs and services in Dene languages such as Dogrib, Slavey, et cetera. We see an immediate need and are going to be establishing a language commission which is hopefully going to provide us with direction of more substance and with the long-term in mind, so that we can start looking at more comprehensive delivery programs and services in all languages in the Northwest Territories.
We would like to look at ways and means by which large industries can use Native languages.
Just to reiterate, and to make the point very clear, we feel very, very strongly about this issue of preserving, protecting and developing native languages.
With all due respect, French is not a major item in the Northwest Territories, but the development of Inuktitut education programs is of major importance to us.
We have a lot of work to do in these areas because of the kind of cultural significance it has for the majority of our population.
Senator Adams: Mr. Chairman, a colleague of mine in the legislative assembly about 1970 has been talking about this subject. I can recall people talking about it. The native people are asking for legislation in Yellowknife; they want to become a province.
Mr. Braden: As a matter of clarification, Mr. Chairman, may I ask if the senator is asking whether we are seeking to become a province at some time in the future?
Senator Adams: Yes.
Mr. Braden: In the long term, all the residents of the Northwest Territories will be seeking provincial status, whether it is as one territory or two territories, if we should divide. Generally. I think all but 65,000 residents of Canada have this right and privilege.
Senator Adams: 71,000.
Mr. Braden: I would like to see a strong statement from the federal and provincial jurisdictions that they recognize ultimately, sometime in the near future, that all Canadians will enjoy this right and privilege that the great majority have right now, but which we, in the north, are excluded from.
Senator Adams: The 71,000, is that one territory or both territories?
Mr. Braden: Both.
Senator Adams: Are you talking about all of Canada, Labrador, Quebec as well?
Mr. Braden: I could give you a figure for the Northwest Territories. We estimate about 16,000, just in the N.W.T.; I am not sure what the numbers are in Labrador and Quebec.
Senator Adams: I think it totals somewhere around 24,000. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you Mr. Adams. I would like now to recognize Mr. Nystrom. Mr. Nystrom.
Mr. Nystrom: Mr. Chairman, with your permission and the permission of the Committee, I would like to ask whether or not you would like to recognize Mr. Ittinuar in the second round, because of his vastly superior knowledge of the north in comparison with myself.
The Joint Chairman (Mr. Joyal): I see the name of Mr. Nickerson, too, who would like to speak on the same grounds, before Mr. Ittinuar.
Mr. Ittinuar: Thank you, Mr. Chairman. I do not have a vastly superior knowledge of the Northwest Territories, cer-
tainly not more than anybody else, but I do have an interest in the north. because I am from there.
I would like to dispel a couple of hyperbolic rumours which have resulted from the exchange between Mr. Braden and members of this Committee here. For instance, this question of the Baffin Region Council has been twisted somewhat. That Council was formed by the territorial government to look after infrastructural and municipal affairs, and not to look after political or constitutional development in the territories, and therefore it has no place in the context of the meeting here.
I would also like to comment on the language issue. Perhaps I can quote from the Ninth Legislative Assembly, the Third Session, the speech of the Member for Frobisher Bay. I am going to mention the Nunavut Government, because the member for Frobisher Bay mentioned the Nunavut Government. It is a hefty statement to say the least, Mr. Chairman. He says that this is not to say that the Nunavut Government to the Nunavut Territory would not heavily rely on the expertise of civil servants and would not be afraid to rely on the wisdom of our present civil servants, he does not see a big change in that area. The civil servants will continue to run the day-to-day business of government. They will be given strong incentives to learn to communicate in Inuktitut. And he says that the big difference would be that people in high places, who had changed, would be those who spoke Inuktitut and understood best the needs of their constituents. He said that for the first time the most important boards and committees would sit in the territorial government and be able to welcome the participation of people who might not speak English. and he thought that the interpreters would find it a lot easier, because they would not be struggling with a terrible problem of communicating the English language and the English technological concepts to their fellow Inuit, but instead they would have the more inspiring job of communicating the words of the Inuit to persons who are going to be hired to carry out their wishes, He thought this would be a startling change which would result in much more responsive government.
And I think that speaks very well as to just how responsive the territorial government is. I have hesitated so far to be critical of the territorial government. although I am sometimes reminded of certain events between the years 1939 and 1945 in Europe, as well as today in South Africa, things which are now going on over there; I was hesitant to draw analogies on that basis, but I would like to ask Mr. Braden just how precisely he would like to see in this constitution, the protection of language rights in the territories. which, I believe, would be inherent in more responsive governments if ever there was a division and the attainment of provincial status in the territories.
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Again, I am not in a position to give this Committee anything in writing or to propose an amendment to the particular section of the resolution. I find myself unable to place in context the protection of one particular native language and its relationship to the other protection and use of a great many aboriginal or native languages in Canada. That is
something that this body has to consider. It is something which the Government of Canada has to consider, too.
Generally, I am not able to give Mr. Ittinuar a specific statement on that. However, I would hope that any more forceful or more substantive statement that might be included in the resolution would be something that is enabling, if I may put it in that way, so that a new Nunavut government has the required powers to enact some of the kinds of practices that Mr. Patterson was referring to in the quotation referred to by Mr. Ittinuar.
The Joint Chairman (Mr. Joyal): Mr, Ittinuar.
Mr. Ittinuar: Mr. Chairman, because of the short time available to us, I will not pursue that further. However, I wish to thank Mr. Braden for his remarks. I would like to go on to something else.
On page 7 of your brief, you mention the entrenchment of Native rights and freedoms and recognition of their special status in the proposed Constitution Act. Senator Austin mentioned ordinances by the territorial council over the control of unions and so forth. In the same light, is the territorial council prepared to entrench such aboriginal rights and freedoms by legislation in the territories, and to your knowledge, is it legally possible?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Thank you, Mr. Chairman.
I think the Government and Legislature of the Northwest Territories are perhaps in the vanguard of their perception at this point in time of native rights and aboriginal rights. We realize that the courts have addressed this issue a couple of times and have made some decisions about surface rights to resources which we could consider as part of original or native rights.
There is even a lot of controversy about the use of the term “aboriginal rights”, Well, Mr. Chairman, we are not hung up on that and we think that the rights of the native people can be negotiated and defined between the native organizations and the Government of Canada process which is taking place right now.
I would suggest to Mr. Ittinuar that there are probably some areas where they would like to see changes made, but it is beyond the jurisdiction of the Government of Canada. I would suggest that there are probably other areas where they would like to see changes made which the Government of Canada may refuse to respond to.
And now, I think in the case of the Northwest Territories government and legislative assembly, I would hope that in the future when we have, say for example, made changes to our legislation respecting rights settlement, that we can come up with our own ordinance, which in effect, recognizes that settlement which was negotiated, and recognizes the rights, and that we are bound to make appropriate changes in our own legislation.
Now, there may be in the future, some instances where the legislative assembly may want to make changes, but I think you are familiar with that section of the Northwest Territories
Act, where even if we did legislate it would just be thrown out. So we have always to deal with that factor.
Mr. Ittinuar: One final question. Mr. Chairman. This question is in two parts. How much more involvement is there for the territorial government as it exists, pending division; what role exactly do you see the territorial government having in the amending formula of this constitution?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Thank you, Mr. Chairman. As far as the evolution of government and the constitution of one or two new territories. our legislature established a couple of special committees whose major responsibility is to undertake much of the work in this area, that is, as far as the NWT is concerned.
As far as participation in the amendment of the constitution under the provisions contained in the resolution right now, I suppose we will have to work through the Minister of Indian Affairs or some other person. but there does not seem to be much direct access to him at this time. in the present resolution.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Braden. I would like now to call Mr. Nickerson.
Mr. Nickerson: Thank you very much, Mr. Chairman. Maybe we could follow up on the question of amendments to the Canadian constitution outlined under the Constitution Act or the proposed Constitution Act. If the Government of Canada does not want to go the unilateral route under Section 42(1) and they go the consensus route under 42(1), it seems to me that some manner of concurrence is required by every single part of Canada, with the exception of the territories. It seems to me that you have been missed out, and is this satisfactory to you, or is it something that you would really like to be included in. in this amending formula?
The Joint Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Mr. Chairman, I think I can safely say that the government and the legislature do not find this arrangement satisfactory. We have indicated that we would seek some measure of participation. This concept of the veto comes in and we recognize that that is very important. Now, as I indicated earlier on, we did indicate last May that we were willing to participate without having this veto authority. So I think what we are doing, Mr. Chairman, is proposing a compromise to the Government of Canada and the provinces that would allow us participation, allow us input, and allow us to learn about what is going on, so that at some point of time in the future when we do have equal status, we are not going to come in knowing nothing, not having the kind of experience necessary to participate intelligently with the other members of Confederation.
The Joint Chairman (Mr. Joyal): Mr. Nickerson.
Mr. Nickerson: So I take it the procedure outlined under the draft act we have before us is not satisfactory in your opinion.
I have a few rather simple questions and I think to be fair, you have answered most of them in a roundabout way before, particularly in response to Senator Adams: but two very simple questions:
Do you agree that residents of the territories should have the same democratic rights enjoyed by all other Canadians?
Mr. Braden: Yes.
Mr. Nickerson: Now, do you consider that you now enjoy these rights, or would enjoy them under the proposed new constitution?
Mr. Braden: Well, the answer to the first part is no, and the answer to the second part is no, I think we are being excluded.
Mr. Nickerson: So in that, Mr. Chairman, it would lead me to believe that there is a substantial deficiency in this new proposed constitution that 71,000 Canadians are miseed out, left out in the cold so to speak.
Mr. Braden: Thirty-three below in Yellowknife.
Mr. Nickerson: One last topic to bring up. Mr. Chairman, and this again is on the subject of language rights. I was interested in an earlier reply from Mr. Braden where he talked about enabling provisions. If we compare the operation of the Parliament of Canada where its bilingual nature is specified in the BNA Act, the legal requirement that the House of Commons or the Senate operate in two languages, with the Northwest Territories where the legislature is again bilingual in nature, it operates in both English and lnuktituk, but there is nothing in the legislation to say that it must do that.
So I wonder on two scores; first of all because of the problems that you had in the territories with a large number of languages, all of which were spoken a long time in this country before English and French ever were. Do you think that the idea of having permissive legislation, maybe permissive at the federal and territorial level as it relates to the territories to allow for local options, et cetera, do you think that is a good idea? Similarly, can that concept be broadened to take in the whole of Canada so that we do not have to have the types of language rights and language education rights enshrined in the constitution as we have in this proposal, but rather that there be a permissive provision which would enable the various provinces to deal with questions of language rights in the way that they feel best fits the requirements of their citizens in each particular province?
The Joit Chairman (Mr. Joyal): Mr. Braden.
Mr. Braden: Well, Mr. Chairman, I find it difficult to answer the second part of Mr. Nickerson’s question, given the kind of major dispute that is going on about French and its application in the south.
I would say that from the perspective of Native people in southern Canada there may be. well, a significant and I think understandable concern that, because they are in a minority,
provincial governments may choose to provide language services, language education of the type at a level which is really not acceptable to the native people in the provinces.
In our case I would like to see, as I referred to earlier on, the ability of the territorial government or territorial institutions of government to deliver programs and services in languages that are common to our territory. I do not think that the federal government can manage this properly and even in a lot of cases the territorial government cannot do it properly, It has got to be something which we can pass on down the line to local institutions of government, where. you know, you have the majority of people in a community regularly speaking Slavey. I am aware that is where the authority to develop the language and to keep it going should be placed. I would hope that, in our case anyway, and I know this is difficult when you are looking at a constitution for all of Canada, but in our case there is recognition that it is the territorial or local levels of government that can best deal with the language issue.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nickerson. I understand that is your last question.
Mr. Nickerson: I can go on for a long, long time.
The Joint Chairman (Mr. Joyal): I have no doubt that many members around this table and especially those who have the privilege either to live or to have lived or have come in touch in the past, or are in touch in the present with the great part of Canada, would certainly continue for hours to discuss with our witnesses this afternoon.
It is my privilege on behalf of all the members of this Committee to thank the Honourable Mr. Braden and Mr. Stien Lal who was with him this afternoon. I really am very grateful to you, because as the chairman of this Committee, I have watched very carefully the discussion this afternoon and I have heard many questions that were not essentially directly related to the proposed motion, but I think that they were most needed to help other Canadians who have followed us and are watching us on TV to understand that part of our country. That is why the Chair has allowed those questions and I am really most grateful to you to have answered all those questions. I will tell you, if the members allow me, that at some point I had almost the reaction of people on a TV quiz show when they are asked a $10,000 question.
I am grateful that you have answered all the questions that the honourable members of this Committee wanted to put to you. Thank you very much.
Mr. Braden: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): The meeting is then adjourned to 8 o’clock tonight when we will have the opportunity to meet the representatives of the Canada West Foundation.
The Joint Chairman (Senator Hays): Members of the Committee, at this time I should like to welcome our witnesses tonight, The Canada West Foundation represented by Mr. Stanley Roberts, Dr. Dave. . .
Mr. Epp: Mr. Chairman, a point of order. Prior to your introducing the witnesses I have a motion that I want to present to the Committee, I think it need not take very long but I would suggest we dispose of it before you formally call the witnesses for their testimony. Mr. Chairman.
As you and members of this Committee are aware, today, as of midnight, Canadians do not have the right either to present a written brief to this Committee, or to request that they appear before the Committee. Those of us on this side of the Committee feel that this is a travesty; we feel that not only were members of Parliament stopped in their desire to look at the constitution, and so, Mr. Chairman, in view of what has happened additionally in this Committee and in view of the time constraints we are in, we have not up until this moment either scheduled or heard any witnesses of the kind referred to as either constitutional experts or learned or expert witnesses. That in no way reflects on those witnesses we have heard. but it is a point that I believe this Committee must hear before it can do any of the work on the clause by clause study. that this Committee, in order that the Committee’s work can continue, should have scheduled these so called expert witnesses.
Mr. Chairman, it has been drawn to my attention, for example, just today that there are four federal departments that have given responsibility to lawyers in those departments to seek legal advice on only one clause of the proposed resolution before us, namely the clause on mobility rights. This Committee, and I am not going to dwell on the points I made earlier, Mr. Chairman, but this Committee is asked to look at 59 clauses and to do it within a period of time and to do it at this moment without the scheduling or the hearing of witnesses along the lines of the constitutionality of the proposal before us.
When I started my remarks. Mr. Chairman, I said I would not be long and I will not. I know from our side of the table, Mr. Chairman, it is not our intention to hold up the work of the Committee tonight but in order to facilitate the work of the Committee I have a resolution here that I will move and it is straightforward, it is in both languages, and I would ask the clerks to distribute it if they might. It reads as follows, Mr. Chairman if I might move it:
That the following witnesses, in addition to others who might be suggested to appear at a later date, be scheduled to appear before this Committee.
The following is a list. Mr. Chairman, which is not an all-inclusive list but it at least is a beginning of what I believe we should have as witnesses before this Committee, and if there is agreement in the Committee, I think we can deal with this in the next few minutes.
The names that I have put in my motion are the following: or John Laskin, who is a constitutional lawyer, Professor or . w at the University of Toronto; Dr. Edward McWhinney acknowledged specialist in constitutional law as well as international law and the law of rights and freedoms; Professor Leon Dion, a noted Quebec constitutional teacher and writer; Professor William Lederman, constitutional expert who I think is recognized by the work that he has done over the years; the Honourable J. C. McRuer, who is an eminent jurist and a member of Royal Commissions past; Professor Peter Russell, political scientist, University of Toronto; Kenneth Lysyk, Dean of the Law School, University of British Columbia; Professor Richard Simeon who is Director of the institute for intergovernmental Relations at Queens University; Robert Decary, a well noted constitutional expert in the Province of Quebec; Sidney Green, why is member of the Legislature of Manitoba as well as a person who is recognized in the area of constitutional law; Professor André Tremblay; Professor Francois chevrette. Both gentlemen have a long-standing career in intergovernmental affairs in the Province of Quebec; Professor G.P. Browne and E. A. Driedger, Q.C., a former deputy minister.
i would say. Mr. Chairman, this list is not all-inclusive. but I believe it is a good start and I would commend it to members of the Committee that we instruct our people who are in charge of planning the programming that these names be included as witnesses before the Committee.
The Joint Chairman (Senator Hays): Mr. Epp, you are making this in the way of a motion?
Mr. Epp: Correct.
The Joint Chairman (Senator Hays): It was my understanding as one of the co-chairmen that motions of this nature would be handled by the subcommittee of which you are a member and of which Senator Austin is the chairman, along with Mr. Nystrom, and I should like to hear what other members of the Committee. . .
Mr. Epp: Mr. Chairman, if you will recognize me I will give you the explanation very quickly to that and it is this: the date of December 9 is moving ever closer. Tonight the deadline is reached in terms of witnesses having the right to request to appear before the Committee, and in the subcommittee, as you well know, sir, we have not had the approval of the government members to this date, either to schedule or call individual witnesses. and so the subcommittee route. Mr. Chairman, with all respect, is simply not adequate at this point any longer and it is for that reason that I move the motion.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: I might surprise my good friend Mr. Epp by saying that i do believe that it is important and imperative that we hear some witnesses that can discuss the appropriateness of the procedure we are following. I pick my words carefully because I am aware of the fact that the constitutionality of what we are doing in this Committee is already before the courts, and I do not think that Mr. Epp would suggest that we instruct learned judges, including those that are retired.
Mr. Clyne, as to what is appropriate and what is not appropriate.
Nevertheless, having said that, I do think we would want to include in the witnesses appearing here some witnesses that have that particular expertise, not necessarily to discuss the constitutionality, but at least to point out the error of our ways as they see it, so I have no objection. speaking for this party, to give due weight and consideration to Mr. Epp’s observation that so far the witnesses, excellent as they have been, all of whom have agreed on entrenchment and virtually all of whom have agreed on the method we are using: nevertheless, I think, Mr. Chairman, there should be some so-called experts. There must be a correlation between the number of witnesses we can hear as well as the type of witnesses and their expertise, and the date of December 9 and that matter as I understand it is still being debated or discussed between House Leaders.
Finally, Mr. Chairman, in light of the desire I think of all parties not to tie up this committee. especially when we have witnesses such as we have this evening, also with a very unique point of view, that the logical thing for us to do is to refer to the steering committee not only the observation of Mr. Epp but also the appropriate list that he has submitted and remind ourselves that to date the witnesses that have appeared before the committee have been selected from all parties, and if they are being unfair or if they have been weighted one way or the other, then it is some reflection on the opposition parties who have had an input into the selection.
So I would just suggest, Mr. Chairman, that perhaps Mr. Epp might like to withdraw the motion and we will gladly agree to turn the list of witnesses that he has suggested, all of whom are eminent in their field, over to the steering committee, and 1 think Mr. Epp is a member of that steering committee, and let us see what the steering committee can do with the proposal of Mr. Epp, rather than make it a full-blown debate in front of the Committee. We can just agree that, yes, there should be this type of witness appearing before the Committee, not necessarily all your list, but we could add to that list . . .
Mr. Epp: You need a longer list?
Mr. Mackasey:. . .and finally, however, that we be consistent and refer the matter over to the steering committee.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: We are in a kind of a Catch 22 situation because the deadline for witnesses to signify their intention to appear is today, and of course the steering committee will not be able to meet at the earliest until tomorrow, and I believe that it is imperative that the Committee, given the deadline that we are faced with, should be allowed to express itself as to whether or not the time-frame that we have to operate under—and we must assume that is the time-frame because we have not heard otherwise from the House—will remain in effect. Given that situation we have to make sure that in the very limited time we have left, we maximize that time to the fullest, and 1 think it would be negligent on our part, Mr. Chairman, if we did not hear from expert witnesses, individu-
als who are eminent in the field of constitutional law, and given the willingness of Mr. Mackasey to co-operate I am sure that, and I have consulted with Mr. Epp on this, that we would be prepared to change our motion to give the steering committee the authority to decide what individual witnesses we should hear, but the Committee should decide tonight that we should hear individual witnesses who are considered eminent in the field of constitutional law, the decision on what witnesses to appear to be left to the steering committee.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: Are you suggesting that we hear all those witnesses?
Mr. McGrath: No, I am suggesting that this could be decided by the steering committee but the committee itself would decide to waive the deadline tonight in order to accommodate certain individuals who are considered to be eminent and expert in the field of constitutional law.
The Joint Chairman (Senator Hays): Senator Austin.
Senator Austin: Well, Mr. Chairman, I think with respect to the motion made that it is premature. This Committee unanimously accepted the deadline of November 25 when we voted on it. The list that Mr. Epp has read to us, so far as I am aware, contains names that have already been filed with the joint chairmen, so that the question of whether or not those witnesses should appear is one in which I support Mr. Mackasey, the question should be referred to the steering committee, and if it turns out that we have requests following the closing date today front people who are in our opinion deserving of a hearing here, I believe then the question should be raised on facts rather than on hypothesis.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: Senator Austin knows full well that the steering committee has made a decision in principle not to accept individuals because of the time-frame and because of the number of groups that have requested to appear. My suggestion, following on Mr. Epp’s motion, was that the Committee instruct the steering committee to change that decision and the steering committee would then decide what individual witnesses should appear.
Senator Austin: As I have a different understanding of the facts, Mr. McGrath, maybe we can come to the same conclusion. My understanding of the decision of the steering committee was that we had deferred the question of deciding whether and what individual witnesses would appear until we had a full awareness of the number of national groups that wished to appear before us.
Mr. McGrath: Well, that is a matter of record, perhaps the clerk could let the committee know what the steering committee did in fact decide.
The Joint Chairman (Senator Hays): While we are getting that, Mr. Nystrom?
Mr. Nystrom: Thank you very much. Mr. Chairman.
I would like to pick up the idea that Mr. McGrath just mentioned and see if we can strike some kind of compromise here because the points that were made by Mr. Epp are indeed very credible points. I as one, and my party, have said that we want to hear individual experts come before us to testify. There are a number of points of view that we have not really heard yet, a number of experts that could be very useful for all members on this committee, but I think maybe some members of the Committee might hesitate when we are presented with a list of I4 people because we all have our own lists of people that we would like to come before this Committee as witnesses, so if it were in order, Mr. Chairman, I would move an amendment that would basically substitute for the list presented to us by Mr. Epp. I think it goes along the lines of what Mr. McGrath was talking about a few moments ago; namely, that this committee instruct the subcommittee on agenda to prepare a list of at least ten constitutional experts to appear as witnesses before this committee.
Now, I think, Mr. Chairman, that gets around a number of points that were mentioned. First of all, we are not leaving it up to the steering committee, we are not leaving it up to the subcommittee on agenda, we are instructing the steering committee or. if you want, the subcommittee on agenda to prepare a list of at least ten experts Mr. Epp has given us the list here of 14. I think a number of names that he has mentioned here are really excellent names and they would certainly be on any list that I would suggest to the steering committee as well. However, I think it does go along with the practice that we followed before in this Committee where all three parties get together, we all three suggest different names and we try and come to some agreement. If we cannot reach an agreement in the subcommittee on agenda or the steering committee, then we bring that disagreement back here to the floor and discuss it as a full committee of the Senate and the House of Commons.
So if you find that in order. Mr. Chairman, I would like to move that as an amendment to the motion moved by Mr. Epp.
The Joint Chairman (Senator Hays): Could we have the written amendment?
Mr. McGrath: On a point of order, I do not want to bring in unnecessary procedural arguments, but that is a substantive motion and it is not in effect in the order of an amendment, although I support the principle of what Mr. Nystrom was trying to do.
The Joint Chairman (Senator Hays): Mr. Lapierre.
Mr. Lapierre: Mr. Chairman. every two days, naturally, the Conservatives have kept on with their habit of introducing delaying motions because they are afraid. In fact, witnesses up to date, and also the media, have realized it and are very sympathetic to our ideas and I find it very unpleasant vis-a-vis our witness of tonight are maybe less sympathetic to our ideas and the Conservatives would certainly like to hear them.
I think that Mr. Epp’s motion, and I for one will certainly not vote for it because before hearing either Léon Dion or Robert Décary, if Mr. Epp were to read the francophone print media he would certainly realize that those people do write
and that their views are very well-known. Mr. Tremblay must certainly read them.
I would rather hear the Quebec Employers’ Council who represent many people and even the Société St-Jean-Baptiste before hearing those individuals. I think that right now Mr. Epp’s motion is a bit premature. We know that the extension of the committee’s deadline is between the hands of the leaders of the different parties, we know that the subcommittee on agenda has to make a ruling on these matters and I think that it is a discourtesy to our witnesses to embark upon procedural arguments at this time.
I think that maybe he could have introduced the same amendment at 9:45 but it is a bit too soon.
Mr. Epp: Mr. Chairman, in order to facilitate the work of the Committee I think the point we have made. namely that there is a need for expert witnesses, that has been agreed to, and I think Mr. Mackasey has agreed to that, I know Mr. Lapierre and Senator Austin have some difficulty with that concept, but in order to facilitate the work of the Committee I would request, Mr. Chairman, that I be granted the permission to withdraw my motion and then I believe the intent of my motion is included in the one that was proposed by Mr. Nystrom and I would be willing to accept that motion. I believe we then have the intent and we can look at the specifics in subcommittee.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, just a week ago this Committee engaged in a very similar debate, similar in style if not in substance. At that time we were discussing the extension of the procedures from the 9th to some date undetermined, I think February 14. and what we have here again, and I do not refute the reasons for it, if Mr. Epp has awakened to the fact that at this particular moment at 8 o’clock, not at 10 o’clock, not when the steering committee meets tomorrow morning, not when the steering committee met this morning, but tonight in public at 8 o’clock, Mr. Epp has tumbled to the fact that we need some experts on the constitution before this committee.
In an effort to, I will not say defuse the issue, but refer it to the steering committee so that while it is deliberating we can go on with the witnesses, I did suggest that, yes, it might be useful to have this type of witness before us and I stand by that. However, that suggestion that we would agree to in essence what Mr. Epp was saying has now evolved into a motion that we hear no less than 10 constitutional experts; not 9, not 11, not 1, not 2, but 10, and if you give me that list I can pick out 5 and 5 that will end up in a draw, being quite familiar with the views of Professor McWhinney and Lederman and others.
I plead once again, with opposition members to consider the tactics and the methods by which you are bringing legitimate grievances before us.
There is a steering committee which has been set up at the very outset of these proceedings and composed of one member from each party, supplemented by Mr. Dorval on the selection of witnesses. The purpose of that steering committee is to
make it unnecessary for these types of procedural debates to be discussed, not so much in private, but in such a manner that they would impede the progress of this particular Committee. I would have hoped that the other morning that point would have been made abundantly clear to all of us, including members on this side—and that includes me.
Here we are, just a few days later, back again in the same type of procedural wrangle. That is why I suggest to Mr. Epp: yes, give us your list; yes, we will agree, but there should be some expert; yes, get it into the appropriate place, the steering committee—in the vain hope that we would then accept that without a motion. accept their manifestation in good faith and proceed with the witnesses.
Instead, what we have now is a motion—an amendment to a motion. Mr. Epp is withdrawing his motion and the amendment becomes a motion; that we hear 10 witnesses. The steering committee has no flexibility if this is adopted. They have to discuss I0. Their chore then will be to select 10 out of 15. 20 or 30. Mr. Nystrom says he can add to the list.
Again, Mr. Chairman, Mr. McGrath talks about a Catch 22 situation. I suppose we are in a Catch 22 situation. If we vote against this motion we will be in such a situation. It can very well be interpreted that we are not prepared to hear witnesses of this quality and expertise. But we are.
Some hon. Members: That is what it is!
Mr. Mackasey: We are; we are. We go on record as saying we are. What we opposed. and what we are categorically objecting to is using this Committee for this type of procedure.
So I have to come to the conclusion that it is not accidental that these things come up every few days. I almost hope it is deliberate, because it certainly cannot be justified on any other ground. So I would urge once more, before you proceed with that motion, that the Committee be willing without a vote to follow the suggestion of Mr. Epp; that is, that we have some witnesses, not 10, not 14, not necessarily one. And that we ask the steering committee to assume its responsibility.
Mr. Nystrom: On a point of order. Out of respect for our witnesses who are here tonight, namely the Canada-West Foundation, may I pick up an idea of Mr. Mackasey’s to facilitate matters and avoid a prolonged debate.
I will be willing, if he would agree, to remove the number 10, so that the resolution would just read:
That this Committee instruct the Subcommittee on Agenda to prepare a list of at least . . .
I would delete the “at least”
…a list of individual constitutional experts to appear before this Committee as witnesses.
In other words, we take the word “ten” when instructing the steering committee to prepare a list of individual constitutional experts to appear before this Committee. I think that meets the objections that he raised.
The Joint Chairman (Senator Hays): I would like to hear from Mr. Irwin, please.
Mr. Irwin: Thank you, Mr. Chairman. There is nothing magical about a list of eminent Canadians. I also have a list of maybe 20 pages, which is also a list of very competent and well-known people: for example, the government of Saskatchewan; the Government of New Brunswick; the Government of Prince Edward Island; the N.W.T,, and Newfoundland and Labrador, just picking names at random. The Canadian Bar Association; the Canadian Catholic Schools; The Canadian Association of Chiefs of Police; The Canadian Protestant League; The Law Union of British Columbia; The United Church of Canada; The Council for Canadian Unity and so on.
I would have thought, Mr. Chairman, that all these lists would have been dealt with by the steering committee and I support Mr. Mackasey on that. It all comes down to time, Mr. Chairman; and we are offering Monday mornings, Monday afternoons, Wednesday evenings, Friday afternoons, Friday evenings, Saturday mornings, Saturday afternoon; these are days that we are offering if the opposition parties are willing to work with them.
Now, as happened with the TV debate that we had, we had a vote and it went to the House. I think the appropriate place for this to be decided is amongst the House Leaders of the three parties.
If I may go back to what Mr. Pinard said on November 19th and I quote:
My only wish is that a debate here be as thorough, reasonable and fair as possible.
provided at the same time that we have some evidence of good faith especially if the Progressive Conservative Party does not try to delay the proceedings unduly in a dilatory manner and to start in the House a procedural debate on a constitutional issue, the subject matter of which deserves more consideration from his party.
Now, if I may quote from a very eminent Canadian, from Hansard of October 6, 1980:
I am not an advocate of endless time on this question, because I believe this debate in itself can serve to rend the country apart as the various views are expressed ad infinitum.
That is a direct quote from Mr. Epp. Now, is that not the point, Mr. Chairman? We are here, as has been expressed by one member of the audience, to hear the Canadian public. We have heard enough of each other and I would suggest that this matter should go over to the steering committee to be dealt with and that we proceed to hear the next witness that is before the Committee.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: It is my understanding, and that is why I made the suggestion that we should refer to the record, that we took a decision in the steering committee that we would not hear individuals, and that we would only hear from groups because of the number of groups who wanted to present briefs.
That is why I think it is necessary at this eleventh hour for the Committee to issue an instruction to the steering committee that we change that and that we consider hearing expert witnesses. That is the whole thrust of the motion which was originally put forward by my colleague, Mr. Epp, and now in amended form, put forward by Mr. Nystrom. We can facilitate the work of this Committee and the hearing of this very important witness by having that question put right now. I suggest that the question be put right now.
The Joint Chairman (Senator Hays): Senator Austin.
Senator Austin: I would just like to say that if we made such an agreement in the steering committee, it means that the Conservatives and the NDP agreed at one time not to hear individual witness. On the question, I suggest that we concur in putting the question, and I certainly intend to vote against the motion on the basis that the matter should entirely be dealt with in the steering committee and that no question or instruction should be sent at this time.
The Joint Chairman (Senator Hays): Mr. Epp.
Mr. Epp: That you, Mr. Chairman. I would like to have the question put, but I would like to straighten out the record on one question. Senator Austin said that there was agreement in the subcommittee. In the subcommittee all of us recognized that the same majority—and I am not crying about it—but the same majority regime is in the subcommittee as in this Committee. That is not a problem. But what I am saying to Senator Austin is that the Liberal members on the subcommittee did not want to hear individual constitutional experts.
We did not ever accept the premise and I ask you that the question be put.
Mr. Irwin: Mr. Chairman, I am sorry, but on a point of order. There was never a vote in the subcommittee with respect to the hearing of individual witnesses. I put on the record, in answer to Mr. McGrath, very clearly our position was that we deferred the question until we had seen the number of national organizations that wanted to appear before us.
The Joint Chairman (Senator Hays): Are you ready for the vote? Will you take the vote, please?
The Joint Chairman (Senator Joyal): I would like to read the motion before we ask for the vote. That this Committee instruct the Subcommittee and Agenda to prepare a list of constitutional experts to appear as witnesses before this Committee
Motion negatived: yeas, 9; nays, 14.
The Joint Chairman (Senator Hays): I would like to assure the Canada West Foundation—Dr. Stanley Roberts, Dr. David Elton, Dr. McCormick and and the Honourable J. V.
Clyne, that although we had a few housekeeping chores to do. we nevertheless will not infringe on your time and you will have the time that we did indicate at the outset that you would have.
If you care now to make an opening statement, I suppose it would be Mr. Roberts.
Mr. Stanley Roberts (President of the Canada West Foundation): Thank you, Mr. Chairman and honourable members of this special committee.
It is indeed an honour for me to make this presentation on behalf of the Canada West Foundation.
In order to enlighten those of you who are not familiar with our fundamental philosophy or with our raison d’être. I will start off by giving a few short informations.
The Canada West Foundation is an organization devoted to making social and economic studies. The studies are undertaken in both a neutral and impartial way. We are the service of the Canadian people in the four western provinces and in the two territories situated in the Northern part of the country.
Our main office is in Calgary, and we have offices in other Western cities.
We are pro-Canadian and pro-federalist. We work under the guidance of 45 counsellors, all of whom are elected in the four western provinces and in the Territories.
The Canada West Foundation would like to say that it disagrees entirely with the message used by Parliament to get this resolution through to this special committee.
Also, we firmly believe that a process that requires substantial modifications to the British North America Act, modifications made by the British Parliament and before the transfer of this act to Canada, is certainly devoid of any good principles.
Such a way of going about things does not at all aid in reflecting the integrity of the members of the Parliament of Canada.
I could not underline more the concern that we feel with regards to the way in which the BNA Act will be modified before it is brought to Canada as the new Constitution.
We, of course, would hope that the transfer between Westminster and Canada of the Act, in its entirety, will be both rapid and definitive.
Mr. Chairman, as I said, we are, of course, in favour of patriation of the constitution. We favour the constituion, the British North America Act, be domiciled in Canada and it become the basis for a new constitution for Canada: there must be an amending formula, and. of course, the simple amending formula at this time should have the unanimous approval of the provinces.
In case we are not able to convince the Committee, the government, or Parliament to pull back from this resolution,
or, particularly from the amendments to the British North America Act contained in this resolution, we present the following comments on the issues.
Representing us tonight are the Honourable J. V. Clyne, who is Counsel for the Canada West Foundation, and a Chancellor of the University of British Columbia. and a former Justice of the Supreme Court of British Columbia, as well as a former Chairman of the Canadian Maritime Association and former Chief Executive Officer of the MacMillan Blocdel Company. He will speak on the Bill of Rights.
We have Dr. Peter McCormick to my far right who is Consultant to the Canada West Foundation and a Professor of Canadian Government.
Dr. David Elton, the Research Director of the Canada West Foundation will speak on public opinion research and the findings of that research.
Now we hold, as I am sure you know. a large number of public meetings in western Canada and we conduct a good deal of survey work. The voice in the west is loud and clear. The voice says, do something about this Constitutional crisis; help overcome the confrontation; help achieve Canadian constructive harmony between the governments and among the governments; help relay their message to Ottawa. This is what they say to us: Help relay the message to Ottawa of our frustrations, our western Canadian frustrations. the dangers. the pitfalls and the lack of national efficiency through lack of regional input into the central government. Help us convince the nation that a new and workable federal system must be found. Most of all Mr. Chairman the people of western Canada are asking, Help the nation establish what kind of a Canada do we want; what kind of a Canada will fill our aspirations and Canada’s potential. That is the key: What kind of a Canada do we want? What kind of a federal system will work for Canada?
To this end we mount a good deal of research; to this end we propose a policy; to this end we do the public opinion research in public opinion polling that we are doing. Mr. Chairman, we are holding as well a conference in Banff this very week. Thursday, Friday and Saturday of this week of western Canadians, Canadians from the Yukon, Canadians from the Northwest Territories to discuss the very question, what kind of a Canada do you want, and we hope to come up with some of the answers. We are proposing tonight, and we will be proposing at Banff a method whereby the log-jam can be broken, the log-jam on constitutional reform in this country. It is. I suggest, the method whereby the people as well as the First Ministers can be involved in drafting the Canadian constitution. The vehicle, the forum is one you have heard before, the constituent assembly, a select committee from across Canada elected and charged to fill that purpose alone.
Tonight I would hope, Mr. Chairman, that we can address as well the subject of western alienation, western dissatisfaction, the subject that is so much in the news these days. I suggest to you that it is real, it is dangerous and it is gathering momentum and it involves all four provinces and has involved the Northwest Territories and the Yukon in particular for some time.
I beg you to listen, because the haste with which this resolution is going forward, is being debated, the haste is contributing to the independence movement in all four western provinces.
Some hon. Members: Right on, right on.
Mr. Roberts: I draw your attention to the fact that 28 per cent of the people in western Canada of all four provinces are prepared to consider western independence as a viable option. We will discuss this further when Dr. Elton discusses the most recent survey that has been conducted.
Mr. Chairman, I would like to close my comments with that and hope there will be a number of questions as time goes on.
I will ask now the Honourable J. V. Clyne, as I said, a former Justice of the Supreme Court of British Columbia, to say a few words, particularly on the subject of the Bill of Rights as proposed in the resolution.
Honourable Mr. Justice Clyne (Counsel, Canada West Foundation): Mr. Chairman and honourable members, I propose to talk for a minute about the Charter of Rights and Freedoms. My position is that it is a grave mistake to entrench such rights in a constitution rather than incorporating them in an ordinary statute such as the Canadian Bill of Rights, especially when the amending procedure in the proposal which is before you is so rigid and inflexible.
Now, I am aware that there are arguments in favour of entrenchment of such rights that have a strong appeal like those in favour of motherhood, but the implementation should be studied carefully in the light of experience in other jurisdictions.
As the Honourable J. C. McRuer, to whom Mr. Epp has made reference, pointed out in speaking to the Senate Committee several years ago when it was considering the provisions of Bill 60, it took individual state legislatures in the United States over 30 years to enact the Hours of Work Acts because they were held by the courts to be invalid because they interfere with the constitutional right of freedom of contract.
Now, let me quote very briefly from the findings of the Royal Commission conducted by Chief Justice McRuer to enquire into civil rights in Ontario. Now the findings were, and this is part of the findings:
in considering the entrenchment method versus the definition of human rights by ordinary statute we must keep
clearly in mind the age of rapid social change that we live in, change that is hard to foresee. Behind the accelerating rate of change lie the new technologies that have come from the great explosion of new knowledge in natural science and a similar and related explosion is going on in the social sciences of which the advance of learning and knowledge in politics and law are a part. There is both need and pressure for government to know more and do more about more things. in these circumstances governments dare not lock themselves into a constitutional straightjacket where repeated deadlock is likely in the solution of grave social problems. This is precisely what has happened in the past in the United States and what we would do if we followed the American example of sweeping judicial supremacy for life appointed judges over the democratic legislative body that contains the elected representatives of the people.
The more modern democratic Parliament on the British model which we have in Canada, not only has the superior constitutional title for privacy in major decisions of social policy, but it also has the matching institutional design and procedure. It does not focus on special individual conflicts as the courts are bound to do but on social problems in a general way.
While commissions and parliamentary committees can conduct hearings and investigations where a great variety of interested parties and experts may make their reasoned submissions in the hope of what I hope we are going to do today.
The whole expertise of the civil service is directly available. Then after due deliberation the government can stand behind the statutory solution that deals with law reform and control of social problems with as much generality and particularity as the social need for regulation and the use of public resources seems to call for. The fact is that the well drafted statute passed in a democratic parliament under the Cabinet system with full debate and under scrutiny of freely expressed public opinion is the most inexible and sophisticated form of law making available under a Constitutional system that puts human individual rights first.
Now that is what the former Chief Justice of Ontario said, and I hoped that you would have him before you to expound on that subject. it is true, and I am quite certain that you will have a number of submissions made to you that we certainly should have human rights in the constitution, but that is what the ordinary man in the street feels is a good thing; he does not realize that he is substituting the opinion of a judge on very undetermined issues instead a judgement of his elected members of Parliament.
Now, I am in favour of the law being made by elected members of Parliaments under the democratic process; judges
should interpret the law; they should not make it. The enactment of a constitutional Bill of Rights puts judges in the position of making political decisions rather than the legislators.
Lord Denning, the Master of the Rules in England, is one of the great legal minds on the bench today. He has not hesitated to give moderate interpretations of the law, but in a recent speech in the House of Lords he said that if judges were given power to overthrow acts of Parliament, they would become politicized. Then appointments would be based on political grounds and their reputations would suffer accordingly.
There is no doubt that in deciding whether an act is constitutional, judges have the right to overrule Parliament and the legislatures.
Lord Denning went on to say that
one has only to see in the great constitutions of the United States of America and of India the conflicts which arise from time to time between the judges and the legislatures.
I hope we shall not have such conflicts in this country and I respectfully agree entirely with what Lord Denning said.
Now, just let me refer you to some of the very vague and general terms of the proposed constitution which would give judges virtually a free hand in interpreting acts of Parliament and the legislatures. Just take for instance this section with which you are all familiar:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.
Now, ladies and gentlemen, I submit to you that those terms are so completely vague that any judge is going to have great difficulty in deciding what his duty is in respect of an individual statute, altogether too vague and I submit unworkable.
Now another section to which I draw your attention and which I hope might be revised:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Now you are leaving it entirely in the discretion of a judge without giving that judge or court any guidance which he should expect to receive in an act of the legislature. There are two provisions that I hope you will seriously consider.
The guarantee in this charter of certain rights and freedoms shall not be construed as denying the existence of any of the rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the Native peoples of Canada.
Ladies and gentlemen. those provisions are so wide that you present an impossible situation to a judge sitting on the bench. Then any law that is inconsistent with the provisions of this charter is to the extent of such inconsistency inoperative and of no force and effect.
Now again I stress that this leaves it entirely open to judges to overthrow acts of the legislature and I hate to admit it, I think we must all agree that judges, all judges, are not infallible.
Now I have the temerity to say that the proposed charter is badly drafted. I am opposed to entrenchment, but if you in your wisdom decide to entrench, then I urge you to have the act carefully reconsidered and recomposed. as in its present form it will lead to endless confusion. If we are to have a Charter of Rights and we have such a charter in the Canadian Bill of Rights, it would be far better to leave it in simple statutory form rather than entrenched in the Constitution in those extremely vague terms.
Now I am not going to spend any time on the amending.
formulas, except to say that I believe there is little likelihood of the alternatives which are set out in the act taking place. It would appear that we will have the fall-back formula contained in Section 41 with which you are all familiar. The provisions of Section 41 are far too rigid and we are likely to have a constitution which would be unamendable, which would be disastrous. We appear to be heading for trouble in this legislation. The repatriation proposal is going to be tested in the courts and I understand that representation in opposition is going to be made to the UK. Parliament. I suggest the way out of the dilemma is the establishment of a constitutional assembly, and I will leave that to Mr. Elton to elaborate on and I join in with what has been said by Mr. Roberts. We have no desire to see this country divided. but we must take steps to eliminate those factors which create discontent and unhappiness in the nation as a whole.
The Joint Chairman (Senator Hays): Thank you, Honorable Clyne. Dr. McCormick please.
Dr. P. McCormick (Professor, Political Science, University of Lethbridge): My main concern with regard to this resolution is the amending procedure set out within it. It is obvious both as a matter of federal theory and as a matter of practical politics that and the federal system amending formula is of fundamental importance, because that is the way that the ground rules of the political system will be made and will be changed in coming years.
There are several different amending procedures which are contemplated in the course of the resolution, and I will try to deal with each one fairly briefly. First of all there is the proposed constitutional amending formula in Part V of the Resolution, the so-called fall-back position that will go into effect after two years if nothing else happens.
There are three major defects in this suggestion. The first and the most important of them is it would create several classes of provinces. I imagine you could derive different classes on one different basis; I myself see four different classes of provinces created under this legislation. The first are those two provinces right now that would possess automatic veto power over any proposed legislation. namely Ontario and Quebec.
The class two provinces would be those that could join with any other province from their region to effectively wheel the
regional veto, and that would include British Columbia and the three provinces Newfoundland, New Brunswick and Nova Scotia.
The third class which would include the three prairie provinces would either be the class two province in their region, namely B.C.. or else unanimity among all three to block an amendment, and for the life of me I cannot see how Prince Edward Island would ever have a say in a constitutional amendment again in this country, There is no way the vote from P.E.I. could either swing or not swing the regional veto from the Atlantic region,
This generation of four different classes of provinces in the federal system is. at least to me, completely unacceptable since the amendment to formula is itself so important and so basic, it is not that finding other amending formulas is easy, but certainly recognizing defects like this in another formula proposed is not all that difficult.
Secondly there is an optional referendum referred to in Part V:
If agreement cannot come about through government, these various provinces agreeing then if their national government so wishes there can be a referendum with provisional electorates having to agree on the same basis as the governmental breakdown.
The problem here is that the referendum is purely optional and it is an option at the discretion of one level of government, but if all ten provinces favoured an amendment and the national government did not, there is no referendum; if all ten provinces oppose and the national government favours, then you could have one. l think if we are going to begin adopting referendums in this country as a democratic device, we should be consistent and use it for all amendments, not just for some at somebody’s convenience.
Thirdly, I am somewhat surprised by the reduced role which is contemplated for the Senate in the procedure under Section 5. l would have thought that phase two of our constitutional change in this country, if and when we get to that point, will certainly include some modifications to the role and nature of the upper chamber. It seems a very unfortunate start to the whole operation by cutting down the powers before you vamp up the machinery. it would seem much more preferable to leave a strong Senate to improved to play a greater role.
Those are the three major flaws I see in the amending formula suggested in Part V. Part IV, of course, the interim amending formula does suggest two ways by which another amending formula could be arrived at. l have trouble in seeing how either one of these could ever be utilized.
The first way in which you could derive an alternate amending formula is unanimous agreement among all 11 governments, since Part V is supposedly the national government’s preferred position I cannot see why they would be so ready to
agree to an alternative. Also, since two provinces out of the 10 have special status coming to them automatically after the two years have elapsed, I cannot see how easy it would be to motivate them to bargain very much. so I think the unanimous government agreement would be very, very difficult to reach under the circumstances when the equality of bargaining position is purely illusory and transitory.
The second way in which we could derive a different amending formula is a federalist nightmare, I suppose is one way to describe it. What would happen is if enough provinces got together — that is another formula even more complicated so I will leave that out — if enough provinces got together and came up with an alternate formula, then they could submit this to a referendum against an as yet unnamed, unspecified national government option with the result to be decided on a simple national majority, regional breakdowns not mattering at all.
Now, I do not think there is too much in that to make very many provincial governments want to try their luck in the lottery. and a lottery it would certainly be.
Finally, looming in the background of the whole operation is yet another amending formula which I, for one, cannot dismiss as a one-shot affair, namely the option being used now, the unilateral approach. I do not believe that the self-denying declaration this resolution wants the British government to make with regard to Canadian constitutional matters will be anything other than a political pledge, it will not be a constitutional legal barrier. I do not see it as impossible that a future British government could be asked by a future Canadian government again to intervene in a similar fashion citing this resolution as a precedent. I think this Westminster option would forever loom in the background of federal-provincial affairs in this country and I do not think it would have a munificent effect.
So all these options leave me somewhat concerned because the problem with all of them is it looks to people in the part of the country in which I live as if an outside solution is being imposed upon us and there is a degree of suspicion and alarm out West that surprises me and sometimes even terrifies me. I think there must be some kind of alternate solution between deadlock and unilateralism and I would hope as Canadians we have the imagination to come up with it.
One possibility would be, first of all I would like to see the two-year period extended to five on the grounds that is the normal life of a Parliament and I think it would be useful to have at least the option of the people of Canada passing judgement through general election on all 11 governments while negotiations are going on but I think the fall back position, the one that would come into effect after five years, should be one that would favour none of the parties to the bargaining situation but would induce all of them to bargain in good faith to reach a solution and it is in that vein that I would suggest the idea of a constituent assembly, a specially elected group of individuals from across the entire country, again with the idea of providing a forum which could generate a new constitutional formula. a new constitutional provision that
could be recognized by Canadians from all parts of the country as being their own.
The Joint Chairman (Senator Hays): Thank you, Doctor McCormick. Doctor Elton.
Mr. D. Elton (Research Director, Canada West Foundation): Thank you, Mr. Chairman. I have asked the Clerk of the Committee if he would please distribute some findings that we have come up.with in a public opinion poll that was taken October 20 through October 25 throughout western Canada. It is my understanding this Committee has had some problems in obtaining information on public opinion…
An hon. Member: Hear, hear!
Mr. Elton: . . . therefore we are pleased to provide to you, Mr. Chairman, sortie data relating to one part of this country and that is Western Canada. While the material is being distributed I would like to make a couple of points that I think are most important.
There are public opinion polls and public opinion polls. Some are taken in shopping centres, some are taken scientifically. To the best of our ability, which stretches over many years, this poll is as scientific as one can make it. A very careful random probability sample was drawn from western Canada, probably more individuals in terms of the size of the sample were talked to, Mr. Chairman. in this survey then have been talked to in any public opinion survey on this subject. We think the material is considerably accurate and in fact it represents the opinion of western Canadians, not simply of the four western provinces. but quite accurately the opinion of western Canadians within the various provinces.
The data that I would like to draw your attention to is based on western Canadian opinion. The material that I am circulating to you breaks it out by province. This study had four basic objectives:
(I) to establish the saliency of the issue of constitutional reform as compared to national energy issues. as compared to economic concerns;
(2) to deal with energy related matters as it affects our governments:
(3) to deal with constitutional reform;
(4) western alienation.
I would like to confine my comments to the questions that dealt with constitutional reform as that is the question we are addressing tonight. I would suggest, then, that the committee members turn to the raw data in the package which I have provided for you and the data on constitutional reform stretches from basically questions 29 through 44.
We tried to accomplish a number of things. Rather than asking one or two simple questions about constitutional reform, we used a battery of IS questions on this subject. The basic issues were as follows, Mr. Chairman:
First, we wanted to get a reading of how people felt about the very resolution that we are discussing tonight. We found
that in fact many people agree with the objectives that are specified in the resolution dealing with equalization, language rights, rights and freedoms, mobility of workers and equalization. In fact, on mobility of workers 96 per cent of the people in western Canada agreed wholeheartedly they should be able to move and work any place in this country. I will not go into all the details, but this is found in question 31. I would like to point out to you, however, that while western Canadians agree wholeheartedly with the objectives, they disagree just as wholeheartedly with the methods. The ends are not in question, it is the means that are being questioned by western Canadians and I would refer you now to question 31(a):
The federal government’s constitutional package deals with several things. Please tell me whether you agree strongly or disagree with each of the following:
a) unilateral patriation: i.e. federal government bringing constitution home without the approval of the provincial governments.
I note for your attention that almost 70 per cent, 7 out of every 10 western Canadians do not like that approach. I will then leave for you to note the other information and I will be glad to answer questions on it,
I would then like to focus on the question that I noticed the meeting started with tonight, Mr. Chairman, the whole question of time and whether or not we are in a time bind and must meet a December 9 or December 25, or whatever deadline we put up before us. Most western Canadians, as you will note in question 35 do not believe the time frame to be a good one. They do not believe that there is all that much rush involved in it and they are not caught up with the concern that some have that the 53 years, or this suggests they are not, is a period that cannot be extended or that we cannot take another six months if we have taken this long, 53 years.
I will point you to the question of the consent for change because it is very important, l think, when we are dealing with the question of the amending formula, which I see as the crux of this issue and of the resolution itself, and I refer you to question 38, Mr. Chairman, and there are a number of questions dealing with this that members may want to ask about, but question 38 was asked of l300 western Canadians:
In order to establish a new constitution and make it Canadian, whose consent should be required?
You will note, Mr. Chairman, that fewer than five out of every 100 western Canadians, and it is constant throughout the four provinces, think that only the federal government should do it. You will note that 14 per cent do not think the federal government should be involved at all and that it should in fact be the 10 provincial governments. However, by and large, Mr. Chairman, the bulk of western Canadians are what I would classify as classical federalists. They are committed to two levels of government, dealing with the issues that governments
are meant to deal with in their respective division of powers. Most western Canadians want all of their governments involved in constitutional reform, particularly in the ratification of any constitutional change.
We asked questions on referendums, Mr. Chairman, in questions 39 and 40. We also asked questions about an ad campaign that has been running simultaneously with the consideration of this bill. We also asked people about really the final question and that is: If bringing home the constitution means more power for the federal government and less power for the provincial government would you be in favour of or opposed to bringing it back to Canada? Almost 7 out of 1O, in fact more than 7 out of IO of those who have an opinion, 65 per cent of the entire sample, oppose arty constitutional change that might in any way hinder the rights and privileges they feel their provincial government needs and deserves.
I could go on, Mr. Chairman. I think there is a general profile of opinion that you can obtain from this battery of questions. Western Canadians are very concerned about the methods that are being contemplated, Western Canadians want to maintain a strong national government and a strong provincial government. They want to be involved in constitutional change and in fact, if one takes a look at question 29, for example, you will find that a great number of western Canadians feel threatened by the very proposals that are before this committee.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Doctor Elton.
The first gentleman on my list is Senator Duff Roblin. Senator Roblin.
Senator Roblin: Thank you, Mr. Chairman. I must say I am overwhelmed by the variety and nature of the facts that you have just presented us with in this opinion poll which you have collected from the people of western Canada. It seems to me to be the most authoritative statement of western opinion that I have heard for some time, but it really does not surprise me because although we have perhaps heard a lot of wishful talk about the state of opinion in the country, it seems to me that we would be better advised if we tried to get a firmer grip on reality, and it seems to me that the information that you have given us here helps to that end and I must say I thank you for It.
I would like to ask some questions arising from your comments and perhaps arising from the opinion poll that I have just had a very brief chance to look at. and the first one has to do with the idea of unilateral action. Unilateral action in this case seems to be a situation where the federal government is determined to have its own way, whether or not the provinces agree. In your brief you give me the impression that you think this will upset the balanced federal system we have in Canada today. I wonder if you would like to enlarge upon the reasons why you think this unilateral action on the part of the present
government is creating some of the problems we are worrying about here tonight?
Mr. Roberts: Mr. Chairman, I think perhaps that the answer to that question has a very long history and one which certainly the honourable members here tonight who hail from western Canada will understand. A long history of concern about being represented in the central government, a long history of policy being created in Ottawa. in the central government, with very little representation from western Canada. and I might say that seems to be equally true as we go through the research, the surveys that have been conducted over the years, regardless of which government is in power.
There was the same kind of concern that decisions were being made in the federal government into which western Canadians had very little input. so I do not find that this is particularly surprising today.
Now, you will find in this poll, for instance, that western Canadians feel much closer to their provincial government than they do to their federal government. and they always have. You will find that trust of their provincial government carries forward into the kind of proposition that this committee is discussing, the proposition of a unilateral partriation of a constitution, or the British North America Act in this case. I suggest to you that that mistrust and the lack of provincial government approval of this act, the combination of the two causes western Canadians to react in the way they have in this poll.
Mr. Justice Clyne: May I just add to that. and that is the essence of federalism is consent between the constituent parties of that organization. and if you do not have consent between the constituent parties it will not work.
Senator Roblin: I wonder if there is another aspect that is influencing opinion in western Canada and that is the question of a mandate. What legitimacy is there in the claim that the federal government has the mandate to do the things which it proposes to do now? We have had a couple of general elections and l am not aware of any mandate for constitutional change of this kind being included in them and when you add that to, and I say this regretfully, the unfortunate fact that the basis of the present administration is so markedly regional in character, do you find that to be a problem which exacerbates this situation?
Mr. Roberts: Mr. Chairman, I agree with Senator Roblin. I think that that is a great concern. Certainly my own personal experience in attending hundreds of public meetings in western Canada, non-partisan public meetings in western Canada, indicates to me that no one, or at least no one that I know of had any feeling that this was part of the election platform of the government that was elected on February 18, and that there was never any time that a mandate was issued to this government to do it. As Mr. Justice Clyne has said, the issue of double majority, the issue of the federal system. the issue that both levels of government should be involved in this kind of a consent to a change is one that is very deeply held in western Canada and I think may be in most parts of Canada.
Senator Roblin: I would like to pursue that topic but my time is short and I will have to move on to another one.
I am a citizen of Manitoba. as you were at one time, Mr. Roberts, and while I have a love for my province, I am a Canadian first. Just the same I am rather distressed to hear you describe the Province of Manitoba under the amending formula as a third-class province. and it seems to me that this underlines a very serious weakness in the proposal that is before us.
Is there a concern in western Canada that the provinces in that part of the country do not apparently enjoy the same status in terms of this constitution that other provinces do, and do you think that is a problem or a factor in leading to this matter of discontent or alienation in western Canada!
Mr. Roberts: Mr. Chairman, this has to be a factor. In fact it is a subject that comes up most commonly at public meetings today. It is a hard thing for people to imagine that at a public meeting today that draws, as one did in Calgary just a few nights ago, 500 people and thousands turned away to discuss the British North America Act, that the most provocative topic discussed in the entire meeting was the amending formula and people were describing it from the audience in the way that Doctor McCormick has tonight, that Ontario and Quebec are obviously first-class provinces, British Columbia is a second-class province and that each of the three prairie provinces is a third-class province and of course Prince Edward Island is a fourth class province.
Senator Roblin: Well, coming back to this amending formula, you have described the one that is in the bill, you have told us I think a pretty good reason why it is unlikely that provinces representing 80 per cent of the population will pick another formula on the grounds that two of the major provinces have everything to lose and nothing to gain by such a move. However. I direct your attention to another possibility in this bill, if you look at Section 38(3)(a), you will see that the government does not have to proceed with this so-called Victoria formula, to put that before the people, they can bring any alternative in they like and they can do so, if you please, not with the consent of the Parliament, Parliament is not mentioned, they do it on the plain motion of the government, the executive itself.
Now, it put it to you that that may not sound like a very good way to devise a third amending formula which nobody really has ever heard of at the present time?
Mr. Justice Clyne: Well, there is no question, Senator Roblin, that that section has created a great deal of adverse comment in the west. I do not know to what extent it has been commented on in the cast but this has been talked about editorially in the papers and you hear it on every side.
Senator Roblin: Then if you move on in the plan that has been proposed to us by the government to Section 39, you find that whatever amending formula might be put before the
public, and as I say we really have no idea what it might be, can be adopted by a 50 per cent majority. Now, a little work with a pencil will indicate that if the Province of Ontario, for example, voted strongly for it, every other province could vote against it and still it would carry. Now, is that a cause of alienation in western Canada?
Mr. Roberts: Very much so, Mr. Chairman, and the people of western Canada. certainly the hundreds and hundreds who attend meetings to discuss this, and I am talking about citizens at large, I am not talking about constitutional experts, are very clear about the subject, that if referenda are going to be used then the only referenda that would be acceptable to them would be a majority in each province.
Senator Roblin: I would like to go on to another point which has to do with the Senate. I do so rather apologetically, because I have no intention to appear as a spokesman for that interest. But it is a fact that when we were last looking at the constitution under Bill C-60 some two years ago the Supreme Court was asked to decide question Z(f), whether or not the Parliament of Canada had the right to ignore the Senate when it came to passing votes. The Supreme Court said the Parliament of Canada had no such right.
Yet, if you look at Section 44 of this bill, you will see that the right has been reinstated; because it says that if the Senate does not act within 90 days, the House of Commons can ignore it.
Now, my question is, what do you think of a procedure whereby the government is forbidden by the Supreme Court to do an act directly under the aegis of the Parliament of Canada, and turns around and does the same thing indirectly through the aegis of the Parliament of Great Britain.
Now, is that a constitutional proposal which would attract any measure of support in western Canada?
Mr. Roberts: I do not think so, Mr. Chairman.
I want to be very clear that our number one objection to this entire resolution is the fact that, from beginning to end, it is a method of end-running the Supreme Court of Canada and the people of Canada and going directly to Great Britain, Westminster, to make amendments which would not be acceptable in Canada and could very easily be challenged in the Supreme Court if they were done in Canada. It applies to the clause that you have brought up, Senator Roblin, but also to the entire resolution.
Senator Roblin: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much.
Senator Roblin: Could I have one more questions?
The Joint Chairman (Senator Hays): No. We have a lot of speakers tonight, we will try to get back to you.
Senator Roblin : Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Mr. Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman. I want to welcome the Canada West Foundation here tonight, Mr. Roberts and his colleagues. We very much appreciate your opinions, and also your coming to us with a very extensive public opinion pool. You have sampled some I400 people, I believe.
I would like to start by saying, like Mr. Roberts, that I am strongly committed to Canada and to federalism. I am also very happy to see that, in the survey, that the overwhelming majority of western Canadians still feel that way about the country. That is one of the most reassuring things about the survey.
But I want to ask you one or two questions about it, in order to elicit from you your interpretation of the feeling of people in our part of the country,—a matter which I think is important that we understand before this committee.
First of all, very briefly, your poll was taken before the federal budget and was taken, I understand, before people in the west knew about the energy proposal in the federal budget?
Mr. Roberts: That is correct.
Mr. Nystrom: It was also taken before some of the large separatist and independence movement rallies in the west?
Mr. Roberts: Yes.
Mr. Nystrom: And it was also before you ran any advertisements, in case there was any misunderstanding about what Mr. Elton said.
Mr. Roberts: Yes.
Mr. Nystrom: I would like to put a very quick judgmental question to you. If the poll were taken now, do you think there would be a difference in some of the results? Do you think what has happened in the last three, four of five weeks. plus a deeper comprehension of the constitution package would further aggravate the feeling of alienation in the west?
Mr. Roberts: All I can do is express a personal opinion, yes.
I think the budget-cum-energy policy, whichever it was, was the most recent act, the most recent problem, the most recent frustration to the people of western Canada.
Mr. Nystrom: Provocation?
Mr. Roberts: Good word.
Mr. Nystrom: I want to start off by referring to a number of the questions and answers you have received here. I would like to begin by making the assertion, that in my opinion, (maybe it is wishful thinking) but I think I am accurate, the independence movement in the west. the separatims in the west, is not as yet deeply rooted, but the potential is there unless we do something about it. I think you probably share that point of view.
Mr. Roberts: Exactly.
Mr. Nystrom: I base that on question 59, which says:
Would you prefer that the provinces of western Canada . . . remain a part of Canada? Ninety per cent of the people said yes to that; that gives me some heart.
Then i go on to some of the warning signals in you report. I start off with 51(e). Here you are asking people to give opinions as to whether or not they agreed or disagreed with certain assertions. The statement was
Western Canadians get so few benefits from being part of Canada that they might as well got it on their own,
Twenty per cent of the people out west said yes to that. and over one quarter said that they would give some consideration to going it on their own.
Another statement made was made in 51(b) that the west usually gets ignored in national politics, because the political parties depend upon Quebec and Ontario for most of their votes. Eighty four per cent of the people agreed or strongly agreed. Eighty four per cent. I think that is a very strong signal to all the national parties.
Another assertion was that the western provinces have sufficient resources and industries to survive without the rest of Canada. Sixty per cent agreed or strongly disagreed.
Another question which I found very startling was that in many ways western Canadians have more in common with the westen United States than with eastern Canada. Fifty three per cent agreed or strongly disagreed. I want to ask you. Mr. Roberts, whether or not you, like me, see those as very strong warning signals to the nations and to us as parliamentarians that, if we do not make some serious changes in this country, the independence movement in the west may, indeed, within a short period of time ignite into a prairie fire and become very deeply rooted?
Mr, Roberts: Mr. Chairman, I have to agree with Mr. Nystrom that this is a very significant document. I will challenge any researcher to question the methodology here. This has been a well researched. scientific, survey.
It is interesting to note on the one point, where you say 90 percent of the people in western Canada wish to remain Canadians. Now, remember that Carl Nickle carries a Canadian flag everywhere he goes. and has one on his desk. Yet he is the best and most articulate spokesman for the western independence movement at the moment. Because what he is saying. and what thousands of people are saying, is that we in the west are behaving Canadians today. There are people in other parts of Canada who are not. There is a warning there. The other warnings show up in the places you have
pointed out Mr. Nystrom, where 60 percent of the people say that we can be more prosperous alone.
So that when the Prime Minister says to us, “Why do you not use your logic instead of your emotion?” Well, if we used our logic we would go it alone. So we had better not use our logic. We should stick with our emotion. It is our emotion that is keeping us in Canada.
There is another important point, namely. where 28 percent people of the people say “We might as well go it on our own. There are so few benefits in Canada. we might as well go it on our own,” I think it is worthwhile for people to realize that this is not an Alberta phenomenon. There are 30 percent of the people in Alberta saying that, 29 percent of the people in British Columbia, 25 percent in Saskatchewan and 25 in Manitoba. So this is a western Canadian phenomenon. It just happens to be the media likes it better in Alberta than it does in other parts.
Mr. Nystrom: Why is this happening, Mr. Roberts? I think all of us. as western M.P.’s have our own theories. But why is this happening? Have you done any research?
Mr. Roberts: Well, I have one more theory. I suspect it is not too far from the theory that you have already established amongst yourselves. As I said earlier, it is very deeply rooted.
When Senator Roblin and I served together in Manitoba 20 years ago. it was a deeply rooted feeling at that time, but the kind of frustration that people felt in those days could not carry the kind of force it carries today because of the economic problem.
What you have is a situation where, today, the frustration of western Canadians, the lack of representation in the central government—and I mean representation in the sense of being able to influence public policy—is focus on so many things and can manifest itself in certain ways: agricultural policy—and let me assure you this is not an oil or an energy phenomenon. The meeting the night before last was the biggest meeting of all. The only one I ever attended was an accidental meeting when I went to Fort McLeod, where I was invited to speak to the United Church congregation and it turned out to be a separatist movement. and everybody there was a member of the Fort McLeod United Church!
These people are all farmers, ranchers, so that it is an agricultural problem as well, which is now manifesting itself. It is something that has gone on and has suddenly become a big issue in 1980. It became a big issue in 1980 when on February 18th or 19th or whatever date the election was, the people of western Canada, before they voted, knew the election was over and who had won. Now that is the same thing that happened in California on November 4th, when they did not bother to vote because they found out that Governor Reagan
was already President; so, why bother? That is the first problem, it does a lot of damage.
Then the second thing was the breakdown of the First Ministers’ Conference, the failure to reach any kind of an accord.
The third, I suppose, is the introduction—the unilateral introduction, of the constitutional bill: that had a big impact on people. By the constitutional bill, I am talking about this particular resolution.
The fourth one would be the closure itself. Closure still is—and has been since 1951 or 1957—a very dirty word in western Canada.
Then, of course, you all know, suddenly it was possible to draw thousands and thousands of people to meetings, because immediately following the budget and energy policy, because they suddenly had one more thing to focus on, and that was the straw that broke the camels back; but I assure you. that while the energy policy is not popular in western Canada, it was not the major issue.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Roberts. Senator Austin.
Senator Austin: Thank you, Mr. Chairman. I suppose I will suffer the same fate, that is very few questions and some very interesting answers.
I would like to join with my colleagues on the Committee, Mr. Roberts, in welcoming you and your colleagues here. You have given us a vigorous presentation of your views. That is what we expected.
If I may, I must strike a slightly discordant note and say that I wish the material that you have delivered to us tonight was available for us to read and digest,
Mr. Fraser: You set the time limit!
Senator Austin: Thanks, Mr. Fraser: I appreciate that.
Mr. Fraser: It happens to be the truth.
Senator Austin: What I would like to do. ignoring Mr. Fraser’s bad tempered intervention …
Mr. Fraser: But very accurate.
Senator Austin: You have a bad temper, and you should try to control it, You will have your turn to speak.
What I was saying. is that I can assure you that this side will study your material. and endeavour this evening to make the interventions we can make with the position you have taken in the past and which we do have a good deal of acquaintance with.
I would like to welcome Mr, Justice Clyne. He is a vigorous representative of British Columbia, and a very famous citizen of that province, He made a very vigorous presentation of his point of view tonight.
Mr. Roberts. I would like to start with the ad which your organization has been putting in many of Canada’s newspapers.
In effect, what it does is to ask Canadians to write to Prime Minister Thatcher. It says:
Dear Prime Minister Thatcher, Please send my constitution home as is; provide a temporary amending formula and send us the BNA Act otherwise unchanged. Canadians from coast to coast will make the changes necessary to determine our future here.
I was not aware, but I suppose it is not a surprise that you really wanted the British Government to become substantively involved in Canadian affairs.
You are really asking the British Government to defy the opinion and the joint resolution, if it is passed, of the House of Commons and of the Senate under well established constitutional procedures.
Do you feel I am correctly stating your position?
Mr. Roberts: Senator Austin, you know you are beating me.
Senator Austin: I am giving you a wonderful opportunity to defend yourself.
Mr. Roberts: But, if you think that the British Government is intervening in Canadian affairs sending home our constitution and saying: “Look it is your baby, take care of it,” then you have a totally different concept of what this whole thing is all about than I have.
What we, the Parliament of Canada is asking the British Government to do, is substantively to amend the Canadian Constitution in a most interventionist way, after l93I, declaring Canada to be a sovereign nation, in the most interventionist way, amending the constitution and, after amending it, returning it to Canada!
Now, I am a little surprised by your question.
Senator Austin: Well, Mr. Roberts, you say in your advertisement that you asked the British Parliament to dream up some temporary amending formula and send it back to us.
Mr. Roberts: The temporary amending formula is right in there.
Senator Austin: Which one are you suggesting, the Victoria Formula?
Mr. Roberts: The temporary amending formula is the one that has been in there for two years less a day, or whatever, and which says that there shall be unanimity of the provinces for any amendment.
Senator Austin: So you see a deferred conflict in Canada over an amending formula, and you would solve that conflict if there was no agreement, how?
Mr. Roberts: With the constitutional assembly.
Senator Austin: With a constitutional assembly. Fine.
What I put to you is that, essentially, the British Parliament is simply carrying out the will of the Canadian Parliament in passing a joint resolution. I do not wish to use a disparaging word, but it is essentially a rubber stamp for the wish of the Canadian Parliament.
You are asking Prime Minister Thatcher, are you not, to make a more substantive decision about the will of the Canadian Parliament to thwart the will of the Canadian Parliament, should it be the will of the Canadian Parliament to send this joint resolution to Britain?
Mr. Roberts: I am asking Prime Minister Thatcher not to make the decision. I am asking Prime Minister Thatcher and the Government obviously of the United Kingdom to live up to their promise to Canada, the pact that we are a sovereign nation and that they will not interfere or intervene in our affairs.
It is a matter, Senator Austin. of political morality. What you are saying, in my view. is that the end justifies the means.
What you are saying is, just so long as what it is that is being proposed by the Government of Canada is good for Canadians, then Parliament knows best and Britain, the United Kingdom must therefore comply. I do not subscribe to the end justifying the means in anything that happens in my life, my government, my country, my province.
Senator Austin: Well, Mr. Roberts I do not agree with your formulation, but I certainly do agree that you have an equal but opposite conviction to my own. The way I see it this Parliament in the House of Commons was elected by Canadians all across Canada and this Parliament is pursuing its own conviction with respect to the interests of those Canadians, I know you disagree.
With respect to the constituent assembly that you mentioned, I have difficulty in knowing how it would be composed. I know you made the idea well-known in Canada sometime ago and I wonder whether you approached provinces and whether provinces offered any support to the idea.
Mr. Roberts: I did not approach any provinces on the subject, so I do not know. The constituent assembly concept was one that developed from the people and I do not have to tell you that the one law of our land that is the people’s law, the basic law, is the constitution should be written by the people and adhered to by the government.
Senator Austin: Are you having some trouble recognizing that the elected members represent the people.
Mr. Roberts: In this instance, yes, because elected members made no reference to their intentions to do this before the election.
Senator Austin: You do not believe that the question of constitutional change was debated quite substantially from 1968 on in the period of the Victoria Charter and throughout the period to date.
Mr. Roberts: Yes, and Senator Austin, as you know I was at all those meetings; I was at the Victoria meeting, I was at the First Ministers’ Conference meetings here in Ottawa and in each and every single case discussion centred around an
amending formula; it did not centre around unilateral patriation by one level of government.
Mr. Justice Clyne: May I add one word Senator Austin? That is, that in that advertisement I think we are asking the British Parliament not to violate constitutional convention which requires the consent of the provinces when an amendment or change in the constitution is being made which affects the interest. ln this case, when we talk about the Charter of Human Rights we are adding something. We are going further than amending, we are adding something new to the constitution which does affect provincial rights and we are asking the British Government to do that without the consent of the provinces. That is the point I was trying to make.
Senator Austin: I appreciate your point, and again Mr. Clyne I suppose we differ in that you mentioned the convention and l believe that the convention encompasses the consent of some provinces and the federal government does have the support of some provinces in this particular reference.
One point further with Mr. Roberts, if I may, and that is as I understand it that you would ask Mrs. Thatcher to pick and choose out of this joint resolution one portion relating to the interim amending formula, making a substantive decision and then pass a bill that would be drafted in London at their discretion, on their judgment alone and sent back to Canada with at “here now, you do your own thing.” That essentially is what you are saying. To me. if that is what you are saying, it means Canada is still the subject of the Foreign and Colonial office, that we are like small colonial dependencies subject to the whim and the subjective and substantive role of British legislators and surely that is inconceivable. We are just repeating ourselves now, are we not?
The Joint Chairman (Senator Hays): That will be your last question. And Mr. Roberts, you reply?
Mr. Roberts: My reply was quite simple, It was a case, surely Senator Austin recognizes the difference between asking the United Kingdom Parliament, Westminster, to send the British North America Act to Canada, or to declare it null and void and we will establish our own act. and asking Parliament as Mr. Justice Clyne has said, the United Kingdom Parliament, to substantively add, i use the word “amendment,” but it is more serious than that, substantively add those sections to the British North America Act.
Now, surely you do not accuse me of asking Britain to intervene in Canadian affairs when this resolution asks Britain to do enormous substantive things to Canada, including the provinces of Canada.
Senator Austin: Yes, it does, and I guess the disagreement will continue a lot longer so I will give the order of speaking back to the chairman.
The Joint Chairman (Senator Hays): Thank you very much, Senator Austin.
Now we will go to five-minute rounds. Mr. Fraser.
Mr. Fraser: Thank you very much Mr. Chairman. I wonder if I could turn the discussion to something else.
During the referendum campaign in the Province of Quebec, members of all parties and representatives of all the provinces went to Quebec and said, Look, we want you to become Canadian, to stay Canadian, and we want you to stay with us, and we promise you that the changes that will be made will be made for the benefit of your deep concerns for your own cultural existence and your own position in the partnership that makes up this confederation.
Now, there is no dispute about it, those promises were made by all people of goodwill and all parties and as a consequence the people of Quebec answered fairly significantly: All right we will stay: I think it can also be said: We will give you a second chance.
Now, looking at this constitutional proposal, there is one thing that it gives to the Province of Quebec if one takes the interest of the Québécois to move to other parts of the country and takes into account the fact that many Québécois are concerned about the francophones outside Quebec; it says that it will be incorporated into the Charter of Rights, the right to have their children educated in the French language in every province in Canada, and the right by the way, was already previously affirmed by all provincial premiers.
Beyond that it does not go, except to say that we will have the constitution back in Canada which everybody wants and which Quebecers are far too wise to think is anything except a formal move and something which they realize all Canadians want.
What it does also, it sets up an amending formula which lessens the position of Quebec in Confederation. You have discussed the lessening of some other provinces, but to the degree that Section 42 transfers to the federal government the sole right to hold a referendum and the sole power to conduct it, that shifts the power in Canada to the Federal Government, something which Quebec does not have. Now it changes the balance of power as my colleague Jim McGrath just said.
Now. as western Canadians we have been concerned, and deeply concerned that Quebec stay in this Confederation. I am asking Mr. Roberts, through you or any of your colleagues, can you tell us in what particular way this proposal even begins to answer the promises made to Quebec that they would have a more secure future in Canada as a result of voting no in the referendum and as a result of this proposal.
Mr. Roberts: I am not going to try to and I hope some of my colleagues will try to answer that section of your question that involves referenda and the removal of some power from the Province of Quebec, because I am not quite tuned in to that one and I have not even thought about it very seriously.
What I have thought about and the reason I have thought about it is that I campaigned in the referendum debate in Quebec. I spent weeks in Saguenay/Lac-St-Jean. Chicoutimi. Jonquiere and all the nice places and I lost; we were wiped out in that community. But nevertheless I campaigned for the No forces and I cannot say any more than others can that I understand the aspirations of the people of Quebec, but I do understand this much. That no one amongst the thousands of people I met during that period expressed a desire that any
amendments to the addendum to our British North America Act or Constitution as such are addressed in this resolution. What the people of Quebec thought that Mr. Trudeau was talking about and certainly thought that was what I was talking about when I made speeches, they thought that Mr. Bennett was talking about it and Mr. Blakeney when they came to Quebec and made speeches. What they thought they heard us say was that we will help you, we will demand a new federal system for Canada and that new federal system for Canada will involve a new showing of powers and an opportunity for the provinces to have perhaps more control over their economic development; a little more control over industrial strategy; control over the economic development of your province. There was no concern about language by this time, by the referendum time, and Bill 101 is the most popular bill that I know of in any province, and Bill 101 is extremely popular in Quebec. So if this resolution does what I think it does and makes Bill 101 invalid, then it not only has not done anything that Quebec has asked for, but it is indeed doing something that Quebec very badly does not want.
Mr. Fraser: Section 44 says that the Senate cannot stop an amendment coming through the amending formula in Section 41. Now given the fact that the historical reason for the Senate was to balance the difficulty between the regions, the provinces and the bulk of population in the centre; and given the fact that there has been in these so called debates that have gone on for so long, that Senator Austin referred to, which of course were debates without focusing on a certain proposition and it is extremely important that we keep remembering that as you pointed out Mr. Roberts. Given the fact that there has been a lot of comment, especially from western Canada about the need to have a Senate that is more effective for representing the interests of the regions and the provinces, how does Section 44 which eliminates the Senate square with the proposition that the Senate ought to be reported to be a more effective guardian of the provinces and the regions.
The Joint Chairman (Senator Hays): That will be your last question, thank you Mr. Fraser.
Go ahead Mr. Roberts.
Mr. Roberts: Thank you, Mr. Chairman. It is a frightening thought to western Canadians and the one thing that western Canadians do agree on in the large majority, we have not even addressed it in this survey because it has already been established, western Canadians believe that there is an absolutely enormous need for regional representation in the central government and the only way they can see it happening is through the second chamber. Western Canadians view the United States and they see where two Senators are elected from every state. They view Australia where Senators are elected to represent the state, ten Senators for each state regardless of population.
They see where the Bundt serves a very important function for regional representation in the West German Government, and so that is one of the two ways, the other being obviously proportional representation in the House of Commons. Primarily the Senate is seen as a new Senate and a more effective Senate. And the elected Senate is seen as the number
one way of producing a forum in which Western, including all regions’ representations could then be heard in the central government and issues and concerns and aspirations of the people who live in all parts of Canada can be heard.
Mr. Fraser: And this Section eliminates the Senate from that purpose, is that correct?
Mr. Roberts: Yes.
The Joint Chairman (Senator Hays): Thank you very much Mr. Fraser and I will go now to Senator Goldenberg.
Senator Goldenberg: Thank you Mr. Chairman.
The Joint Chairman (Senator Hays): Followed by Mr. McGrath and then Senator Lamontagne.
Senator Goldenberg: I congratulate the Canada West Foundation on its brief and congratulate it particularly on having brought Mr. Justice Clyne here to give us an opportunity to hear someone who was not included in the list of experts whom we were asked to vote on a little earlier. I can say I have known Judge Clyne for 40 years and he is one of the experts even though I do not agree with him.
Now Mr. Roberts, you have spoken, or given the impression that you are talking about other people of western Canada on the Constitution. I note with interest this public opinion poll and particularly questions 1 and 2:
In your opinion what is the most important issue facing Canadians today?
And question number 4:
What is the second most important issue facing Canadians today? And the answer is “inflation.” The constitution ranks pretty much down the lists.
Now I will revert to one matter in which the questions has already been asked now. You have expressed the view that the governments of Canada must work jointly to achieve constitutional change, and this would seem to express a confidence in governments as the people who should achieve constitutional change; then you turn around and say that you want constitutional change brought about by a constituent assembly.
I would like to ask you in the first place does this not deny the position of the provincial governments who you said would negotiate the change for the Government of Canada. Secondly, how would the numbers of the constituent assembly be elected; and thirdly, would their recommendations be binding?
Mr. Elton: Do you mind if I answer you, Senator?
Senator Goldenberg: Certainly not.
Mr. Elton: I would like to refer you to Question 43 and answer part of your question:
If the Prime Minister is unsucessful in this attempt to bring the Constitution home, which of the following options would you prefer:
(1) Further federal-provincial conferences on the Constitution: 21 per cent;
(2) Election of a special assembly: 21 per cent;
(3) Forgetting about the whole business.
And that was the one . ..
Senator Goldenberg: Why do you not read the rest.
Mr. Elton: I was going to, I was just making a point there, that was not the category that we originally had in there. People kept saying to us, a large number of them: forget the whole business. 19 per cent: holding a referendum on the issue: 30 per cent. What we are saying here is clearly there is a division of opinion on this, there is no one mode in this particular issue. What we do know is that not all that many, only one in five want further federal-provincial conferences and that tells us something, and it also tells us that an idea that has not been floated by very many people in very many places, the idea of a special assembly is acceptable to a large number of people and we really have not talked about it all that much in the country as a whole.
Senator Goldenberg: The same proportion of people have asked for a further federal-provincial conference, 21 per cent?
Mr. Elton: That is correct. We have had federal-provincial conferences for how long, Mr. Senator?
Senator Goldenberg: I have attended every one since 1946.
Mr. Elton: The point that I am making, though, is that there is quite a difference in terms of the exposure of the idea to the public. Now, I agree we are dealing with people’s opinions and perceptions here and it has to be put in that perspective, but the point that we are trying to make is that we have been in one mode for a long period of time, we have been running down the same track, and that is when we get into the argument about the 53 years. We have only tried one method, are we saying to the people of Canada we only have the ability to try one way of solving our problems?
Mr. Roberts: Mr. Chairman, I do not know whether supplementary answers are allowed as well as supplementary questions.
Senator Goldenberg: Well, I asked two other questions which have not been answered.
Mr. Roberts: I was going to address myself to your first question. I think it is essential in Question I to put 3 and 4 together, the constitution and national unity, because people tend to equate them, and again Question 2, constitution and national unity, they total up to 28 in Question I and 18 in Question 2, being something like 46 per cent believe that those are the issues. That is not very significant in itself but what is really significant as any professional like Dr. Elton will tell you, is that the trend is what is significant, What is happening, which way are we going? The same thing is true on western independence or Quebec separation, or whatever, it is the trend that is significant and if you asked these same questions a year ago, the constitution and national unity would be sort of, as
Ross Thatcher used to say. if there were 100 questions asked, it would be 101. So I am just suggesting that these things are moving on at a very, very rapid rate in the public mind as being extremely important issues that have to be resolved.
Senator Goldenberg: I may be mistaken, but I have a feeling, Mr. Roberts, which I cannot prevent myself from expressing: I think that the more you talk of independence, the more you encourage separatism in western Canada.
I asked two questions: How would the members of the constituent assembly be elected? Secondly, would their recommendations be binding?
Mr. Elton: I would be happy to answer that question. We have had several proposals submitted to the Canada West Foundation by individuals interested in establishing a constituent assembly. All of them have slightly different methods and procedures, and I would be happy to make that available to the senator if he so desires but I do not think it would be fruitful to go into that discussion at this point in time. There are a number of different ways I consider to be reasonable and I am suggesting to you there are ways, not all that difficult, to accomplish those ends.
The Joint Chairman (Senator Hays): With permission of the Committee, Senator Goldenberg would like to ask one more question and then we will have Mr. McGrath. Agreed? I am sorry Senator Goldenberg. Mr. McGrath?
Mr. McGrath: Go ahead, Senator.
Senator Goldenberg: Well. Mr. McGrath says he agrees. Thank you. Coming back to this opinion poll, I notice with interest, in light of Mr. Justice Clyne’s opposition to entrenchment of rights and freedoms. Question 31(b), do you agree strongly or disagree with a constitutional bill of rights and freedoms which would be binding on both levels of government?—78 per cent agree. Do you agree with constitutional language rights which will establish French and English as official languages?-53 per cent agree. Do you agree with constitutional rights for Canadians to work any where in Canada?—96 per cent agree. Do you agree with constitutional guarantee of equalization payments from richer provinces to poorer provinces? 66 per cent agree.
Mr. McGrath: Senator. I agreed to a question.
Senator Goldenberg: Well, I have been very quiet recently, Mr. McGrath.
Now. in opposing the entrenchment of rights. Mr. Justice Clyne said that we should not leave too much to judges. The answer to your Question 36: Who do you think would be best able to protect your rights and freedoms, the courts or your elected officials? The courts, 44 per cent for the west; elected officials, 34 per cent. In Mr. Justice Clyne’s province, maybe
because he was on the bench, 52 per cent prefer the courts and 32 per cent prefer the elected officials.
I was just going to ask this of Mr. Justice Clyne: He spoke about the United States experience with the interpretation of the Bill of Rights and he showed us that under the protection of freedom of contract, minimum wage legislation, child labour legislation and so on could not be enacted, but the situation has changed in the last 45 years. In the days when the court interpreted freedom of contract in that way, minimum wage legislation, child labour legislation, the rights of unions to collective bargaining were not recognized generally.
In the last 45 years you have to admit the situation has changed and by the interpretation of the. . .
The Joint Chairman (Senator Hays): Senator Goldenberg, I will have to . ..
Senator Goldenberg: I am just finishing a sentence, The interpretation has recognized social change.
The Joint Chairman (Senator Hays): Thank you very much, Senator Goldenberg. Mr. McGrath.
Mr. Justice Clyne: May I just answer that?
The Joint Chairman (Senator Hays): After the reply, Mr. McGrath.
Mr. Justice Clyne: Well, in regard to your first comment, Senator Goldenberg, I would refer you to Question 32 and Question 33: Does Canada presently have a Bill of Rights? There were only 60 per cent of the people who knew that Canada had a Bill of Rights and the other 40 per cent were not aware of it. Does this province presently have a Bill of Rights? 42 per cent of the people do not know.
Now, this is one of the points that I tried to make, that the use of the words “Bill of Rights”, “Charter of Human Rights” has an appeal, but it has an appeal to really people who are uninformed as to how the business really works. They are uninformed as to how the judges have to interpret and can interpret in a way that is contrary to the will of the people. Now, that has occured.
Now, you are quite right in saying that times have changed, but it did take 30 years to change in the United States, and the point I am making is that the legislatures, Parliament, when they see a social change which is required to be met, they can do it immediately but it takes a long, long time for the courts to get around to doing it.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: Mr. Chairman, I would like to make this point with regard to the statement Senator Goldenberg made that somehow by talking about western alienation, we are encouraging it. I would like to say this, Mr. Chairman, that if this Committee had been allowed to travel throughout western Canada it would have had an opportunity first-hand to experience that is a fact and that is the alienation there is in western Canada at the present time, instead of sitting in isolation here
in Ottawa and not being able to hear individual witnesses and being confined to a time constraint that was unilaterally imposed by the majority through the invocation of closure.
Mr. Chairman: I would like, since we are not going to be permitted the opportunity of having expert witnesses advise us on a very complex matter, namely, the constitution of Canada, and that has to be a first for a Parliamentary Committee, to be denied the right to expert witnesses, that has to be a first, Mr. Chairman.
Mr. Mackasey: A point of order, Mr. Chairman. I would not want Mr. McGrath unintentionally to leave that impression, I do not think any proceedings tonight left us with that impression. What we did defeat tonight was a proposal that we . . .
Mr. Epp: Call expert witnesses.
Mr. Mackasey: Excuse me. Mr. Nystrom at the last second removed a quantity ofÂ«l0 from your 14 . ..
An hon. Member: The whole works.
Mr. Mackasey: I am sorry, wa are saying if you proceed with the steering committee you could very well obtain witnesses before this committee.
Mr. Epp: You voted against that.
Mr. Fraser: Mr. Chairman, a point of order.
The Joint Chairman (Senator Hays): Just a minute. Yes, Mr. Fraser.
Mr. Fraser: Much has been said by my good friend Mr. Mackasey about the fact that he is Irish. Now, 1 ant half Irish and if I had spoken half as long as Mr. Mackasey has in interventions over the last several weeks, I would be the second most voluble member in this Committee.
Mr. MacKasey: Instead of the first.
Mr. Fraser: Now, I am just going to reiterate two things: one is that the vote tonight clearly said, the Liberal majority said, we can not have expert witnesses but I want to say something else, in answer to Senator Goldenberg. I want to say this, through you, Mr. Chairman, and to all Committee members and especially on the government side and anybody else in central Canada who is listening: Members of Parliament who are committed to this country and who are federalists, have been trying to warn you for years that there is trouble in the west and for Senator Goldenberg to sit here in Ottawa and tell us that when witnesses come from the west, they ought not to talk about what everybody knows is going on out there is ludicrous in the extreme. And remember that these same people who are telling us not to tell you that we have problems back there and problems that are affecting the unity of our country, problems that we do not like, are the same people who begged us for a number of years to pay attention to the problems that they had in the Province of Quebec and we paid attention to that. Now, it is just extraordinary to me, Mr. Chairman, that we can be told somehow or other, because this Committee is sitting here in Ottawa and because we have representatives of the west, and because we have western members here, that we are supposed to ignore a 2800-person meeting in Edmonton the other night, that we are supposed to
ignore a person like Doug Christie who was able to command that audience, and who would not six months ago have been able to command any audience.
Now, Mr. Chairman, I have to say this: I do not have to take a loyalty oath to my country, ever, l am committed federalist. l am a committed federalist and lama committed Canadian, but I tell you that you are going to get nowhere by pretending that there is not trouble in the west and I am sorry to be emotional, but lam emotional about my country and my country is Canada.
An hon. Member: Hear, hear!
The Joint Chairman (Senator Hays): Mr. Nystrom.
Mr. Nystrom: On the same point of order, Mr. Chairman, I think my good friend Mr. Mackasey inadvertently misled our Committee with his interpretation of the vote and perhaps, Mr. Chairman, you should read the motion that l put that was voted on, or if it is not convenient for you I can just re-read it. What the Liberal majority turned down was the following motion:
That this Committee instruct the Subcommittee on Agenda to prepare a list of individual constitutional experts to appear as witnesses before this Committee.
It is very clear, Mr. Chairman, what they voted on and they voted against the motion to have individual experts come before this Committee to appear as witnesses.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: The fact is we cannot call expert witnesses to assist us in this very complex task of trying to examine these constitutional proposals and I see in front of us tonight a very distinguished jurist who is an expert in my view, and he said something which I would like to pursue for the few moments I have left. He came out very strongly and very eloquently against entrenchment of rights in the constitution and I think he used the words, “leave it in simple statutory form”, rather than entrenching it in the constitution. He referred to, as an example, the Diefenbaker Bill of Rights. What, in your opinion, given the fact that there seems to be a consensus among your learned colleagues that the Diefenbaker Bill of Rights has been somewhat less than effective in addressing the rights it purports to protect what in your opinion can be done to make the Diefenbaker Bill of Rights a more effective instrument?
Mr. Justice Clyne: Well, I think we would have to go into quite a bit of technical detail, but I do think that the Bill of Rights as it is now drafted. as it is now drawn, can be immensely improved, but I do not think you are going to improve it by entrenchment. It is the wording rather than the actual entrenching that should be changed and should be improved.
Now, if you will look at the Honourable J. C. McRuer’s recommendations, he sets them out very clearly indeed as to what the Bill of Rights should actually contain. I can refer to that very briefly. He says the Statute should declare in appro-
priate language the following rights and freedoms which are the foundation of parliantentary democracy, the right of every person to freedom of conscience and religion. the right of every person to the freedom of thought, expression and communication and the right of every person to freedom of assembly and association. There are seven of these that are set out very clearly.
Now. all I am saying is that those should be incorporated in a statute which is capable of change when occasion demands rather than leaving it to the courts to attempt to define rights in these extraordinarily vague terms.
Mr. McGrath: Sir, if my memory serves me well, these very rights are set out in the Diefenbaker Bill of Rights that was passed by Parliament, at least most of them are in the Diefenbaker Bill of Rights. My question to you is: Is there some way that Parliament can amend the Bill of Rights which is now a statute law to make it an effective instrument. to give it paramountcy?
Mr. Justice Clyne: Undoubtedly. Undoubtedly, Parliament is absolutely free to do what it likes to give it paramountcy over other statutes, and that is usually done by saying taht this is the bill, unless it is expressly overrridden by another statute, and it is up to Parliament to say whether it wants to override the Bill of Rights. I do suggest to you that if you had a statutory bill of rights which, I admit, can be improved, then there is no parliament that is going to be so stupid or so arrogant as to overrule it. However, if you have a Parliament that is that stupid and arrogant, it could override the constitution itself.
Mr. McGrath: In your opinion Mr. Justice Clyne, would the Diefenbaker Bill of Rights be more effective if, for example, Parliament were to say that there has to be an entrenched bill of rights in the constitution and the consensus of the witnesses that have appeared before this Committee holds to the fact that this is not an effective bill of rights that we have before us now. indeed it is full of defective clauses?
Mr. Justice Clyne: But you are not going to make it more effective by entrenchment. The business of entrenchment does not make the statute of itself, the wording of the statute more effective. That can be completely enclosed in an ordinary statute.
Mr. McGrath: Faced with the tyranny of the majority that we have in this Committee. Mr. Chairman and Mr. Justice Clyne, if the Committee by a majority vote says that there has to be an entrenched bill of rights in the constitution, would the Diefenbaker Bill be a more effective declaration of rights in the constitution than the one before us?
Mr. Justice Clyne: Yes, it would be. This one, and I say this with hesitation because I do not like criticizing people who have apparently worked on the thing. I think this is a very badly drawn act.
An hon. Member: Hear, hear.
Mr. Justice Cline: I would hope that as I said before. if we are going to have an entrenched bill of rights it would be better drawn in clearer and more definite terms.
Mr. McGrath: Would it be possible, sir, to have a statute bill of rights as we now have which would, by amendment. have paramountcy and at the same time satisfy our colleagues opposite by having written in the constitution a Fairly simple but eloquent declaration of rights without going into the language of detail that we have in the proposal before us?
Mr. Justice Clyne: Well, if you are going to put it in the constitution, I would strongly urge that it be done in the wording outlined in Chief Justice McRuer’s report, and again I think that that report might well be studied by the members of the Committee. It is in five volumes, but you can find it mre completely detailed, or at least excerpted in the report in Volume 4, and in that Volume 4 there is a very clear statement as to the kind of human rights that should go into any kind of bill.
Mr. McGrath: Unfortunately, sir, we have less than two weeks.
Mr. Justice Clyne: Yes.
The Joint Chairman (Senator Hays): Thank you, Mr. McGrath.
Senator Lamontagne: First of all, I am an ex-statistics professor, i would like to ask you several questions about the public opinion poll you presented us tonight. However, since I have only a few minutes, I would like to tell you that I do not trust telephone surveys very much; also, the answers given in the questionnaire show all kinds of contradictions, which were also pointed out earlier by Senator Goldenberg and, a little later by Mr. Justice Clyne.
I have been kept informed over the years about the activities of your foundation. l have noticed that you have done very serious work, but, also, that you happened to change your mind several times. Since you have done a serious job on this question, I would like to know if you have an amending formula to suggest to us, rather than telling us that we should appoint a constituent assembly, which, like other governments in the previous years, will not succeed in achieving a consensus.
Mr. Justice Clyne: Well, I would like to ask Mr. Elton to expatiate on this. We have discussed this very closely between ourselves. I think you can get a summary from Mr. Elton more quickly than from me.
Mr. D. Elton: Thank you, Mr. Chairman. First of all, I would like to comment on the response to the methodology used in the survey.
It is true that it would have been much better to have an in-home survey. However, most of the surveys taken in North America now are done by telephone for very obvious reasons which have to do with cost, as well as the fact that people use telephones much more than they did in the past.
Senator Lamontagne: You know how many mistakes they make, too?
Mr. Elton: Yes, I want to address myself to that.
One of the things you have pointed out were the contradictions. I would like to point out to you, Mr. Senator, that we are
dealing with people’s perceptions and attitudes, and quite often you and I have contradictions in our view as to what should or should not be done, and if you are asked a particular question you answer in one way, and if you are asked a question in a little different way, the answer is in another way.
That was the very reason why we asked a very large battery of questions and coming out with the same question in a number of different ways. Because we have done that in this survey, you will find that it does develop and put into focus a good profile of western Canadian opinion.
I come to your third question about an amending formula. Yes, we do have an amending formula that we have talked about. It is one that has interestingly been approved of twice by all of the governments of Canada for a short period of time—twice with a couple of exceptions.
We should point out that the revised Victoria charter that the Government of Canada has touted as being something that Canadians at one point in time in our history arrived at as being a consensus, was arrived at by 11 first ministers and was quickly repudiated by a series thereafter.
Let me point out to you that the Fulton-Favreau formula did exactly the same thing in 1964, and let me point out to you further that the Vancouver Consensus that they talked about over the summer had that same temporary arrangement.
It is interesting to note. Mr. Senator, that the Vancouver Consensus is very similar to the Fulton-Favreau formula. So I would suggest to you that you seriously consider the Vancouver Consensus formula.
Senator Lamontagne: I do not think you have dealt directly with my question, because I was asking you what kind of amending formula you were suggesting.
Mr. Roberts: The Vancouver Consensus.
Senator Lamontagne: Thank you very much. I do not think it is quite clear in your presentation or the resume that we have received, because in the resume there was a mixture of the Vancouver formula and the Victoria formula, and as far as I am concerned it was very confusing to me.
Mr. Roberts: If I may say a word on that, you will realize that our strongest position continues to be the need for an elected constituent assembly to resolve these issues. That is our case. We are not going to sit here and tell you precisely what that constituent assembly—we know what it should address, but we must not prejudge what its solution should be.
Senator Lamontagne: At least you have a formula and that is to set up a constituent assembly?
Mr. Roberts: Yes.
Senator Lamontagne: Well, what is it?
Mr. Elton: Well, there are a number. It would take a considerable period of time because if you start talking about how it is to be set up, we must then talk about the terms of reference, the voting procedure. the kinds of campaigns, the ratification procedures, all of which could be spelled out in a similar Part V which you have in your resolution, and which,
in fact, could replace Part V, because it would then become the fall-back position.
But I do not propose to make one suggestion without giving it at fair discussion as to all of the other elements, otherwise it would be taken out of context. It would definitely be a bill of Parliament, there is no question about that.
Senator Lamontagne: Again, we do not have any clear answer.
Mr. Roberts: Mr. Chairman, do you wish us to answer the questions in detail? We have not come here to be insulted. If you would like us to answer these questions it will take 20 minutes but we would be quite delighted to give you the answer in 20 minutes.
Senator Lamontagne: Well, I do not think my remark was insulting. The fact that one does not get answers is not, to my mind, insulting. We get this very often these days here and we are not insulted.
Now my last question is about the second chamber some years ago you were favouring a House of the Provinces as a second chamber, composed exclusively of delegates appointed by provincial governments. I note, now, that you are more in favour of an elected Senate.
Mr. Roberts: Mr. Chairman, the Canada West Foundation is a research organization. We commissioned studies. We have commissioned dozens and dozens of studies. We have commissioned a study in 1977, in the fall—three political scientists were selected by us, and they wrote a major paper. it was, as a matter of fact, the first draft of a new federal system for Canada.
Those three political scientists presented a reasonably good draft, and following that, as you know, 13 or l4 others have turned out which have been excellent developments and improvements on that original draft.
The original draft called for a House of the Provinces. Our responsibility, as the Canada West Foundation, was to print that and circulate it as a national document. We did not endorse the House of the Provinces nor have we yet endorsed the House of the Provinces
Now, Mr. Chairman, perhaps we could have Mr. Justice Clyne’s reply as to how the constituent assembly could be set up.
Mr. Justice Clyne: Mr. Chairman, I can assure you that I am not going to take 20 minutes. But there are various ways of doing it. One of the methods which we have discussed would be to create a constituent assembly of 60 people, or 65, appointed by each province, say, I0 from each province, on the basis of the single transferrable vote which would give accurate representation, and then, say, two from the territories. Then the constituent assembly would make recommendations to Parliament and to the legislatures in the form of a completed statute, or in the form of substantive amendments to the BNA Act.
Now, that is putting one of the suggestions we have seriously considered very, very briefly.
As far as the Senate is concerned, I am certainly not in favour personally of a House of the Provinces. I went into that in some detail in criticizing the beige paper.
I am in favour of a second chamber, a chamber of what I would call reconsideration; a chamber which was elected. I could go into some detail as to how it should be elected, too, but I do not think you would want me to.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Justice Clyne. Miss Carney.
Ms Carney: Mr. Chairman, I would like to point out that the Conservative Party has already endorsed the concept of a constituent assembly and the Vancouver Consensus. So our views are clearly not out of line.
I would like to address my question to Mr. Elton, since my province, British Columbia entered Confederation as an equal, with equal rights.
Have you considered polling 1400 Canadians in Quebec and Ontario to see if they are willing to accept a constitution which would give to western provinces, BC. and Alberta, a veto power forever?
Mr. Elton: No, we have not made that consideration.
Ms. Carney: This concept of grading Canadians on the basis of geography, of course, comes in the proposed amending formula before this Committee, which states that the veto would be held by every province then or previously containing 25 per cent of the population.
Now I asked the Library of Parliament to develop some population projections for me over the last few years. These projections showed that Ontario has about 33 per cent of the population, and it is stagnant; Quebec has 26.5 per cent of the population and it is declining; B.C. has 11.5 per cent and it is growing, but even by the year 2000, B.C. will still only have 12.5 per cent of the population or half the amount which would be required to join Ontario and Quebec in a first-class status.
Have you any idea how long it would take in terms of these population projections to reach a stage where any other province jointed Quebec and Ontario as a first class province? Would it be 100 years or 200 years?
Mr. Elton: It depends upon the projections that one makes on the growth rates of the various provinces.
The paper which was written for the Foundation some time ago, projected that by the year 2050—and no other province came close; with the exception of Quebec if the current
population trends continue, with Quebec it would be much lower.
Ms. Carney: So we can at least envisage about 100 years before any western province can join the magic central Canadian provinces in first-class status?
Mr. Elton: Under current population projections you are probably not too far off.
Ms. Carney: I would like to address my question to the Honourable Mr. Justice Clyne, because i know he would not evade it. It has been suggested tonight that it is encouraging western separatism to identify the frustrations that westerners feel.
in view of the fact that westerners are unlikely to accept a second-class status, historically, what options are open to them other than separation from your judgement?
Mr. Justice Clyne: I do not think that there is a desire in the west to separate. There is the feeling of frustration and unhappiness. There is the feeling that, if this is a partnership we should be consulted. We do not want to break up that partnership, but we want to give the other partners hell. That is really the feeling you get all through the western provinces.
The point I really want to make is that it is very bad for a nation to have a feeling of unhappiness and frustration in any one part of that nation.
Now, I do not believe that there will be any separation in the west; but it is an unhealthy situation.
Ms. Carney: I have another question to address to Mr. Clyne. You have made the point that giving veto powers to just two of the ten provinces which are basically in a stagnant phase of their economy, would place undue and unfair constraints on the most dynamically growing section of Canada.
How do you think that would affect the national interest! How do you think that affects the Canada you see emerging?
Mr. Justice Clyne: I think it is very bad. To put it very frankly, I think it is highly undesirable to give Quebec and Ontario each a veto. I think it is wrong; and it will prevent the changes that should be made. It would tend to prevent changes which should be made in the constitution.
I think if you have a rigid constitution, you are just asking for trouble in the future. We know the experience of European countries where constitutions have not been changed by consent, but have been changed by violent revolution.
Ms. Carney: Would you forecast that?
Mr. Justice Clyne: No, I would not forecast a revolution on this continent. But, again, I say to allow that situation to occur is a very unhealthy thing for the nation itself: and it is not going to produce any sense of co-operation in the future.
The Joint Chairman (Senator Hays): Thank you, Miss Carney. Mr. Mackasey. Can we keep these a little short; because our time is getting on.
Mr. Mackasey: Mr. Chairman, I want to count Mr. Clyne particularly among my friends, because my own understanding of Judge Clyne, based upon very personal observations, is that I believe he is very essentially a man of peace. He believes that honest differences of opinion could be resolved through discussion, dialogue. I say this from the days when I would go to him to resolve some bitter labour disputes. In fact, I used to think that strikes on the waterfront were much more serious and difficult to resolve than constitutional problems, but having sat on this Committee I am not so sure any more.
I welcome Judge Clyne’s intervention this evening, reminding us of the fact that entrenchment of the human rights section will not necessarily resolve all the ills and the worry which tend to change from year to year. Nevertheless, we have to weigh Judge Clyne’s learned intervention against that of other witnesses. I think that is only fair.
I think also, Judge Clyne brings up something which is very profound and very important to me as a Canadian, namely, the frustration of the west is real. Much like a labour dispute, you try to find what the differences are, and sometimes they become overblown.
I share his concern that the west, rightly or wrongly, feels that for too long they have been taken for granted. I say rightly or wrongly, because the west is very adequately represented by opposition members who have a strong influence in the House.
But nevertheless, the general and prevailing feeling in the west is that, somehow, unless they are very vocal about their honest differences, “they would not be taken seriously and that the attitude “We know best in Ottawa” will prevail.
I do not think that any of us should consider this a passing concern. It is a legitimate concern on the part of the west. My own visits to the west indicate that essentially westerners are very strong Canadians.
Now, I am not an instant expert on the west, Mr. Clyne, anymore than you are. When you move to Montreal, I can tell you one or two things about Bill 101 and about the discriminatory clauses. But more importantly Mr. Clyne I have to go back to the public opinion poll because to me it is a reassuring document, but at the same time a sobering document. It reassured me because I had the mistaken impression that the anger in the west that we read about in the paper was somehow linked to the constitution reform and I do not think anything in this document indicates that. For instance we tabled our resolution in the House of Commons on the verge of closure at the beginning of October and this poll was taken toward the end of October. And if anything that should have been the peak of the anger of the west if the west had any real anger over the proposed constitution reform or not even the unorthodox methods under which we would pursue it. I do not apologize for the word unorthodox when you look back to the
series of conferences that go back many, many years. well over 50 years and where the ability to find an amending formula has always escaped, so maybe the concept of another assembly is not so outrageous. It is not necessarily practical because it still would require an election.
I say this gentlemen because as Senator Goldenberg has quite properly pointed out you come back to the question that Mr. Clark asked the Committee to address itself to; What kind of country do westerners want? But reading that. and I do not want to repeat some of the clauses. but the people of the west say. yes. we have differences but they will be resolved. they will be solved by men of good will, 76 per cent of westerners came to that conclusion and that to me is very reassuring.
When you get into the field of economics, one thing reassured me as a federalist; when asked which government should have the most power over the economy, 54 per cent said the federal government and only 24 per cent said the provincial government. At the same time they point out that they do not think the federal government has made a genuine effort to overcome the problem of economics, but 45 per cent say that we have. Western Canadians get so few benefits from being part of Canada they might as well go it on their own, as Mr. Nystrom pointed out; 47 per cent disagree with that statement.
So all the way through and particularly the one that was drawn to our attention by Mr. Nystrom’s question 59; would you prefer that the provinces of western Canada remain part of Canada and 90 per cent, so there is a lot in that document that reassures me.
The Joint Chairman (Senator Hays): Mr. Mackasey, could you ask your question? You have been over five minutes.
Mr. Mackasey: I do not have a question Mr. Chairman, and I appreciate your intervention. It is almost as long as my question.
Mr. Justice Clyne: Mr. Chairman, may I answer the question that Mr. Mackasey did not address?
Mr. Mackasey: I have no objection to Mr. Clyne I have no intention of addressing a question and giving you my five minutes. I learned that from you in negotiations.
Mr. Justice Clyne: Well, I will put this very shortly. I think one of the troubles in the west that causes the frustrations is the speed with which this question is being addressed by Parliament. I think it is generally felt we are dealing with an enormously important question and an important issue which is going to affect our children and our children’s children and I think that what we would like to see is this subject thoroughly debated. I would like to see this Committee continue its deliberations because I think if it does we will finally get something that we can agree on. So therefore I just hope that you do not move with speed.
Mr. Mackasey: One last word for Judge Clyne. I would remind him that after 50 years we are hardly moving with any haste.
The Joint Chairman (Senator Hays): Honourable members, we have shaken this tree pretty good. I have a number of speakers and I am in your hands: time is now 1050 p.m.
Mr. Epp: Mr. Chairman in View of the hour I would suggest and I hope it finds some agreement but we have not been successful this evening in getting that agreement, but I suggest that you hear Mr. Beatty for five minutes and a Liberal for five minutes and that will be 11 o’clock and we adjourn then.
The Joint Chairman (Senator Hays): Is that agreed?
Mr. Beatty: Thank you very much Mr. Chairman. Mr. Justice Clyne, one of our responsibilities in this Committee was given to us by the Order of Reference and that was to determine whether the resolution proposed by the Prime Minister should go ahead, or whether there should be a joint address to Her Majesty. Clearly one of the most basic questions which needs to be asked but which has not been asked yet before this Committee which we need advice from distinguished expert witnesses such as yourself about is the question of legality and propriety of the government’s actions.
I would like to ask you are you satisfied that the proposal that Mr. Trudeau has made for unilateral amendment and patriation of the economy is both legal and constitutional?
Mr. Clyne: Well, I do not want to commit contempt of court when the subject is now before the courts.
My view is that a convention has been established whereby consent of the provinces which are affected is required. So therefore, if this were an act which was before you today, I think it would be declared unconstitutional. I doubt, however, whether a proposal could be declared unconstitutional, but that is something that is now before the Manitoba Court of Appeal and it is expressed in a way that if this proposal were translated into an act would it be constitutional.
Now that is a hypothetical question and whether the courts will answer that or not I do not know. Ordinarily the courts do not like to answer hypothetical questions, but it is within their power to do so.
The other point with regard to constitutionality is this: as was stated just a little while ago. Canada was declared an independent sovereign nation under the Statute of Westminster. Now. is it constitutional for the British Parliament to enact legislation which would affect the constitution of an independent country.
Now, this is something that I think will have to be addressed, or at least the British Parliament will have to address itself to as to whether it itself has the power to do it, and if it does exercise that power, whether it would be contrary. and I do not think this is a point that has been raised except I think in correspondence; whether that would be an act
against international law. Now we are moving into another sphereiand that would be whether recourse might be had to the Hague.
Mr. Beatty: Yes, as you are probably aware Justice Clyne, Mr. Elmer Driedger, the former Deputy Minister of Justice for Canada has written to the Committee making exactly that point and arguing that the British Parliament through the Statute of Westminster has given up that power to amend Canada’s constitution in that way, precisely along the lines you are talking about.
Could I ask a second question of you. Are you aware of the Privy Council Office document marked “For Ministers eyes only” that leaked at the time of the First Ministers Conference, and if so are you aware of the advice in there that was given by the Deparment of Justice and by the Federal Provincial Relations Office which drew up the document, that it would be advantageous for the federal government to ask the Parliament of Westminster to amend Canada: constitution before the Canadian courts had had a chance to rule on its constitutionality. If you are aware of that could I get your comments on the proposal that Canada can ask Westminster to make the changes in the British Parliament before the courts in Canada have had a chance to rule on its legality in constitutionality.
Mr. Justice Clyne: l have not seen the document and I only read reports in the papers. I think my own opinion is clear, that if the matter is before the courts then action should be suspended until the courts rule.
Mr. Beatty: Thank you, sir.
The Joint Chairman (Senator Hays): Thank you very much Mr. Beatty and at this time I would like to thank Mr. Justice Clyne, Mr. Roberts, Mr. Peter McCormick and Mr. David Elton for being here and representing Canada West Foundation. We appreciated your brief and your presence here this evening and thank you very much for being here.
Mr. Roberts: Thank you very much for giving us the opportunity to appear.
The Joint Chairman (Mr. Joyal): Before we adjourn our meeting until tomorrow afternoon 3:30, I would like to inform the honourable members of this Committee that members of this Committee have realized that during our debate tonight we have heard voices from the audience. I would like to inform the members of these steps that I have taken so that the work of this Committee can be done in order.
l have sent three notices to the citizen in question asking for her to respect the order of this Committee; realizing that the citizen was not abiding by those notices I asked for an officer of the security staff of this building to stand beside that citizen and my initiative would have been after that, if there would have been no effect, I would have then requested the authorization of this Committee to ask for the citizen to leave the room. I think it is the proper procedure and l think l am invested by Section 65 of the Standing Order of this House to
make sure that order is properly kept for the work of this Committee and I wanted to inform the members accordingly.
The Joint Chairman (Senator Hays): The meeting is adjourned.
From “Association culturelle franco-canadienne de la Saskatchewan”:
Irene Chabot. President;
Mr. Florent Bilodeau, Director General;
Claire Doran, Political adviser.
From the Coalition of Provincial Organizations for the Handicapped:
Monique Couillard. First Vice-President, Carrefour Adaptation. Quebec;
Yvonne Peters, Member, Executive Committee;
Ron Kanary. Vice-Chairman;
Jim Derksen, National Co-ordinator.
From the Mennonite Central Committee (Canada):
Ross Nigh, Vice-Chairman;
William Janzen, Director General of the Ottawa Office;
J.M. Klassen, Executive Secretary.
From Government of North West Territories:
George Braden, MLA, Leader of the Elected Members of the Executive Committee;
Stien Lal, Legal Adviser to the Executive Committee.
From Canada West Foundation:
Stanley Roberts, President;
Dr. Peter McCormick, Political Science, University of Lethbridge;
Honourable J.V. Clyne, Counsel.
*On Order — Available Soon