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 19 (4 December 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 19 (4 December 1980).
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HOUSE OF COMMONS
Issue No. 19
Thursday, December 4, 1980
Senator Harry Hays, P.C.
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. RC.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Joint Clerks of the Committee
Representing the House of Commons:
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Thursday, December 4, 1980:
Miss Nicholson replaced Miss Campbell (South West Nova);
Mr. McGrath replaced Mr. Nielsen;
Mr. Henderson replaced Mr. Allmand;
Mr. Gimaiel replaced Miss Nicholson;
Mr. Blaikie replaced Mr. Ittinuar;
Miss Campbell (South West Nova) replaced Mr. Lapierre;
Mr. Breau replaced Mr. Bockstael;
Mr. Lapierre replaced Miss Campbell (South West Nova);
Mr. Landers replaced Mr. Henderson;
Mr. Hovdebo replaced Mr. Blaikie;
Mr. Henderson replaced Mr. Gimaiel;
Mr. Beatty replaced Mr. Hawkes.
Pursuant to an order of the Senate adopted November 5, 1980:
On Thursday, December 4, 1980:
Senator Lamontagne replaced Senator Giguère;
Senator Connolly replaced Senator Anderson;
Senator Cottreau replaced Senator Bird;
Senator Thompson replaced Senator Goldenberg;
Senator Macquarrie replaced Senator Asselin;
Senator Goldenberg replaced Senator Thompson;
Senator Asselin replaced Senator Macquarrie;
Senator Thériault replaced Senator Connolly.
MINUTES OF PROCEEDINGS
THURSDAY, DECEMBER 4, 1980
The Special Joint Committee on the Constitution of Canada met at 10:39 o’clock p.m., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Connolly, Cottreau, Hays, Lamontagne, Lucier, Macquarrie, Roblin, Thompson and Tremblay.
Representing the House of Commons: Messrs. Blaikie, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Gimaiel, Hawkes, Henderson, Irwin, Joyal, La Salle, Mackasey, McGrath and Nystrom.
Other Members present: Mrs. Killens and Miss Nicholson.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.
Witnesses: From Canadian Catholic School Trustees’ Association: Mr. Philip Hammel, President and Reverend Patrick Fogarty, Executive Secretary. From Canadian Council on Social Development: Mr. Ed Pennington, Board Member; Miss Nicole Dumouchel, Board Member and Ms. Karen Hill.
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 of 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.)
Mr. Hammel made a statement and with Reverend Fogarty answered questions.
Mr. Pennington, Miss Dumouchel and Ms. Hill made statements and answered questions.
At 1:03 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met at 3:33 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, Cottreau, Goldenberg, Hays, Lamontagne, Lucier, Roblin, Thériault and Tremblay.
Representing the House of Commons: Messrs. Beatty, Breau, Corbin. Crombie, Epp, Fraser, Hawkes, Henderson, Hovdebo, Irwin, Joyal, Landers, Lapierre, Mackasey, McGrath and Nystrom.
Other Members present: Messrs. Allmand, Harquail, McCain and McDermid.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin and Louis Massicotte, Researchers.
Witness: From Government of New Brunswick: Honourable Richard B. Hatfield, Premier of New Brunswick.
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.)
Mr. Hatfield made a statement and answered questions.
At 6:00 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
December 4, 1980
The Joint Chairman (Mr. Joyal): Order, please.
I will invite the honourables members of the committee to take their seats so that we can proceed.
As was agreed yesterday evening when we adjourned, we have the privilege this morning to hear the Canadian Catholic School Trustees Association represented by Mr. Philip Hammel, President, the Reverend Patrick Fogarty, Executive Secretary and Mr. Frank Gilhooly, Past President.
I would like to invite Mr. Hammel to introduce his delegation, make the usual opening statement, and I understand that he is agreeable to answering questions put to him by the honourable members.
Mr. Phillip Hammel (President, Canadian Catholic School Trustees Association): Honourable Joint Chairmen, honourable members.
The Canadian Catholic School Trustees Association is an association incorporated by a federal charter representing seven provinces and two territories. The publically funded Catholic schools of Newfoundland, Ontario, Saskatchewan and Alberta, and of course the private schools of British Columbia, Manitoba, Quebec and the Yukon, Northwest Territories. I think this indicates that our interest is Catholic education throughout Canada, and I think the fact that we educate 75 million students across this country indicates our concern in this regard.
Before I proceed with my statement, honourable Chairmen, I would like to indicate that we apologize for the presence of only an English version. Due to timing difficulties our French version will be submitted later.
Catholic school trustees from across Canada support the concept of a repatriated constitution for Canada. Especially, we believe that the rights of minorities must be constitutionally entrenched, for the majority, in the normal course of events, will have its way. It is with some regret, therefore, that the Canadian Catholic School Trustees Association, after having reviewed the proposed Canadian Charter of Rights and Freedoms, must express its disappointment and deep concern with respect to the future rights and privileges of publically funded Roman Catholic Separate Schools rights and privileges which have been ours since the formation of this country in 1867.
We are, in the first instance, disappointed that the Government of Canada, which, although one of the signatory nations to the United Nations Declaration on Human Rights, could not accept, for its own Charter of Rights and Freedoms, the principle embodied in Section 26: that parents have the prior right to choose the kind of education they wish for their children. This new Canadian charter should proclaim such a
fundamental right in clear and unambiguous language—such that parents in this country would indeed be permitted to exercise their choice with freedom and the necessary public funds to make such a choice practicable and feasible. This would not have been a precedent for this country; one such precedent already exists in Newfoundland where the terms of union with Canada do, in fact, provide for just such freedom.
We must, in the second instance, express our sincere concern that the future of existing, publically funded Catholic schools is not adequately ensured by the proposed Charter. Although Section 93 of the British North America Act undoubtedly remains in effect as law, our concern, is that attrition of our rights through judicial judgements and interpretations based on the proposed Chater will eventually jeopardize both the religious values and the objectives of Catholic schools. We are particularly concerned that Section 25 of the proposed Charter, which establishes the primacy of the Charter with supremacy over all other laws, provides a basis for encroachment upon our rights, as provided by Section 93 of the BNA Act, whenever there would appear to be some inconsistency between Section 93 and specific terms of the Charter.
Coupled with the primacy of the Charter, we see Section 2, which provides for freedom of conscience and religion, and Section 15. which provides for equality before the law and equal protection before the law without discrimination because of religion, among others, as providing to the individual rights which will take precedence over the denominational group rights. We are particularly fearful because we recognize that the courts will, in the final analysis, determine the specific applications of these sections, and we are not unaware of developments in the United States where a similar dependence on the courts has ultimately reached the point where prayer is banned from an educational system originally founded in a Christian religious context. We are fearful that emphasis upon individual rights by the courts would erode group rights—such as rights in regard to: staffing policies and practices, enrolment criteria, prayer and religious practices in schools, extension of Catholic schools where some are now limited to specific grade levels, and indeed, participation in public funding to such an extent that Catholic denominational schools would remain Catholic in name only.
Further concern is caused by Section 42 which provides for amendment to the constitution by means of a referendum. Is it not possible that at some future date certain minority rights-including our right to Catholic denominational schools—could be eliminated by a simple majority in a single referendum or a series of referenda?
Section 49, providing for the legislature of each province to make laws amending the constitution of the province, causes similar concern, not only with respect to the continued existence of Catholic separate schools, but also with respect to possible changes in provincial legislation which could make it very difficult for denominational schools to fulfill their mandate, or for new ones to be established.
Finally, although Section 24 indicates that the Charter is not intended to affect any rights now existing in Canada, we are fearful that the primacy of the Charter, coupled with interpretations and reinterpretations made by courts in the
future, poses a serious threat to the meaningful existence of Catholic Schools.
The Canadian Catholic School Trustees Association requests reconsideration of and amendment to the proposed Charter in order to protect Catholic minority rights to publically funded Catholic Schools. We have taken the liberty of appending to this submission proposed amendments for consideration.
And I would read them, with your permission.
We are suggesting that we add a new section after the present Section 24 which concerns itself with undeclared rights and freedoms, and we are suggesting that the guarantee in this Charter of certain rights and freedoms shall not be construed as preventing or limiting:
(a) any rights or privileges, by any provision of the constitution of Canada, granted or secured with respect to separate, dissentient or other denominational schools;
(b) the establishment or extension by authority of public statute or otherwise of any separate, dissentient or other denominational school or system of schools. or of any scheme of funding from public revenues or otherwise for the support of such school or system as is deemed appropriate; or
(c) the operation of any separate, dissentient or other denominational school or system of schools in accordance with its denominational requirements including, but not limited to, the right to follow a selective policy with respect to enrolment on the basis of sex or religion and to employ persons subscribing to the tenets of a particular religion.
Proposed amendment number 2: we are suggesting an amendment to the Section 36, which is a limitation on the use of the interim amending procedure. This item 2 would read:
The procedure prescribed by Section 33, which you are aware, requires the agreement of Parliament and all provincial legislatures, shall be used to amend any provision of the constitution of Canada whereby any rights or privileges are granted or secured with respect to separate, dissentient or other denominational schools.
And proposed amendment number 3, which would amend Section 50, which again refers to the limiting of amendment to the general formula, we are suggesting an addition there of (h):
Any rights or privileges, by the constitution of Canada, granted or secured with respect to separate, dissentient or other denominational schools.
Now, you may be receiving or have received briefs from specific Catholic trustees in various provinces, you may have noticed some specific differences in presentations. However, I think I am able to suggest to you that there is a commonality of intent. We have on the Board representatives from the seven provinces and territories mentioned and we have consulted with them and there is a commonality of intent, although as I say, there may be specific differences.
I would indicate also we have consulted with the Canadian Catholic Conference of Bishops and we are agreed on approach in principle. We have also, of course, consulted with
legal counsel and we feel that we do have a reasonable ground for fears in regard to the protection of our rights and we would, therefore, request, as I have indicated, some amendment to protect those particular rights.
I would wish to thank you for the opportunity to appear before the Special Joint Committee and thank you for your attention.
The Joint Chairman (Mr. Joyal): Thank you, very much, Mr. Hammel.
I would now like to invite the Honourable James McGrath to launch this first round of questions to our witnesses.
Mr. McGrath: Thank you, Mr. Chairman.
Mr. Chairman and gentlemen, I would like, first of all, to commend you for the concise but yet comprehensive brief which you have presented to us. It is a model, in my view, of the kind of brief that we should be getting. It goes right to the heart of the matter, and you make your points in a very brief way, and then go on to make recommendations as to amendments which would address your cncerns. I compliment you on it.
I would like to ask you, Mr. Hammel, or one of your colleagues, how you feel about the principle of entrenchment in terms of addressing your concerns with regard to individual rights having paramountcy before the courts with respect to group rights, and, of course, we refer specifically, as you do, to Section 2 of the Charter dealing with freedom of conscious and religion.
It seems to me that Canada, as a signatory to the United Nations Protocol or Covenant, has in fact by law subscribed to the principle that parents shall have the right to choose for their children the kind of education they want.
But specifically, my question is: would you prefer to see no Charter of Rights entrenched in the constitution and perhaps go by way of statute law, such as giving the Diefenbaker bill paramountcy?
Mr. Hammel: I am not sure whether I can answer your question directly. I think our major concern is that the group rights are, indeed, provided for. We have not addressed the question whether or not there should be a Charter of Rights.
The important thing is if there is a charter, then, indeed, the group rights, the minority rights, must be entrenched; for, as I say, I think the majority will always look after itself.
But whatever the case may be, our minority rights, we believe, are important.
Mr. McGrath: Then how do we avoid getting into the kind of situation which has developed in the United States where, for example, in certain instances, the Lord’s Prayer recited in the classroom has been ruled by the courts to be unconstitutional?
I say that as one who comes from a province which has, by law, a denominational system of education which is publicly funded. That law is enshrined in the constitution of Canada by virtue of the terms of union between Newfoundland and
Canada, and indeed, is threatened by the provisions of the bill now before us.
You have referred to that, though not in a specific way, and I will come back to that later on.
Mr. Hammel: But what is the question?
Mr. McGrath: The question is: if we are to entrench a Charter of Human Rights in the constitution, how do we avoid the situation whereby the courts of this country will, in fact, be almost in a position of a parallel legislature in terms of defining new laws by the constitution; for example. you could be restricted as to your hiring practices; as to your conduct in the classroom. I have cited the instance in the United States where the recitation of the Lord’s Prayer has, in certain circumstances, been declared unconstitutional.
That is a dilemma I find myself in I am very much in favour of fundamental human rights being protected by law, but I have this dilemma.
Mr. Hammel: I think whatever approach is taken, whether the statute approach or the Charter of Rights and Freedoms one, I think we simply have to recognize that there are individual rights, and then there are, in our case, organized group rights. In this case, we are dealing with denominational group rights, although, for example, as a Roman Catholic I do not in any way tend to judge anyone’s right to freedom of conscience, I do feel that when he does not abide by what the Roman Catholic religion teaches, then he is no longer a Roman Catholic, and, therefore, does not have the rights of the group.
So I think we have to approach it from that particular point of view, that there are certain group rights which are at least equal to, or, perhaps, supreme over some individual rights.
I do not think we can simply make it sound as if the individual rights are total.
Father Fogarty will comment in addition to that.
Reverend Patrick Fogarty (Executive Secretary, Canadian Catholic School Trustees Association): I think it is customary to consider historic rights at times as remnants of a past age which have no relevance to the conflicts in modern society with a sort of up to date prestige which would embody individual and, perhaps, communal rights.
But the American Bill of Rights, upon which many others are modelled, was not only progressive in its thinking and forward looking, but was also a document which responded to the realities of the situation of the day.
The same grass roots pressures were at work when the French Revolution came along, and when the Magna Carta was embodied in the British law.
We are trying today to suggest that we are at a point in our nation’s history when it is important to fight for the individuals rights as best we can without neglecting the roots from which we have come. The roots from which we have come in regards to denominational publicly funded school systems is part of the covenant which made this country a nation of the sort that it is.
What we are trying to suggest is that the historic evolution of those rights under the British North America Act should be part of the constitution and have equal validity with the thrust to grant individual rights.
In our attempts to do this, I think there is a parallel between the attempts to gain equal status before the law in the new constitution, if you will, as far as group rights are concerned vis-a-vis individual rights, that there is the same historical base for trying to institute in the new constitution the rights of the francophone minorities to their own language education; particularly in view of the fact that when in the early days, for instance, people, such as Louis Riel, referred to “nos écoles”, our schools, that they were protected under the new constitution, it meant for him, French Catholic schools.
The situation, as it has evolved in the province of Manitoba, shows that unless things are spelled out exactly, peoples interpretation of them in courts of law or sometimes through remedial legislation, as was the casein the province of Manitoba, just does not solve the problem unless we have specifically mentioned the inherited rights of groups in a way which enshrines them in the constitution giving them equal import and prestige with the new thrust to gain the proper rights for individuals.
So that I do feel that we are at a point in our history where we can build upon the tradition of our country in trying to break new ground without neglecting the roots from which we have come.
Mr. McGrath: Are you aware that representations have been made to the Committee by very influential witnesses which one would certainly expect to have influenced the Committee with regard to providing a clause, for example, in Section l5 which would deal with sexual orientation?
The impact of that, of course, means that somebody who would publicly advocate a life style that would be against the mores or the teaching of the Roman Catholic Church, for example, a publicly avowed homosexual, you would be in a position where you would have to hire that person as a teacher.
Mr. Hammel: That is certainly one of the things we fear.
As I have indicated in my statement, we are concerned about selective hiring practices. We believe that one of the major purposes, indeed, the major purpose of our schools is of course, the Catholic formation of our young people.
Any life style which contravenes the teaching of our church, therefore, would be a disqualification to work in that kind of situation.
Therefore, we feel we must have the right to suggest to any individual who does not accept the Catholic faith to seek employment elsewhere.
Mr. McGrath: Could I then move on.
The Chairman has signalled that my time is has almost expired. You express your concern with regard to the threat to denominational education rights posed in Section 42, the referendum provisions of the amending formula and also the
potential consequences of the rights given to provinces in Section 49 to amend their own constitutions.
With regard to Section 49, this would make whatever protection there is in the BNA Act now inoperative. Is that not correct? The right of a legislature to amend its own constitution. The thrust of Section 49, if it becomes a part of the constitution, would tend to make whatever protection there is in the present constitution inoperative.
Mr. Hammel: Yes we can accept that.
Mr. Mackasey: Are you sure?
Mr. McGrath: I am not sure, no, that is why I am posing the question.
Mr. Hammel: If I may, as an illustration, simply suggest that why we are concerned is that Section 19 of the Act of Union not be deleted by simply inaction of a provincial legislature. We are saying that, for example, the clause in the Saskatchewan Act, which simply extends Section 93 and assures us of the right to Catholic schools in Saskatchewan, cannot be deleted by the simple act of the provincial legislature. That is what we are asking.
Mr. McGrath: Would it become inoperative by virtue of the passage of this bill with Section 49. Would it become redundant.
Mr. Hammel: I do not know, sir.
Mr. McGrath: Have you sought advice on that?
Mr. Hammel: Not that particular thing. I think the concern is that we want the protection for the group rights as they have been set out for us in the BNA Act. We must protect those.
Now, whether that makes Section 93 inoperative, I am not sure.
Rev. Fogarty: I would like to make a comment on that also because I feel that traditionally Section 93 dealing with denominational schools was in a favoured position, vis-à-vis the ability to erode those rights by means of provincial legislation or judicial interpretation to a certain extent, if you will; that the same privileged position should be given under the new constitution to this class of schools and it is interesting to point out that in 1949 when the British Parliament gave to the Parliament of Canada the right to amend the constitution, it exempted certain things and one of the things that was exempt was the schools given to denominational groups of people. The British Parliament at that time withheld the right to give to Canada the opportunity to make laws prejudicial to any class of persons with inherited or traditional constitutional rights for denominational education.
Therefore, all we are suggesting is that in this particular type of operation leading to a new constitution of Canada, the same position should be held with respect to these schools in the future. It would be possible under the new constitution for a provincial government with the concurrence of a particular federal government in the course of history to take away by amending its own constitution the rights that traditionally no government could prejudicially affect.
So, what we are saying is that we would like to see the rights that we have for denominational schools across Canada given the same privileged position as certain other lists of things which are exempted perhaps from the opportunity for a particular province to make a specific amendment to its own constitution which would prejudicially affect inherited denominational rights to publicly supported schools and be able to bring that about. So, there is definitely a fear on our part that that would happen and we would like to see this right restored to us in the new constitution.
That is why we make this particular recommendation to amend Section 50 of the proposed constitution by adding a section 8(h) to it which would allow that particular opportunity for this type or class of schools in Canada to have the same privileged position as far as amendments are concerned, as the powers of the Senate, the provincial representation and the residents qualifications of the senator and so forth, that this should be spelled out in the new constitution as it was spelled out by the British Parliament in 1949 reflecting the same limitations on provincial governments that was embodied in Section 93 of the British North America Act from the very beginning.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.
I would like to call on Mr. Lorne Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman. [Text] I would like to first of all welcome the group before us this morning and to welcome a fellow Saskatchewanite, Mr. Phillip Hammel and ask a number of questions about statements you are making in your brief.
I noticed with interest, you said on page 3, and I am quoting:
We are fearful that emphasis upon individual rights by the courts would erode group rights
I am very happy to see that in there because last spring or summer I asked the Prime Minister a question in the House about enshrining collective rights in our constitution. He threw back the question at me, well, what are collective rights, how do you define collective rights?
So, I think this morning, you have given us another definition of collective rights. We have had before, as Mr. Chairman knows, a number of groups before our Committee arguing that We have collective rights in terms of language legislation in the Official Languages Act. the French language and the English language. We have also had a number of aboriginal groups before this Committee the last few days talking about the need for their collective rights being enshrined in the constitution.
So, now we have at least three different arguments for collective or group rights, including yours and the denominational rights. I am very pleased to hear that.
I want to take you through your brief just to clarify a few things. I start off by our reference to collective rights. I also
note your concern as to the wording of Section 25 of our resolution that says the Charter shall be supreme. It says that:
25. Any law that is inconsistent with the provisions in this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
I want to then take you to what I think you mention in your brief, which was concern about what this might do to Section 93 of the BNA Act. I think as members of this committee know, Section 93 of the BNA Act as it affects education. I would suspect your main concern is about Section 93(1) and that is the denominational schools and also about Section 15 of our resolution, which is any discrimination or nondiscrimination rights.
I wanted to ask you whether or not you can elaborate as to what some of the specific concerns may be. I expect for example you might be concerned about the right to hire Catholic teachers for Catholic schools because everyone has the right to equality before the law and to the equal protection of the law without discrimination, based on race, national or ethnic origin, colour, religion, age or sex, is that one of the concerns and could you elaborate a bit more on this for us, please.
Mr. Hammel: On that specific item, sir?
Mr. Nystrom: Yes.
Mr. Hammel: Yes, of course we are concerned about the right to discriminate in our hiring pracitices. We feel that since the primary purpose of our schools is the Catholic formation of the youngsters of the Catholic faith, that just as you would wish to be able to hire an expert in science to teach a science class so you would hope that in a school where religion was paramount you would have people who were well versed in that particular religion and who also of course support and respect that religion. So, certainly, that is of primary importance and we simply, as I suggested before, when someone who, perhaps very sincerely, has a question of conflict of conscience, when his own conscience conflicts with that or organized religion, then I think he simply disqualifies himself from continuing to be employed in this kind of a situation. It is simply, as Father suggested, one of the privileges of denominational schools, which must be a fact, or they simply cannot exist.
Mr. Nystrom: In other words, it might destroy the whole concept of denominational schools?
Mr. Hammel: Certainly, yes. If, for example, the individual conscience takes precedence over the religious teachings of the particular group, in this case our Roman Catholic Church, then pretty obviously we no longer have a Catholic school. If 80 percent of our teachers have renounced the faith, then pretty obviously we no longer have a Catholic school.
Mr. Nystrom: As I said to you earlier, I am really in favour of enshrining collective rights, I really believe that, but I want to ask you the same question that I posed to the Mennonites of Canada, and that is in Section 15 they use the word “everyone” has the right to equality before the law. Now, I am not a lawyer, I am not sure if you are either, but is there any
jurisprudence you have looked at where the word “everyone” could be interpreted as a collective word or group word?
Mr. Hammel: I cannot quote specific cases to you but our advice is that that word “everyone” refers to individuals rather than groups.
Mr. Nystrom: Thank you very much. The other question I wanted to ask you was your concern about Section 49. Section 49 deals with amendments by provincial legislatures and it says that:
49. Subject to Section 50 of the resolution: the legislature of each province may exclusively make laws amending the constitution of each province.
And I wanted to ask you what your concern was here, because my reading of the resolution, unless I am in error, is that this resolution really continues the status quo that we have in this country. As I know under Section 92(1) of the BNA Act, which I have before me, says that, and I quote:
In each province the legislature may exclusively make laws in relation to matters coming within the classes of subject next hereinafter enumerated.
That is to say:
(1) the amendment from time to time, notwithstanding anything in this Act, of the constitution of the province.
And my reading of that is that really we are changing nothing, Section 49 of this resolution is really the same as Section 92(1) of the BNA Act, and I see Senator Connolly is agreeing on that and he has a background in constitutional affairs, and I wanted to ask you whether or not you have seen something here that I have not seen and that some other members of the Committee have not seen, or perhaps there is something wrong with the status quo?
Rev. Forgarty: I think I alluded in a sense to that type of thing in my previous answer to the honourable James McGrath, but it would be possible perhaps under Section 49, at times, to make provincial legislation, for instance, in the Province of Ontario that might prevent the extension of the separate school system there through the remaining last three grades in that system by an amendment to the constitution of the province. So that there could be a limiting factor imposed on the opportunities of publically funded denominational schools to grow and expand if a province had that particular type of ability to amend its own constitution in accord with the constitution of Canada.
That is why I think, also, why we do suggest that a subsection (h) be added to Section 50 of the proposed constitution of Canada, 1980, perhaps to allow the legislation passed by a province affecting its own constitution to be restrictive in a sense as far as those amendments to its own constitution would apply to publically funded denominational Catholic schools.
Mr. Nystrom: Thank you. I do not know the situation in Ontario but I will go back to our own province. Denominational schools in my province of Saskatchewan, I believe, are based on the Saskatchewan Act, 1905, and they are therefore part of the constitution of Canada and it is my understanding that this
would therefore not be subject to amendment by the provincial legislature, it would not be subject to amendment through Section 92(1) of the BNA Act because it is part of the constitution of Canada and my reading of the resolution before us is that Section 49 would not change that. Am I in error?
Mr. Hammel: Well, I am not sure I can say you are in error but our concern was that there was a possibility.
Mr. Nystrom: Is there anything else?
Rev. Fogarty: In the Province of Saskatchewan, as you recall, Mr. Nystrom, the shcools did end only at the end o the elementary grades and from the time of Confederation until the early 1960s there was an opportunity for Catholics to present the case for extension of the separate school system in the province of Saskatchewan, which was only obtained in the early 1960’s. We are fearful that this type of opportunity to grow and expand could be limited by a provincial government at a certain course in its history to say: we put into our government that the shcool system which we have in the denominational sector can remain with all its present rights, but that in the future expansion may not be possible.
Some limiting clause could definitely perhaps be considered at a certain time in a province’s history by a particular government that would prejudicially affect our rights.
Mr. Nystrom: The Chairman is cutting me off, so thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. Senator Connolly.
Senator Connolly: Thank you, Mr. Chairman.
First of all I would like to echo what Mr. McGrath and Mr. Nystrom said about the excellence of this brief and the fact that you come to the point so quickly, but you have been in this business so long it is easy to come to the point, I am sure.
I think you would probably agree that when the British North America Act was originally passed there were probably two difficulties, at least the historians refer to. One was the constitution of the Senate, the second one was the denominational school system as provided in Section 93.
Now, I do not know whether the idea of the importance of the Senate is too popular an idea today in some quarters, but I think it is not unfair to say that Section 93 was really the Ark of the Covenant so far as the constitution was concerned, and I think without that the union might not have been possible.
Now, there were limiting factors and Father Fogarty has referred to them, and they arise out of the words at the end of Section 93(1) which refers to the schools which any class of persons have by law in the province at the time of the union, This has been the difficulty for establishment of Catholic schools and I think it should be said here, by way of background, that in a good many of the provinces the literal restriction of that clause to what was a denominational or separate school at the time of the union has been liberalized a good deal. Certainly it has in my own province of Ontario, Frankly. I would like to see the development that Father Fogarty speaks of, namely that within that system it might be possible to have public support for these schools, at least up to the time of entrance into university, because there are classes
which are not supported and which make it extremely difficult for the minority to provide for the kind of education they think their children should have.
Now, having said that perhaps I should add that. so far as universities are concerned, I think the Catholic people of this country, regardless of what their language may be, have generally speaking been supportive of the idea of running the Catholic institutions at the university level as private institutions. There are arrangements in many of the provinces where by grants are provided, special financial arrangements made for special areas of work, and some of the Catholic colleges, and perhaps the Committee does not know this, and Catholic universities have had to laicize themselves to become the same as public universities in order to support the financial responsibilities that they have by their development.
Now, having said that, I think that what you say in respect of Section 50 is probably a valid point. I say, “probably”, only because one can never be sure in law, but I think the point that has been made by Mr. McGrath and Mr. Nystrom, to the effect that the important factor in preserving the provisions of Section 93 and the possibility of expanding . . .
Mr. McGrath: Excuse me, Senator. You made reference to Section 50 and I did not hear the witness refer to Section 50. You mean Section 49?
Senator Connolly: No, Section 50, I think, if you would look at it. The last amendment they have proposed.
Section 93 of the BNA Act entrenches, so far as it can be done in a document of that kind, the group rights, and the group rights I think are extremely important. They are, in fact, the only reason that you people are here today; is that not right? What you are concerned about is that the other individual rights in the charter might, through judicial interpretation or otherwise, perhaps in the use of an amending formula, water down those rights. Are we right about that?
Mr. Hammel: Yes.
Senator Connolly: All right. Now, when you propose the changes that you do. I take it that you still say that this system would still be subject, would still be at the mercy of a formula if the formula is less than the unanimous consent of the provinces; is that so?
Mr. Hammel: That is correct.
Senator Connolly: Are you prepared to accept that risk?
Mr. Hammel: Prepared to accept less than that?
Senator Connolly: No, are you prepared to accept the risk that if less than unanimity of the provinces is obtained for a change in Section 93, if the formula for amending the constitution is going to be the Victoria formula as roughly provided for in Section 41 of the proposed document, would you be inclined to think that that formula should govern the provisions that are now in Section 93 of the BNA Act?
Rev. Fogarty: I think in view of the fact that we are trying to build a new constitution, that we would accept some limiting formula if it were something that the Parliament and Senate and so forth agreed upon as regarding amendments to the constitution.
Senator Connolly: And the provinces.
Rev. Fogarty: And the provinces. Therefore, we would have, I think, to accept that risk. I do not really feel that we would demand a privilege which would be something beyond what the country itself is accepting for itself. So if there is an agreement on the type of explanation of what kinds of groupings are necessary to amend the constitution of Canada, even though we may wish not to but we would perhaps have to say that, realistically, yes.
Senator Connolly: Perhaps I should say that I am inclined to agree with Mr. Nystrom on his interpretation of Section 49. Just on that point, I would think that if there was any danger, any threat from any province to the system of schools that you are supporting here, that the danger might come from withdrawal of support, but I think that the provisions of the constitution, even if the issue was before the courts, would prevail, and I think in that case the remedy of the group would be to the courts, to get the rights the constitution would be providing, I do not think it could be amended or that this could be changed, and this is only an opinion but I think it is reasonably good, I do not think it could be changed by attempting to amend the constitution of the province. Would you agree?
Rev. Fogarty: I think in this particular area, Section 49 begins with the phrase “Subject to Section 50”, and what we are suggesting is that a subsection be added to Section 50, number (h), which exempts it then from the direct application of Section 49.
Senator Connolly: Would that amendment to Section 50 then re-establish or establish by this document the group right that you advocate?
Rev. Fogarty: I think it would protect it and establish it, yes.
Senator Connolly: Just one more point, Mr. Chairman, if I may make it.
Let me commend you for the way you have answered the questions because you have beamed right in on overything that we are concerned about, these are the bottom lines. Mr. Hammel talked about the hiring practices and things like that, and particularly about the practice of requiring people to be Catholics, not only in name but in fact, if they are to be hired.
I think perhaps one should, and this is an observation, not a question, one should go back to the time of 1867 when the disciplines in the schools were perhaps viewed differently from what they are today, but in those days not only was science a discipline, arts a discipline, language a discipline, mathematics a discipline, but religious knowledge, theology, was a discipline, and we are getting away from the idea of that kind of discipline being a part of the educational system. I think that these people here have established to the satisfaction, at least to my satisfaction and I am sure a lot of the members of the Committee would agree, that it is a very valid discipline in any educational system, whether it is primary, secondary or at the university level, and some of the great scholars of the world have argued on this and have succeeded.
Thank you very much indeed.
Mr. Hammel: Thank you, sir.
The Joint Chairman (Mr. Joyal): Thank you, Senator Connolly.
I would now ask Senator Tremblay to take the floor.
Senator Tremblay: I regret, it is Mr. Epp’s turn . . .
The Joint Chairman (Mr. Joyal): Then, the honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman, and I want to thank our witnesses for appearing this morning.
Gentlemen, I want to take this approach, and I would like to have your advice, following the questioning of Senator Connolly, and that is whether or not group rights are protected in Section 93 of the British North America Act and that the remedy could be through the courts should those group rights be removed by a provincial government. I think what the Senator is pointing out to us is the difficulty this Committee is labouring under, and that is the need for expert witnesses, because in looking at the Newfoundland Branch of the Canadian Bar Association brief, and these gentlemen have been before us earlier, on page 3 of their brief they make reference to the unilateralism that is inherent in the proposed resolution, and specifically it refers to the terms of union. I do not have time to read the whole section but I will just read what I believe is the salient paragraph:
Newfoundlanders have always believed that the Terms of Union could not be changed without the consent of the people of this province.
Speaking of Newfoundland. Then later on, on page 11, coming to this problem we have, Senator, of who is right, what interpretation is right or what interpretations might be given to group rights, Section 93 being one of them. Now, on page 11, the Newfoundland bar said the following:
Our concern is heightened in that Section 25 of the Constitution Act 1980 provides any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect. There are two points of view with respect to the effects that the freedom of religion concept will have on Term 17, and these are: (a) by virtue of Section 25 of the Constitution Act 1980, Term 17 will become inoperative; or (b), that freedom of religion will be used by the courts in light of Section 17 of the Terms of Union, and the history and tradition of our denominational, educational school system in this province.
And then their point:
The branch has been unable to reach a consensus as to which of these views is the more likely. However, we do agree that a problem could arise if an atheist were denied employment with a denominational schoolboard because of his beliefs, and it is now impossible to predict how the courts would rule on this matter.
I guess what I am trying to point out to the Senator, as well as to you gentlemen, that is the dilemma that,we have in this Committee in the sense that what we in fact might be asked to
approve, after your fine testimony, is we still have questions in terms of whether what we think we are approving is in fact going to have the force and effect of what we thought we were approving. Is that your dilemma?
Mr. Hammel: Well, I think that is the human dilemma, is it not? I am not sure, sir, that we will ever reach that stage where we can so perfectly phrase these statements that all of our fears can be taken care of. We have specifically spoken of fears because, again, we cannot predict exactly what the results are going to be but we do have these fears and we would like to do what we can to protect those rights we have now.
Mr. Epp: I only have one other question, Mr. Chairman, and I hope that members of this Committee take seriously that view, that we need the expert witnesses to try and get into some of these areas which, I know I can speak for myself, I cannot come up with a definitive answer but I do have those fears.
The other point I would like you to comment on is this, and we have had one other group before us, a charter of rights tries to entrench or its purpose is to entrench individual rights and freedoms. That is a meritorious concept. The difficulty I have at this point, and with your brief, and I want to say I agree with your approach, is the fact that as we look at a charter we seem to be moving away from what I believe were the moral laws on which this country was founded, and that in an effort to guarantee rights of the individual to move to a state which is based on humanism, that is the total value of the individual, and I know that can be misinterpreted immediately, the minute I say that, and I am not against individual rights, but as we move toward an approach where the rights of the individual become so paramount that the collective rights of a group, or what we call group rights, can in fact if not be removed, can at least be reduced, and as I have been sitting in this Committee I have been wrestling with those two concepts, that what I fear intrinsically is that what we are doing is that, as we protect rights, we are doing two things, apart from the value of protecting individual rights: One, we are changing the basis on which laws have come down to us to the present day, the moral basis; two, the difficulty for groups which have always given society a moral fibre, such as your group. and the Church; that in fact, its ability to strengthen the moral fibre of society is being reduced.
I would like to comment on it, because I say to you quite frankly—and I am wrestling with these two points of view and torn between these two points of view—I do not want to be part of a procedure which reduces the ability either of parents or of the Church to make collective decisions which, I believe, have great value for society.
Mr. Hammel: I can only respond by saying I am in agreement, We believe that the essence of our stand is the maintenance of moral values and standards.
The major characteristic of our denominational school system is the inculcation in our young people of those moral values and standards.
As a result, we believe, in regard to your dilemma, that we must somehow protect groups which are in the face of a
materialistic, humanistic approach in society; we must protect groups which are, in effect, promulgating moral values which, as you say, are traditional and are the basis of our society in its origins.
I would simply say in regard to your dilemma that in Saskatchewan, Ontario and also in Alberta, provincial human rights codes do, indeed, provide for the protection against discrimination in certain areas, one of which is religion in the case of denominational schools.
Senator Connolly: “Discrimination” is a terrible word to use.
Mr. Hammel: Well, at one time “discriminate” was a complimentary type of term; but in recent years it has acquired a derogatory connotation.
The word simply means to be selective in how you approach certain aspects of things, and we prefer the original definition, and we plan to be, and would like to be and intend to continue to be discriminating.
So, I would suggest that if we can in provincial human rights codes provide for that form of exemption, surely we could do it at the national level.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
I would now like to ask the Honourable Bryce Mackasey to take the floor, but also to take into account the fact that we already have exceeded the time we wanted to spend on our witnesses this morning.
The Honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, every time I participate, I am always warned that I should not be too long. But that is very difficult to accomplish when Irishmen get together.
You know, Father, I come from a school system where I learned the words “God save Ireland” deep in Quebec before I learned the national anthem.
I think our dilemma will not be resolved regardless of how wise we are. That dilemma has been well expressed by Senator Connolly and Mr. Epp, and Mr. Nystrom, weighing collective rights or group rights against individual rights.
You have expressed concern about what has happened in the schools of the United States and the fear that it might happen here.
But one thing you must bear in mind is that there is a fundamental difference in the two constitutions, in that the United States constitution prohibits the establishment of a religion, whereas ours goes exactly the other way by guaranteeing religious freedom, which makes for a very fundamental, a very big, difference.
Inherent in all our legislation and in the proposed constitution is the insistence that our religious values and systems be maintained; whereas the Americans stress individual rights to the point where they prohibit the establishment of religious groups or religion.
So I do not believe that your fear that we might find ourselves in the dilemma which applies to the United States is a valid one in that sense.
Mr. Hammel: If I may respond, we have to be very concerned in the sense that, although the initial starting points were different and we recognize the whole concept of the separation of Church and State in the United States, yet, when we have such phrases as “equal protection of the law without discrimination”, which I think are almost identical in both countries, and when I think you have to admit, perhaps, that once we start dealing with these kinds of things, the results of American cases, will, indeed, be presented in our courts, then we do have some fear.
Mr. Mackasey: I am sure you are entitled to have a fear, and it is a legitimate fear. But I am saying there can be no perfect document, a fact which I think you have already recognized.
For instance, the freedom of religion is now expressed very commonly in provincial jurisdictions now, and I am not aware that it has presented any particular problem. I know of no case which has gone before provincial rights commissions which has created this clash between individual rights and religious freedoms. Are you aware of any?
Mr. Hammel: No, sir.
Mr. Mackasey: Hopefully, it would not happen.
Mr. Hammel: The Caldwell case in British Columbia although that is still to be heard.
Mr. Mackasey: I said hopefully. I presume it will not become a problem. Although it could, theoretically, go to the courts. You have a valid argument.
All of us are faced with the dilemma of morality. Nothing has been said with which I can disagree.
I, too, am concerned about the breakdown in authority and old values. Perhaps it is a question of old age creeping up. or it might be the result of my up bringing.
But I think we all agree that you cannot legislate morality, and that the solution has to be an educative one and not a statute. Maybe I am wrong.
Mr. Hammel: Perhaps what that suggests is that we must provide for that kind of education, which is what we are here espousing.
Mr. Mackasey: I agree, and perhaps some wording or phraseology in the constitution could eliminate intolerance or create tolerance—but, as I have said, we all agree.
I am rather impressed by your suggestion that we add to Section 50 certain basic rights which cannot be affected by one of the several ways of amending the constitution. There is the referendum. Again, the problem there is what collective rights do you want to protect? I think this is really what the Prime Minister had in mind by saying what collective rights, as Mr. Nystrom has pointed out; he was not being rude, facetious or flippant. He was posing his problem as Prime Minister, and leader of a government; to play God in a way as to what collective rights should be protected and what should not be.
For instance, we are faced with the dilemma of what is clearly a restrictive discriminatory clause in the Indian Act, and governments have been slow to react to remove this discrimination against women; because, rightly or wrongly, it reflects a cultural trait of people imposed upon them 113 years ago.
So that is a problem. Can you help us as to how we can distinguish between what collective rights should theoretically be protected in Section 50?
Rev. Fogarty: I would like to answer that in part. It might be a bit repetitious. But in 1949, the British Parliament amended the BNA Act to give the Parliament of Canada the right to amend unilaterally without provincial consent, but with certain important exceptions.
One of those exemptions was the group rights given to denominational schools under Section 93 of the British North America Act, and in the agreement between the British Parliament and our Parliament the exception in group rights in that case read:
As regards rights or privileges by this or any other constitutional act granted or secured to any class of persons with respect to schools
Mr. Mackasey: Father, I was leading up to a point and, in effect, you are making it for me. But really, what you are saying is that by your proposal, in addition to Section 50, it is only entrenching rights which are clearly explicit to those of 1867. and you are not asking for something which you do not already have under the old constitution, but you are merely saying that, for goodness sake, in your zealousness to produce a new one, do not destroy some of the good features of the old one.
Rev. Fogarty: Yes.
Mr. Mackasey: Thank you, Father.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.
I realize we have gone over the time we had agreed to spend with our witnesses this morning.
I would like to say on behalf of myself and of honourable members of this Committee that I would like to thank you very much.
Before calling the next witnesses, I see that Madam Therese Killens, who is a member of the House of Commons, though not a permanent member of the Committee, is with you this morning and would like to address honourable members of this Committee. I note that honourable members will not oppose, and I call on Madam Therese Killens.
Mrs. Killens: Thank you, Mr. Chairman, I will be brief.
This morning’s witnesses have dealt with the fundamental question which affects the very fabric of our society.
Before I was elected to the House of Commons, I was a member of the Canadian Catholic School Trustees Association
for five years. I was greatly surprised at the faith of those in provinces other than Quebec. They faced many problems, and some educators work on an almost voluntary basis.
There have been certain improvements lately, particularly in British Columbia, but Catholics still find it very difficult to give their children a Catholic education.
I would ask the members of this Committee and legislators to consider the concerns raised this morning by the witnesses from the CCSTA and to try and include the essence of their proposed amendments in the constitution.
As you know, section 23 will protect language rights. whether it is amended or not. So we cannot refuse to deal with the question of education this morning.
It should be pointed out to the Committee that the right to a Catholic education in provinces other than Quebec is just as important as the language rights that will be protected under section 23. And you know perfectly well that section 23 may be amended to satisfy those who find it inadequate.
In conclusion, I would ask the Committee to look seriously at the brief presented this morning by the Canadian Catholic School Trustees Association. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Killens.
On behalf of all honourable members of this Committee, I want to thank you very much for your economy of words and the efficiency with which you have addressed yourselves to this Committee.
I would especially like to thank Mr. Frank Gillhooly, the past President who has been with us this morning and has not had an opportunity to address us. I would like to thank him especially, taking into account that, as a past officer of the Auditor General of Canada Bureau in the past year, I see that his influence on due economy and efficiency has also influenced your brief and presentation.
Thank you very much.
Mr. Hammel: Thank you very much. I see your estimation of Mr. Gillhooly is well founded.
Thank you very much, sir, and members of the Committee. We have all the faith in the world that you will deal with us in the best way you possibly can.
The Joint Chairman (Mr. Joyal): I would now like to call on the representatives of the Canadian Council on Social Development.
I would ask the representatives of the Canadian Council on Social Development to come to the table so that we may proceed.
It is my pleasure this morning to welcome the representatives of the Canadian Council on Social Development, Miss Nicole Dumouchel, Ms. Karen Hill, and Mr. Ed Pennington.
I have the pleasure of welcoming the witnesses from the Canadian Council on Social Development and introducing Miss Nicole Duchomel, Mrs. Karen Hill and Mr. Ed Pennington.
I understand you have already circulated among members of this Committee Written submissions, and that you will be agreeable to making an opening statement and then to answer questions put to you by honourable members of this Committee.
Mr. Fred Pennington (Board Member, Canadian Council on Social Development): Thank you, Mr. Chairman, honourable members of the Committee. My name is Pennington and I am a volunteer elected board member of the Canadian Council on Social Development and I am employed as the Executive Director of the Social Planning Council of Metropolitan Toronto. My colleague, Nicole Dumouchel, is a private management consultant in Montreal who has had experience in the form of professional and health legislation in the Province of Quebec. She is also here as a volunteer elected member of the Board of Governors of the Canadian Council of Social Development.
Our third speaker, Karen Hill, is a staff member of the Canadian Council and a program director who played a major role in the preparation of our material.
The presentation from the Canadian Council has been approved by its executive committee early this week. We were informed only yesterday, Mr. Chairman, of your request to appear before you this morning and we acknowledge and respect your previous comments and would encourage you to provide that opportunity to those of us from the community at large to enable you to have our material sufficiently in advance.
The Canadian Council on Social Development is a national voluntary engency engaged in the formulation and promotion of just social policy. Nothing is so reflective of the character of a country and the quality of life of its people as the social policies it adopts. Because the constitution forms the basic framework through which social policies are created and implemented, our organization has taken a keen interest in the recent attempts of the federal and provincial governments to arrive at a consensus on the structure and content of Canada’s new constitution.
The creation of a new constitution is a rare opportunity indeed for a nation and its people; all too often it is the result of war or revolution. Rarely do the people of a free and democratic country have the opportunity to define afresh those rights and freedoms to which they subscribe, and make them part of a living constitutional document.
Because of the historical rarity of constitutional reform, there are a few people who can rightly claim to be experts. We
do not present ourselves as experts in the field of constitutional law. However, we, the Canadian Council on Social Development, do have 60 years of experience in the formulation and promotion of social policy in this country, and it is from this vantage point that we offer our comments.
We have chosen to emphasize three areas of concern in our examination of the proposed resolution and in the material which you received the first section examines the role citizen involvement has played in the process of constitutional reform. The second section comments on the implications of specific sections of the resolution in relation to citizen involvement and social policy. The third section of our brief encourages the government to entrench social rights as an essential element of the charter of human rights.
Each of us this morning will spend a few minutes on citizen involvement, comments on the resolution with respect to social policy and on social rights.
In terms of citizen involvement, we would like to state that Canadians have not been adequately involved in the current process of constitutional reform. Although we appreciate the extension of time which now allows us and others to appear before the Committee, we are concerned that the undue urgency constructs nearly insurmountable barriers to the public’s ability to understand, to respond and to take part in constitutional renewal. The meaningful involvement of citizens requires several facilitating factors: time, understanding of the issues, access to the decision makers, information, opportunity for involvement and opportunity to be heard.
The current process of constitutional reform offers few of these factors. Constitution making in Canada has always been more of a political process than a process belonging to and responding directly to Canadians at large. We believe that a new constitution must be more than political and that the views of all Canadians who want to contribute should be received in the process. We believe that the development of our new constitution is a task which must rise above intergovernmental relationships. It is a larger task with greater obligation on parliamentarians than law making. Its impact will be felt in this country by each of us now and by every person wo lives here in the future.
The constitution of a country is more than a statement which sets out relationships between governments. A constitution is also more than a legal framework. it must be an expression of our history, our character, our values as well as our aspirations. If we are to obtain a constitution that meets these high standards, then the people who will be most affected must have the right, as well as the full opportunity, and adequate information, to take part and contribute to its development. We would make the following two requests: that funds within the Secretary of State’s department assistance to Community Groups Program be increased to provide support for groups wishing to educate themselves about constitutional reform and participate in this process.
Secondly, that the Government of Canada take steps to encourage the direct participation of Canadians in constitutional reform, through direct financial and resource assistance to further local efforts in increasing understanding and participation.
I should like to comment briefly on the lack of preamble. In addition to providing the legal framework for the country, ordering relationships among governments and between the state and the people, our constitution can also set down the ideals and values which our nation holds. Through a reasoned statement of purpose which recognizes our history and the nature of our country, our constitution should declare the values to which we aspire.
Edward Blake, a noted Canadian parliamentarian said over 100 years ago that “The future of Canada… depends very largely upon the cultivation of a national spirit.” The preamble to our constitution should reflect that national spirit.
A preamble would serve as inspiration to Canadians, and would as well demonstrate recognition that our constitution is more than a law, it is the cornerstone for our future.
With respect to the resolution and citizen participation, Mr. Chairman and honourable Members, one of the primary functions of a constitution is to order the relationship betwen the citizenry and the government. As the Government of Canada recognized in its 1969 publication, the Constitution and the People of Canada, there should be constitutional guarantees ensuring that society, through its governments, will respect the rights of individual citizens. We would concur with the 1978 statement of Prime Minister Trudeau that the renewal of the Federation must confirm the preeminence of citizens over institutions, guarantee their rights and freedoms and ensure that these rights and freedoms are inalienable.
With regard to Section 2, for example, a clarification which would be helpful relates to the definition of “everyone”. Does the definition include organizations and groups?
We would like to point out that current tax laws prohibit registered charitable organizations from fully expressing opinion on actions of government. Paradoxically, we would like to point out that these organizations are encouraged to consult with government ministers on many occasions, and in fact are occasionally criticized if they do not speak out on issues for which the government feels public discussion and comment is required.
We believe that the extent to which a society tolerates and encourages freedom of expression is an indicator of the stability of the nation, as well as on indicator of its receptivity to change, we suggest that the Committee consider wording in Section 2, particularly which would reflect the importance of freedom of expression for both individuals and organizations.
With respect to Section 7, legal rights, in which it states that:
7. 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.
We should like to suggest that political participation and the prerogative of privacy have been identified by Bertrand de Jouvenal as the two fundamentals of democracy.
In our opinion, the right to privacy appears to have been addressed in an tangential way by Section 7, by the inclusion of the phrase “security of person”.
Because of its importance to the democratic process, we suggest the principle of the right of privacy be strengthened by forming a separate section with wording which clearly articulates both the scope and the importance of the concept.
As well, that the constitution should contain several other sections which would strengthen democratic tradition and practice. Enshrinement of the principle of freedom of information, for example, would act to remind both government and citizens that government exists only through the consent of the people.
We would respectfully remind the Committee of the key recommendation of the Task Force on Government Information Policy that:
1. The right of Canadians to full, objective and timely information and the obligation of the state to provide such information about its programs and policies be publically declared and stand as the foundation for new government policies in the field. This right might be comprehended within a new constitution in the context of freedom of expression.
Mr. Chairman, honourable members, I would ask now Nicole Dumouchel to continue our presentation.
Miss Nicole Dumouchel (Board Member, Canadian Council on Social Development): Mr. Chairman, I will deal precisely with the resolution and social policy.
In this section, we will address the specific concerns of our organization regarding social policy in the proposed resolution. We will not address issues regrding jurisdiction unless raised by the wording of the resolution itself. While we, of course, recognize the crucial nature of the division of responsibility and relationships between governments with reference to social policies, we are looking forward to addressing those and other more specific social policy concerns during the discussions of Section 91 and Section 92 of the British North America Act. which we expect will take place following patriation.
Specifically regarding mobility rights, Section 6(3)(e) and Section 6(3)(b). These clauses would well have the effect of limiting the mobility rights as specified in Sectin 6(2)(b) to the extent of reducing the nation to a series of sovereign states.
As we understand this section, it would allow provincial governments to prevent Canadian citizens and landed immigrants from moving between or within provinces, on whatever grounds the provinces might enact as law, except residency. Though the provinces would be subject to the general prohibition of discrimination on human rights grounds, such as age, race, sex, national origin, they could be allowed to prevent Canadians from moving into their province for any other legislated reason they choose. Though provinces have this right now, under the British North America Act, they must bow to national interest when required. Section 6(3)(a) appears to extend provincial rights regarding migration, and to further limit federal jurisdiction.
In addition to our general concern regarding mobility for all Canadians, we are specifically concerned with Section 6(3)(b) which would place severe restrictions on access to social services. Access to public social services is already limited by defining eligibility. Benefits under the Old Age Security and Guaranteed Income Supplement programs are available only after 10 years residence in Canada. Canadiens face residency restrictions at the provincial level for access to public housing and for discretionary income supplements and tax credits.
Regarding access to public social services, the Canada Assistance Plan has taken the lead in enforcing mobility rights by requiring provision of social assistance, without regard for residence.
Given CAP’s recognition of the importance of portability of social benefits, we must ask about its future if Section 6(3)(b) is enacted. It appears that the universal nature of the Canada Assistance Plan could be ruled invalid. What consequence will that have for people in need of social assistance? In a society as mobile as Canada’s, it would be a tragedy if the new constitution allowed residency to become a criterion in the determination of eligibility for human services.
If our constitution is to truly reflect our hopes for the future, and is to serve as a statement of the principles to which this nation aspires, surely these sections which now reflect an insular attitude and lack of generosity must be stricken. One must ask what higher goal these restrictions would address? What national interest?
To permanently enshrine barriers to social services is unacceptable. We recommend that Canada’s constitution reflect mobility rights conssitent with Article 12 of the International Covenant on Civil and Political Rights.
Section 15: Though we agree with what we believe was a laudable intent, we must join the ranks of those who question the effect of this section in relation to the scope of groups who would be protected by these provisions and in relation to enforcement mechanisms.
As the Committee has been told, neither physically nor mentally handicapped persons would be protected by this section. We would also point out that discrimination on the basis of sexual orientation, marital or family status, political belief or socio-economic status would not be provided by Section 15 as drafted. Clearly, a statement which will guide through judicial decisions for decades should be both flexible and inclusive in order to accommodate changing social conditions, as well as to safeguard the rights of the present populace.
We believe handicapping conditions, sexual orientation and socio-economic status, marital situation and political belief should be added to the list and that the clause should be rendered more flexible by adding “such as” preceding any description of status. This section should include as well prohibition of discrimination in both the substance and application of the law.
We also suggest inclusion of a separate section recognizing equality between the sexes and would recommend wording consistent with Article 3 of the International Covenant on Civil and Political Rights.
Section 31 raises a myriad of questions about both intent and effect. A glossary of terms would undoubtedly provide clarification.
The lack of definition of essential public services is troublesome. What are these? Services that all of the population use now? Do they include services which a majority might use in the future? What kind of services are included? Are income support services, social services, cultural programs included?
The term “reasonable quality” is also in need of definition. Though we seek clarification, we nevertheless heartily approve the foundation which their intent will provide for the development of national standards for social programs. Though some progress has been made over the last decade, the limited availability of quantifiable measures of quality has been a serious impediment for improvement in planning and delivery of social programs.
In addition to questions of definition, we are unclear about the effect of Section 31 on social programs. It could be inferred from Section 31 that the provinces will be responsible for all essential services, including those for which the federal government has taken primary responsibility and initiative, even though its constitutional jurisdiction to take such actions might be subject to question. Employment related services are an example, such as job creation, manpower training.
While much discussion has taken place about jurisdiction and financing of social programs over the many years of constitutional talks, to our knowledge, and to that of the public, no settlement on these issues has yet been arrived at.
The massive review of social programs funding currently in progress contributes to our concern about the possible impact on social programs of Section 31.
We believe it would be most unfortunate if Section 3l would serve to resolve any of these issues in such a way as to preclude future options.
And Ms. Hill will carry on on social rights.
Ms. Karen Hill (Programme Director, Canadian Council on Social Development): Thank you, Nicole.
Regarding social rights, we are asking that social rights be entrenched in the Canadian constitution. As was said some years ago, a proclamation of human rights which would guarantee the fundamental liberties without providing concrete measures to alleviate inequalities between men would be quite incomplete, it would allow the gap to widen between the weak and the strong. We believe that the vast majority of Canadian would subscribe to the following social rights: the right to employment and protection against unemployment, the right to safe and healthy working conditions, the right to form and join trade unions, the right to an adequate standard of living with access to the necessities of life. The right to health care uncompromised by economic circumstances, the right of protection of the family, the right to education and the right to social security and social insurance. These are all contained in provisions of one of the International Covenants to which Canada has obligated itself.
We recognize that social rights are not as easily definable as are civil rights. Indeed, there are key differences between them, and probably the most significant difference for the consideration of this group is that civil rights express the willingness of the State to protect the individual from interference with his liberty. Social rights reflect the states willingness to help people develop and fulfil themselves within the protection which is given them. Though there may appear to be a conflict between the roles of the state in regard to constitutional entrenchment of social rights, because on the one hand the State says; hands off, do not interfere; and on the other, the state expresses its belief that individuals must be helped. We believe that the unifying concept between social and civil rights is the concept of liberty. Civil and political rights allow the individual to be free from interference, social rights provide the opportunity by which that liberty can be exercised in countering limitations which nature, individuals or society itself may have burdened some people. So the aim of social rights is to provide equality of opportunity rather than precise equality.
We suggest that the Committee consider adding sections to the new constitution which would reflect wording consistent with the principles outlined in the International Covenant on Social, Economic and Cultural rights.
In summary, if I may, I would point out that in our written brief we have made comments and recommendations on a number of sections which we did not address in our oral
presentation to you. These include comments on the drafting of the resolution, enforcement mechanisms and recommendations on fundamental freedoms, affirmative action and native rights. We would refer you to our written submission for details on these points.
In our oral presentation we have emphasized our believe that constitution making must allow for greater participation by Canadians, and we further suggest that the right to privacy and the principle of freedom of information be entrenched. We have expressed our deepest concern about the mobility rights section and its effect on recipients of social services. We have questioned the impact of the equalization section on social programs and we have requested entrenchment of social rights.
We are very appreciative of having the opportunity to present this to you today and we would be pleased to answer any questions that you may have on our presentation.
The Joint Chairman (Mr. Joyal): Thank you very much, Ms. Hill.
Je voudrais demander à M. Hawkes de bien vouloir ouvrir le débat. I would like to call on Mr. Hawkes to open our discussion.
M . Hawkes: Mr. Chairman, on a point of order before I begin, what is our time frame for these witnesses?
The Joint Chairman (Mr. Joyal): Well, we usually consider that we have at least an hour, but as you know I am in the hands of this Committee and we are very flexible. I usually follow the list of speaker we have and I do not see any reason why we should do otherwise this morning, so we should go certainly around 1 o’clock.
Mr. Hawkes: My concern, Mr. Chairman, is that this is one of the most creative briefs in the sense of having a great deal of new information, different information before the Committee, and I would hope that if we run out of time that the sterring committee could be asked to perhaps ask them to come back and explain some of these. I see a lot of nods arond the table so I take that as affirmation. It is a very complex brief and exceedingly well presented, and you have just barely scratched the surface of your 30 pages, but maybe we could begin by asking for your confirmation of my summary of what I think the major points were that you made and just make sure that I am on the right track before we move to some more detailed questions.
When you talk about process, in my mind, and I guess a different set of language, you are saying that the constitution will not have the legitimacy with people that it should have when it is rammed through by one Parliamentary majority at one point in time, rather than having some kind of process that involves people and other levels of government and interest groups in this country adequately. Is it the legitimacy aspect that is at least one of the major principles at the heart of your brief?
Mr. Pennington: Yes, I think the legitimacy is of concern. Our organisation, of course, is nonpartisan but we do feel that the individuals and community organizations throughout this country should have sufficient opportunity to participate in the process.
Mr. Hawkes: You give us a very strong pitch for more time or for adequate time to come to that kind of legitimacy. Is your concern about time also due to the fact that there are unintended effects to some wording, that it takes time to really examine wording to make sure we are not doing the wrong thing but instead the right thing, that part of the reason for lots of groups and lots of times is to get it right rather than wrong?
Mr. Pennington: That is correct, and in addition I think it is clear that we have tried to point out the important educational process involved with the opportunity for citizens to participate in the process so that the wording is clearly part of that objective. Another part is to enable people to understand what is going on and then make their contribution accordingly.
Mr. Hawkes: In a summary of some of the sections that you have in detail here. would it be a fair conclusion for me to draw that what you are really saying to us is that the wording you see before you in the resolution would take social rights away from people, at least in some circumstances, that people can end up with less rights rather than more rights at least in some of the sections because of the wording.
Ms. Hill: Mr. Chairman, my response to that would be, through to Mr. Hawkes, that we are concerned in a number of instances about the drafting. In our nonlegal minds there are a number of questions which would occur to the layman, which we certainly are presenting ourselves as. We cannot say with a tremendous degree of certainty that social rights will be taken away but we can strongly express that concern, particularly in regard to the mobility section, for example.
Mr. Hawkes: Just to perhaps make you feel a little better, when you say that you are saying about exactly the same thing as the Minister of Justice said to us in his 13 hours of testimony: I do not know, was the rather consistent response to detailed questions about the impacts on people, on social rights. He said it would have to be decided by the courts and I made the comment that that is my definition of bad legislation, that as legislators we have a responsibility to be quite sure in our own mind what those impacts are likely to be before we put them into law, and especially preeminent law in the country.
So you are on the same ground as the Minister of Justice and his officials who are supposedly the experts that we are going to be restricted to hearing. We are pushing for other experts and I hope you join us in that push.
I guess the last threat that I detect as a threat throughout your brief is that you see in that wording a potential threat to social programs, not just social rights but to existing social
programs in this country and the potential for better social programs. is that a correct conclusion to draw?
Ms. Dumouchel: Yes, it is a correct conclusion because of the programs that are in existence and also the fact with the mobility being restricted could endanger some programs that are already financed or already under the responsibility of the federal government, and especially on the cost sharing.
Mr. Hawkes: In a general way you support the aboriginal groups which have been appearing before us in the last two or three days that the wording of this proposal may in fact threaten their social programs, their rights, and needs to be strengthened, that is one part of your brief which I do not think you mentioned in your summary but I am correct in drawing that conclusion.
Can we look at page 14 as an example of this, but this is where you deal with the section in the constitution called Section 6, which is the mobility rights, and we have been assured by ministers in the House of Commons and by lots of speeches by members on the opposite side, that the Government of Canada is intent on doing a wonderful thing in this new constitution of ensuring mobility rights for Canadians. Now, your brief, and it takes you almost two or three pages to point out to us that in your judgment what we would be doing by putting this wording in the constitution of Canada is two very important things: we would be opening the door in a legal sense to considerably more restriction of mobility than is currently the case today. That is the first point you make and I think you make it eloquently. Am I correct?
Ms. Dumouchel: Yes, we are questioning the restriction on mobility quite definitely. And the creation of a series of sovereign states which would give more power for the final authority to the provinces and reduce the quality and strength of Canada.
Mr. Hawkes: In other words, what this section would do would give the constitutional approval to provincial governments to be more restrictive in terms of allowing people to come into their provinces?
Ms. Dumouchel: Yes, definitely.
Mr. Hawkes: That is your interpretation. The other little back door principle which is found in Section 6(3)(b) is giving the power to governments to restrict access to publicly funded social services, that is what you say to us, and if I run that against the context which you did not deal with in your oral remarks but which is in here, the fact that in Canada today there is a great deal of concern about the financial capability of governments at different levels, and in the budget of October 28, the Finance Minister warned us that savings in the future are going to come out of his social policy envelope. What we would be doing here in the constitution of Canada is providing legal justification for the Finance Minister of this country to cut back dramatically on social expenditures, that possibility would exist if Section 6(3)(b) was left in this proposal. Is that your judgment?
Mr. Pennington: Yes, that is our judgement and it is so closely interconnected with the recent events which you have identified that part of our dilemma and our concern about
providing people who are affected by services, and particularly people in need, is to give them the opportunity of what that is going to mean because we feel that you will in fact hear from a great deal more individuals and organizations as they begin to comprehend the implications of potential changes in financing arrangements, for example, between the senior level of government and the provincial level of government, or any of the individual concerns which have come out in our presentation. So that it is so closely interconnected that the opportunity to provide more people with that chance to understand that, to discuss it and to communicate with you we think is critical.
Mr. Hawkes: So if we keep the people in the dark then we can sneak up on them and change the world and they will never know until it is too late, that is part of what I believe we have been fighting on this side of the House.
There is a curious absence in your brief when you are dealing with the mobility rights section that relates to testimony that we have heard in the last two or three days with some strength, which I have heard as Vice-Chairman of the special task force on employment in the 19805, but as we travelled the country, and this Committee is not allowed to travel, but as you travel into placed like Bathurst, Moncton and the Northern parts of Manitoba, Saskatchewan, Alberta, the Yukon and Northwest Territories, there is a great deal of concern by the people who live in those regions, and I think by the parliamentarians who represent those regions, that we not have a mobility right in this country that does not protect the rights of people who live in regions with high unemployment and lack of opportunity, that does not protect them against invasion, large numbers of people flooding into them, and that does not also give them some right of preferential training and preferential hiring; because of the areas they live in, they do not have the same access quite often to education, to job experience opportunity and they want to be absolutely certain that affirmative action as regards them, on the basis of residency, would be somehow protected in this constitution and at the same time they want protection against invasion.
Did you just leave that out through oversight or did you feel perhaps Section 15 or some other section, if reworked, would get to that? Do you support that principle, do you support those people in their petition to this Comittee?
Ms. Hill: Mr. Chairman, my response to that question must be a personal one and does not necessarily reflect the views of the Board of Governors of CCSO. My view of that would be that were we to examine that particular question, Mr. Hawkes, in any depth, that we would want to look at the necessary balancing that must take place in the process of making the constitution between the good of the country overall, in balance with the good and the rights of individuals in certain locations, so I think that were we to consider it, those kinds of balances would have to be taken into account.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. I might put your name down on the list for a second round.
Mr. Blaikie, please.
Mr. Blaikie: Mr. Chairman, I would like to begin my questions by first complimenting the Canadian Council on Social Development for what has already been noted as an
excellent brief but I would like to say just a word about why it is an excellent brief and that is because it reflects a concern for social justice as well as individual freedom, and I think by doing so goes at in a focused way the conceptual limitations of the constitutional proposals which the Committee is considering. It does that by bringing in the whole question of social rights and distinguishing between the concept of having a constitution which merely outlines the limitations of the state, and a constitution which would outlined the responsibilities of the state to its citizens, particularly with regard to social and economic needs, and of course the Committee has heard representations from other groups who are concerned about collective rights as opposed to social rights, so indeed a full and adequate constitution would deal not just with individual rights but with social rights as the Council has outlined this morning, and also collective rights. I notice in your brief that you support the call for the entrenchment of native and aboriginal rights which I would regard as a form of collective rights, rights which could be ascribed to certain groups, and perhaps at some point you will have an opportunity to elaborate on how the collective right of the native people to their aboriginal rights is important to the social quality of their life.
My first question, Mr. Chairman, has to do with the Council’s remark on public participation and the need for more public participation, not just for the sake of legitimacy or legitimizing the constitution but because the public participation is of some intrinsic value. I would like to ask you what your view is of the referendum proposal within the constitution and whether you see the referendum clauses as they now exist as an adequate expression of the need for public participation in any further constitutional amendments?
Mr. Pennington: Mr. Chairman, quite frankly that is an issue which we did not have the time to review and reach a policy position as an organization. I think if we were provided with the opportunity which, Mr. Chairman, you identified here at the beginning of the question period, it might be possible for us to share our thoughts and our policy directions in the steering committee, if that opportunity is provided for us at a later date before the end of your process.
Mr. Blaikie: Could you say more to the Committee about the concerns that you have about Section 31 and the provision for the entrenchment of equalization? I note that you are concerned that there be maintained as many options as possible with regard to federal-provincial co-operation and initiatives in social programming and I was wondering if you would agree that the equalization proposal as it now stands is too general and does not give enough indication about just what the responsibilities, for instance, of the federal government might be with regard to the maintenance of national social standards, so to speak.
One of your concerns in the social rights area, for instance, is the right to health care without being compromised by economic circumstances, and of course there has been a lot of concern lately about the federal-provincial jurisdictional disputes over health care, and without asking you to go into jurisdictional areas, which you said in the beginning you tried not to address, could you elaborate on your anxiety about the
equalization formula and just some of the more pessimistic scenarios you had in mind when you indicated this concern?
The Joint Chairman (Mr. Joyal): Madam Dumouchel.
Miss Dumouchel: in this section there are very many nondefined terms such as commitment, measures, essential services, reasonable quality. I think the provincial jurisdiction over social programs is clear, and health programs also. Federal involvement in paying for these services is not necessarily as evident and the federal contribution has played a major role in the development and implementation of a wide range of social programs. They have to continue and be more equalized as far as quality, but reasonable quality is what, at what level? is it the very barest minimum or is it an optimum quantity? These are the very unclear areas in that section that we would prefer to see, as an organization that promotes social and health policy, to have more clearly defined and not to only rely on the interpretation of the various governments that will succeed in history.
Mr. Blaikie: We intend, when the Committee comes to the point of making amendments to the constitutional proposals, to move an amendment in the area of equalization which would tighten that particular proposal and make sure that it includes the notion of equalization payments to provincial governments, I hope that would meet with your approval.
Do you have any comment to make on that particular suggested improvement to the equalization proposal?
Ms. Hill: Our concern here arises largely because of the lack of clarity in the wording. To legal minds, it might be clearer than it is to ours. But our concern is that none of the current options for federal or provincial as well as concurrent involvement in social programs be precluded by the wording of Section 31.
I am sorry that we were not able to put more flesh to the skeleton of our concern. But all we are asking basically is that no changes to planning, funding, or delivery in social programs be the intended or unintended consequences of Section 31.
Mr. Blaikie: Going back, if I may, to your concern about public participation, can you elaborate on what kind of process would you envisage in the coming months which would live up to your notion as to how we ought to go about with nation building and renewing federalism and the constitution of Canada? What do you have in mind by suggesting more participation? Do you regard, for instance, the February 6 deadline as being adequate?
Mr. Pennington: When each of us looks at our respective community in terms of the enormous network of citizen organizations of various kinds, the enormous number of volunteers which support the communities in which we live, including many of our own activities, I think it is not difficult to understand (a) the complexity of that network, and (b) the importance of their understanding and communicating the issues which they feel most strongly about.
I think the opportunity for them to make a contribution in their own community to public discussion is one which we should try to foster or find ways and means of implementing.
The network of organizations for which the Canadian Council on Social Development serves as its social policy leader, if you will, based in Ottawa, include social planning organizations, family agencies, childens agencies, among others—most of those organizations which provide services to people in need.
But you, yourselves, have heard from a wide variety of other national organizations, each of which could very well assist in providing fora for people to make their views known and to communicate with you either directly or indirectly; as well, of course, there are individual fora which should be provided for the citizen at large and that individual who might not have an organizational connection, in order to feel that they belong and are able to participate in the process.
Mr. Blaikie: I would just like to add to the suggestion made by Mr. Hawkes, that, perhaps, at some point this particular group would have an opportunity to come back before the Committee; because, by introducing the notion of social rights, they have brought forward an important concept that this Committee should hear about and on which they should do some serious thinking.
I certainly hope that there will be that opportunity afforded. I would like to thank them for bringing this important conceptual view forward as something new for the Committee to ponder.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Blaikie.
I would like to call now on the honourable Senator Connolly, followed by the honourable David Crombie.
Senator Connolly: Thank you, Mr. Chairman.
First of all, I would like to thank you for a most interesting presentation as well as a most perceptive participation in the questions which have been asked of you.
Now, I understood Ms. Hill to say that the difference between individual rights, as they are set out in the proposed Charter, and the social rights is this: that the individual rights are spelled out for the purpose of keeping government generally off the backs of people.
Is that a fair assessment of what you have said?
Ms. Hill: Generally speaking, yes.
Senator Connolly: The social rights to which you refer and for the promotion of which your Council is dedicated, are rights which are primarily intended to assist the individual, as an individual and as a citizen, within the state.
Again, I would suggest that is a fair assessment of your point of view. If I am right, of course, these social rights, you will agree, are evolving rights, that is to say, rights which were conferred by legislation; and in more recent years, they are probably more widespread—if the opposition does not object to the word—more liberal than they were, say, 50 or 75 years ago; because the needs are different now.
Now, I am not leading you into a trap, but merely attempting to summarize some of your views.
Ms. Hill: If I may say so, Mr. Chairman, I am not at all sure, Senator Connolly, that the needs have changed. What is
different, though, between the concept of individual rights and that of social rights, is who you believe has a responsibility to help look and solve the problem.
In the past, that is, 50 or 100 years ago, there was a strong philosophical belief that the individual was responsible for his own fate. Consequently, if a person could not make it in life, it was considered to be his own fault and his own tough luck.
Senator Connolly: That was a laissez-faire philosophy.
Ms. Hill: Very much so.
Over the past number of years, there has been a change, not only in the recognition of the problem, but in the concept in that we now realize that, more and more, the difficulties that individuals face are not of their own making and require collective action.
Senator Connolly: In other words, they are new problems created by society, and society as a whole, probably represented by government must take some action to alleviate these conditions. Is that what you are saying?
Ms. Hill: That is right.
Senator Connolly: There are some people, who of course, would say that is socialism; but actually, what you are saying is that you may call it what you will, but that there is a responsibility on the part of the community to assist the disentitled, those who are not able to help themselves, to help themselves over difficulties in situations which are created as society evolves.
But what I am concerned about is this. You seem to want to have some kind of entrenchment of social rights in a charter.
I am wondering whether the general philosophy which should actuate all governments—and I think it does—is to legislate for the welfare of the people; and since these social requirements are evolving continually, would you not be better relying upon the general responsibility of government for the establishment and implementation of new programs to meet emerging conditions?
Ms. Hill: Well, if I understand your question, Senator Connolly, because social rights change relatively rapidly, should we not put anything in the constitution and do it from time to time through law?
Senator Connolly: It is to be understood that this is one of the unwritten responsibilities of government.
Ms. Hill: I think there are two points. One is that, in our view, the constitution is much more than a set of laws; much more than the supreme law of the land. It also sets out, in our view, the relationships between the state and the people.
Therefore, taking that view, it is important not only to spell out government’s rights but also their responsibilities.
The second part of my response would be that we do recognize, of course, that social needs and the conception as to how they should be dealt with changes from time to time as situations and professional expertise and financing are available.
It is important to talk about the difference between social rights and civil rights, because social rights are not really legal principles, but are more plans of actions and statements of goals, hopes, and aspirations.
Senator Connolly: There are programs to meet these.
Ms. Hill: The programs arise from these goals and aspirations: that the society as a whole might agree upon.
We recognize, of course, that social goals may indeed never be totally obtainable. We will never, for example, totally eliminate discrimination or poverty.
However, that is not to stop us from trying, and we certainly hope it will not stop honourable members of this Committee from including phrases which would recognize the responsibility of government to its citizens in the inclusion of social rights.
Senator Connolly: You would not agree, then, with the general theory that governments have, really, to legislate for the peace, order and welfare of people, that without saying so would put the onus on government to meet these emerging social conditions which you want to see corrected?
Ms. Hill: I am not, of course, totally familiar with every word in the proposed resolution, or in the British North America Act.
My recollection of the phrase is “peace, order, and good government”, and not “peace, order and welfare of the people”.
Senator Connolly: Yes, but I am talking now about a general principle, I am not talking about the restrictive wording.
One other thing I would like to ask you is this. You talk about the inadequate time for discussion of this proposition.
I wonder whether you will not agree that the proposition is basically the question of certain phases of the Canadian constitution. Would you think that of late years we have had so many opportunities, all of our people—I cite two or three examples; we had the Joint Committee on the Constitution back in the early 1970s and Mr. MacGuigan and Mr. Molgat who were Joint Chairmen; and they travelled all over the country discussing the constitution with people who wanted to come before them. You had the Royal Commission of recent vinteage, called the Pepin-Robarts Commission, and there were opportunities there to discuss constitutional problems, and perhaps you even appeared before that group. Two years ago there was a bill in Parliament called Bill C-60 which I did not like, and I suppose very few people liked, but there was an opportunity there.
Have we not been talking about constitutional matters almost ad nauseam for the past 10 years?
Miss Dumouchel: As a person involved in a national organization which has the instruments to be able to react to the resolution, I might say yes.
However, as a private citizen who does not have all the format of research assistants, legal advice and all the rest of it, I might say no.
I think what this CCSD is saying to this committee today is that you should give the organizations time to react; also the people are beginning to understand what it is really all about.
It is true that for, 10 years, maybe, politicians have been discussing the matter.
Senator Connolly: Not only politicians.
Miss Dumouchel: Or politicians and people. It is true. There is a reaction. But I believe—and I think CCSD says—you should try and get as much data as possible. We are attaching some caution. We are prepared to come and try out new formats, to see how we interpret them; people are ready to participate. You are getting the best involvement of the population you have ever had. We are merely saying you should be careful.
Senator Connolly: Your organization, certainly by your appearance, has contributed to that, and for that we thank you.
The Joint Chairman: Thank you very much Senator Connolly. The honourable David Crombie.
Mr. Crombie: Thank you, Mr. Chairman.
I would like to join with other members of this Committee in congratulating the Council on an outstanding brief. I would like to join with them in the hope that they will come back and deal with some of the concepts they have dealt with in their brief.
I think, Mr. Chairman, and members of the Council, that probably the most devastating thing I saw in your brief concerns Section 31. I wonder if I could direct your attention to your comments on Section 31 and in particular page 21—actually it is page 20. You make the declaration that you, the council, are unclear about the impact of the constitutional resolution on social programs. That gives me, and should give all Canadians, cause for great concern.
I wonder, so we could have Committee members clear on what we are talking about when we talk about social programs, could you first just give us some examples of the kinds of social programs that you are concerned about that would be in jeopardy with the application of this constitutional resolution.
The Joint Chairman (Mr. Joyal): Miss Hill.
Ms. Hill: Yes, thank you. Mr. Chairman, our concern here is primarily regarding programs where jurisdiction is unclear because we take at face value the wording of the resolution where it says something in the order that there will be no changes in current jurisdiction. So, we are assuming from that that the responsibilities under Section 91 and Section 92 will stay the same. However, there are a number of social programs where jurisdiction is not clear and it is those programs that we wonder what the impact of Section 31 will be. For example, employment related services such as manpower training and job creation programs, where, to our understanding, the primary jurisdiction constitutionally is in provincial hands, yet, we all know that the federal government has been very involved in job creation programs such as LIP, LEAP, OFY and a number of other programs of that type.
I must add that we are not criticizing either levels of government for their activities, we are just wondering what is going to happen. It is that kind of thing that we are concerned about.
Mr. Crombie: Probably the two most extensive social programs we have in this country, are the Canada Assistance Plan and Medicare. In the Canada Assistance Plan which, as you know, is the basis for welfare assistance, the basis for vocational training, the basis for rehabilitation for disadvantaged people, all of those programs which we take for granted amount to about $1.8 billion a year of participation by the federal government and I think if I added Medicare that would be another $2.2 billion for a grand total of about $4 billion, which the federal government participates in in those two massive social programs.
Are those programs in the same jeopardy in your view?
Ms. Hill: I think, Mr. Chairman, that that would certainly be a question that I would propose. My understanding is that the jurisdiction for the Canada Assistance Plan is a little clearer than that of job creation, but not much. I would certainly share your concern, Mr. Crombie, about the impact of this section on the Canada Assistance Plan, for example.
Mr. Crombie: Could I go further, on page 21, in dealing with this same matter, Mr. Chairman, and members of the Committee.
You were good enough to put the quote from the budget of the Minister of Finance and I would like to read that and remind you of it, the Minister of Finance being quoted on page 33 of his budget:
The government intends to achieve net savings in the social policy envelope to help finance initiatives in other envelopes . . . Savings are expected to include reductions in federal transfers to provinces to areas coming under provincial jurisdiction.
The Canada Assistance Plan is a plan which assists the poorest provinces and the poorest Canadians. I take it that you use page 33 of the Minister of Finance’s statement to register you concern that the current review now on-going by the Department of Finance, give further credibility to your own fears that the government, the federal government is bailing out or intends to bail out of financial commitments in CAP and in Medicare. is that your concern?
Mr. Pennington: Mr. Chairman, the Canadian Council went on the record a few weeks ago in a number of ways to point out our concern, our fear that the little known review of social service funding programs that is taking place within the federal civil service is in fact the smoking gun of the future of the future of social programs in Canada. We do not know what is going on. We have made public statements, other community organizations have done the same and it is so closely intertwined with the current process here and the concern and knowledge or lack thereof of provinces of the voluntary sector of which we are one of the major representatives, that I think that your identification of this issue, in a quite nonpartisan way on our part, but rather on behalf of people who do receive services across this great country of ours is a major concern and will continue to be until it is made clear what the objectives of that internal relatively private process are going to be.
Mr. Crombie: One final question, Mr. Chairman. I take it then your view is that the smoking gun of the review going on with the Minister of Finance and the wording of Section 31 now register a concern that the history of the federal government’s participation for poorer provinces and poorer Canadians is such that you need some assurance. Indeed, on page 21, you indicate that what you are looking for is a reassurance from the government and from the Committee, this Committee, that Section 31 will have no impact on current jurisdiction, et letera.
I wonder if you really were looking for an assurance that the federal government will not diminish its funding commitment to the Canada Assistance Plan and-to Medicare and to all other social programs for which they have had a long history of involvement. That is really what you are looking for, is it not?
Mr. Pennington: In a sense we would confirm that, but we would confirm it with the awareness of our essential lack of knowledge about what is going on. We would have a great deal more confidence in the process of the review of social service funding by the present federal government if the community at large, which we consider ourselves part of, and leaders within, had more information about what is going on.
In addition to those items which you have drawn attention to, Mr. Crombie, on page 20, I think we would also reiterate the points on pages 15 and 16 about mobility rights and the importance of those being taken into account and being protected.
Mr. Crombie: Thank you very much, Mr. Chairman. Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie.
The honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I appreciate it and I will only take a few minutes. I would like to say welcome to our guests. I have to say that if I were watching the program, watching this from the vantage point of a television audience, I would be left with the mistaken impression that you agree with some of the phraseology of Mr. Hawkes when he uses such words as “ram through the committee”, “ram the bill through the House”. Is that a fair conclusion, and “supposed experts”, referring to the Minister.
Do you share this type of feeling? Because Mr. Hawkes would make these statements and ask you a very simple question which could leave, I am sure, the unintentional impression with the audience that you share those views.
Mr. Pennington: Mr. Chairman and Mr. Mackasey, I think that I have tried and we have tried to reiterate on more than one occasion that the Canadian Council on Social Development is a nonpartisan organization. It does become a bit difficult to separate perhaps the motivation or the direction of a series of questions and the response which an organization of our might give. I think our concern is to establish and confirm from ours point of view a set of principles and a set of concerns such accessibility to services, such as the accessibility of information to people who may require help, such as the accessibility and the quality of service and opportunity. Those kinds of principles are at the basis of what we are trying to communicate through our material and we hope that we are able to do that and that in fact we would not be necessarily identified with the particular phraseology or words that a person might have asked in the presentation of a question.
Mr. Mackasey: And that includes my own because I respect the witnesses and I have felt your dilemma and I think the embarrassment for the moment and I have to constantly remind the Committee and the audience that you do not necessarily share these views.
I would like to get down to Manpower because I was at one time Minister of Manpower. I must say that one of the dilemmas in this country is Manpower, is it an extension of education as the provinces claim or is it a legitimate concern of the federal government in relation to perhaps one day evolving industrial strategy. If you had to come down on one side or the other, what would you prefer?
Ms. Hill: Without appearing too awful. Mr. Chairman, I would have to say that my Board would be pleased to take that consideration with adequate background information and come up with a policy decision. To my knowledge, they have not done that yet.
Mr. Mackasey: I do not say this facetiously, but such a recommendation would be very useful because I think what we are trying to do with this constitution is prepare the groundwork for future meetings between the federal government and the provinces with the framework clearly understood by the people and wanted by the people, that we now have a constitution home, more importantly, we have an amending formula and we have public opinion that says, “Improve from here on in”. I do not think and you can fault us for this that we can come up with the perfect document at this round. We just think that at least if we can come up with a basic one then public opinion and the voices of responsible, respectable groups such as your own would insist that we then get on over the next few years with framing the type of constitution which obviously is needed, and I thank you very much.
Le coprésident (M. Joyal): Merci, monsieur Mackasey. I think, Senator Lucier, I know you have a point of order but I will first thank our witnesses and then I will come back to you.
I see that we have overspent the time that we agreed that we would discuss this morning the brief and the questions that honourable members would like to put to our witnesses. I would like personally and on behalf of all the honourable members of this Committee to thank you for your presentation and your answers this morning. I want to reassure you that we are well conscious and I think that all honourable members of this Committee are well conscious that you represent the silent majority, you represent the Canadian citizens that are not organized.
We have heard around 30 groups at this point and we know that those groups are well organized, that they have annual meetings, that they have Boards of Directors, that they have sometimes a secretariat with budgets that operate to the benefit of their members.
But your membership is much more diffused among the Canadian public and we know that the views that you put forward this morning are the views of those people and I want to reassure you that you leave this room this morning with the firm conviction that we know you speak on behalf of those people.
Thank you very much.
Mr. Pennington: Thank you, Mr. Chairman.
Senator Lucier: Mr. Chairman?
The Joint Chairman (Mr. Joyal): Senator Lucier, on a point of order.
Senator Lucier: I have a question of privilege, Mr. Chairman. On page 14:40 of our Proceedings dated November 27, a question asked by Mr. Fulton and answered by Mr. Pearson are on the wrong page. They should be on the previous page. On the same page also, Mr. Chairman, I was accused of dishonesty by Mr. Nielsen and the statement was attributed to Mr. Munro of Esquimalt-Saanich. Mr. Munro is an honourable man and should have this removed from his name. He
would not make that statement and I do not think it should be attributed to him.
The Joint Chairman (Mr. Joyal): Thank you. I will make sure that the proper correction be brought into the proceedings of our meeting that day.
The meeting is adjourned until 3:30 p.m. this afternoon when we will have the opportunity to hear the Premier of New Brunswick.
The meeting is adjourned until 3:30 p.m. this afternoon when we will have the opportunity to hear the Premier of New Brunswick.
SEANCE DE L’APRES-MIDI
The Joint Chairman (Mr. Joyal): Order, please.
I would ask that those from the media with video and audio recording equipment please leave the room so that we may resume our work.
It is my honour and privilege this afternoon to welcome, on behalf of the honourable members of this Committee, Premier Richard Hatfield. We are pleased to have Premier Hatfield with us this afternoon to continue the discussion that we started a month ago.
We have had the opportunity of hearing your colleague from Prince Edward Island, the honourable Angus MacLean, and the Premier of Nova Scotia, the honourable Judd Buchanan, and we are pleased to have you with us today. I understand that you have an opening Statement and that you would then welcome questions from the honourable members of this Committee.
Hon. Richard Hatfield (Premier of New Brunswick): Merci, monsieur le president. Senators, honourable members. I first of all thank you for granting me the opportunity to make representations on behalf of the government of New Brunswick with regard to this important matter of our nationhood.
I have circulated a statement and I will not be reading that. I have also circulated a number of specific recommendations with regard to amendments which the government of New Brunswick would like incorporated in the resolution as it is passed in Parliament and as it is passed in the Parliament of Great Britain.
I believe at the outset that I should make it very clear that my first priority, the priority of the Government of New Brunswick, first and foremost, is that our constitution be patriated, that we have and take this final step in affirming the sovereignty of this country and that we do it now.
I think that it has been my privilege, an honour which has been granted me by the people of New Brunswick, to represent as Premier the province of New Brunswick for over 10 years. During that time I believed and held fast to the view that the
First Ministers of this country, and I have served with over 20 of them, that the First Ministers of this country could in fact reach a consensus and make a unanimous recommendation to the Parliament of Canada and to the Parliament of Great Britain with regard to patration of our constitution. However, after 10 years and after a supreme effort, particularly a supreme effort made this summer, an effort that I participated in all summer long as a member of the continuing committee on constitution reform, and having sensed during that period of the summer, and during those meetings that where held, having sensed the emergence of a consensus with regard to the way this country should be governed, I have now come to the conclusion that it is not possible to ever see a time when the First Ministers of Canada will in fact agree unanimously on a method of both patriating our constitution and amending it.
I, as I said, believed in the convention of the requirement of a consensus. I have, as you can tell, lost confidence in that convention. It is a desirable, an ideal convention but it is one that has not worked and it is my view it will not work. I would say to those who still hold out that there is an opportunity for consensus among the First Ministers and thus among the legislatures and the Parliament of Canada, and from them to the legislatures of the Parliament of Canada, that if they do in fact believe that, then this resolution that is before Parliament gives them the opportunity to meet the challenge because it does provide a period of two years before we finally have an amending formula, which is the ultimate step in the nationhood and sovereignty of this country, an agreed upon or an amending formula in our constitution, not proposals for amending the formula as is contained in the resolution. Then I say to those people who still believe in the convention of consensus that they have an opportunity to prove it in the next two years. I believe that two years is long enough, I believe it is a reasonable length of time, and if I continue to enjoy the confidence of the people of New Brunswick I certainly will contribute as positively as I can and as aggressively as I can to finding a consensus, as I think I have in the past 10 years.
I do want to say that I think there are a number of views and criticisims of the resolution. It is, again, idealistic, I believe, to assume that any body could right a matter of this kind that would have the unanimous support of everyone for every word in it, but I do say that there is a matter with regard to this resolution that causes me some concern, and that is the question of whether or not it does in fact advance and provide equity within our country. In my view, Mr. Chairman, it does not provide that, it fails in equity and it fails in one particular respect and that is with respect to language.
This country came about in 1867, in my view, and I have operated on that assumption, came about with the understanding that two languages could be respected and would be honoured in our country, and would be used in our country. Not necessarily that we would each use two languages but that we as Canadians would have the right to use one language or the other, we would have the right to use the English language or the French language, and I think that that must be maintained. I think that when our country has been faced with
difficulties it has been beause we have disturbed either the balance of the rights of the English speaking or French speaking people in Canada, or we have disturbed the balance between the federal government and the governments of the provinces.
I think that, as I look at this resolution, I cannot see that it has in any way subtracted from what I think is one of the great virtues and joys of our country, and that is the way that, at the beginning of our country in 1867 the founders of our country trusted the concept of provinces with real power to deal with the matters closest to the people, and the federal government trusted with real power to deal with matters that are close to the nation as a whole. I think that this resolution continues to respect and protect that, and I therefore feel that this is another reason why I can support it.
The second point, however, is that while it does not subtract from the rights that are presently enjoyed by the French speaking or English speaking people in Canada, what I think is very sad is that it does not enhance it, and I hope that one of my recommendations today will be accepted by this Commit tee and will be accepted by Parliament and it will in a small way advance the rights of the French speaking and English speaking people, whichever language they choose to use, and the protection of that language in our constitution.
I am concerned that if you do not recognize, however, that the resolution does impose a language requirement on one province, that is to say the province of Quebec, but it stops short of imposing any language requirement on any other province. I trust that in view of the fact that the government of New Brunswick, and without any doubt I am sure the legislature of New Brunswick, that you will acknowledge and accept our request that the elements of the Official Languages Act of New Brunswick be entrenched now, before the resolution goes to Great Britain, so that they will be there when the constitution comes back to Canada.
I hope that you will, however, recognize that the resolution is inadequate when it comes to providing for equity as far as the French speaking people are concerned outside the Provinces of Quebec and New Brunswick, I hope that you will find the way to either protect the rights of the largest number of French speaking people outside of Quebec and New Brunswick, that is to say the Canadians living in the Province of Ontario, that you will find a way to protect their language rights and that they will be operative and applicable within that province, because if you do not then you are perpetuating an inequity and I can tell you a nation cannot sustain very long an inequity of this kind, and I would hope that you would not want to be party to the perpetuation or the enshrinement of such an inequity.
I believe that if you cannot find a way and if you cannot get an assurance that the French speaking people will be protected in the Province of Ontario, then I think you have to consider very seriously removing the imposition on the Province of Quebec with regard to English language instruction for Canadians in the Province of Quebec and go back to the original, again the original convention which is that the province has the right to determine how language is to be given or
provided as far as education is concerned, which is a provincial responsibility.
I hope that this can be done in order that we can continue to see happen in this country what I believe has happened in the Province of New Brunswick whereby we have come to terms with this phenomena of our country, come to terms with this resolution, I think, of the founders of this country but certainly the resolution of the people of New Brunswick, which is that it is possible and it is to the betterment and the advancement of the people to acknowledge and to enjoy the benefits of two languages and all that comes from that. That has been our experience in New Brunswick, we do not have the ideal and we are still making improvements and we will continue to make improvements, and if you grant our wish here today or in the resolution we will be forced by the constitution to make improvements.
I hope that you will see the wisdom of what has been happening in New Brunswick and accept the fact that that is in the best interests of Canada and that we must move that forward in that province which has the largest numbers, as I said, of French speaking Canadians outside the Provinces of Quebec and New Brunswick.
There will be a number of other areas that I would like you to give attention to. One is the wording of the resolution with regard to equalization. I think it is very important that this be made clear, that these payments are made to provincial governments and that these payments are unconditional and that these payments are to advance the right of Canadian citizenship, which is that we have a right to a certain standard of service, and acceptable standard of service regardless of where we live in this country and regardless of the capacity of the provincial government to provide that standard of service. That as Canadians we have the right to enjoy the benefits of the assets of this whole country.
I am happy to hear that there has been an undertaking given that as far as the Victoria formula is concerned you will make the change removing the 50 per cent of the population requirement as it applies to the four Atlantic provinces. I did think that that, as I think has now become generally realized, that did diminish the status of the Province of Prince Edward Island and I think that would have been regrettable because I think the fact that this country and the people of the country can in fact accept the fact that a province with a population such as Prince Edward Island has as much right in federal-provincial relations as does a province as large as Ontario is one that enhances our country and I would not like to see that diminished in any way, shape or form.
I have made recommendations with regard to the Charter of Rights and I hope that those will be considered and I respectfully submit that many of the recommendations for improving the Charter of Rights should be accepted as well.
I would like to add to the list that restricts Parliament for restricting rights that I have proposed. I would like to add to that list the physically handicapped as well because I do think that they have a special problem and that the constitution should see to it that they are not discriminated against because of a handicap.
I have commented on the question of Indian rights I think that the Indian treaties must be respected and they should be respected in the constitution as it comes from Great Britain back to this country. I think that I would like to simply say that in view of some of the statements that have been made in the last few days, that I do support the view that the federal government must continue to be responsible for the Indians in our country as they have been in the past, and secondly, and because of taking that position, I cannot support any claim made by any group of Indians that they be given the right to self-government in the sense that they would be an independent government within Canada.
I would like to close by saying to you, and taking this opportunity, as I have used almost every opportunity that has been made available to me to discuss the question of our constitution and the question of the political process that is desirable for this country, that I am unalterably opposed to the concept of referenda. I would like to see any reference to referenda removed from our constitution. I would regret very much if it stays there permanently. I understand that an assurance has been given that the use of this political device will be extremely limited, I suggest and believe very strongly that this political device is extremely dangerous and damaging to Canada. It is the denial of democracy which I define to be a government that is responsible to people and accountable to people.
The referendum lacks the elements of accountability and responsibility. No one knows who is responsible for the outcome and certainly no one is accountable, either individually or collectively, for the outcome. I think that, clearly, the referendum, rather than being a democratic political device, is clearly a device that is based on the concept that might is right, and I believe that a country such as Canada which has many, many divisions, many, many elements to it, a country which honours and champions its diversity, cannot tolerate a political device such as the referendum which imposes on this country that you take one side and only one side, and that discourages compromise, that discourages working things out in a reasonable way. It makes people take a side and the inevitable result is that many people, and often as has happened in the past, an identifiable group of people are held responsible for the outcome and are embittered or despised, whatever, as a result of the way that a particular group of people or division of people or a particular province might vote in a referendum. Therefore, I think it is a bad political concept. It might be workable in some countries, it is not workable or recommended here.
I take the view that I should—and I will—do my utmost to try and convince the people of Canada that they should reject the referenda and any government that proposes it.
If I cannot, in the next two years, convince Canadians that they should not embrace this dangerous concept, then I have to accept the point of view that Canadians do in fact want it. If they want it, they will have it.
But I would hope that all of us who believe that it is a wrong concept will continue to put forward our views and hopefully in two years’ time we can convince the majority of the
representatives of the people that the concept of referenda should not be part of our constitutional process and constitution.
In closing, I would like, again, to urge that you give serious consideration to the reality of the experience, not since 1927 as I have heard many people say, but give attention to the reality of the efforts which have been made in the last 10 years or since 1967.
I believe it was in 1967 that a real effort was started to bring about the patriation of our constitution. I have been involved in that process.
I can say, as I am obligated to say, that the Premiers of Canada were offered every conceivable compromise; they were offered every conceivable opportunity to bring about a consensus and a patriation which would have their support, and time after time those offers were in fact rejected.
So often I have been told, as one who championed the priority of the patriation of our constitution as being the first priority in our country, that it was not important, that it was not necessary, that we should not be wasting our time doing it, etcetera, etcetera.
I think it clearly became the responsibility of the national government to accept its responsibility and to act, having made such an attempt.
At the outset, as the evidence will show, I have supported all of the attempts to bring about the patriation of the constitution, and there has not been a consensus.
Now, we are faced with, I believe, the kind of political decision which was necessary and is in the best interests of this country—a decision which does set us on the road to taking this final step of affirming the full sovereignty of our country.
I want to say, in closing, that I have been honoured and I am grateful to the people of New Brunswick for allowing me the opportunity to have participated in that process for all of these years.
I am happy to see and to know, as I am confident, that we are going to proceed and this is going to come about; I believe more and more people in this country are recognizing it, because this step of patriating our constitution does have the support of the people of Canada. It is the wish of the people of Canada. I want to see it come about.
I want to take full advantage, and I hope to have the opportunity of taking full advantage, in the next two years to make as many improvements as can be made. I think that is a reasonable length of time and we can get on with the matter now, and, having got our constitution patriated, we should get on with the task, as political leaders of this country, of bringing about an improved constitution—a constitution which will, in fact, be worthy of the people of this country.
The Joint Chairman (Mr. Joyal): Thank you very much. Mr. Hatfield.
I shall now have the honourable Duff Roblin to open the discussion with our guests this afternoon.
Senator Roblin: Thank you, Mr. Joint Chairman.
I am happy, as the first person who has the privilege of questioning our witness this afternoon. I am able to offer him a warm welcome to our discussions, because he not only represents a province which was one of the original provinces in our Confederation, but he has for many years been a notable and articulate spokesman for the views of his government and of his province.
I think his contribution today will, indeed, be important to us.
I was glad to hear of his ringing affirmation of the project of patriation; because I think that does represent the general opinion in this chamber, and I would be very much surprised if it were not widely supported in the country.
It is after we come to patriation and proceed then to an amending formula, that we perhaps get into areas where we do not have that same measure of agreement.
I would like to ask the witness if he would give us his view of the balance that he thinks exists or ought to exist between the two levels of government in our federation.
We know that our constitution never has been a fixed body of received dogma, and has been constantly changing as our nation has developed. It is much different now, I would like to suggest, than what it was in 1867.
We have had a number of important studies made of the balance between the provinces and the federal government recently. We have had the Pepin-Robarts Report, and we have also had the Beige Paper Report by the Liberal party in the Province of Quebec, and we have had the 1978 White Paper of the federal government itself.
There is one theme which has emerged as a critical principle, I would like to suggest; namely, the principle of nonsubordination between the provincial and federal governments. That term has to be restricted to ordinary circumstances in times of peace, and I would suggest; that it is the principle of non-subordination.
I rather gather that you were willing to lend some support to that doctrine, because in the written statement that you have prepared for us—I quote a few lines, and I trust not out of context, and if I do, I invite you to correct me—you have suggested:
This suggests that not only has each government the right to certain jurisdictions and that within the federation each provincial government has equal status, but that one of the fundamental responsibilities of the central government is to make sure that the federation works in those areas which are not provincial or which involve the ability of provinces to maintain their viability within the federation.
Then on page 6, a little further on speaking about equalization, though I think, perhaps, you might apply it to a wider field, you say:
Equalization is more than a concept. It serves the constitutional purpose I mentioned and it recognizes the exclusive jurisdiction provinces enjoy by being unconditional.
So I would like to ask Mr. Hatfield if he would subscribe to this concept of nonsubordination between the two levels of government, or, if not, what gloss would he put on it?
Mr. Hatfield: I do subscribe to the concept of nonsubordination.
I have not been overly concerned throughout the constitutional discussions in the past 10 years, about the question about the distribution of power. Because I felt that the powers that the provinces do enjoy are quite adequate.
As I have said on occasion, the problem of the Province of New Brunswick as far as powers are concerned is that if we had more powers we may not be able to afford them. We are not pressing for more powers.
I do think that there is a reasonably good division of power in the constitution. It may require, from the point of view of other provinces, some changes for a particular reason. I have supported that contention from time to time; for example, I have been supportive of the position taken by the Province of Quebec with regard to communications. But I do subscribe to the theory of nonsubordination. I believe it is important that our constitution always reflect and protect the right of a province to exercise its powers and the right of the federal government to exercise its powers.
Senator Roblin: I draw on this point, because, if I may use the Pepin-Robarts words:
In a generally federal union the provinces should be recognized as having a constitutional status equal to that of the central government.
Now, the thrust of my question has to do with whether or not you think the document before us there has been any disturbance of that constitutional balance between the federal and provincial governments?
M. Hatfield: Only insofar as the interference with the provincial right to determine how the educational power should be used in the Province of Quebec; that is the only place where I see it being disturbed; and that does bother and concern me.
Senator Roblin: You do not think in the amending formula there is a disturbance of the balance?
Mr. Hatfield: No, because we have not got an amending formula. We have only the proposals for an amending formula.
Senator Roblin: Let me ask you about the proposal. Do you think that upsets the balance?
Mr. Hatfield: Which proposal? Are you talking about the Victoria Formula?
Senator Roblin: The one with the referenda attached if you do not get agreement.
Mr. Hatfield: As I have said, first of all, I am opposed to the use of referenda. The reason it is there—and the only reason—is that the government believed or learned from experience of the supreme effort of trying to bring about agreement in some other way, that it might be—and I hope it is interpreted as a means of getting movement on the part of First Ministers in Canada as well as on the part not only of the legislatures but on the part of the Parliament of Canada to find a better way than that. But if we cannot find a better way, then I say we have to have our constitution and we have to have an amending formula; if we can not get it by exercising our Canadian sense of compromise, then I guess that a way which is unacceptable will have to be used.
Senator Roblin: I think that you and I are in substantial agreement on this point. I think we can by our Canadian system of good will and compromise find an amending formula which would be suitable.
Mr. Hatfield: So do I. That is what I have said. Those who believe it are challenged by the provision of two years.
Senator Roblin: You and I are challenged; but I would like to settle it by agreement before we go to Britain. That is the difference between you and me, I guess.
Mr. Hatfield: I believed that too. I believed that up until I made my view known with regard to the resolution.
I regret, too, that it was not possible; but I am confronted with the reality and the experience of being there that it is not possible.
Senator Roblin: Well, I appreciate that sentiment, and I have shared that experience. But it is my opinion that one of the formulas, perhaps the Alberta or Vancouver formula, has a chance of receiving a consensus for it. I would very much like to see that tried.
Mr. Hatfield: Well, we have a chance to try it. But I would like to see us get at it as soon as possible.
Senator Roblin: The trouble with applying it under these rules is that if you want a different formula from that set out here, you have to get provinces representing 80 percent of the population to agree. That means that it is a very simple matter for two provinces, at least, to refuse to agree if they do not think it is to their advantage to do so.
But like you, I accept the challenge and I would like to see it done before we go to England.
I would like to deal with another point you have mentioned. It has to do with the language question. In my own province, under Section 23 of the Manitoba Act, we are obliged by the present constitution to provide certain rights for French speakers in Manitoba, in our courts, in our legislature, et cetera.
I noticed, by your brief, that you, in effect, reading it, would like to apply the same or roughly the same rule by Section 133
of the British North America Act or Section 23 of the Manitoba Act to New Brunswick.
Mr. Hatfield: We want to go beyond Section 133, because with the Official Languages Act of New Brunswick, after a great deal of consideration, if we only asked to be included in Section 133 or whatever the equivalent is in the resolution, then we would be subtracting rights which are already existing in the Province of New Brunswick, and therefore we ask to go beyond that and that would be included in the Charter of Rights.
Senator Roblin: I understand the point very well, because in the present Charter, as far as educational rights are concerned, if that were imposed on the provinces, the French speakers of Manitoba would be worse off, in my opinion, than they are now.
Mr. Hatfield: How could they be worse off?
Senator Roblin: Simply because it is a question of who is entitled to the use of the French language in the schools. The present policy in Manitoba is broader in Section 23 of the Manitoba Act. I am on all fours with you there.
But here is the challenge you put to us. You say you want to protect francophones in the Province of Ontario, and you leave it up to this Committee to do so. Would you like to advise us whether you wish to mandate this for the Province of Ontario? How would you advise that we should go about accomplishing this?
Mr. Hatfield: The Parliament of Canada either does it as far as Ontario is concerned, or they remove the imposition of it in the Province of Quebec as it affects the rights of the English speaking Canadians.
I am telling you that you cannot, in my view, leave exposed an obvious inequity and sustain a country. You cannot do that.
Senator Roblin: Well, I think that is an expression of very noble opinion, and I am not taking anything away from it.
But what you seem to be asking us to do is either, by federal intervention to interfere with the rights of English speakers in Quebec, or by federal intervention impose something in favour of the francophones in the Province of Ontario.
My point is not really with your goal, which is to secure equality and even treatment, but it is a question whether the federal government should have the right or take unto itself the right to make these changes of its own authority over the head of the provinces.
Mr. Hatfield: Again, there was a time when I believed that these things could be worked out with the provinces; that language and an amending formula and so on and so forth could be worked out.
I believe now that if we delayed very long—and by that I mean a delay beyond the passing of our ultimate amending formula in two years’ time, if we leave it beyond that—then we are going to perpetuate in our constitution an inequity which will severely damage the country.
It seems to me to be clearly one of the responsibilities of the national Parliament to protect the country and to make certain that no province exercises its power in such a way that it damages the country, that it does not allow a part of this country to be greater than the whole of this country.
Those of us who believe in the citizenship of Canada, must believe that, if the constitution says, as does the law of Parliament, that there are two official languages in our country, which I believe is a political necessity and reality as well as a political advantage to a country, then I think we must see to it that that status is in effect particularly as it affects a large number of Canadians.
Senator Roblin: I see your point. I have one more comment to make to complete this line of thought here.
In the September conference you made a very important point in stressing at that time that it was by the process of consent that we arrive at typically Canadian solutions to things.
In fact I have the quotation in front of me, and I agree with it so completely.
But it seems to me that we have a clash of principles here as to whether we should follow the process of consent, which has so far been the means by which we resolve our national problems, or whether the federal government shoudl act unilaterally—a very difficult problem for us to deal with.
Mr. Hatfield: My comment is, I believe the Parliament of Canada should do everything in its power to encourage consent in our country; but if consent does not bring about or serve the ultimate end of our country, then the Parliament of Canada has both a duty and responsibility to look out for the interests of the country as a whole.
Senator Roblin: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, senator Roblin.
I now invite Mr. Lorne Nystrom, followed by Mr. Eymard Corbin.
Mr. Nystrom: Thank you, Mr. Chairman.
I want to welcome Premier Hatfield to our Joint Committee this afternoon. I am very pleased to see you here, sir.
I would like to start by commending you on your openness on the question of language rights in this country. I would like also to commend you on the statement you have made about what you intend to recommend to your legislature in New Brunswick. I am sure you will probably receive a unanimous vote for that proposition in that province.
It is that openness that I am really thrilled about and it is along those lines that I wish to pursue some questions of you.
You made some comment back in October that a number of us have found to be very interesting on the question of language rights.
I have here, for example, a copy of an article from the French language daily newspaper Le Droit here in the City of Ottawa, where you say:
The anti-French feeling is in Ontario and that has to be exposed.
And now you have also said that you intend to:
Attack in public the Ontario Legislature and its Premier for what they have done.
And also in the Montreal Gazette there is a similar article headlined, Hatfield points at Ontario regime as villain in language rights battle.
I quote from remarks attributed to you as follows: “The anti-French feeling is in Ontario,” Hatfield said.
Then in quotes: “That has to be exposed.”
And they say:
He said Davis went to the constitutional talks in Ottawa earlier this year determined that there be no changes, no imposition of French language rights beyond what Ontario has already granted.
And you are quoted again as saying:
“I intend to publicly attack the legislature of Ontario and the premier of Ontario for what they have done.”
I would like to ask you then, Mr. Premier, what have they done. Could you please elaborate a bit more on your feelings and on your very strong opinions about Ontario and the very key role they play in terms of the unity of this country?
Mr. Hatfield: First of all, I made that comment first, and I welcome the opportunity of answering the question, it provides me with the opportunity of taking the position which I did take and I have taken consistently and that is that the problem is a problem within the legislature of the province of Ontario. It is not a problem with an individual member of that legislature, even the First Minister of that legislature.
It is a well known fact that the leaders of the political parties in Ontario do not support what is called in Ontario institutional bilingualism.
I said in my statement that I made on October 17 in Fredericton that there had to he, in my view at this time, movement—you have a copy of that statement—on the part of the legislature of Ontario with regard to recognition of the two official languages, that it was, as I have said here today, not acceptable.
In explaining to the audience that I was addressing in New York it was necessary for me to point out that the area where those of us who are concerned about our country, the area where the resistance is, is not, for example, in Western Canada because we are not, I do not believe, interested at this moment in our history. interested in that part of Canada as far as protection of language rights are concerned. What we are interested in is where the greatest concentration of political power exists and that exists in the Province of Ontario. It is being boasted by the Government of Ontario and the legislature of Ontario that they have in fact stopped the constitution
from being reformed to provide for the recognition of two official languages.
I can assure you, from my own experience, that this position that has been taken is now detrimental to this country. It is for that reason, because I am concerned about this country and because I know how important a strong and united Canada is to the province that I represent, that I am concerned about it.
I do not want to continue paying the kind of economic penalty that we have had to pay as a result of the political instability in the province of Quebec. We have had to pay, as residents of the province of New Brunswick and I do not want to see that continued. As I went to Quebec and said to the people of Quebec, I believe that you should and can and will demonstrate your trust in Canada as a nation, and they did, not because of my effort, but I certainly contributed a tiny part and I do not think I distracted from the success of the campaign that was waged in Quebec. I too feel just as strongly in addressing the people of the province of Ontario and I do believe, and I believe the evidence is there and, as I said in New York, it is not the people of Ontario who are anti-French, and I was quoted as saying that fortunately by one reporter, it is not the people of Ontario who are anti-French, it is a reluctance on the part of the Legislature of Ontario to show the kind of concern that they talked about a great deal prior to the referendum in a debate that they held in their legislature.
I think that that has to be dealt with and faced up to, preferably and most desirably by the Legislature of Ontario. I would like to see them carry out what is in the best interests of Ontario and of the country, but I am not going to sit back, like I did not sit back and allow the Legislature of Quebec to have its way in breaking up my country. I am not going to sit back as a Canadian and allow another legislature, whether it be Ontario or any other legislature in this country, contribute to the weakening of our country.
Mr. Nystrom: I want to thank the Premier for his statement and agree with him that I think Ontario is a very key player in terms of the future of this country by virtue of the fact, if nothing else, as you say, they are the province with the greatest population, they represent about 36 or 37 per cent of our people and they have a very significant francophone minority. about 600,000 people.
One last reference to the article, Mr. Premier, about Ontario’s position, vis-a-vis Quebec. Again you say, and I quote from the article:
Speaking of Ontario and the need for entrenchment, he said
Namely yourself: the rights must be in the constitution lest “some other redneck gets back into power and throws language rights out.
Hatfield said Davis played a false role in the debate leading up to the Quebec referendum on sovereignty, talking of increased rights for francophones—and then reneging.
“I think Ontario deliberately mislead the people of Quebec,” he said, adding that the stand taken by Davis “offends me personally.”
Hatfield’s comments were dismissed by Ontario officials as unfounded and “a bunch of nonsense.”
I would like, Mr. Premier, to give you a chance to defend yourself or elaborate particularly on how you felt the people of Quebec were deliberately mislead by Ontario in the referendum campaign. There is also an elaboration of that in the French passage, but I will not repeat it.
Mr. Hatfield: Well, I must say that the report in the Le Droit was more accurate than a report than in any other. But in reference to the redneck getting back in and throwing out language rights was a clear reference to the Province of New Brunswick, not to the province of Ontario because they do not have language rights for some redneck to throw out.
So, that was a reference to the province of New Brunswick and I am sure it was misinterpreted because the people I was talking to are not familiar with what is happening in New Brunswick or in Canada generally.
As far as the reference is concerned to be misleading, I think that this great effort that was made by Ontario, and we did it in New Brunswick as well, we had a great debate in our province as well, urging the people of Quebec to stay within Canada and to trust the future. They did in Ontario as well. Then, when the people do in fact commit themselves to this country and do put their faith and trust in this country, then the legislature of Ontario says, I am sorry, but we are quite prepared to make all kinds of arrangements, but your language is going to be treated as the language of a minority, rather than the language of a Canadian.
I do not think the people of Quebec wanted that or supported that or voted for that in the referendum, that their language, rather than be treated as a Canadian language it would be treated as a language of a minority.
The people who speak French in this country are not minorities. That is what the Official Languages Act says and that is what I want the constitution to say. They are not minorities, they are Canadians. They are Canadians who exercise a right to speak one of the Canadian languages.
Mr. Nystrom: I would like to follow up on a question asked by Senator Roblin. I see this is pretty well my time and my last question.
You made a statement today which is very interesting. It is along the lines that we should either apply similar language laws to the province of Ontario as they are applied now in Quebec or Manitoba or else allow the province of Quebec to opt out of the laws that are already in effect in that province. It is very interesting to note that when the leader of the Liberal party in Quebec, Mr. Claude Ryan spoke yesterday, he said a very similar thing. As is quoted or as is referred to on the front page of todays Le Devoir as to what you have said to us earlier. With your experience with the two linguistic groups
in this country, I would like to ask you why it is so important? I put that same question to Mr. Chrétien about three weeks ago saying that if he did not apply the same rules to New Brunswick and Ontario as are now applicable to Manitoba and Quebec, would he consider the possibility of letting Quebec and Manitoba opt out of the language laws that are now in force in the province and he said no, those are acquired rights and those provinces would have to be bound by those rights.
Now, you have said something different today; Mr. Ryan said something different yesterday. I would like to ask you, in your opinion, why is it so important. Is it important to the future unity of the country, will it be seen as something in Quebec, as you said, that is something terribly inequal. Just how important is it?
Mr. Hatfield: I want to tell you that during the summer, the only time that there was ever any real heat in the debates that we had about the various items that were on the agenda in the continuing committee on constitutional reform had to deal with this very issue. I felt very strongly and spoke very firmly and very loudly almost every week that we met and when we came to this subject that you could not attack the legislation as provided for in the province of Quebec, the language charter, Bill I01, you could not attack it, denying rights to English speaking people, which I think it did, unless you were prepared to see to it that those rights were extended to French speaking people in other parts of Canada.
I can attach that denial of rights to English speaking people in Montreal, I do not like it, I wished that the province of Quebec would change it and that the legislature of Quebec would change it. I think it is wrong because it is a reflection, even though in practice it is not being upheld, that law is not being upheld in practice, the fact that it is there is an embarrassment. I think it is an embarrassment to a lot of the legislatures in Quebec as well. I do not think they like it. But at the same time, I do not like it being denied as a right, not as an administrative arrangement, but as a right to Canadians living in other provinces.
I do not like it being denied to the Canadians living in New Brunswick and there are some of them who do not have it. At some inconvenience, we will allow you to exercise your right to instruction in French or in English at some personal inconvenience to everybody in New Brunswick who are required to do so.
But the fact is in practice that there are people in New Brunswick who do not have that opportunity, particularly in the French language.
As I have said, once we get this into the constitution, we are going to be motivated to make sure that right is one that is extended to the maximum number of people, and it will be a matter of choice.
My point is that you cannot, you have to wait until you can correct the inequity that now exists in Ontario or you are going to encourage discontent and legitimate criticism of Canada by the French speaking people wherever they may live in Canada, but more seriously to me, by the French speaking people living in Quebec, because as I am concerned about Ontario, and I focus on Ontario because of their political power in Canada, I
am concerned about Quebec because of its political power in Canada and its political capacity to in fact detract from this nation as they demonstrated for several years in the last few years until it was resolve by the referendum.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.
Mr. Corbin, followed by the Honourable Senator Tremblay.
Mr. Corbin: Thank you, Mr. Chairman. [Text] I would first of all extend my compliments to Premier Hatfield, thank him for appearing before us today. I would also say that Mr. Hatfield is a man of courage and I respect him for that.
Mr. Premier, many times today as well as in the past, you have referred to the referendum in Quebec and to its results. You are, however, appearing before us today to tell us that you are opposed to any type of referendum.
I must say that you do not seem disappointed in the results of the Quebec referendum which has permitted to clear up certain matters. On the other hand, you do not want the federal government to have an opportunity to use this same tool should the constitutional discussions lead to a dead end.
Could you give us your views on this issue?
Mr. Hatfield: I, like the Premier of Quebec, believe that the referenda did not contribute to the advancement of the cause that he espoused and that now he has indicated to the people of Quebec that he will not resort to this political device again because it failed him and I am glad it failed him.
I would contend that we would not have had a government in office in Quebec that would be able to do what they almost did, and that is, bring about the break up of the country, if they had not been allowed to use the device of a referenda. I do not think they would have got elected in 1976 if they had not put aside successfully, as a political strategy, the issue of independence and went to the people on good government and asked the people that all they stood for was good government and a referendum on the future of Quebec.
No, I am opposed to it, no matter what its purpose. I would point out that the times it has been used in Canada, it has been used to serve the interest not of the country and not of the government, it has always been used to serve the interest of a political party. For that reason, I think that is another reason why Canadians should not embrace this concept because it really is a political ploy. I do not mind politicians using all sorts of strategies, but I do not believe that our constitution should provide for political strategy for political parties. That is what concerns me.
At the moment, the referenda is a device that is open because everything is open to Parliament and it always will be open to Parliament.
To dignify it by making it a political device enshrined in the constitution, in any way and for any purpose, seems to me to be very serious and very dangerous.
Another point that I would like to make is that those people who, with regard to the referenda and Quebec, the one held in Quebec, that those people who are involved in it and who were genuine in their promotion of the question of independence and those who were opposed to the independence, that they all had trouble with the quality of the vote of the English speaking people of Quebec. They all said it was so important and that is why we were all, not only delighted that Canada won the referendum by a majority, but it won the referendum by a majority even if it was only a majority of one of the French speaking people of Quebec.
That to me is another argument that diminishes and demonstrates that the referendum is not a democratic system because in a democratic system everyone’s vote is equal.
In a referenda you are dealing with an issue and the issue is, say taxation, then the question is, is the vote of the person who pays no taxes who is on welfare or who is completely retired or who is incapacitated and being looked after by the province or the country, is their vote worth as much as the man who has $100 million worth of property. Many people would argued no it is not. I tell you, where they fool around with referenda by the hundreds is in the State of California. It is a great argument that the tax payers vote in a plebiscite should be worth more than that of a person who is a hippy.
Mr. Corbin: Premier Hatfield, I would like to stop you there because you are eating into my time and taking me across the border.
Mr. Hatfield: Oh, sorry.
Mr. Corbin: I have known you to be one of the craftiest politicians after Allan MacEachen, but I do have a number of serious questions to put to you, and I do not say that with any disrespect.
Mr. Hatfield: No, it is a compliment.
Mr. Corbin: Mr. Premier, do you think that clause 23 of the proposed resolution of the Charter of Rights intrudes into an exclusively provincial jurisdiction?
Mr. Hatfield: Well, no, I think this whole question of rights, in my view, has to do with something beyond the powers of the provincial governments and beyond the powers of the federal government.
Mr. Corbin: Premier Hatfield, do you think that clause 133 of the British North America Act would give anything more to the citizens of New Brunswick than they have presently through the provincial legislation on Official Languages?
Mr. Hatfield: Section 133?
Mr. Corbin: Section 133 of the BNA Act, would it give New Brunswick . . .
Mr. Hatfield: It would only give them protection of the constitution, that is all. It would not give them protection of their language as far as government services are concerned. In other words, they have a right in New Brunswick to speak to and be addressed by their government both in English or in French and they would not have that right, I do not believe, under Section 133.
Mr. Corbin: In that case, you are confirming my impression that even without clause 133 of the BNA Act, the New Brunswick Official Languages Act does ensure adequate protection to its citizens and that is why you would want us to include it in our proposed resolution.
Mr. Hatfield: It does not ensure?
Mr. Corbin: It does.
Mr. Hatfield: Oh, it does ensure. Well, up to a point. I think that we are in the process now of reviewing the Official Languages Act in New Brunswick and, not in the forthcoming session in the spring, but in the one after that, I hope to have a number of amendments made to the Official Languages Act in New Brunswick.
Of course, the other difficulty with the Official Languages Act in New Brunswick is that it can be tampered with just as it was in Quebec, as the English speaking people in Quebec discovered, rights that they took for granted can in fact be tampered with. I want to make sure that does not happen.
Mr. Corbin: By including it into our. . .
Mr. Hatfield: By putting it in the charter.
Mr. Corbin: All right, that confirms my impression. Do you feel that the contents of the resolution, the constitutional package as we have it in print now, adequately reflects the minimum consensus reached over the years and at the September meeting of First Ministers?
Mr. Hatfield: Well, it is certainly the minimum and I think that I cannot honestly find areas that are included, having listened to a number of, as I said, a number of Premiers express their views with regard to this matter, that they can have strong objection to. The Premier of British Columbia does object to the concept of equalization because he thinks money should go directly to people as opposed to governments. It is a principle that he stands for so he might have objections to that.
So far as the Charter of Rights is concerned, there are a number of Premiers and a number of people in this country who believe that rights are better protected in Parliament and the legislature than they are in the constitution, but other than that, the amending formula, as far as I am concerned, is definitely open, wide open. I have said if we do not reach agreement, Parliament can come up with any amending formula it likes, of any kind, shape or form, but I do not know whether there are areas there that they can strongly object to. I think the big objection is that things they wanted in there are not there.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.
I would ask the honourable Senator Tremblay to please pursue this debate and he will be followed by the honourable Senator Lamontagne.
Senator Tremblay: Thank you, Mr. Chairman.
Premier Hatfield, I would first like to join all those who preceded me to thank you for affording us the honour of coming to present your views on the proposed resolution we have before us.
I would like to concentrate my questions on one point only which, for me, is really important and that is the position you are taking concerning the referendums.
The last paragraph of the brief you have prepared is very explicit on that and reads as follows:
The constitutional resolution should be stripped of any provisions for referenda.
This apparently very clear passage seems less clear to me because of certain things you said in answer to Senator Roblin’s questions. I had understood that you would want to insist that the provisions relative to referendums be taken out of the proposed resolution before it is forwarded to London.
Is that interpretation correct? In other words, is your position that you would amend all provisions concerning referendums before it is forwarded to London?
Mr. Hatfield: That is my desire, but if that is not achieved, I still think the resolution should go forward and it should be supported quickly in London and supported quickly in the Parliament of Canada so that we can get on with the two-year period of trying to get real reform in our own constitution.
Senator Tremblay: That the provisions concerning referendums be taken out beforehand is not a condition sine qua non for you to support the proposed resolution. You would accept that they be maintained if there were no other way of doing things.
Mr. Hatfield: Oh, yes, of course I would. I would accept and respect and promote the constitution of Canada if it is in fact the wish of the people of Canada that they have this device.
Senator Tremblay: In that case. Premier Hatfield, I would like to analyze the consequences of that position. As you know, you have said so yourself, there will be a two year period during which the interested parties, the governments and legislators, will try to establish an amending formula.
At some point, at the end of those two years, a referendum will take place offering the choice between the formula which is presented in clause 41 and the other formula which might be submitted by the provinces or even a new formula replacing the one we now have in clause 41.
To choose that formula which is said to be the normal formula, there will be a referendum but clause 42 is another amending formula which will never be submitted to a referendum. It will become an integral part of the constitution as soon as the proposed resolution is passed by British Parliament.
Under those conditions, Mr. Premier, I am quite afraid that if you accept it be forwarded to London over your very strong
objection, on principle, to referendums, I repeat, I am quite afraid that you will have then approved the permanent institution of unilateral referendums and I would like you to explain how you see all this put together.
Mr. Hatfield: Well, as I understand it, Section 42 refers to the provision for the use of the referendum device for any purpose. I understand that the government has said that they will restrict that to using it to break a deadlock in federal-provincial relations. I am opposed to it regardless of what purpose it is put to. I am opposed to it in Section 42. I guess what I am trying to say is this, however, that if it is the will of the majority of the people of Canada as they express themselves in the Parliament of Canada, then it will be done.
I am not here to challenge the parliamentary system of Canada. I believe in it. I trust in it, and I trust that it does reflect the will of the people of Canada, and if that is the determination, then it will happen, but I also say that I believe as well that political experience tells me that if in the next two years, before our constitution is in fact set, that is to say with a final amending formula, I believe there is an opportunity to change a number of things and I believe the Parliament of Canada will do that and I have confidence that the Parliament of Canada, that if all the people say there is an opportunity for a consensus, those that believe that, then let them try for two years to find it. If we cannot, after two years, get a consensus, then let us accept it, that the national government has to, at a time like that, its duty clearly is to act in the interests of the nation and not be held up by a single part of the nation, or half of the nation, or three-quarters of the nation. Its duty is to the whole nation and to act in the interests of the whole nation. That is why you have in Parliament the kind of powers you have.
Senator Tremblay: With your permission, Mr. Premier, I shall continue and very respectfully put the following question to you. Clause 42 permanently sets up an amending formula which could be used under Clause 47 even to modify the amending formula established under Clause 41; as provincial Premier representing one of the two orders of government for New Brunswick, you are saying that you would accept, as a matter of principle, that only one of both orders of government, permanently, will always be able to reverse the point of view of the provincial government?
Mr. Hatfield: No, I am not accepting it. I am telling you that I will use the opportunity that is provided by the resolution to try and convince the people of Canada, to try and convince the majority of people, to try and convince the Premiers and to try and convince the Parliament of Canada that they should not use this political device and I want to tell you that the reason that it is so important to have an amending formula is that you can amend the constitution, that is to say take out or repeal Section 42 and that is what I will work to do, is to repeal Section 42.
Senator Tremblay: Now to repeal Section 42 once it has been passed by the British Parliament, we will have to use the other amending formula.
Do you believe that with the other amending formula which gives the federal government a right of veto, do you think it will accept repealing Section 42 after it has been established now against the will of the provinces because that is the weapon which it will now always be able to use against the will of the provinces? That seems very improbable.
Mr. Hatfield: I am absolutely convinced that if the provinces could agree, or if the provinces did agree, even if eight out of the 10 provinces agreed to ask that the concept of referenda be removed from the constitution, the Parliament of Canada would act on that. A majority of the members of Parliament would act on that. The problem is to try and get that kind of consensus, that is the problem.
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.
I allowed you far more time than you provided for because I recognized that it was an important question.
Mr. Hatfield: Being a Senator, you may not trust Parliament, Senator.
The Joint Chairman (Mr. Joyal): The honourable Senator Lamontagne, followed by the honourable James McGrath.
Senator Lamontagne: Thank you, Mr. Chairman.
First of all, Mr, Hatfield, I would like to congratulate you on your presentation which, in my mind, confirms once more the fact that you are a great Canadian.
In your brief, you say that the resolution we are presently examining is the result of a process of federal-provincial negotiations which started last July and continued through the September Conference.
Do you mean to say that the resolution has become the logical follow-up because of the absence of consensus which came out of the September Conference, and which, contrary to what Premier Buchanan said to this committee last week, that resolution is now the only practical solution to that constitutional deadlock where we now find ourselves?
Mr. Hatfield: I have come to that conclusion, yes. very regretfully. I think that during the constitutional conference, and following it. having got the approval of my Cabinet, the Government of New Brunswick took the position that we would ask the Government of Canada, and did, that they patriate the constitution with the unanimous amending formula. When I considered that and considered the resolution as it was put forward, when I considered the fact that virtually everything in there that I had been begging for, for a long time, and more, I felt that it had to be supported and on reflection, when I look back and realize from time to time we were offered opportunities to patriate with an amending formula or an agreement to get an amending formula and we did not accept those offers, then I say, yes. this is the only recourse and that my faith and confidence in the convention of
unanimity or consensus of the 11 governments was wrong, misplaced, and it took me a long time to come to that conclusion, but having done so it is my position.
Senator Lamontagne: During the meeting of the provincial premiers in Toronto, did you once more try to reach an understanding on an amending formula and the entrenchment of a charter of rights and if you did make that new attempt, is it because you knew in advance that unanimous agreement was not possible even at that late a date?
Mr. Hatfield: I did not make an effort, once the resolution was introduced my consideration was occupied with trying to determine what position I would take and what position I could take. When I considered the alternatives that were put forward by any number of sources. I rejected them all as being impractical or unworkable or improper, and therefore I did not try to put forward—I simply advised my colleagues at the meeting in Toronto of what position I was going to take, I then advised the Prime Minister of Canada what position I was going to take and then I advised the people of New Brunswick what position I was going to take.
Senator Lamontagne: In your brief you seem to favour, at least implicitly, the Victoria formula. Does that mean that you do not support the Vancouver formula because, for example, it could lead to a kind of constitutional jungle because of the opting in or out clause that is to be found in that Vancouver formula?
Mr. Hatfield: Well, Senator, I supported, along with the other members of the legislature in New Brunswick and I think we were one of the few legislatures that did so, certainly we were one of the few that did it unanimously, I supported the Fulton-Favreau formula. I said at the time, when I spoke on that in the New Brunswick legislature, that I had very serious reservations about it, but that I felt that it was so important that we get on with this and that I did trust the people of this country that if the defects did expose themselves that I thought would expose themselves, then I trusted that our political system would react in such a way as to correct them. I take that position with the so-called Alberta amending formula as well. It had a lot of defects. I was quite confident that particularly the defect of allowing a province to opt out if they did not like the amendment, would not be sustained by Parliament and by the legislatures of Canada, and I did want to move forward, I did want to try something to get at the ultimate objective which was patriation.
Again, I think it could have been worked on and it could have been improved with agreement. It seems to me that it is the Province of Alberta that has the greatest difficulty with any one province having a veto. My interpretation of the Victoria formula, which, yes, I do support; yes, I do believe is the best formula; yes, it think it is the formula that will be best accepted into the future, and that is what I think the ultimate test is, by Canadians 50 years from now and 100 years from now.
The reason I take that position is that I perceive that in this country—again it was clearly confirmed beyond a shadow of doubt by the discussions we have had this summer in the continuing committee—there are bodies of opinion that are quite different.
There is a western body of opinion; there is a body of opinion that is what I would call Ontario; it has come about because of our history and policies of past governments and so on and so forth; there is the attitude or opinion of the place called Quebec; there is an opinion in the place called the maritime provinces, and in Newfoundland, which I think is because of their useful presence in our country, they have a different point of view than people in the maritime provinces.
When I put the Victoria formula to that test, it does represent all of those bodies of opinion; and I do not see it as giving a veto to the legislature of Ontario. I see it as giving a veto to the people who are in this general area; some of them who think the same way probably live in Manitoga; some of them who think the same way live in the western part of the Province of Quebec.
But there are general areas of opinion in this country, and the Victoria formula, unlike any other, does reflect that best of all.
There was a proposal at one time that there be seven provinces. I said I could not accept that. The fault was that it left out the three maritime provinces. It was quite conceivable that an amendment or improvement could be made, but we would not have anything to say at all. That was intolerable.
The only formula that I know that assures that all of these bodies of opinion, which I think are very real and identifiable in Canada, are represented is the Victoria formula. That is why I support it.
I might say, as a kind of historic footnote, that the Province of New Brunswick had made a great contribution to the evolution of the Victoria formula, so it may well be that because of our involvement in bringing it about, we support it.
Senator Lamontagne: May I have the last question?
The Joint Chairman (Mr. Joyal): A fast one, Senator Lamontagne, if you please.
Senator Lamontagne: It will not be a fast one so I better pass.
The Joint Chairman (Mr. Joyal): Then a very short one, Senator Lamontagne.
Senator Lamontagne: I wanted to come back on the referendum question. You favour the present resolution because you note that we have come to a deadlock in provincial-federal negotiations.
On the other hand, you are somewhat firmly opposed, maybe a little less this afternoon, to the holding a referendum. Do you not think that even with a more flexible amending formula than the unanimity rule, it would still be possible that other deadlocks may arise in the future, making the referendum option that could be amended and seen really as an
exception formula the only way to solve these new and potential constitutional deadlocks?
Mr. Hatfield: I think the better solution is the one that the Government of Canada has used recently, that is to take its national responsibility and do it.
Now if we have a permanent amending formula, then we are going to have to respect that until such time as we use whatever devices are open to us to either remove the obstacles or whatever.
But I look at the situation: why was it impossible to find a consensus? Why was it impossible for First Minister after First Minister to find a consensus? Why have they failed?
I have now come to the conclusion that the reason they have failed is that—let me put it this way: as a First Minister of a province I must always be mindful, if I am to stay in office, that my first attention must be gien to what I perceive to be the demands of the people or the best interests of the people of that province; it depends upon how I interpret that.
Now, because of that there is always going to be the need for the national government to take steps that might not be acceptable to the First Minister of a particular province. If not, then you are going to have to devote your attention to what I think is legitimate in any even in our political system, where the Government of Canada will have to get itself involved in a provincial election campaign and go directly to that political jurisdiction and say “Your government has held up this.” I think that is perfectly legitimate, and they should do it anyway.
Le coprésident (M. Joyal): Thank you, Senator Lamontagne.
The honourable James McGrath, followed by monsieur Herb Breau.
Mr. McGrath: Than you, Mr. Chairman.
I find the Premier’s strong position in opposition to the referendum provision somewhat inconsistent with his last statement, whereby he agreed with the right of the federal government in certain circumstances to involve itself in a provincial election.
However, I do not wish to pursue that. Rather, I would like to ask the Premier, taking up where we left off with Senator Lamontagne, if there was in fact substantial agreement in a number of important areas, if I understand it correctly, for example, on the Vancouver consensus there was agreement by all the provinces last fall; Premier MacLean, when he appeared before us indicated that there was, during the course of the summer, and the First Ministers meeting which was held after the summer meetings, substantial agreement on seven of the 12 or 13 items on the agenda. In your opinion, if a little more time had been made available to the First Ministers, could this progress that obviously is exemplified in the agreement which has already been reached on the seven provisions on the agenda not continue, and how long, in your opinion, would it have taken to make progress?
Mr. Hatfield: My anwer to that it that we have got two years to make that kind of progress.
My challenge to those who believe it can come about by unanimous agreement’s let them prove it. I certainly will do my part to try and bring it about.
I think it is important that I place on record my own opinion with regard to this question that there was unanimous agreement by the provinces.
I think there were two kinds of agreements that the provinces reached from time to time. One was an agreement with which they would not break nor depart from under any circumstances; those kinds of agreements, let me tell you, were very, very, few. I believe I can think of one, and I am not even sure &about that; but I think it was the agreement with regard to provincial jurisdiction over offshore resources. I am not even sure if it came down to a final test that agreement would have stuck. But in any event that was one of the best overall agreements.
Then there were other agreements—consensus, if you like-which were, upt to a point, conditional.
I made it very clear—at least I thought I made it very clear; I understood what I said anyway; I knew what I meant—that unless we faced up to the question of language in our country, that we would not have a constitution which would be acceptable to the people in the various parts of this country.
What I was trying to say, and what I said more directly in private than in public, was that that had to be done. It had to be done, and there was no point in our trying to proceed with some kind of very loose consensus unless we did, in fact, face up to that, because if we did not we would have very serious trouble in the legislature across this country.
Mr. McGrath: The difficulty with trying to reach a substantial consensus in the two year period is the fact that the provinces have the gun to their heads by virtue of Section 42 and the referendum position which you spoke so strongly against.
That brings me to another point where I believe there is substantial agreement. I find it difficult to understand, for example—and I appreciate your concern about the impact on our federation of Section 42, given its ability to give the federal government the power to by-pass the legislatures and go directly to the people on any question; I find it difficult to understand how you can talk about using the two year period to repeal Section 42, when, as I understand it, nine of the 10 provinces are already very firmly opposed to Section 42.
Consequently, as a parliamentarian, I would suggest to you that this Parliament would, therefore, have no mandate to pass Section 42.
Mr. Hatfield: Well, the Government of Canada in my view, has a mandate.
But as to the question of the Parliament’s mandate, well I do not know how to deal with that. You must understand that the present arrangement is that the constitution can be amended. Section 91 can be repealed on a joint address of the Parliament of Canada. I think that power is dangerous. I tried my
utmost for 10 years—and perhaps it is because of that experience—to get Premiers to face up to the fact that the Parliament of Canada did have that power and that some day it would exercise that power. That power is now being acknowledged by the Parliament of Great Britain which has control over the British North America Act.
Mr. McGrath: Mr. Premier, there are those who would argue that what the federal government is asking Westminster to do is inconsistent with the provisions of the Statute of Westminster which conferred sovereignty on Canada, and hence took away the right of the Parliament of Westminster to legislate in certain areas.
However, I do not wish to pursue that, because, hopefully, we are going to have experts in front of us, and I am sure you will support our right to have expert witnesses to direct that kind of questioning.
The honourable Robert Stanfield, who was at one time Premier of Nova Scotia and was Leader of the Opposition for over a decade, has said recently that Parliament, in his view, has no mandate unilaterally to make such fundamental changes in the constitution; and he referred to what the government was trying to do as a coup d’état, and I lead you into a situation, for example, where six of the 10 provinces have now taken the federal government to court precisely on the unilateral nature of the changes they propose in the resolution before us. That leads me to my next question.
In your opinion, as Premier, do you feel it is right for the government to proceed before the courts have had an opportunity to pass judgement on the questions which have been referred to them by the six provinces?
Mr. Hatfield: I believe in the Canadian parliamentary system. I believe it is the best in the world and that it is supreme. I believe, too, that it is a place where issues of this kind are resolved; I believe that the best experts on the question of the constitution are in the Parliament of Canada and the legislatures of Canada.
I believe that those who look outside for advice just do not share the same kind of confidence and trust that I think has been warranted by the way our Parliament and legislatures have acted.
Mr. McGrath: Do you also believe, as was set out in the famous Kirby memorandum, which was for Ministers’ eyes only, but which was leaked prior to your last meeting of First Ministers, do you also believe the recommendations in that memorandum whereby Mr. Kirby and his colleagues strongly suggested the scenario that the federal government should get this thing out of Parliament as quickly as it can before the Canadian courts have had a chance to rule on it, because the provinces will be challenging it in court?
Mr. Hatfield: Look, I think I should say that, if anything, I want to dissociate myself from the strategy of the federal government as it has handled this issue.
I do not think it has been professional, nor do I think it is a model for anyone to follow. I do not want to have anything whatsoever to do with it.
But that is not my concern nor my interest. My interest is to see us in control of our own constitution.
I go back to 1971. In that year we had a substantial number of provinces who were prepared—and said so—to go to their legislatures and ask that the official languages of French and English be recognized at the provincial level or that Section 133 should apply to them. I wish I had had the constitution of Canada in Canada, so that that agreement could have been put in the constitution.
I want to tell you that I think we could have avoided 1976 to 1980. I think that could have been avoided if we had had our own constitution.
I want to say that I can remember a time when every province in Canada supported the principle of equalization without reservation. I wish we had our constitution then so that we could have put that in at that time.
But, because we have waited for the ideal, for the most perfect solution, for the best strategy, we have not been able to do it.
I want to tell you I am convinced now that the only thing that is going to come about as a result of delay is delay.
I think this country has delayed long enough, and the country must move forward. The people of Canada want to see Canada live up to its potential’ But, first of all, we have got to take this step.
The Joint Chairman (Mr. Joyal): Thank you, Mr. McGrath.
Mr. Herb Breau followed by the Honourable ML Crombie.
Mr. Breau: Thank you, Mr. Chairman.
I also wish to associate myself with the others in wishing the Premier of my province the most hearty welcome. I also want to congratulate him on the position he has taken. not only today, but over the past few years, with respect to constitutional questions and language issues. I particularly want to congratulate him for the way he has defended his position this afternoon in answer to often difficult questions.
I particularly appreciated this point which he has made in his brief:
This resolution . . . is a necessary vital step if Canadians were to build upon the progress which has been made towards bringing their constitution home and making of it a modern and useful instrument for true self-governing.
I particularly appreciate this point.
I am most happy to see that the Premier of New Brunswick wishes to enshrine linguistic rights within the Constitution, beyond the provisions of Section 33 of the British North America Act and I am most satisfied with the amendments proposed by the Premier of New Brunswick in this respect.
I would just like to know if he proposes simply that the Canadian Parliament amend the resolution based on this request on behalf of the Province of New Brunswick, or if he intends that the Legislative Assembly of New Brunswick, or if he intends that the Legislative Assembly of New Brunswick
also adopt a resolution so that when the resolution before us is sent to Great Britain, the very symbolic and very important gesture of patriation and the enshrinement of the federal linguistic rights will have been carried out with the approval of the New Brunswick Legislature.
I should like to explain further my reason for putting this question. Symbolically, it would be most important for the Acadians that the New Brunswick Legislature which, of course, has an anglophone majority and is led by an anglophone would foster not only political harmony within New Brunswick in the future, but would also serve as a historic and very important gesture.
Mr. Hatfield: It certainly would be my intention as it was at the time of Victoria to put the conclusions that are reached by the Parliament of Canada and the resolution that is approved by the Parliament of Canada before the legislature of New Brunswick for its support.
I cannot put it before the legislature now because it is only a draft. I hope that before we adjourn at the normal time, which is June-July of 1981 that the resolution will be before Parliament and that we will be able to endorse it unanimously in New Brunswick.
Certainly at this point in time I am confident that the resolution, with improvements that we have proffered and that other people have proffered and which we are hopeful will be favourably considered, I do not think that there would be any reservation in the legislature at all.
Certainly with regard to the status of the two languages, if anything, the pressure in the legislature at the moment, as I sense it and as I have listened to what the members of the legislature have said is to try and strengthen the Official Languages Act than to weaken it or to reject it.
Mr. Breau: I take it, Mr. Premier, that all of the recommendations that you are suggesting here to the federal resolution will be put to the Legislature of New Brunswick and hopefully this whole position would be submitted to the legislature.
Mr. Hatfield: That is right.
Mr. Breau: Because, not being a lawyer, I have not been able to check if this is so, but I believe these recommendations go beyond the Official Languages Act of New Brunswick or are they different wording?
Mr. Hatfield: No, the wording is different and they do go beyond because this wording requires our regulations to be in two languages, which the act does not. The act does not require all statutes to have the regulations in two languages. This will require us to do that. We have been working in that direction, but this will necessitate us speeding that up.
Mr. Breau: Well, thank you very much, and I want to thank you for taking the position that the Legislature of New Brunswick should pass the resolution at one stage approving this because, as an Acadian and as a New Brunswicker I do not want history to be read that the Parliament of Canada had
to settle New Brunswickers’ problems. This is important historically and you understand why in New Brunswick . . .
Mr. Hatfield: Yes.
Mr. Breau: That there has always been, from both language groups, enough people that can persuade each other to do things that are good for the province, I would not want in history, as a federal member of Parliament, to have pass a resolution affecting New Brunswick which would give the impression that the Parliament of Canada had to do something that New Brunswickers thought was good. I would rather pass a resolution that would say that this would be subject to the approval of the Legislature of New Brunswick.
Mr. Hatfield: Right.
Mr. Breau: Thank you very much.
Mr. Hatfield: Okay I agree.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Breau, for having stayed within the time limit.
Mr. Breau: Thank you, Mr. Chairman, for having given me this opportunity, even if I am not a regular member of this Committee.
The Joint Chairman (Mr. Joyal): I think that you are on our list for today. I am very happy to see that when we have distinguished guests, as we have today, Members of Parliament from the provinces, that it is particularly our interest of that day, that they come and they are welcome.
I would like to invite now honourable David Crombie followed by Mr. Mike Landers. Mr. Crombie? I will remind the honourable members that Premier Hatfield has informed me that he has another appointment and he would be asking to leave between 5:30 pm. and 6 o’clock.
Mr. Hatfield: I do not have any appointment until after 6 o’clock.
The Joint Chairman (Mr. Joyal): So, I understand that we will go until 6 o’clock. I see that I still have about eight speakers on my list and I will request cooperation from all members to restrict it to, if possible, a 5-minute time frame so that everybody has an opportunity to have a word with our guest this afternoon.
Honourable David Crombie?
Mr. Crombie: Thank you very much, Mr. Chairman. I indeed will be as brief as I can.
My concern relates more to some of the things, Mr. Premier, that you have said, rather than what are the specifics of your own brief.
In particular, I was somewhat concerned with the impression you may have left with people regarding your response to Mr. Nystrom with respect to the, I think it was rednecks in Ontario or rednecks in New Brunswick, I am not sure which one it was we were talking about. You said they do not have language rights in Ontario to throw out.
I wanted to ask you whether or not you agreed with those who argue that in the Province of Ontario the difficulty may be more the acceptance of the principle than the acceptance of
the practice. In that connection, I wanted to make sure that you had your mind and memory refreshed with respect to the track record over the past 10 years in the Province of Ontario. I say this, as you are probably aware. Mr. Premier, as one who supports your general policy position on the matter. I have always found it not particularly thoughtful to simply leave the impression that the Province of Ontario does not do anything in the field, whatever else it may not be doing with the principle. I know that Ontario bashing is a part of the national pastime, but I do not think it necessarily is always productive to a united country.
Mr. McGrath: Toronto bashing parties.
Mr. Crombie: I am used to a Toronto bashing, at least, it is perhaps an advance that has been generalized as a province as a whole.
The information I have, Mr. Premier, is that in the field of education for example, in the Province of Ontario, and I want to know if you concur with these figures, there are now in Stats Canada 1979 figures of a figure 107,000 students receiving French language instruction, receiving education in French in the Province of Ontario. According to the 1979 Stats Canada, that places them at 91.5 percent batting average; that is to say, the number of eligible for the number being educated in their mother tongue only slightly behind New Brunswick with 94.3, which is of course seven points behind Quebec which has 100 per cent.
In the courts the Province of Ontario has also extended bilingual capacity for criminal cases and has designated 10 areas for civil cases which will include, there, approximately 80 percent of franco-Ontarians in that particular program.
And the legislatures, with respect to the translation of both the statutes and regulations, the five year program has begun costing $3 million.
I went through my wallet and found that insofar as institutional bilingualism, to use the phrase that you employed, I went through my own cards and found that my OHIP, my hospitalization card is bilingual, my drivers licence is bilingual, my motor vehicle licence is bilingual and, I might add, given the article in the Montreal Gazette this morning, my traffic tickets are also bilingual.
Given all of that, and I can go through mounds of information to look at the track records, I wondered if you felt it might be helpful if we tried to convince people that the important thing with respect to the contribution the Province of Ontario might make is that they begin to extol the virtues of their practice and put it in the form of a principle, rather than simply catering to the untutored mind that Ontario still is the home of bigotry in this country.
Some hon. Members: Hear, hear.
Mr. Hatfield: I do not believe that Ontario is the home of bigotry, and I was quoted as saying, as I said, fortunately, that it was not the people of Ontario that were anti-French but in fact I believed, and that is why I feel as strongly as I do about it, that the people of Ontario would support the recognition of the two official languages.
I think it is important that you understand that in the Province of New Brunswick when we passed the Official Languages Act through our legislature unanimously, that we were not able to implement that act for 10 years and I cannot say now that it is perfectly applicable.
But we did do and as a result of doing what we did is, we recognized the languages, the two languages as being equal and because we made that step, took that step, we started to implement the policy or the law throughout the province.
I think as a result of doing that, we have today in New Brunswick a much better relationship the people of New Brunswick because it is accepted now that I, as a Canadian who speaks English living in New Brunswick, have every bit as much right, not some kind of legislative right, but I have a right to my language and the other people believe that they have a right to their language. As a result, both of the two language groups in New Brunswick are moving forward with a certain amount of confidence in all areas, economic, cultural, social, political and every area. They are moving forward because this question of confidence that their language is going to last is something that they almost now take for granted; almost take for granted.
What I am concerned about in the Province of Ontario is that, yes, Ontario has done these very progressive and very good things and I recognize that and I know what they are. But the word that comes out is, we are not prepared to recognize it as a right or we want to put limitations on that right of Canadian citizenship. We want to say, you have got to have enough of you Canadians before you can get your right as a Canadian. They want to say, do not ask us to recognize it officially, just let us practise it. Well, I think that that kind of talk creates the impression within Canada among French-speaking people in Canada that they are a minority, they are not the majority Canadian, they are the minority Canadian. I think that that kind of hyphenated citizenship is not tolerable in a country and a country will not last.
I have no interest in commenting on the laws of Ontario, any more than I had in commenting on the laws of Quebec. I did not like Bill 22 and I did not like coming out against it, but I felt I had to do it. Why, because I wanted to interfere with Quebec; why, because I wanted to interfere with Ontario? No.
The reason I felt I had to do it was because of my province I have a duty to serve needs Canada united and strong very, very badly, and we all know that in New Brunswick. We also know that if this country does not respect the quality of our citizenship in all parts of the country, but most important, if it does not respect of our citizenship in the most politically powerful part of the country, then our country is in danger.
So, it is in the interests, quite frankly, I speak out as I have, in the interest of my province because my province’s interests are enhanced in a strong Canada and they are in trouble, the progress of my province is going to be slowed or reduced or diminished in a Canada that is divided and fighting among itself and looking inward on itself all the time.
So, it is for that reason I do it. I do it in the interests of New Brunswick, not in the interests of bashing Ontario.
But I do say in response to that, Ontario has been given the most political responsibility of any province in Canada. They had it and they still have it and in the last provision of seats in the House of Commons they were given more political power in the House of Commons.
If they are going to have that responsability, they have got to use it. If they are going to have that power, they have to be prepared to exercise a certain amount of responsibility in the interests of keeping this country strong.
I have to say what to say what I say because of the fact that they have got the power and not because i want to bash Ontario. I want to tell you, Ontario has been generous in the way they have exercised their power, they have been generous in the way they have supported all parts of this country. I can understand why they react to the feeling that is being expressed against Ontario perhaps in Western Canada because of the way they have supported all of Canada.
But in this one area they are detracting from Canada and they are detracting from the unity of Canada and because of that I am concerned. I am concerned for New Brunswick.
Mr. Crombie: I have one further question, if I could, Mr. Chairman.
The Joint Chairman (Mr. Joyal): A very short one.
Mr. Crombie: A very short question. Mr. Premier. the record of the Province of New Brunswick in respect to both the principle and the application of the principle took a certain degree of time. I think it was 1968 that the language provisions that now animate both the courts and the legislatures and the educational programs of the Province of New Brunswick were first passed in 1968 and, indeed, it was not until 1977 that all sections were proclaimed, therefore, giving some testimony to the wisdom of making sure that you had service delivery to match the promise so as to avoid cynicism on the part of people that you were simply making hollow rhetoric by declaring but not delivering.
This is my question, Mr. Chairman: one of the practical things that might be able to be done with respect to the Province of Ontario so that they can match their service with the provision you would like to impose on them with respect to the use of the French language in the province with respect to the courts and the legislature, is to allow a certain time for the application of the principle. That was talked about, as I gather, both formally and informally, that if indeed we proceeded in the manner that you have recommended, that it might be wise that we also allow the Province of Ontario to have a degree of time to be able to deliver the resources for the courts in particular in relation to the promise of bilingual opportunity in the courts.
Mr. Hatfield: Again, it is important that you understand that my view is this: that is was because we took the step, the symbolic step, the very much symbolic step in 1968 that we have what we have today, that we have the degree of confi-
dence in the quality of the status of the citizenship of the people of New Brunswick that we have today.
I can assure you—I cannot go back and prove it—but I can guarantee, and I speak now as having been Premier of the Province of New Brunswick for 10 years, I can guarantee you if I had not had the Official Languages Act through the legislature, New Brunswick would not be in the position it is in today. It is because we took the stand, that we recognized the two languages first and then went ahead. I can tell you if we had not done that and Bill 22 had come along, there would be no way any political leader could have got it through the Province of New Brunswick. That is why we took the symbolic position first.
Mr. Crombie: Should there be an implementation period, is my question, as New Brunswick took from 1968 to 1977?
Mr. Hatfield: All I am asking is that the government recognize the official status of the two languages in Ontario. That is all I am asking. In the interests of the country. I am asking that. It is not because I want to interfere, but because then I know what will take place. What will take place is what did take place in New Brunswick and there will come a time when it will not be an issue at all for anybody. That is the situation in New Brunswick. You will prove to yourselves, the people will prove to themselves, as they have I think in New Brunswick, that it does work, that it is possible and that it is good.
Mr. Crombie: So I take it an implementation period is acceptable to you as it was done in New Brunswick, is that what you are saying?
Mr. Hatfield: I can assure you that there are ways that an individual in New Brunswick could take the government to court right now under the Official Languages Act, just as there are ways under many acts that have general application. There might be some errors, but you see one of the problems that people have I think with recognizing the two languages is they think the French speaking Canadians will be unreasonable. I can testify to the fact that if anything they suffer from too much patience, they are not unreasonable in their demands, their demands are realistic, correct and proper, and they did keep putting pressure on the government and the government did respond, but I think the pressure has to be there.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie.
Mr. Crombie: thank you, Mr. Premier.
The Joint Chairman (Mr. Joyal): Mr. Landers followed by Mr. Fred McCain.
Mr. Landers: Thank you, Mr. Chairman.
I, too, want to take this opportunity to welcome the Premier here today. I, too, commend you for your position and I want to offer you all the respect that I can muster for somebody that tries to have me defeated every federal election, and no always unsuccesfully I might add.
Now, having said that, I want to know if you have Cabinet solidarity on this issue, and if you do or think you do, if you
are prepared to slap the wrist of a certain Saint John Cabinet Minister who says that this resolution will lead to the destruction of the Canadian confederation as we now know it?
Mr. Hatfield: Well, I am not aware that one has said that, and, yes, I do have the support of the Cabinet on it.
Mr. Lenders: So if someone was saying that privately and I was to give you that name privately, you would be prepared to take it up with him, would you?
Mr. Hatfield: Well, certainly I would take it up with him but I think that there are a log of people who express a lot of reservations about this resolution but not to the point of opposing it or advocating that it not be passed.
Mr. Landers: I have been informed recently that the French community of Saint John, when they approached the provincial Department of Education with hat in hand looking for funds for a French cultural centre and a French school, including a French high school, that they were told to wait until after the next provincial election, and I want to know how you marry that stance with the stance you have taken here today?
Mr. Hatfield: Well, again, I do not know who told them that. I have been telling them, and they have been dealing with me personally on that matter, that I have been trying to find a way whereby we can provide the commitment that the province made to provide a high school, a full French language instruction in Saint John, and I think that we are trying to work that out. I do not believe that, given the political reality of New Brunswick, that i can go around the province and build cultural centers wherever there is a French speaking or English speaking population, but I am prepared to try, as I did in Fredericton or as the government did in Fredericton because, as I pointed out, Fredericton was the capital city and this was a necessary element to the capital city of the province of New Brunswick, but I cannot, as I have explained to the people who I have dealt with requesting the cultural center, I am going to try and obtain the facilities that will serve their interests and assure that the policy to provide French language instruction through to grade 12 will be available into the future in Saint John.
Mr. Landers: So in order to encourage New Brunswick and Ontario to provide French language education, and keeping in mind that Premier Davis said that money is a problem and not time, in poverty stricken Ontario I presume he means, do you think that if the federal government put there money where their mouth is that we might proceed more quickly both in Ontario and in New Brunswick?
Mr. Hatfield: Well, again, I am concerned about the fact that the federal government has decided to reduce the amount of money for what I think is called minority language instruction, and we are going to need assistance from time to time and maybe Manitoba needs assistance, for example, in the massive job of translating their statutes, I do not know, but I do not know that I would put it that way. We have come to the federal government from time to time for assistance in providing language instruction and in implementing our Official
Languages Act, and we have got that assistance. We have not got all we asked for but you seldom do.
So I do feel and I am concerned, however, about the reduction in the money for official languages, because that is going to mean that we are going to have to slow down, second language instruction I mean, in New Brunswick and we do not want to do that and I tell you that the people of New Brunswick do not want it done either because more and more parents are asking that their children have second language instruction, both French speaking and English speaking parents.
Mr. Landers: Having spoken of Canadian sovereignty, do you feel that the British government should treat the joint resolution from Parliament as a government bill and should employ the three line whip in Britain?
Mr. Hatfield: Well, I do not know what that means. I do not think that the government of Great Britain has any right to comment on the sovereignty of Canada whatsoever. I think that this aberration, that is our fault in Canada, necessitates the government of Great Britain acting on, “as they have said they would and have advised us they would, acting on the joint address from the Parliament and Senate of Canada and I think they must do it. In Great Britains’ own interest I think they should do it with a minimum of hesitation or review. They should do it very quickly. I think it is the resonsibility of the government of Great Britain to see to it that it gets Parliament as a government bill.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Landers.
Mr. Landers: One final question, Mr. Chairman.
The Joint Chairman (Mr. Joyal): I am sorry I have to stick to the five minute rule. I still have eight members on my list and I think it would be fair for all of us if we an opportunity to address our guest.
Mr. Landers: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. McCain followed by the honourable Senator Goldenberg.
Mr. McCain: Mr. Chairman, I am very happy that our Premier has chosen to make his appearance and express his philosophies and support his principles and I think he has done it with great courage and conviction and it is evident that the Premiers of Canada have different philosophies and each has his own courage and his own convictions and I think it is evident that the provinces have in fact elected strong men. The election of strong men does not necessarily mean that those minds are going to meet on any particular issue and have in fact a totally common goal. That is perhaps why some people have said there is failure in the negotiating process between the federal government and the relatively independent jurisdictions of the individual provinces. I hope that any constitutional amendment which may take place will leave room for that same opportunity for Premiers to present their individual opinions, their philosophies and protect as Premier Hatfield has done, the right to represent his own province in any negotiations with the federal government.
I am concerned about some of those things that are included in the resolution and the way in which they are included. As one who has had some experience in the provincial legislature as well as in Ottawa, I am concerned about the fact that the payments to provinces are included, equalization payments are included, and with the blessing of government are going to be the law of the land, but I am equally concerned about the fact that they are not entrenched with formula, because the lack of formula leaves the discretionary powers of the federal government as the dominant factor in the decision making process and it may very well leave such provinces as any one of the Atlantic provinces at this moment, and two or three others in Canada, in a very embarrassing position. I would like to have your comment on how there can be a security of economic base for the various provinces without entrenchment of formula as well as principle?
Mr. Hatfield: Well, I agree with you that that is a matter for concern and I would very much like to see us be able to express a formula that would be acceptable for a long time to come, 20 years or so, because I tell you that I am concerned about, as you have expressed it, I share the same concern, I have never been worried about Ontario, Alberta or British Columbia backing out of equalization, I have always been worried about the federal government backing out of equalization and I say this without any regard for the particular party that is in power in Ottawa at the moment. It was been my fate to have to deal, in all the time I have been Premier with the exception of a very short time, with one political party as the Government of Canada, but the fact is that it seems to me that this great concept of equalization has a built in problem for another great Canadian concept and that is politics, in that it imposes the responsibility for raising the money on the federal government and imposes all of the blessings on the provincial government and sometimes provincial governments are not as generous in the credit they give to the federal government as perhaps we have been in New Brunswick. That being the reality, I think that the bare minimum is what we have here. I think your concern is a valid one and I would like to see it strengthened because I think it will do a lot for our country and it will also do a lot for our political process, this concept of equalization.
I do not think we could ever find a way, and we had a difficult enough time to get agreement on this wording, in fact we did not, but I do not think we will ever find a way where we will ever be able to get agreement on the formula. I think more than one province would balk at that, and I think the reasons that some of the provinces and the federal government did accept this and I hope will accept the better expression of what I hope was their intention in the resolution, is I think quite an accomplishment and I think we can use it to preserve the formula.
The Joint Chairman (Mr. Joyal): Merci beaucoup, monsieur McCain. I thank you very much. I have still three colleagues on your side and there. . .
Mr. McCain: Just one very short remark, please. I will be short.
The Joint Chairman (Mr. Joyal): All right, go on.
Mr. McCain: My concern is raised by virtue of your dedication to the bilingual program and the fact that when bilingualism was introduced and the federal government assumed responsibility for it, the figure they bandied about initially was $200 million. I do not think that much was ever spent, but in 1978-1979 it was reduced from $168 million to $140 million. Your Minister of Education is now proposing 5 per cent of his budget or $13.6 million will be spent on additional expenditures in vocational schools, et cetera, and if they are in fact going to reduce their allocations for the bilingualism to which this government has dedicated itself, I find it very difficult to place faith in the entrenchment of equalization on its present basis. I think it is a cause of great concern.
Thank you very much, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. McCain.
I now invite the honourable senator Goldenberg followed by the honourable John Fraser.
Senator Goldenberg: Thank you, mister Chairman.
I want to join the other honourable members, Premier Hatfield, in congratulating you on your eloquent and courageous stand. You have proven once again that you are a great Canadian.
I just want to refer to one matter and that is the question of consensus which has been raised a number of times in questions put to you. I found an inference in some of those questions that if the 10 provincial Premiers meet and there is a consensus reached that that should bind the federal government, I at the same time was interested in what you said about the responsibility of the federal Parliament.
Do you agree that the consensus reached by the Premiers, which does not necessarily mean unanimity, that that should bind the federal government, or do you agree with Sir John A. MacDonald who, in a letter of May 14, 1886, wrote as follows to the Lieutenant-Governor of Nova Scotia:
The representatives of Nova Scotia as to all questions respecting the relations between the dominion and the province sit in the dominion Parliament and are the constitutional exponents of the wishes of the people with regard to such relations.
Mr. Hatfield: Well, no, I do not agree that consensus of the provinces binds the Parliament of Canada in any kind of legal way or any kind of moral way. I would hope, and I do believe it would bind them politically, in a political way, if there was perceived to be out there a real consensus, but if that consensus is the kind that we had on some items such as, well, for a while there We had a consensus on joint jurisdiction of fisheries. Well, it did not last very long because there never was very much conviction there to begin with.
So I think the Parliament sits too long in this city, during the course of any one year, the members probably sit too long in this city during the course of any one year, but I do think they have not lost complete touch with political reality and I do not think, on the other hand, Premiers have either.
So if there was a consensus and it was widely held, I think Parliament would respond to it. I guess that is an act of faith, that is all that is, not something that I could enforce in the courts. It is just that I do think the system does work.
Senator Goldenberg: But you do not think that such a consensus necessarily should bind the federal Parliament?
Mr. Hatfield: No.
Senator Goldenberg: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Goldenberg. The honourable John Fraser for a short question.
Mr. Fraser: Thank you very much, Mr. Chairman.
Mr. Premier, I join with my colleagues in welcoming you here and I want to say first of all I frankly commend you for the courage you have shown and the statements you have made over many years in defence of language rights for the francophones in this country. So having said that I am with you on that I want to turn to something else because I am a western member of Parliament and I am disturbed, frankly, at some of the impressions that I think you have left here and I do not know whether you do it intentionally or not but you have suggested to us that this proposal that is in front of us, imperfect as it is, ought to be passed if we cannot agree to make any changes to it here, and that it is better to get on with it because you would like to then have an amending formula so that you could make changes and in effect, you have said that you are prepared to entrench something that you do not agree with in order to some day persuade someone to get rid of it.
Now, you also said that we should not look to experts. We have had a list of experts coming in here who, by the way, are very much in favour of the principles that you espouse but who have said to us: do not pass it in the form it is in. I find it very difficult to see how your proposition, which is: pass it anyway no matter how bad it is because we may be able to do something with it later, is really helping a very large part of the country which does not agree with this thing, and how that helps national unity completely escapes me.
So, Mr. Premier, I want to ask you if you really mean that no matter how incomplete or how flawed this proposition is, that we should pass it anyway, because I just want to point out to you that if it goes through the way it is, even under Section 41, Ontario could forever block your desires for language reform; and if it goes through as is, you may not like a referendum but it could be used at any time by a federal government that does not live up to the highest hopes and expectations of decency and broadmindedness that you have espoused.
Mr. Hatfield: First of all, let me say that I did not say that you should not look to experts. I said do not demean yourself
as elected representatives, as being inferior in making a political judgment and to forfeit that honour or distinction to an academic or a bureaucrat or whatever.
I want to tell you that I have a great deal of respect for the political process. I think it is one of the best professions in the world, and I do not know of any other that I would like to be involved in.
I have listened to experts; I have talked to them. I have considered what they have had to say, and I am sure you should do the same. But in this area there is a need to exercise political judgment. You have been elected and entrusted with that political judgment, and I urge you to exercise it.
Secondly, our system has to be based on trust, and you have to believe, in my view, to succeed in this business, not that the worst will happen, but that it is possible that the best will happen. That is what I believe.
And I said this, by the way, when I spoke—and it is a matter of record—on the Favreau Formula back in 1960 in the New Brunswick legislature. I said I had serious reservations; but we have to get on with the patriation of our constitution.
I cannot overestimate how important it is, nor can I overestimate how frustrating it has been to try and advocate this year after year and see how important it was and to project that if we did not do it certain things will happen and to see these things come about.
But to say to you wait until you have a consensus, until you are sure that all of the people are behind you; until experts agree; all you will get from that, believe me, is waiting and delay. That is all you will get.
So, get the-constitution, and then I have to trust the system; and if Canadians want a referendum, then they will have it. They have had it before and they can have it again. I will do my utmost to try to dissuade them from using that device and to get rid of it.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.
Mr. Fraser: I would like to comment through you, Mr. Joint Chairman, that the task we have here is to draft a constitution and the constitution must be worded and its provisions such that it will protect us if the worst happens, not if the best happens.
Mr. Hatfield: I want to say, Mr. Joint Chairman, that I also have to use my own political judgment. I do respect the opinions expressed by other people. Believe me, I do. I have tried throughout the years to be fair and to listen to them, and to do my best to understand them.
Equally, I ask that people respect my opinions and to believe that they are given, not because I am blind or because I am careless, but because I actually believe what I have said, and what I have said pretty well consistently for a very long period of time and publicly.
I do not like a lot of things that happen. I do not like many things which are my responsibility in New Brunswick, but I have to live with many things that I do not like until I can find ways to change them.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.
I do apologize to honourable members who cannot speak this afternoon. There are five of them. I would like to name them so that our guest knows that he has raised a great deal of interest. They are the honourable Perrin Beatty, the honourable Jake Epp, the honourable Bryce Mackasey, monsieur Jean Lapierre and, of course, Mr. Herb Breau.
I understand, Premier Hatfield, that you have an appointment at 6 o’clock sharp and that you have to leave this room for the purpose. That is why we have to stop our debate.
I want to thank you on behalf of the honourable Senator Hays, the Joint Chairman of this Committee and on behalf of all honourable members of this Committee for accepting all questions, even those which were related to more local issues. You have answered very frankly, and you serve as a lesson to all Canadians who are watching our proceedings in the sense that the Canadian process is made up of men and women with strong convictions who can stand up and speak them fully.
I would like to end with a quotation from the French philosopher Montaigne of the Renaissance Period who said:
Je me commande de faire tout ce que j’ose dire tout haut. In my free translation, it is: I order myself to do everything that I dare to speak loudly.
I think you have been the best illustration of that maxim.
Thank you very much.
The meeting is adjourned until tomorrow morning at 9.30; our witnesses will be the spokesmen of the Saskatchewan Human Rights Commission.
The meeting is adjourned to 9.30 a.m. tomorrow when we will hear the Saskatchewan Human Rights Commission.
Thursday, December 4, 1980
At 9:30 a.m.
From the Canadian Catholic School Trustees’ Association:
Mr. Philip Hammel, President;
Reverend Patrick Fogarty, Executive Secretary.
At 3:30 p.m.
From the Government of New Brunswick:
Honourable Richard B. Hatfield, Premier of New Brunswick.