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 2 (7 November 1980)

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Date: 1980-11-07
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 2 (7 November 1980).
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Issue No. 2

Friday, November 7, 1980

Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada


The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980


The Honourable Jean Chrétien.
Minister of Justice and Attorney
General of Canada


(See back cover)

First Session of the
Thirty-second Parliament, 1980


Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Representing the Senate:



Representing the House of Commons:

Campbell (Miss)
(South West Nova)

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons:

Mr. Baker (Nepean-Carleton) replaced Mr. Fraser;
Mr. Malone replaced Mr. Baker (Nepean-Carleton);
Mr. Nowlan replaced Mr. Beatty;
Mr. Chenier replaced Mr. Irwin;
Mr. Gimaiel replaced Mr. Mackasey.

Pursuant to an order of the Senate adopted November 5, 1980:

Senator Robert Muir replaced Senator Duff Roblin;
Senator Jack Marshall replaced Senator Martial Asselin.


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The Special Joint Committee on the Constitution of Canada met at 9:42 o’clock a.m., this day, for the purpose of organization, the Joint Chairman, Mr. Joyal presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin. Austin, Connolly, Goldenberg, Hays, Lamontagne, Lucier, Muir, Petten and Tremblay.

Representing the House of Commons: Messrs. Baker (Nepean Carleton), Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, EPP, Fraser, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom and Tobin.

Other Member present: Mr. Allmand.

Debate was resumed on the amended motion of Mr. Beatty,—That the quorum of the Committee be twelve members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that at least one Committee member from the Official Opposition in either House is present and that the Joint Chairmen be authorized to hold meetings. to receive evidence and authorize the printing there of, when six members are present so long as both Houses are represented and a Committee member from the Official Opposition in either House is present.

After debate thereon, the question being put on the motion, it was negatived on the following division:



The Honourable Senators





The Honourable Senators



Campbell (Miss)(South West Nova)


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By unanimous consent on motion of Mr. Mackasey, it was agreed,—That all procedural matters be referred to the Subcommittee on Agenda and Procedure.

By unanimous consent on motion of Mr. Mackasey, it was agreed,—That the Committee invite the Minister of Justice and Attorney General of Canada to appear before the Committee at its sitting at 2:00 pm. today, Friday, November 7, 1980.

At 10:21 o’clock a.m., on motion of Mr., Lapierre, the Committee adjourned until 2:00 p.m. this day.


The Special Joint Committee on the Constitution of Canada met at 2:07 o’clock p.m., the Joint Chairman, Honourable Senator Hays presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Connolly, Goldenberg, Hays, Lamontagne, Lucier, Marshall, Petten and Tremblay.

Representing the House of Commons: Miss Campbell (South West Nova). Messrs. Chénier, Corbin, Crombie, Epp, Gimaiel, Irwin, Joyal, Lapierre, Mackasey, Malone, McGrath, Nowlan and Nystrom.

Other Members Present: Messrs. Landers and Beatty.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witness: From the Department of Justice: Mr. Roger Tassé, Deputy Minister of Justice.

The Committee proceeded to consider 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, which are as follows:

RESOLVED,—That the Senate do unite with the House of Commons in the appointment of a Special Joint Committee to consider and report upon 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, and to recommend in their report whether or not such an Address, with such amendments as the Committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen;

That ten Members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee;

That the Committee have power to appoint from among its members such sub-committees as may be deemed advisable and necessary and to delegate to such sub-committees all or any of their powers except the power to report directly to the Senate;

That the Committee have power to sit during sittings and adjournments of the Senate;

That the Committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the Committee;

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That the Committee submit their report not later than December 9, 1980;

That the quorum of the Committee be twelve members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the Joint Chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented; and

That a Message be sent to the House of Commons to inform that House accordingly.

RESOLVED,—That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon 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, and to recommend in their report whether or not such an Address. with such amendments as the Committee considers necessary, should be presented by both Houses of Parliament to her Majesty the Queen;

That 15 Members of the House of Commons to be designated no later than three sitting days after the adoption of this motion be members on the part of this House of the Special Joint Committee;

That the Committee have power to appoint from among its Members such sub-committees as may be deemed advisable and necessary and to delegate to such sub-committees all or any of their powers except the power to report directly to the House;

That the Committee have power to sit during sittings and adjournments of the House of Commons;

That the Committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the Committee;

That the Committee submit their report not later than December 9, 1980;

That the quorum of the Committee be 12 members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the Joint Chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when 6 members are present so long as both Houses are represented; and

That a Message be sent to the Senate requesting that House to unite with this House for the above purpose, and to select, if the Senate deems it to be advisable, Members to act on the proposed Special Joint Committee.

The Joint Chairman, Mr. Joyal, presented the First Report of the Sub-committee on Agenda and Procedure which is as follows:

Your Sub-committee met on Friday, November 8, 1980 to consider the future business of the Committee in relation to 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 concerning the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Consti-

[Page 6]

tution of Canada” published by the Government on October 2, 1980.

Your Sub-committee has agreed to recommend the following:

1—That the schedule of meetings for the week of November 10, 1980 be as follows:

Wednesday 3:30 p.m.— 6:00 p.m.
November 12, 1980 8:00 p.m.—10:00 p.m.

Thursday 9:30 a.m.—12:30 p.m.
November 13, 1980 3:30 p.m.— 6:00 pm.
8:00 p.m.—10:00 p.m.

November 14, 1980 9:30 a.m.—11:00 am.

2—That the Committee invite Mr. Gordon Fairweather, Commissioner of Human Rights and Mr. Maxwell Yalden, Commissioner of Official Languages to appear before the committee, following the meetings with the Honourable Jean Chrétien;

3—That after the opening statement of a witness, fifteen (15) minutes be allocated to each of the three political parties, and that thereafter ten (10) minutes be allocated to each member of the Committee;

That for the ten (10) minute round the Chair give priority to members of the committee who have not yet participated taking into account the proportion of the representation of the political parties on the Committee.

On motion of Mr. Lapierre seconded by Mr. Mackasey the First Report of the Sub-committee on Agenda and Procedure was concurred in.

The Minister made a statement and the witness answered questions. questions.

At 4:00 o’clock pm., the committee adjourned to the call of the Chair.


Richard Prégent,
Paul Bélisle,

Joint Clerks of the Committee


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(Recorded by Electronic Apparatus)

Friday, November 7, 1980


The Joint Chairman (Mr. Joyal): The meeting will come to order. i think that everybody has a copy of the motion as amended put through by Mr. Beatty. It will make our work easier this morning and we will try our best to conclude on that very aspect of our preliminary work.

Mr. Beatty, did you have time to read the motion as it has been recopied? If it is really in line with what you had in mind we could continue the discussions and maybe go on with it as soon as possible?

Mr. Beatty: Yes, that is my understanding of what the motion was, Mr. Chairman.

The Joint Chairman (Mr. Joyal): So I am open to receive comments or proposals on the motion. Senator Austin.

Senator Austin: When the bells rang last night, Mr. Chairman, I was putting the question to you and I said that I would defer the question to this time. Taking Mr. Beatty’s motion as it stands amended, my understanding of its implication is that we would be putting ourselves in a bit of a strait jacket—I am not suggesting that the implication is meant—but inadvertently what would happen is that if no member of the opposition came, we would be unable to continue our proceedings and in addition we would be unable to amend the rule until such time as a member of the opposition came.

I can understand the concern of opposition members that we might, for example, want to behave in a way that would call meetings without due notice or give them an opportunity to come. I say that hypothetically, I would not believe that they would be concerned that in truth we would not act in good faith towards all members of this committee. But my suggestion then is that in view of the twin problems, Mr. Beatty’s motion be amended, or if it is not amendable, that a new motion stand in its place.

The motion that I would submit, the substance of it, is that the quorum of the committee shall include at least one member of the Official Opposition except that if the commencement of the first or any subsequent sitting of the committee on any day is delayed more than 30 minutes by reason of the absence of members of the Official Opposition, if notice of that sitting was given at a previous sitting of the committee, for the remainder of that day the quorum shall be determined without reference to party affiliation and the delayed sitting shall be extended for a period equivalent to the period of delay.

I would hope that with these suggestions we could proceed past this particular procedural item.

The Joint Chairman (Mr. Joyal): Does everybody have a Copy of the alternative motion?

Senator Austin: Would you distribute copies of my Proposal?

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The Joint Chairman (Mr. Joyal): Yes, certainly. Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman. I was hoping we would, and I believe we can, get the meetings off to a proper start and that we can possibly get to witnesses today. That is our objective. This motion puts that somewhat in doubt, and for this reason. Senator Austin says and bases his whole premise on the hypothetical possibility that the opposition would not show up for committee. He might as well use the word that he has in mind, and that is that we would boycott the committee. That is the whole basis on which his argument rests. I would suggest to him, as frankly as I could, that he dismiss that possibility from his mind immediately because that is not our intention, that is not our purpose, that is not our view and that is not the manner in which we are going to proceed.

Senator Austin: Nor did I suggest it was.

Mr. Epp: Well, I am glad that Senator Austin has modified it but that is the basis on which his proposal rests because if that is now dismissed from his mind then I suggest we do not have to look at his proposal at all, first of all.

Secondly, he says that it would put the committee in a strait jacket if no member of the opposition appeared. Mr. Chairman, the manner in which this committee is going to function is going to be a reflection on you, on your co-chairman, I submit with greatest respect, on myself and to every member on this committee. That is just the reality because Canadians are obviously going to look at this committee in as objective a manner as possible. They have a view that this committee has a job to do, and if any member on this committee appears to not meet those objectives of getting the committee work done, then the court of public opinion will judge. So the matter of the strait jacket I do not think is valid either.

In reverse, if Senator Austin feels that the opposition could boycott the committee meeting, this same thing can apply to government members in the very same way. There could be a witness who is just absolutely opposed to the government’s proposition and that government members would not want to hear any more of that witness either. So the same thing applies and I do not think that in their case they would want to boycott or will boycott. I do not think for a moment they would. Nor will we. But the argument rests on that whole premise that Senator Austin has put forward, that boycott is possible. Additionally, as a result then I do not see a twin problem. I do not see a problem at all.

But there is one other argument that has to be put forward, Mr. Chairman, and that is in the meeting of the House Leaders a discussion on quorum has taken place. The Government House Leader, Mr. Pinard, has given the assurance to our House Leaders, and I also believe that the NDP House Leader was in attendance, that the manner in which quorum has been used in other committees, namely that the Official Opposition must be present in order that the committee can proceed, is the same regime that would we used in this committee. That has been a direct undertaking by the government House Leader. That undertaking we have taken in good faith. We accept that undertaking and we intend to operate on that basis. Additionally, the government House Leader has said there would be no tricks. We have also proceeded on that

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basis; and while I might have reservations I still will accept that in good faith.

So I suggest to you, Mr. Chairman, that we should dispose of this matter along the lines of Mr. Beatty’s motion and get on with our first witness.

The Joint Chairman (Mr. Joyal): Senator Austin.

Senator Austin: I think the lead point, Mr. Chairman, is not the intentions of the Official Opposition or the opposition, or of the government members here. The lead point is what I took to be a totally inadvertent result in the motion submitted by Mr. Beatty; that is, that in the event, remote though it may be in intention, that no opposition member came, this committee would be unable to do its business and this committee would be unable to meet until such time as an opposition member decided to come. Now I cannot believe the Official Opposition really want that circumstance to take place, and Mr. Epp has just made clear in his presentation to this committee that this is not the intent of the Official Opposition.

So I cannot see on what basis the motion that was made by Mr. Beatty could possibly be pressed further here, and I would earnestly suggest that the proposal I made a few moments ago would eliminate both concerns: the technical concern to which I have addressed myself this morning, and the concern, if it is a concern, and Mr. Epp says it is not, on the part of the opposition that the government might in any way try to frustrate the holding of hearings of this committee. I believe my proposal, which is now before members of the opposition, can be looked at and would completely avoid and eliminate the twin hypothetical concerns that Mr. Beatty’s motion has put before us.

The Joint Chairman (Mr. Joyal): Mr. Tobin.

Mr. Tobin: Mr. Chairman, I will withdraw.

The Joint Chairman (Mr. Joyal): Are there any other speakers who want to comment or to propose amendments to the motion put by Mr. Beatty?

Mr. Beatty.

Mr. Beatty: Mr. Chairman, I do not want to protract this because I do not think we are doing a service either to the committee or to the Canadian people to spend the time of the committee in discussion of strictly procedural matters. We would like, on our side of the House, to see the first witness called this afternoon. We want to get on with the proceedings; we want to give Canadians the opportunity to appear before the committee as quickly as possible.

But I do not think Senator Austin’s comments and proposals can go unchallenged. The fact is that what Senator Austin is proposing is a double standard. He raises the prospect that the committee could find itself in a strait jacket because of the absence of the Official Opposition; yet what he is suggesting is that we should have a provision in here whereby if the same mass sickness were to afflict the government members as he is worried might afflict the members of the opposition, the committee would be in exactly the same strait jacket.

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Mr. Chairman, I think it would be useful to take a look perhaps at the proceedings of House of Commons committees during the term of this Parliament. There have indeed been numerous occasions on which sufficient members of a committee, of various committees, were withdrawn at the last minute prior to a vote, and the House committees were not able to go on and take that vote. But I think the record will show, and I think members of the press who are here and who have covered other committees are very much aware of this fact, that it has not been because members of the opposition have been withdrawn, it has been because members of the opposition outnumbered members of the government because the whips were not doing their job . . .

Mr. Epp: Exactly.

Mr. Beatty: . . . and because the rest of the members of the government withdrew their members, thus putting those committees in a strait jacket.

Mr. Chairman, Senator Austin says he is not worried about any party in this committee taking that sort of action deliberately, and I accept that. I accept what he says. What he is worried about is an oversight, an oversight on the part of all members of the opposition so that we happen to miss the committee proceedings at the same time; or that we all are stricken by flu at the same time or all incapable of coming, and the Whips are incapable of coming, and the Whips are incapable of substituting any other member to replace any of the Conservative members who are away. If this is the concern, if it is such a valid concern that all of the opposition could suddenly be wiped out by disease or by failing memory, then I would suggest that we should be equally concerned that the same sort of virus could afflict members of the government.

What Senator Austin is proposing is that there be one standard for the government and a totally different standard for the opposition. If government members are not here, that they have vetoed by their absence; yet if opposition members are not here, that the government members, in splendid isolation, should be allowed to go on alone.

Mr., Chairman, there is a further protection obviously that the government members have, and this is not in any way a reflection on the chair or on the fairness with which either chairman has presided today. The fact is that both chairmen of this committee are members of the Liberal caucus. The Liberal caucus has protection. We simply cannot meet without one of the chairmen in the chair. There cannot be meetings at which Liberal members are not present, plainly and simply. In addition to that, under the terms of the quorum provisions as they stand now, it would be impossible for the opposition members by themselves to satisfy that quorum provision and for there to be a vote taken in the absence of the other Liberal members.

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All the members of the opposition are asking, seeing that Senator Austin stresses his good faith and says he does not feel there is any trickery going on here, is that he demonstrate equal good faith and not ask that a provision for ‘veto in absentia by the government members should exist when similar provisions do not exist to protect the members of the opposition. All we are asking is that there be equity. We are not asking for any special provisions here which are not there for the members of the government.


The Joint Chairman (Mr. Joyal): Thank you Mr. Beatty. Senator Austin.


Senator Austin: When responding to Mr. Beatty, I found the two halves of his argument in conflict. He began by saying that this session could not begin if none of the government members came, and this is true; but it is the result of the resolutions of both the House and the Senate that there are required to be a quorum of 12, and there are not 12 opposition members. So we are in the hands of our masters, the House of Commons and the Senate, in terms of the nature of the quorum. The last half of his argument, I would simply address by saying that I have tried in my proposal to be absolutely and scrupulously fair to the opposition. Notwithstanding every- thing Mr. Beatty has said, he has not addressed himself to the simple point that the opposition, I believe inadvertently—and certainly I believe it has no present intention of the use of a possible boycott to bring into use on my part the same word as was used by Mr. Beatty—could frustrate the sessions here.

I would be quite happy simply to withdraw my proposal and to have Mr. Beatty withdraw his proposal, and get on with more substantive issues. I do want to point out, in spite of my concurrence that we should get on and hear the minister, the motion before this committee is a procedural motion made by Mr. Beatty.

Mr. Beatty: Mr. Chairman, I would ask that the motion be put and that we have a recorded division.


The Joint Chairman (Mr. Joyal): The honourable members of the Committee are ready for the question. Those in favour of the motion as put by Mr. Beatty? [Text] All those in favour of the motion put by Mr. Beatty, please raise their hands.

Mr. Beatty: I want a recorded vote.

The Joint Chairman (Mr. Joyal): You want a recorded vote. Will the clerk call the names then.

Motion negatived: yeas, 8; nays, 14.

Mr. Beatty: Mr. Chairman, Mr. Baker, the House Leader of the Official Opposition just came in. Mr. Epp had mentioned that there had been a meeting of House Leaders in which the matter of a quorum was discussed. I wonder whether, in view of the fact that we have one of the House Leaders here, we might ask him to report to the committee as to what the nature of that meeting was.

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The Joint Chairman (Mr. Joyal): With the permission of the members of this committee I will recognize Mr. Baker, but I am bound by the rules that we have already accepted previously.

Senator Lamontagne: I propose that he speak now on behalf of all the House Leaders.

The Joint Chairman (Mr. Joyal): First I would like to get the assent of the members of this committee to hear Mr. Baker, and then we could question him.

Senator Lamontagne: I have asked a question.

Mr. Mackasey: Before I agree I would like to know what is the purpose of hearing Mr. Baker, and I say that openly. I may have missed the introduction by Mr. Beatty. What is Mr. Baker going to tell us about?

Mr. Epp: Mr. Chairman, the point of the matter is that at the moment we have defeated the motion put by Mr. Beatty. Senator Austin has not moved his motion at this point . . .

Senator Austin: I am prepared to move it.

Mr. Epp: Just a minute, please do not interrupt. Let me finish.


The Joint Chairman (Mr. Joyal): You have the floor, Mr. Epp.


Mr. Epp: He has not put his motion. The situation that we are at right now is that our reference to strike the committee is as it was passed by the House and the Senate, and that is the purpose.

Mr. Mackasey: I think, Mr. Chairman, we have moved rather prematurely to this point. It was Mr. Beatty who called for the vote. The request for the vote did not come from the government ranks, it came from Mr. Beatty, which was quite logical since his motion was defeated.

I have no objection to hearing Mr. Baker, but I would hope that there is not a presumption if hearing Mr. Baker we then reopen the situation. We have taken the vote, we cannot go on forever.


The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey. Now, you have a question for Mr. Baker, Mr. Lamontagne?


Senator Lamontagne: I would like to know if Mr. Baker is representing here this morning all the House Leaders.

Mr. McGrath: Mr. Chairman, on a point of order. I understand that Mr. Baker has now been placed on the membership of the committee, and that probably solves the problem. He can speak in his own right as a member of the committee.

The Joint Chairman (Mr. Joyal): Could you answer, Mr. Baker, to the questions that were put to you?

Mr. Baker (Nepean-Carleton): If I may, thank you very much. If I may just speak, I am sure that you may consider it out of order for me to comment with respect to the motion put by Mr. Beatty, which I understand is now defeated, but I think I should inform the committee now, as a member of the committee and also as one of the House Leaders of one of the parties that discussed the draft resolution in the name of the

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Minister of Justice, that the motion which this committee has just defeated is in accordance with the discussion that was held among House Leaders as to how the committee would function in the preliminary negotiation stages. I think you should know that.

Quite frankly we have always operated among House Leaders in a reasonable way. If there is some way that the committee could reconsider what it has done, given the understanding among House Leaders, I want to say to you that I think that would augur well for the business not only with respect to this committee but elsewhere. But I think the committee should know that there were discussions about quorum, there were discussions about the representations of both Houses, there were discussions about the opposition members being represented with respect to quorum because as the resolution was before us there seemed to be something lacking with respect to it.

The reason I am here is that I was called as I understood the committee was about to do, which it is their right to do if they want to, something that was contrary to an understanding among House Leaders to the extent, I tell you, that based on that understanding the issue at House Leaders’ meetings with respect to amendments of that draft resolution were not considered any further because there was an understanding. I always thought, until this morning, that the relationship between the government and the opposition with respect to this matter operated on those understandings. That is why I started out the way I did, that if there is some way that the committee can reconsider its position, with respect to it as a House Leader of one of the parties, I would appreciate it in terms of the importance of the understanding that should exist.

Now I speak for myself with respect to my understanding, and at the very least, I think that there should be no further action, I respectfully submit to my fellow members of the committee, until this matter has been cleared up so the committee can consider what it might have done in ignorance of an understanding which was reached among House Leaders operating on good faith, as we usually do. I frankly do not want that good faith destroyed, but if there is one way of doing it, you have chosen the right method.


The Joint Chairman (Mr. Joyal): I have a long list of speakers, Mr. Corbin, Mr. Mackasey, Senator Austin, Mr. Irwin, Mr. Nystrom. Mr. Nystrom, on a point of order.

Mr. Nystrom: I would like to put a question to Mr. Baker, if I may.


Mr. Mackasey: I want to talk to the same point.


The Joint Chairman (Mr. Joyal): As all the speakers want to have the floor and ask questions or comment Mr. Baker’s intervention, if it is all right with you, Mr. Nystrom, I will give you the floor after those I have mentioned have had the possibility to intervene. I am certain that all the speakers who will come before you will comment on Mr. Baker’s proposal.

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Mr. Nystrom: All right.

The Joint Chairman (Mr. Joyal): Mr. Mackasey.


Mr. Mackasey: Mr. Chairman, I was quite impressed by the contribution by Mr. Baker. I, however, have to make the point that we advance to the vote not in haste but at the suggestion or the request of the mover of the motion. So I think it should be very clear, because you ended up, Mr. Baker, with the inference about good will and the rest of it, we acted quite with propriety, reacting to a request by the mover of this motion that we proceed with a vote. Certainly there should not be any implication, even in your remarks, that somehow we may be straining the good will of the committee. As a matter of fact, perhaps you have done this by your inference and I hope you rectify that in a few moments.

Obviously, Mr. Chairman, and I am approaching this thing from a different point of view, what has bothered me since yesterday is that it seems this committee has been bogged down on a procedural matter that is best referred to the steering committee. I think Mr. Baker has brought a valid point that there is an interrelationship between what happens here and the discussions that go on in the Commons and the Senate between the House Leaders. But surely that communication is best reflected in the steering committee. I would suggest, as has already been suggested today, that procedural matters be almost automatically referred to the steering committee, and the representation that Mr. Baker has made should be reviewed in the steering committee, and that we dispose of it from this committee and not reopen it here, even on the persuasions of Mr. Baker, but on the other hand, agree that his representations be made at the first earliest moment, perhaps later today in the steering committee. I would make that motion.


The Joint Chairman (Mr. Joyal): So you make that proposal Mr. Mackasey? Senator Austin.


Senator Austin: I concur with Mr. Mackasey’s suggestion and I would simply like to note what I believe, in a personal sense, is an inconsistency that is rather annoying. Yesterday the accusations of the Official Opposition were to the effect that the government members of this committee were being controlled by the government in terms of the TV issue. Today you are urging on us that we be controlled by the government on the question of our procedures. It seems to me that you are asking for it both ways. Notwithstanding that, and you will excuse me if I feel slightly provoked, Mr. Baker, I do concur with Mr. Mackasey’s eminentaly sensible suggestion that the steering committee, on which the Official Opposition is represented, take up this issue.


The Joint Chairman (Mr. Joyal): Thank you Senator Austin. Mr. Nystrom.


Mr. Nystrom: Mr. Baker, on his recollections of what happened at the House Leaders meetings, when he was talking about the understanding that someone from the opposition party be there, is it his understanding that it was someone from the Official Opposition, or were the House Leaders

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talking about someone there from both of the opposition parties?


The Joint Chairman (Mr. Joyal): Mr. Baker.


Mr. Baker (Nepean-Carleton): My recollection is it was not precise as to whether we were discussing it with respect to both opposition parties or just one opposition party. But the issue was raised and it was raised and concluded on the basis that there would be no difficulty with what would be normal with respect to this kind of committee. It was raised in such a way that there was not even an argument or a question by House Leaders.

Now I want to deal, if I may, with Mr. Mackasey’s point, and that is the question that I might have been imputing the motives of the committee in some way. I am not. But I am here to tell Mr. Mackasey, through you, Mr. Chairman, and other members of the committee, that there was some understandings reached in the normal way among the parties, and that perhaps the committee, acting in ignorance of those understandings, not orders, not edicts, but understandings, may have acted in a way that is in breach of those understandings. That is not acting in bad faith, and I did not think I accused you and I want to make sure that is sure.

Mr. Mackasey: Just the last word on it. What you did suggest is that somehow we were straining the atmosphere and the good will that is needed around this committee. . .

Mr. Baker (Nepean-Carleton): No.

Mr. Mackasey: . . . and that could be taken as an inference of a threat that I do not appreciate.

Mr. Baker (Nepean-Carleton): Well, we will check the blues, Mr. Mackasey.

Mr. Mackasey: Fine.

Mr. Baker (Nepean-Carleton): But I had thought quite clearly that I was dealing with it in terms of the atmosphere of good will that ought to exist in the House of Commons, and I presume exist in the other place, with respect to the conduct of business in that place.

Mr. Mackasey: Mr. Chairman, I propose, just in the spirit of good will, but I would suggest that we vote now and get it over with, one way or the other.


The Joint Chairman (Mr. Joyal): Mr. Baker, I would like to inform you on discussions we have had before your arrival. As you have noticed, we have already defeated the motion proposed by our colleague Mr. Beatty. Therefore, to reopen the discussion on the same matter, we would obviously have to recall the vote already taken. However, the motion submitted by Mr. Mackasey would enable the subcommittee on agenda and procedure to hear you again as Leader of the opposition and maybe to invite the Leader of the Government to have an informal discussion on this point. We could then come back before the committee so that it proves the consensus that could eventually come out of this meeting.

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So, if you agree, we could ask the committee’s opinion on Mr. Mackasey’s proposal which, if! understood it, intends to refer all procedural matters raised this morning to the subcommittee on agenda and procedure, particularly, the question concerning the composition of the quorum. And I specify here, the whole opposition, I am not speaking only about the Official opposition, since Mr. Nystrom raised the same question earlier. It therefore concerns the number of people representing the opposition for the purpose of the quorum in our Committee.


Mr. Irwin: I will move such a motion.


The Joint Chairman (Mr. Joyal): I have already recognized Mr. Mackasey’s motion to the same effect. How many are in favour of the motion? Are there any objections to Mr. Mackasey’s motion? Does that therefore mean that the proposition is agreed to and that this aspect of the debate is over for the moment?

Motion agreed to.

The Joint Chairman (Mr. Joyal): Mr. Mackasey.


Mr. Mackasey: Mr. Joyal, I think that Mr. Beatty made a very pertinent observation earlier, that it is time we got down to witnesses. I would like to make a motion that the committee invite the Minister of Justice and Attorney General of Canada his full title, to appear before this committee at 2 o’clock this afternoon in view of the fact that we will not be meeting Monday or Tuesday, that the minister be invited to be here at 2 o’clock as our first witness.


The Joint Chairman (Mr. Joyal): You must know now. that there is no need to have a seconder for the motion. I often make this mistake myself also. Thank you, Mr. Epp. I think everyone agrees to the motion as moved by Mr. Mackasey.

Motion carried.

The Joint Chairman (Mr. Joyal): Are there any other motions? Mr. Allmand? I draw your attention to the fact that Mr. Allmand is not an official member of our Committee. Do the members then agree to let him have the floor?

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): Mr. Allmand.


Mr. Allmand: Mr. Chairman, before you retire into steering committee to make rules for the hearing of other witnesses, I just want to make a short suggestion to the committee. Yesterday I was a bit concerned by a remark that you made, that in choosing witnesses to appear before the committee you would try and avoid repetition of views. In answer to that, Senator Tremblay raised the point that perhaps that should be modified because you could only assess a consensus by hearing repeated views. You agreed to that. But I want to add something further to that.

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Since one of the principal purposes of this committee is to consider the charter of rights, and the purpose of a charter of rights is to protect minorities in this country against the legislative majorities that might appear in Parliament or in legislatures of provinces, what you are considering is protecting those rights so they cannot be overrun by legislative majorities. Therefore, what I would like to do in deciding upon witnesses is be very flexible and generous with respect to groups from minorities in this country, such as natives, the disabled and handicapped and so on. In other words, I would caution you against, let us say, hearing only one group and feeling you have heard the views of any of those minority groups.

I personally believe that for these groups to make any impact on you it would be worthwhile to hear them. Let us say that if the Union of British Columbia Indians wished to appear in addition to the National Indian Brotherhood or a group from the Atlantic provinces, because their voices are often drowned out by thousands of others who are in a greater majority in this country their points may not get through to you if you insist on just one group.

What I am asking you to consider in the steering committee is a spirit of generosity in hearing the minorities of this country, if one of your principal purposes is the entrenchment of minority rights.


The Joint Chairman (Mr. Joyal): Thank you, Mr. Allmand.

If the Committee members allow me, there are two things I would like to qualify, What I said yesterday about avoiding the repetition of views, was only given as an example. I want to make it absolutely clear to the members of the Committee that it is not a criterion. I have no criteria to impose on the members of the Subcommittee on Agenda and Procedure.

My second comment is that the report of the Subcommittee on Agenda and Procedure must be approved by the members of this Committee. Therefore, if one member or another of this Committee have the impression that the Subcommittee on Agenda and Procedure has forgotten to hear certain witnesses, or should add some of them to its list, he is completely free to make such a proposal. I think that this answers, in general terms, the question you have raised this morning.

Are there any other proposals or motions on the organization of our work?


Other proposals or motions on the organisation of our work? [Translation] Senator Muir, we have the pleasure of welcoming you as a new Member of the Committee.


Senator Muir: Thank you, Mr. Chairman. With your permission, I would like to comment on Mr. Allmand’s statement. I think he is absolutely correct. For instance, the Union of Nova Scotia Indians, who do not always agree with the

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National Indian Brotherhood and other groups, have already taken steps to appear before the world court and also Westminster; and I think of all places, they should be allowed to appear here.

Thank you.


The Joint Chairman (Mr. Joyal): Thank you, Senator Muir.

Are there any other proposals or questions before we adjourn, because I believe if there are no other subjects which members of the Committee would like to have considered before we adjourn, I should request a motion to adjourn.

Mr. Corbin?

Mr. Corbin: Mr. Chairman, I asked the question yesterday about the layout of the room, etc. . .

The Joint Chairman (Mr. Joyal): Yes, thank you for reminding us. At the suggestion of the members of the Committee, I discussed the question with the House of Commons’ Services Section, and their suggestion was that we request the Conference Centre table which could be provided to us at no cost for the duration of our work. So if I have the agreement of the members of the Committee, when we meet next week, the House of Commons’ Services Section will have set up more comfortable tables and chairs for us. Agreed?

Senator Austin.


Senator Austin: On a matter of procedure, Mr. Chairman, is the steering committee at the call of the co-chairman? Yes?


The Joint Chairman (Mr. Joyal): I consulted the representatives of the different parties and they seem to agree that the subcommittee on Agenda and Procedure meet this afternoon, after the House Commons’ Question Period.

Other points? Senator Tremblay?

Senator Tremblay: Could we not move the group somewhat. . . ? Move closer. . . ?

The Joint Chairman (Mr. Joyal): That is a question which is open for consideration; it seemed easier to move furniture than to move people using it… Any other questions, Mr. Irwin?


Mr. Irwin: Yesterday we discussed whether we were going to sit Monday or not, and perhaps we could settle that now. Because if we are not, then there is going to be scurrying for plane tickets.

The Joint Chairman (Mr. Joyal): Mr. Epp.

Mr. Epp: Mr. Chairman, we had given an undertaking and we also had an understanding that we would look in the steering committee as to how we could replace those sittings.


The Joint Chairman (Mr. Joyal): That is what I understood after last night’s discussion. Any other questions? If not, I will invite a motion to adjourn. Mr. Lapierre?

Mr. Lapierre: I move that we adjourn.

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The Joint Chairman (Mr. Joyal): We will now adjourn until 2 p.m. this afternoon.

End of the morning session.


The Joint Chairman (Mr. Joyal): Order, please. Would the journalists and various technicians please mind leaving the room so that we may begin this afternoon’s proceedings…

Order, please.

As was agreed when we adjourned last time, the members of the Subcommittee on Agenda and Procedure met at lunch. I am now able to report to you and to seek your approval for the decisions made.

Many questions were dealt with during the meeting so, for the moment, I will only discuss three of the points which were raised. The first concerns our meeting schedules. The timetable agreed upon for next week includes Wednesday from 3.30 pm, to 6 p.m. and from 8 p.m. until 10 p.m.; Thursday from 9.30 a.m. until 12.30 o’clock, from 3.30 p.m. until 6 p.m. and from 8 p.m. until 10 p.m.; and Friday from 9.30 a.m. until 11 am. I beg your pardon? Am I going to quickly?


I am sorry, I have been too fast in giving you the schedule of our meetings for next week. I have said that Wednesday will be from 3.30 pm. until 6.00 p.m., and from 8.00 p.m. until 10.00 p.m. Thursday will be from 9.30 am. until 12.30, in the afternoon from 3.30 p.m. until 6.00 p.m., and in the evening from 8.00 pm. until 10.00 p.m. Next Friday, [Translation] Next Friday, from 9:30 to 11:00 am. The subcommittee proposes that there be no meeting on Friday afternoon. As far as hearing of witnesses is concerned. the committee is agreed to allow the members of the committee to determine the time necessary to hear the Minister of Justice. So, members may decide upon adjournment of today’s proceedings at 4:00 o’clock whether they wish to continue questioning the Minister on Wednesday afternoon. [Text] So members may decide at our adjournment at 4.00 pm, if it is the committees will to continue to discuss and debate with the Minister of Justice next Wednesday afternoon at 3.30 o’clock.


After we have finished with the Minister of Justice, the subcommittee has suggested that we hear the Chief Commissioner of the Canadian Human Rights Commission, Mr. Gordon Fairweather. Then, the committee has proposed that the Commissioner of Official Languages. Mr. Max Yalden, be invited to appear.

The subcommittee has reserved its decision on the order in which witnesses are to appear for one of its further meetings.

As far as time allotment is concerned, the committee soon agreed that the normal procedure was to be followed [Text] in the other standing committees of the

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House, which provides that the first fifteen minutes are with the Official Opposition of the House of Commons, and of the Senate, of course; the next fifteen minutes with the New Democratic Party: and the next fifteen minutes with the Liberal Party of Canada. That is for the first turn. For the second turn, it is provided that ten minutes be allotted for each party, taking into account a fair balance between the seats in the House of Commons on the opposition side, which means there will be consecutive turns from the opposition side to the government side, which is essentially the same procedure that is followed in the other standing committees or special joint committees of the House and the Senate.

So if it is agreeable to the members to accept such a preliminary report, I would invite a member to propose its adoption. [Translation] Mr. Lapierre has been seconded by Mr. Bryce Mackasey.

The Report of the subcommittee on agenda and procedure is carried.

The Joint Chairman (Mr. Joyal): So, if that is the committee’s desire, I would now ask the co-chairman, the Hon. Senator Hays, to continue the proceedings.


The Joint Chairman (Senator Hays): Thank you very much, Mr. Co-Chairman.

Hon. members and hen. senators, in consideration of the document entitled A Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, we have appearing as our first witness the Hon. Jean Chrétien, Minister of Justice and Attorney General of Canada. I invite the Hon. Minister to make a statement. if any, or to be prepared to answer questions.

Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): Thank you very much, Mr. Chairman.

Members of the committee, the work which this committee has been asked to undertake by the Senate and the House of Commons is fundamentally important to Canada, and I am pleased to be here to assist the committee at the commencement of this historic task. The proposed resolution for a joint address has four main elements. I do not want to repeat the speech I made in the House: I do think some of you were there to listen to it and some others must have read some part of it. But I can say that this joint address calls for four main elements: first. the patriation of the constitution by transferring to Canada all remaining authority of the United Kingdom parliament with respect to the Canadian constitution; secondly, an amending formula for changing the constitution in Canada; thirdly, a charter of rights and freedoms protecting basic freedoms, democratic rights, mobility rights, legal rights and language rights; including educational language rights; and fourthly, the principle of equalization and the reduction of regional disparity.


This is a very important occasion, Mr. Chairman, because we have been trying to solve this question since 1926 when it was decided at the Imperial Conference that Canada was to become completely independent from the United Kingdom. Next year, in 1981, it will have been 50 years since the Statute of Westminster was passed and since it was decided to post-

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pone the formula which would allow a completely Canadian constitution and which should be amended here in Canada.

Over that long period of time, we have tried to finalize Canada’s autonomy in relation to Great Britain. Today, the Joint Senate and House of Commons Committee is called upon to solve this problem once and for all.

Obviously, as has been the intention of all Canadian legislators since 1931, or even before, since 1927, we would all have liked to have made this move with total harmony reigning between the provinces and the federal government. Unfortunately, we did not succeed in doing this and, today, the House of Commons and the Senate have been called upon to find a definitive solution to the problem. The Committee meeting here today must report to the House of Commons by December 9 with any proposed amendments necessary to make the proposed resolution acceptable to all members of the Committee.

As Minister of Justice responsible for this resolution, I intend to help you all reach an agreement which would simplify the process and bring us to a consensus. My senior officials and myself will be at your disposal at any time and if any members or subgroups of the Committee would like specific information or comments, we at the Department of Justice will be available to meet with you outside of committee hours, if necessary.

As time is of the essence, I do not intend to make a long statement today. The discussion has been going on since the spring now and we dealt with it at great length over the summer. My colleagues, the ministers of Justice and Attorneys General of Canada as well as the ministers of Intergovernmental Affairs in the provincial governments have all tried to reach a solution. The Canadian government had committed itself to taking rapid action and now the problem is before the Committee.

I wish you the best of luck in your proceedings. I offer you my services and those of my department for any clarification you may need. We are ready to consider amendments which may be useful. As we have always stated, we have tried to draft the best possible resolution containing charter of rights and a section on equalization payments, including a reference to resource sharing. However, we recognize that as is the case with any legislative work of this nature, the text we have drafted is not necessarily flawless. After speaking with provincial governments and with members of Parliament, we have already recognized that some amendments would be acceptable to the government. So, I offer you my full co-operation in an effort to solving our problems. Mr. Chairman, that is all I have to say for the moment and I hope that my statement was short enough to allow members to begin questioning me immediately. With me today are my advisers, Mr. Roger

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Tassé, my Deputy Minister, seated at my right and Mr. B. L. Strayer, on my left who is the expert in this area at the department.


Joint Chairman (Senator Hays): Thank you Mr. Minister.

Senator Tremblay.


Senator Tremblay: Mr. Chairman, Mr. Minister, I feel somewhat uncomfortable beginning this dialogue since the Minister only included members of the House of Commons in his statement, However, I know that Senators were implied in his remarks.

Mr. Chrétien: I will use the word “legislators” in future.

Senator Tremblay: The forgotten ones, whose presence is nonetheless felt on occasion, Mr. Minister.

First of all, I would like to thank the Minister for having accepted to appear before the Committee in such short notice and for having initiated the dialogue to which you invited us to participate by stating that you, as well as your staff, were at our disposal to analyse as seriously as possible the data provided in this proposed resolution. It is in the context of such an exchange that, if I may, I would like to clarify some points in order to read the proposed resolution correctly. Then, we will be able to engage in the dialogue itself.

Personally, I would like to concentrate on the various amending formulae contained in the proposed resolution. I will not speak to questions pertaining to the charter of Rights or to equalization, although comments on those areas would be important. However, I would simply like to note that your reference to the fact that we have been working on this question since 1927, and God knows. that has been mentioned many times recently, does not concern the charter of Rights or equalization since we have certainly not been attempting to agree on those questions for 53 years.

Whatever the case may be, to return to the amending formulae, if I have understood correctly. there will be a two-year interim amending period, with unanimous agreement, provided for in Section 33, which would become permanent if agreement is not reached and the provinces propose another procedure. During that same interim period, the provinces may, under Section 41, make other proposals. When eight provinces, if my memory serves me correctly, representing 80 per cent of the population, submit alternate proposals . . . I am not going to dwell on that question for the moment. I will move on to the permanent procedure.

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There are permanent procedures outlined in Section 41 which could lead to a referendum if provinces propose amendments. There are also amending procedures outlined in Sections 42, 47 and in subsequent sections. I would like some clarification on the application of Section 42. Do I understand correctly that under Section 42, the Canadian Parliament can hold a referendum without taking the provincial legislatures into account? Have I also understood correctly that under Section 47, the above possibility also applies to the amending formula provided for under Section 41 as well as to all the amendments listed in Section 50?

My first question, Mr. Minister, is designed to clarify for the Committee the precise application of the amending procedure provided for in Section 42 and to clarify whether it applies in all the cases I have just named.

Mr. Chrétien: Yes.

Senator Tremblay: The reply is an unequivocal yes?

Mr. Chrétien: According to Section 42, the provisions of this section would apply to all aspects of the Canadian constitution in the case of a deadlock. That is the way in which it is written and that is how I understand it.

Senator Tremblay: Unless I read incorrectly, I did not detect any reference to a deadlock of any sort.

Mr. Chrétien: Senator, I feel that ample discussion has been devoted to this question. Some provincial Premiers and some of my colleagues in the House of Commons and in the Senate raised this question of Section 42 which provides for a referendum to solve constitutional problems in Canada. They wanted to know whether Section 42 would apply without prior consultation with the provinces. The drafter’s intention was to make Section 42 consequential to Section 41. We already stated—and I think the Prime Minister said so himself when Mr. Blakeney, Mr. Davis and some other Premiers raised the same question—that, if it is not sufficiently clear in the proposed text that Section 42 would only come into effect after Section 41 had been applied, we are ready to clarify the wording.

Senator Tremblay: You are ready to clarify the text so that there be no misunderstanding.

Mr. Chrétien: So that it is quite clear that the section only applies in the case of a constitutional deadlock.

Senator Tremblay: Fine. I am very happy with that explanation, but it does raise some problems.

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You say that Section 42 would apply in the case of a deadlock. What kind of deadlock would justify the application of the section? That is my first question. My second question is: who would determine whether there is or is not a deadlock? Third question: when the deadlock is declared by someone whom I hope you would name, will there be opportunity for recourse to the courts to contest a declaration of deadlock justifying the application of Section 427

Mr. Chrétien: First, I must state that I am open to the suggestions of the Committee. At present, we are working to determine what constitutes a deadlock and how to declare it. There are several possibilities which I am not in a position to specify at the moment. I would like to hear the Committee’s opinions on this question. Obviously, a declaration is a statement of fact: there is a deadlock. So. who would determine that? It may be a question of time. A letter published this morning in the newspapers responded to Mr. Davis who objected to a declaration of deadlock being a function of time. This would mean that if, after an initial step has been taken, there is no progress being made, a determined period of time would be allowed to pass before Section 42 takes effect.

As for your third question, a declaration of deadlock would be made by everyone after a certain period had lapsed. The declaration could be in the form of a letter or other means of communication between the central government and the provincial governments. Therefore, if after a prescribed period of time, no agreement or proposed agreement on the problem had been reached, Section 42, would take effect and there would be, as provided, a referendum.

You ask me whether the courts could intervene if one level of government claims that the deadlock does not exist. The parties involved or Canadian citizens could always apply to the courts stating that the situation had not reached its legal maturity, if I may use that expression.

It can never be stated exactly under what circumstances the courts may intervene. The constitution is there and if one or other level of government does not respect it, it is up to interested citizens, groups or even governments to have the courts determine the constitutionality of a given question. Therefore, it is not my place to comment on intervention by the courts. Unless the leader thinks I have not said the right thing . . .

Senator Tremblay: Thank you very much for that clarification, Mr. Minister. I can conclude that you are asking us, as a Committee, to try to reply to the three questions I just asked.

Mr. Chrétien: Definitely; and we will determine whether it is acceptable to the government, I would appear before the Committee to explain why certain amendments were not acceptable and then the decision would be up to the Committee, to the House and to the Senate.

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Senator Tremblay: I am very pleased with this frankness.

Mr. Chretien: Mr. Tremblay, I intend to make some suggestions myself because we are working on that question at this very moment. We have also received proposals to this effect from some provincial governments.

Senator Tremblay: Fine. In order to shed some light on our proceedings and to make an abstract of our comments thus far, could we now see how those questions would be answered in the context of the events of September? It has been explained to us—and I think you did so yourself in making reference to the 53 years—that the Prime Minister of Canada and yourself determined that the deadlock which resulted from talks this summer and in September justified the unilaterial action of Parliament.

Now, you just suggested that one possibility might be that the provinces themselves would have some say in a declaration of deadlock. It seems to me that at the last meeting of the conference in September, Mr. Trudeau’s diagnosis of deadlock did not coincide with that of the Premier of Manitoba who, on behalf of his colleagues, had suggested that a new session be held as negotiations were unfinished. So, in the light of last September’s events, is there no doubt in your mind that there was a deadlock justifying a measure equivalent to the application of Section 42?

Mr. Chrétien: Section 42 cannot be applied to the situation in September because the action did not exist at that time.

Senator Tremblay: I referred to an equivalent measure.

Mr. Chrétien: There is no equivalent. A meeting of the provincial Premiers and of the Prime Minister of Canada was held on June 9 as a result of the need felt by all leaders to make rapid constitutional changes in Canada. Everyone was ready to make them.

On June 9, Mr. Trudeau received the Premiers here in Ottawa. They established a timetable which was to culminate in a week long conference in Ottawa where their representatives, the Ministers of Justice or of intergovernmental affairs, would have the mandate of trying to reach a compromise on the 12 points on the agenda. The declaration about which we are talking was to be dealt with at September’s Constitutional Conference. Everybody agreed on that: there would be a conference in September to close the debate on the twelve items or most of the twelve items. I think it was very clear. Indeed in the press release which I do not have here, there was an amendment. If my memory is correct—if I remember what Mr. Trudeau said on June 9 at his press conference—a word had been changed to state more clearly that a conclusion would have to be reached in September. This change had been proposed by the premiers themselves; they have disagreed

[Page 26]

afterwards, but on that very day, it was very clear that this was the reason for the change.

Senator Tremblay: What word was it?

Mr. Chrétien: I do not remember exactly, I could find out for next time if you want but there was a last minute change. . . I was at the press conference, I remember very well . . .

Senator Tremblay: If you could find out, it would help our committee.

Mr. Chrétien: I do not want to engage in hair-splitting even if I give you some historical background. So after three months of’ intensive work during the summer, my colleagues and I stated that we really thought we were coming close to an agreement; yet on the Friday, when the conference ended, we were further from an agreement than we had been when we first started the process. Then, honourable Senator, the result is very clear in my mind if it is not in yours! It all happened before the public eyes. It was clearly stated that the list submitted by the Premier of Manitoba on Friday, the last day of the Conference, was not unanimously accepted as many have said. Some clarifications were given by a few governments.

Senator Tremblay: If you will allow me, Mr. Minister. . . if my time is up i will come back later to where we have come, since you offered to pursue the matter.


The Joint Chairman (Senator Hays): Mr. Nystrom.

Mr. Nystrom: Thank you very much, Mr. Chairman. I would like to ask a number of questions of the Minister of Justice today. I want to commence by asking him a question that goes very very much to the core of Liberal Party principles and what the Liberal Party has stood for for many years in our country and also to what I think was one of the major trade-offs initiated by the Liberal Party in the recent constitution negotiations, and that is the extension of language rights to people in our country, which I know the minister feels very, very deeply about.

I notice in the resolution before us that Section 133 of the BNA Act will still apply to the Province of Quebec and that Section 23 of the Manitoba Act, 1870, will apply to Manitoba, and which provides for Manitobans similar things that are provided for Quebec, which is mainly the protection in Quebec of the rights of Anglophones in the courts and in the legislature, which in effect makes Quebec an institutionally bilingual province, The same thing applies in the Province of Manitoba. I would like to ask the Minister why, in view of the deep-rooted principles of the Liberal Party on linguistic equality, did he not apply the same principles that are in Section 133 of the BNA Act to the provinces of New Brunswick and Ontario where are situated the two largest Francophone minorities anywhere in this coudntry outside of the Province of Quebec?

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Mr. Chrétien: At no point during the long debate on the constitution in Canada has the federal government proposed to impose Section 133 on any provinces, Any provinces that wanted to bind themselves are welcome to do so. I have to tell you that I am personally disappointed that there are not many provinces today that want to do that. In 1971 there were seven provinces that were willing to bind themselves by Section 133, and now we are down to the two, Quebec and Manitoba, who are obligated by the constitutional text, and the province of New Brunswick is still willing to bind itself. In 1971 there were seven provinces that said at the conference at Victoria that they were willing to bind themselves. Now we are down, on a voluntary basis, only to New Brunswick. I am disappointed by that fact. But neither in 1971 nor in Bill C-60 have we tried to force, but we always talk about offering it as a possibility to the province to bind themselves.

Mr. Nystrom: In other words, you are confirming that you made a deal with Mr. Davis because. . .

Mr. Chrétien: No, I have to tell you that . . . .

Mr. Nystrom: . . . if I can finish, Section 133 applies to the Province of Quebec and it applies in effect to Manitoba. Premier Hatfield would like to apply to New Brunswick but Mr. Davis has said no to the Province of Ontario, and there are many other things in your charter that are binding on the provinces, such as language rights when it pertain to education, the charter of rights. Now why, because of the principles of the Liberal Party, and why, because of the stand of the party over the years? I can go, Mr. Chairman, beck to the B and B Commission in 1967 and look on page 135 of the recommendations, and the recommendation was made there, in effect, that this should be done.

You can go on to the Victoria Charter, and you referred to the Victoria Charter, in Part II on language rights, again the same kind of commitment was made.

Mr. Chrétien: Can I explain? I just say that we never tried to impose it on the provinces, but we always expressed the view that we have a strong desire that the provinces will bind themselves, You can ask me why we have not imposed it on them. We could have. We decided that at this time we were not to impose it on any provinces, but in the constitutional text as it is existing now it will be possible now for any province who wants to bind itself to have a constitutional amendment that will be bilateral between the federal government and the province who wants to bind itself to be bound by Section 133. I am told that Mr. Hatfield is just ready to do that and I am telling you that at one time we were quite optimistic about the possibility of Ontario to bind itself, but sometime during the summer they decided not to.

But I have to repeat that we have not told any provinces that We were going to force that on them, neither Saskatchewan, neither Nova Scotia, neither P.E.I. We could have, but we decided that it was not proper at this time to do so.

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Mr. Nystrom: I am interested in finding out, though, why you have that decision because there are a number of other things in that charter that are binding. You made that decision. For example, language rights are binding on the provinces; you made that decision. Why, when it came to Section 133 did you make the opposite decison? In view of the history of the Liberal Party and all the recommendations going back to Pepin-Robarts. back to Bill C-60—one can quote what you are saying in Bill C-60—why that exception? Here are the two biggest Francophone minorities in the country.

Mr. Chrétien: I am telling you that we did not want to impose it on the provinces. If you want to impose it on Saskatchewan, make a motion right away and that is up to the committee. You are asking me as the government why, and I am telling you that in 1971 seven provinces were willing to bind themselves, and we were very pleased. It is one of the reasons why we say that it is time to get ahead with this project, because in the last 10 years we have lost the political will of 10 provinces to bind themselves in Section [33,

Now there is only, voluntarily, New Brunswick who wants to do that. The rest of the provinces . . . I do not remember the names of them. I think Manitoba at that time was not clear because of the problem in the court, but they were willing to bind themselves, whatever it was, the obligation in the constitution. I guess that there was New Brunswick, Ontario, Nova Scotia, P.E.I. and Newfoundland . . . and it was seven. Now we are down to only New Brunswick who wants to do that. Since that time the courts have clarified the situation of Manitoba and they are bound constitutionally because of what was decided in 1867.

Mr. Nystrom: All I am talking about here, of course, are the four provinces, New Brunswick, Ontario, Quebec and Manitoba. In answer to the challenge by the minister, we intend to move an amendment later on to have Section 133 apply to those four provinces. My question to him is: why has he not done that? The minister says that it was never part of the deal, but I want to say to you, Mr. Chairman, that I have here with me a copy of the memorandum that was studied by the First Ministers in September, document no. 800-14058. It is the copy of the legal text concerning the issues of the charter of rights, equalization and offshore resources. In this text, on page 5, when it comes to language rights, this is what the federal gouvernemt was saying:

The statutes, records and journals of the legislatures of Ontario, Quebec, New Brunswick and Manitoba shall be printed and published in English and French.

When we look over on page 6 we find, again, where it deals with the proceedings in the courts, 21.2:

Either English or French may be used by any person in, or in any pleading or process in or issuing from, any court in Ontario, Quebec, New Brunswick or Manitoba.

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This was always part of the negotiating over the summer. I have checked with some of the people involved in the negotiations on the side of the provinces and they confirm the same thing; this was always there. All of a sudden it was withdrawn. Now why was this withdrawn but other things that are binding on the provinces not withdrawn?

Mr. Chrétien: I am telling you that we tried to persuade as many provinces as possible to bind themselves by Section 133, and we were quite optimistic, We knew, and we still know, that New Brunswick was willing to bind itself, so we were called upon to prepare a text in preparation for that. We were not sure that Ontario was willing or not willing. We always said in the debate that we were not to force it on anybody, But we had some indication, and it is still the case with New Brunswick, that they are willing to bind themselves.

In the course of the summer the Ontario government said that they were not interested, Of course, we know that the rest of the governments who were interested in 1971 are no longer interested, or are, I do not know, but they have not given us an indication during the summer.

Mr. Nystrom: Are you not playing politics with Mr. Davis?

Mr. Chrétien: No, I am not. Tell me why in 1971 P.E.I. was willing but they are no longer willing. Tell me why Nova Scotia was willing in 1971 but they are no longer willing. I did not question their motivation. The same thing with Newfoundland. We had indications from them that they were no longer willing. The same thing from Saskatchewan, I guess, that they were no longer willing.

During the summer we talked. Ontario had not given any indication that they were not willing. So we prepared texts to be ready, but I want to make the point very clearly that at no point did we want to force all the provinces or a number of provinces on section 133. If it is the view of the committee that we should bind everybody on Section 133, we can vote on it, but that was not the view of the government, that we should impose that on all the provinces.

Mr. Nystrom: Okay, I take the minister at his word then, and he has made very clear that he does not want to force the impact of Section 133 on any province. Now if he means that, let us just turn this around. Supposing Quebec wants to be taken out of Section 133, and they make that request to the federal government, will he accede to that request? Or if Manitoba wants to be removed from the strictures of the Manitoba Act, will he accede to that request? He says, and I quote him: “I do not want to force this section on anyone in any province.” If he is being that generous with Ontario, will he do the same thing for Quebec and the same thing for Manitoba?

Mr. Chrétien: There is a difference between what I call acquired rights and new rights. These rights were established in the constitution long ago. They have, by historical reasons, kind of disappeared in Manitoba along the road, but they were in the constitution long before today. I think that it is a principle in law that before you take away acquired rights you have to be very careful, and they are rights that have been

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acquired in Quebec and in Manitoba. I do not want to go back on that. Now we have one more province that wants to bind itself by Section 133, it is New Brunswick, and I applaud them and I hope that there will be many more provinces. It is not the view of the government that we should force the provinces. If it is the view of this committee, I would like to know.

Mr. Nystrom: In other words, the answer to Manitoba and Quebec would be no.

Mr. Chrétien: No, I do not want to take those acquired rights from the people who have them.

Mr. Nystrom: But at the same time you are going to take some rights away from the provinces over some jurisdiction they have today and put it in the hands of the federal government.

Mr. Chrétien: Where?

Mr. Nystrom: Where? For example in proposed Section 23 when you talk about language rights as it affects minorities. I am not disagreeing necessarily with that section, but you are talking about taking a power that provinces now have and placing it, in this case, in the courts to determine where numbers warrant.

Mr. Chrétien: We have tried in that not to acquire any right for the federal government, and we have given the rights in the education field to the citizens of Canada. We have done it. You can accuse me that we did not go far enough in not imposing Section 133 on Ontario and New Brunswick, I will take that criticism. If the committee wants us to impose Section 133 on all the provinces or a number of provinces, personally I would not be embarrassed. I just say that the government said that there was that much we could do at that time.

Mr. Nystrom: The position of our party is that it should apply to the four provinces where the minorities exist in the greatest numbers.

Mr. Chrétien: You are from Saskatchewan. Why do you not want it to apply to Saskatchewan?

Mr. Nystrom: It should apply, to the provinces where the minorities exist in the greatest numbers.

Mr. Chrétien: If it is a right for every citizen, why can it not apply to your province?

Mr. Nystrom: I have already responded.

Mr. Chrétien: There is no problem if there is no French.

Mr. Nystrom: I have already said that we think it should apply to the provinces where you have the greatest number of minorities.

I only have about two minutes left and I want to ask a couple more questions in another area. I have been told by some of the officials in the federal government that one of the contingency plans the government is working on is the possibility, if you run into some legal problems with the proposition before you, of declaring UDI, which is a unilateral declaration of independence. I wonder if you can tell us a bit more about

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some of the plans. I understand that some of the people in the Justice department are working on this. I have had it confirmed by one or two of them. Can you elighten the committee a bit?

Mr. Chrétien: You have better connections in the department than I do.

Mr. McGrath: Maybe you should hire Ian Smith as a consultant.

Mr. Chrétien: Maybe we should have him on the payroll, Mr. McGrath?

Mr. Nystrom: I wonder if you could consult Michael Kirby.

Mr. Chrétien: Excuse me?

Mr. Nystrom: I wonder if you could consult Michael Kirby, or do we have to wait for anoter leaked memo?

Mr. Chrétien: We have some very alert and capable bureaucrats around here who look at all the angles. I would just say that I am not working on that proposition. . .

Mr. Nystrom: But that is one of the angles.

Mr. Chrétien: . . . because I am quite confident that we have a better scheme.

Mr. Nystrom: What are the angles then that the bureaucrats are working on?

Mr. Chrétien: I do not know. If you want to look at all of the possibilities we can argue about hypothetical questions ad nauseum. I just say that it is not one of the considerations of the problem I have in front of me.

By the way, because you asked a lot of questions on Section 133, I would like to inform you that the list that was presented to the first ministers on the Friday when all of the first ministers met with Mr. Trudeau at 24 Sussex had been prepared by the Quebec government, and Section 133 had been dropped by the Quebec government from that list.

Mr. Nystrom: I am referring, Mr. Chairman, to the documents provided to the first ministers at the conference here between September 8 and September 12.

Mr. Chrétien: I just want to clarify that about the list presented on behalf of all the provinces, including the Province of Quebec. The First list we were aware of had Section I33, and when that Friday came Mr. Levesque had dropped Section 133 for Ontario and New Brunswick.

Mr. Nystrom: I gather my time is out. I would like to get back to UDI some more if I could, but perhaps in the next round.

The Joint Chairman (Senator Hays): Miss Campbell.

Miss Campbell (South West Nova): Thank you, Mr. Chairman. I would like to welcome the minister and his officials as the first speakers and say how pleased I am about, and looking forward to, the repatriation of the constitution back to Canada. I really feel that we do need it here in Canada, and the sooner we have it the sooner that problem can be put to bed.

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I am glad to see the charter of rights and equalization. I suppose of particular interest to my constituents are the language rights. I am sure they appreciate the assurances this proposal gives to protect their language rights in the Province of Nova Scotia, where I have approximately 30 per cent Acadians in my constituency.

I would like to go to proposed Section 41, which has been a concern of another member on this committee, Mr. Henderson, who raised it in the House as well. That is the procedure for amending the constitution of Canada, in particular proposed Section 41.(1)(b)(ii). If you read the explanatory note it says this is derived from the Victoria Charter. Proposed Section 41.(1)(b)(ii) says;

(ii) at least two of the Atlantic provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Atlantic provinces . . .

It mentions two provinces, but they must represent at least 50 per cent of the population of the Atlantic provinces. I find that this would mean if P.E.I. was one of the provinces we would have to have at least two other provinces in order to go under this amending procedure. I am just wondering if there has been any consideration by the minister that this is an error perhaps in the Victoria formula, and whether or not we could go back to the Victoria formula and make it two provinces rather than 50 per cent.

Mr. Chrétien: That is a problem we had to cope with, that 51 per cent of the population. It comes back when we talk about changing the constitution, if there is a deadlock, by referendum. We thought there would be 51 per cent of the population in the four regions of Canada, and it was consequential to that that we felt the same thing should apply there in proposed Section 41.

Mr. Henderson made very strong representation to the Prime Minister and myself in the caucus of the party and he was supported by the Atlantic members. That is something we might consider amending. It might not succeed but I would like it to be debated. Some premiers of the Atlantic provinces have mentioned that to me or to the Prime Minister. Mr. Hatfield and Mr. Buchanan mentioned that to me, and in the light of the willingness of a lot of people that proposed Section 41.(1)(b)(ii) be amended, we would be open to a possible amendment there.

Miss Campbell (South West Nova): In other words, it would protect Prince Edward Island in not having to go looking for three provinces.

Mr. Chrétien: But what has helped us too is the solidarity of all the people from the Atlantic provinces on that issue, because one might argue it, you know, the population being so small. In fact, the other provinces are willing to make a concession to recognize that problem and I thank the Atlantic provinces for helping me in that matter.

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Miss Campbell (South West Nova): I have another question to the minister or his officials. What is the difference between “Parliament” and “government of Canada” in this proposed resolution? For instance, proposed Section 31.(2) says: “Parliament and the government of Canada”. What are you distinguishing there between Parliament and the Government of Canada? Are they two different entities? This is new to me.

Mr. Chrétien: When you speak about the Government of Canada you speak about the executive, the cabinet, and Parliament is where you go to the elected members, who will have to express their views when you say you request the view of Parliament. I am a member of both. Of course, Parliament includes the House of Commons and the Senate.

Are you happy, Senator Tremblay?

Senator Tremblay: Yes.

Mr. Chrétien: I have to tell you, this is the first time I have faced a joint committee. I appeared in front of the Senate and I appeared in front of the House of Commons committees many, many times, but it is the first time I have had the pleasure of meeting both Houses at the same time.

Senator Tremblay: It is a good learning experience for you then.

Mr. Chrétien: It is about time for me. After 13 years, it is about time.

Senator Tremblay: Right.

Miss Campbell (South West Nova): I do not think I am getting the explanation. Maybe I did not explain it properly, but there is a difference between Parliament and Government of Canada. you may be a part of the government and of Parliament, but I always took Parliament to encompass the Government of Canada. You seem to be making a distinction here between the two, and you do it for the legislatures as well. You also, in this subparagraph, only bind the Parliament and the Government of Canada, not the provinces.

Mr. Chrétien: There is a difference between the executive of a government and the legislature of a province or of Canada. We have to make that distinction. The power of the executive flows from Parliament, but in terms of the actual execution, the technique of execution, there is a difference. Of course, if the executive does something that Parliament does not agree with you can throw out the executive, but the executive can never throw out Parliament.

Miss Campbell (South West Nova): It seemed to me it was redundant or there must have been another meaning. However, I will not pursue that. Perhaps I will pass my time to one of my colleagues who might like to pursue questions.

The Joint Chairman (Senator Hays): Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I am looking at the clock, and having an engagement,and one I think the members would

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appreciate, to honour Therese Casgrain as the lady of the evening, an invitation I accepted some time ago and cannot break, I have been weighing the possibility of perhaps passing until Wednesday until I heard Mr. Nystrom’s eloquent plea for the extension of Section 133 of the constitution to four provinces. Mr. Nystrom talked very eloquently about the existence of French-Canadian minorities in this country, But sometimes—if I may say this, and I know that people will not misunderstand my words-if there is anybody forgotten in this debate, and this debate has been going on for some time, it has been another sizeable minority known as the English-speaking Quebecers of this country, people who with few exceptions are very basic people, who work on the railways, or work in the north, or work by the hour, who clean streets like anyody else, and whose history, if you look at it very carefully, has been a positive one in that province. I must remind members who think otherwise that the doors of the business community that were closed on French-speaking Canadians on St. James Street were also closed to Verdun Irishmen or the St. Louis Jewish community.

Prejudice is not something that is limited to language or anything else. I have to make that point because somehow in my concern for this issue over the last few years too many academics, too many intellectuals—and I am excluding politicians for the moment—have found a very facile, easy solution to our problem, that Quebec become totally unilingually French and the rest of Canada become totally unilingually English, and somehow all the problems will disappear, according to the academics of the greater Toronto area. I can assure you that when this happens you will have separation, when you have two sizable groups in this country ceasing to communicate spontaneously, as we do. It is important and imperative that the French language be given total opportunity of expanding and being recognized as an official language, not only in Quebec but across this country. This is why I welcome the unselfish attitude of Premier Hatfield in New Brunswick who understands that New Brunswick, despite its obvious limitations geographically and economically, is vibrant because it has somehow been able to meld these two great cultures. And that has been the experience in Quebec for as long as I lived there, which was a long time. One of the tragedies’ in recent years is that somehow in order to redress what were legitimate complaints in that province, complaints which I suggest did not flow from the educational system but from the business community, the insensitivity of multinationals and insensitivity of Canadian corporations, insensitivity that was reflected for instance in actual forbidding of the French language to be spoken in the workplace. These things have been rectified, thank goodness, and it makes Quebec a better place.

I must remind Mr. Nystrom and others that if it were not for Section 133 the right of English-speaking Canadians who reside in Quebec to be heard in the court of Quebec in their own language would be something waived and disappeared as a result of certain provisions of Bill 101. So the retention of Section 133 in Quebec is imperative if the minorities in that province are to survive.

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Now having said this, the old adage that two wrongs do not make a right is very important here. If it is important that the community of English-speaking Quebecers survive, it is obviously important that Section 133 of the British North America Act continue to apply to a minority that in numbers are equal or greater than most of the Atlantic provinces. The English- speaking community in Quebec is not a small community, but it is wrong to think they are all millionaires, all living in Westmount and that they all can do things. i can assure you that is not true. I happened to say, and continue to repeat, that the relationship between the English and French in Quebec should be an example to all of Canada, and the constitutional changes that we propose should make it possible for that joie de vivre, that relationship, that intercommunication between the English and French in Quebec to have an opportunity to flourish across Canada.

You are not going to get a sizeable French minority, Mr. Nystrom, in Saskatchewan, if you are unwilling to extend to that province the type of provisions and protection that the minorities should have resulting from section 133.

I would reserve, Mr. Minister, my hard questions for Wednesday. I would like to know your philosophy on freedom of choice in the field of education. I would like to know your personal feeling on the extension of section 133 across Canada. I would like to know answers to a lot of hard questions on why things are not in the charter that should be. I think I know the answer. 1 approved of the resolution or I would not be on the committee. Well, this is true; this is exactly what committees are about, to inform the public, not to score points with the opposition, but through proper questioning give the minister a chance, at this stage at least, to elucidate and enunciate the philosophy behind the bill, and I suspect it is not to impose on the provinces anything, but to do the barest minimum in the hope for some enlightenment on behalf of some of the premiers of those provinces, who act as if they have a mandate which they do not have, to understand the need, if this country is going to survive, to extend the reality of the two founding groups right across Canada. Thank you, Mr. Chairman.

Mr. Chrétien: I do not know if I should comment, but as Mr. Mackasey has mentioned the minority problem in Quebec, perhaps I can inform the committee that in 1963, in my first election, I could not say a word of English. I had a meeting for the English in Grand’Mère and Mr. Mackasey came as the guest speaker and he managed to get some solid Tories to vote for me.

Mr. Mackasey: And do not forget that.

Mr. Chrétien: I will never forget that, Bryce. But you know, I made the only promise I ever made in my political campaign. I said that if you vote for me and I am elected, I will be bilingual. I still have a problem with my accent, but it is coming along.

The Joint Chairman (Senator Hays): Mr. Epp.

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Mr. Epp: Thank you, Mr. Chairman. I would like to address a number of questions in two areas to the minister. One is the British role in the process of amendment of the British North America Act and, secondly, refer specifically to the amending formula.

Before I start, I want to indicate to you, Mr. Minister, as I have done before, that I believe, and members of our party are of the firm view, that the anomaly that now exists, that amendments must be finalized in Westminster, that practice should be brought to a quick end and all amendments should be made in Canada. I think that is generally agreed, not only around this table but also throughout the country.

Having said that, Mr. Minister, the process we are now engaged in does raise some serious questions as to methodology. I am sure you are aware that in Britain right now there is a great deal of disquiet along the lines the government has proposed, that not only is it asking for patriation and an amending formula but additionally is asking Westminster to make changes to the constitution before it is, if I can use the colloquialism, returned to Canada.

The Minister of Transport in his speech in the House referred to convention, that it was due to convention we had not been able to end the manner in which the constitution is amended, that we had to go to Britain for final amendments. But your government is now asking Britain to change convention.

To put that into context, Mr. Chairman, through you to the minister, one night check what has been said in Britain, and I refer, for example, to Constitutional Amendment in Canada by Paul Gérin-Lajoie, who I think is known to some of us. He refers. for instance, in his writings on page 82 to the case in 1906-1907 in which an amendment was shepherded through Westminster by the Right Hon. Winston Churchill, at which time the point was made the British Columbia opposed the amendment but that the Dominion government and the other provinces of that date had approved the amendment. And while the Imperial government accepted the amendment, the debate at that time went as follows, and I am only going to read one excerpt from that long dissertation, which I imagine you have as well, Mr. Minister.

Speaking in the House, Mr. Churchill said:

. . . “On the other hand, he would be very sorry if it were ‘thought that the action which His Majesty’s Government had decided to take meant that they had decided to establish as a precedent that whenever there is a difference on a constitutional question between the Federal Government and one of the provinces, the imperial Government would always be prepared to accept the federal point of view as against the provincial.

Additionally, Mr. Chairman, in Britain at the present time, as the minister knows, there is a committee, which is now going to hold public meetings, examining the proposed resolution. As well, I am sure the minister is aware that the committee has already studied the famous leaked document now dubbed the Kirby document, and there is a fair amount of disquiet about the references to Britain in that document.

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I would like to ask the minister this question: Does he feel that, because of convention and precedence. Westminster is bound to accept the joint address and the resolution as framed in the proposed resolution before us, or do they have the ability to change the resolution as they see fit?

Mr. Chrétien: The short answer is that they are bound for sure legally.

I would like to make a few comments about the reference in Mr. Gérin-Lajoie’s book to Winston Churchill in 1907. The statement of Mr. Churchill is in 1907 and he speaks about the Imperial Government of England. The Imperial Government of England was dismantled, more or less, in 1928 in that text, and Mr. Churchill at that time was the Secretary of the Colonies. I do not think we consider Canada, not since 1928 or 1931, a colony of England any more. He was refering to a situation where it was a colony in relation to England, and since 1928 and 1931 this has disappeared. So I am telling you now that the conventions have. . . .

What is a convention? I think the question is the difference between law and convention. A convention does not bind the government before the courts. A convention is a political convention and all the conventions in relation to Canada and Great Britain, or even the conventions of Great Britain in relation to the other former colonies, have changed constantly.

Perhaps I should refer the hon. member to what was said on July 25, 1979 by Lord Treff Garn in the House of Lords on behalf of the government. It is a long text and I do not know if I should read it, but perhaps it will be useful for the committee at this stage to express the view of the British government as stated in the House of Lords last year:

The Statute of Westminster reserves to the United Kingdom Parliament a purely technical role in relation to the British North America Act.

I must, therefore, emphasise again to the House that the United Kingdom Parliament’s power over the Canadian Constitution is strictly limited. If Parliament were, in spite of constitutional precedent, to decline to act on a request from the Canadian Government, we would lay ourselves open to charges of interference in Canadian domestic politics. Even to query whether there was internal support in Canada for a request to patriate the constitution would be tantamount to questioning the authority of the Canadian Parliament or Government to make it. Further, for the United Kingdom Parliament to purport to legislate otherwise than at the request and with the consent of the Canadian Government would conflict with the agreements reached with the Dominions at the Imperial Conference of 1930 and the Statute of Westminster of 1931, to which I have already referred. The Federal Government is the sole representative of Canada in international relations. We cannot be the arbiters of the correct balance of the case presented to us: this must be the sole responsibility of the Canadian Government.

I do think that legally we are completely right to do what we are doing because the Canadian constitution is a British law, and what we are doing at this moment, both Houses, the

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Senate and the House of Commons of Canada, is praying Her Majesty to lay in front of the Parliament of England a certain piece of legislation for them to legislate. So legally it is the British Parliament who will decide, not us. In my judgment, legally they could decide not to act. 1 do not think they will do that if I read that text. But it is why we want to patriate the constitution in Canada, because we are one of the seven powers of the world and we have to go in front of another Parliament to ask them to do something for us. So we are doing it now.

What we are doing in the process, and what is missed by a lot of people. is that at this moment we can do that. The British Parliament could do probably, if they wanted, almost anything with our constitution. When we will have patriated the constitution, for the next two years nothing will happen unless we have the agreement of all the provinces. So what we are doing in the process is for the first time we are giving real power to the provinces, which they do not have at this time. There is a desire and there was a great trying for 53 years for all the parliamentarians of Canada to agree. We came close many, many times. When I read the Fulton-Favreau formula, Mr. Favreau atone time said that it was agreed upon, but Mr. Levesque and Mr. Lesage would not sell it back in Quebec so they walked away. In 1971 the same thing happened to Mr. Bourassa. So now it is quite evident that the time has come to patriate and technically, in terms of law, give the provinces something to say legally into amending the constitution in the future in Canada.

The Joint Chairman (Senator Hays): Do you have a small question for a small answer?

Mr. Chrétien: I am sorry I was a bit lengthy but the question was calling for it.

The Joint Chairman (Senator Hays): I forgot to initial, but we are on the second stage. so 10 minutes.

Mr. Epp: Mr. Chairman, I am not trying to take the time of the committee, but obviously this case needs a fair amount of understanding and building and one just cannot seem to do it with one question and one answer, in fairness to the minister and in fairness to myself.

I want to say to the minister that I recognize the imperial status of 1907. On the other hand, through the Statute of Westminster of 1931 and the assurances given in 1949 by Prime Minister Louis St Laurent, at the time the amendments were made re Newfoundland, there were very specific assurances given by the Prime Minister of the day in 1949 that in the amendments which were relating then to changes to the British North America Act, as it would relate to federal powers and in areas of federal jurisdiction, there would not be any change in terms of provincial powers or jurisdiction. I know we cannot finish this case today or in 10 minutes, but my case to you is that I understand you have now confirmed that Britain is not bound by the convention, that is that they have to pass the package as presented by the Parliament of Canada, and that it is your hope they do so. But I also say to you very clearly, would it not be better, in view of the assurances that were given in 1949 by Prime Minister St-Laurent and others that the provincial jurisdictions would not be trampled on

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through this amending mechanism now in place, if in fact we should patriate with an amending formula and then make those changes here in Canada rather than run the risk of difficulties that might occur in Britain?

Mr. Chrétien: I said that legally the British Parliament is not obliged, but they have followed in the past their own convention, and it is mentioned here that they will take what is coming from the federal Parliament of Canada and they will deal with the Canadian Parliament in a resolution to both Houses, and that has been their convention in England. So I say that we do think, and it has been confirmed in our communications with them, that they feel bound by that convention that exists in England, not in Canada, that they always acceded to requests of a joint resolution of both Houses. So this is their convention, not a Canadian convention.

Mr. Epp: Can I have an assurance at this moment that they will follow to the letter the manner in which the proposal . . . .

Mr. Chrétien: Oh, yes, we do think they will follow their own convention in England, and it is quite clear in my mind. You talk about some members of Parliament in England who make some comment at this time and say that perhaps they will disagree and so on. But we do feel that Madam Thatcher, in talking with Prime Minister Trudeau last summer . . . and I think Mr. Callaghan, when he was Prime Minister of England, expressed the same view to some Canadians, that they were to follow the convention, and this I have no doubt about. Of course, if that becomes sort of a little controversy in England these days, it is normal because they are faced with a new problem and they hope that they will not have to face that problem anymore in the future. That there would be an editorial in The Times of England . . . of course you know that is The Globe and Mail of Canada so we are not surprised, the same guys own both.

The Joint Chairman (Senator Hays): Mr. Tobin.

Mr. Tobin: Thank you, Mr. Chairman. I would like to first of all, as my colleagues have done, welcome the Minister of Justice here today. I am very glad he could come on such short notice.

There are questions I would like to raise and in order to have the benefit of a fairly lengthy answer I will keep my questions fairly short. Perhaps I can inform those members of the committee who do not know that the Premier of Newfoundland made a public announcement on the airwaves in Newfoundland, on television and on radio, a half-hour live broadcast, which I suppose would have the effect of almost raising, in his opinion, the spectre of a provincial emergency in that the constitutional package as proposed by the federal government would somehow and in some way result in a loss of the denominational educational system in the province of Newfoundland and secondly, reading the text and tone of his remarks, would result in a change in the Labrador boundary. This is a very serious matter he has raised. I will reserve my own comments on the tone of his remarks and what I think of his remarks, but I would ask the minister with respect to the

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act as it is now before us, could he comment on those two charges?

Mr. Chrétien: I think it was very surprising for me to hear such a statement, to say the least, from the First Minister and Premier of Newfoundland because, of course, if you read the text it is very clear that there is no way we can amend that part of the constitution that relates to specifically Newfoundland without the approval of the province. So his canard, if I can use that term, that we could take away Labrador and give it to Quebec can be done only with the agreement of Newfoundland. On the question of the denominational education in the schools, this can be done, but with the approval of the prople of the province of Newfoundland. When there is a clause in the Canadian constitution that is related to one province or two provinces, but does not apply generally to all Canadians, in order to change it we need the approval of the people or the legislature of that province.

Mr. Tobin: Mr. Minister, I have two more questions.

Senator Connolly: May I have a supplementary there? Would you identify the clause?

Mr. Tobin: Proposed Clause 43.

Mr. Chrétien: In relation to the border of the provinces, it is the BNA Act of 1871. this piece of legislation. So he is doubly protected there.

Mr. Tobin: Mr. Minister, two points, and I will raise this one first: As a member of Parliament, and I do not know of any other members of Parliament, I did not have communication with Mr. Peckford regarding his concerns before he went on live television. and I would like to assure myself that before the premier of the province took the measure of going on live television and raising really two very frightening questions, if he did approach you or your officials or the Prime Minister on these particular concerns, he was afforded the opportunity of replies regarding his concerns. In other words, in essence, had the Premier approached you on this?

Mr. Chrétien: No, no, and I guess that if you had read the text you would have known.

Mr. Tobin: Thank you, Mr. Minister.

The Joint Chairman (Senator Hays): Mr. Lapierre.


Mr. Lapierre: Like my colleagues, I wish to welcome you, Mr. Minister. I really appreciated Mr. Nystrom’s magnanimity with respect to Section 133 of the BNA of 1867. I can only regret that his magnanimity does not encompass all provinces. What is good for others should be good for oneself. I would be very pleased to second a motion which would have Section 133 apply to all provinces.

Section 23 has been the object of much discussion in Quebec during the past weeks. Mr. Yalden has made a number of remarks concerning Bill 101 and he will probably repeat these

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remarks before the Committee. Under these circumstances. would the government be willing to accept certain amendments to this section? Should the Committee make recommendations to that effect?

Mr. Chrétien: The Committee will, during its hearings, have a chance to examine all these problems. if anybody has better constitutional suggestions than our own, he is welcome to put them forward. But let me tell you it is a ticklish problem. Under Bill 101, the rights of anglophones in Quebec have been modified; in the past, English-speaking Canadians arriving in Quebec had the right to send their children to English schools whereas now they do not have that right any longer. Now. they have to put in a request to do so and generally the answer is favourable. It is far better in my opinion for governments to give rights rather than privileges. During my student days in Quebec, the provincial government made very extensive use of privileges. It is better in my View to protect rights of citizens. Bill 101 has modified the rights of English-speaking Canadians arriving to settle in Quebec. In 1977, in St. Andrews and in Montreal in 1978, Mr. Levesque offered reciprocity to the other provinces. So we have only taken this resolution which in principle had been agreed upon even though not implemented by the provinces and we have enshrined it in the constitution, so that henceforth there should be no doubts in this respect. Sections 23(1) and 23(2) do raise certain problems for some people. Presentations have been made to me in this connection. Some people claim that we go too far whereas others say that we do not go far enough. If the Committee has any recommendations to make in order to improve the situation— Provided that we know exactly what we want. Since Canada has two official languages. people belonging to either group should be able to pursue their education in their mother tongue. This would promote greater mobility. If in. 1905, provincial statutes have provided for French language education for French-speaking immigrants to the West, we would, at the present time. have a far greater number of French-speaking Canadians in other parts of Canada and they might not necessarily have been concentrated in Quebec. I am open to any suggestions. I am myself trying to improve this situation.

Mr. Lapierre: You can be assured we shall think about this.

After the recent Speech from the Throne in Quebec, there has been a lot of talk about a notorious resolution. They are willing to make any number of concessions to pass this resolution unanimously. What influence might a resolution unanimously adopted by the National Assembly condemning our project have on the federal government or on the British government?

[Page 42]

Mr. Chrétien: Your Committee is holding its meetings and our project has been tabled before both Houses. As for the influence of this resolution, everybody knows that Mr. Levesque is against our project. Together with Mr. Morin, he worked during a week in order to make sure that we would get nowhere in September. So his position is well known. As for a National Assembly resolution, we will take it into account. The opposition parties are more or less in agreement on this point and Mr. Ryan’s beige paper does not differ very much except that he would like us to wait until we get a unanimous agreement to patriate the Constitution. I do not agree with him and I feel it is important to break this impasse right now and later on it will be much easier to discuss distribution of powers. It is normal in politics to have disagreements on certain points; as far as principles are concerned, the majority of those who criticize me say that I have not gone far enough. We have not done so, this with a view to safeguarding as much of a consensus as possible. As for the British government, there is a precedent when, in 1962, Mr. Lesage wanted to abolish the Legislative Council, as the Quebec Upper House was called. He had petitioned the British government to that end but was told that the government of the United Kingdom would, according to tradition, act upon a recommendation of the government.


The Joint Chairman (Senator Hays): Mr. Crombie.

Mr. Crombie: Thank you, Mr. Chairman. To the minister through you, Mr. Chairman . . .

Senator Connolly: Mr. Crombie, could I ask the minister what year it was that the Lesage application was made?

Mr. Chrétien: In 1965.

Senator Connolly: Thank you.

Mr. Chrétien: Yes, because it was done later on by Mr. Johnson.

Mr. Crombie: We start now, right? Thank you, Mr. Chairman. Mr. Minister, much of the impetus for the current constitutional discussion in this country arised, arose, arisen; I have been listening to you for too long.

Mr. Chrétien: Everybody tells me not to improve any more.

Mr. Crombie: That is right. You are doing just fine.

Much of the concern developed obviously in the Province of Quebec and during the referendum debate. I was quite interested in the comments from the member for Yorktown-Melville and also the member for Lincoln on the question of equity and the principle of equality as applied to linguistic and cultural groups, particularly as related to the Province of Quebec and the Provinces of Ontario, New Brunswick and Manitoba. I think if one went through most of the history of it, it would get tedious and people would tend to nod off, but it seems to me it is essential that we understand your view on what happened in relation to the referendum. It seemed to me

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that what is being said, and what has been said for a great number of years—certainly this was outlined in a speech from the chairman actually, the member from Hochelaga-Maisonneuve, when he went through the history of it—is that what is at stake is the principle of equality, in the sense that anglophones in the Province of Quebec should stand in no higher or lower colour than francophones in the Province of Ontario. If I could put it in this sense, the principle of equality means that in those provinces where there are minorities of significant number, those minorities would have equality.

My first question to you is, since your proposed sections 18(2), (3) and (4) of September were cut out and only section 18(1) was maintained in the current resolution, therefore removing the Province of Ontario and the Province of New Brunswick from the application of Section 133, do you now regard this resolution as delivering, to the minorities in those four provinces, equality?

Mr. Chrétien: I said earlier that the ideal situation will have to have a very symmetrical system, as mentioned by Mr. Lapierre a minute ago when he offered to second Mr. Nystrom’s motion. If you want to bind every province, that will be the ideal situation. Of course, in the real world it is never ideal, and we were very disappointed that after 1971 there was a dwindling of the willingness of the provinces to bind themselves by Section 133.

In looking for the root of the problem, we felt very strongly that the most acute problem is always education. When you cannot send your kids to your mother language schools, official language schools, it is very difficult, especially today with TV and so on, for French-speaking families outside of Quebec to keep the language in the family. So personally I felt education was extremely important, and a lot of the problems we have today exist because it was not guaranteed in the constitution for all of Canada in the past. Of course, when there is no French there is no problem; it is only for the francophone, so if there is none there is no problem, or virtually no problem.

I personally wish Section 133 would bind everybody. I was working during the summer to have at least four provinces. In 1971, only Quebec felt bound by Section 133. The court confirmed Manitoba later on. Very happily, Mr. Hatfield had been very positive on that, and I congratulate him because he always wanted to have it binding New Brunswick. Now he will be able to bind himself with the present amendments, and he says he will.

I was disappointed in the summer that Ontario was not ready. They say they are not ready. There was discussion that with five years delay or ten years delay they might or they might not; but eventually they said no, we are not interested at this time. With the other provinces, my private conversations led me to believe that if I asked I would not receive an enthusiastic response. So you go right to the heart of a province, the legislature and so on and I felt a bit uncomfortable imposing. If the committee wants to impose I will have to call those people and tell them that the Parliament of Canada

[Page 44]

will represent us—in the words of Mr. Clark, “we”. He said in his speech on June 7 that we are the only people who represent all of Canada, by the nature of our function. If we want to express that view and live with the consequences. I will not be the one who will object.

Senator Tremblay: I would like to ask a supplementary, if I may, as a matter of information. You have referred to the so-called Charter of Victoria two or three times, I am not too sure that a reading of the history of that charter is correct, the way you are making it. Have your officials got the text of the charter?

Mr. Chrétien: You do not trust my officials. The way I understand it is that there were seven provinces which had indicated the time that they were to bind themselves, but 1 will give it to Mr. Strayer who’ is from western Canada.

Senator Tremblay: My question is this. In the Victoria Charter there was an opting-in formula, an opting-in possibility, and it was left to the provinces to decide if they would opt in, so when you say that seven provinces were ready at that time, that was just expectations about the way provinces would opt in, it was not a fact.

Mr. Chrétien: I agree with you because Victoria was never accepted. At the conference all the premiers who were there expressed their views, and seven of them—Quebec had no choice, they were already caught in Section 133-we were willing to present to our assembly. Mr. Bourassa came back and decided not to go along with Victoria so nobody had to proceed with it, but when the first ministers at that conference said to each other that they were willing to go along with it and will present it in front of the House, there is always the risk. Legally speaking, there was nothing legal there. That was a commitment by the governments to bind themselves, but they never proceeded with it because 10 days after Victoria Mr. Bourassa said no more deals, so the whole thing died. But I recognize to you that the seven were opting in.

Senator Tremblay: Yes. Okay, go on.

The Joint Chairman (Senator Hays): We are using your time, Mr. Crombie.

Mr. Crombie: Well, 1 did not notice, Mr. Chairman. May I continue with the question?

The Joint Chairman (Senator Hays): Oh, yes.

Mr. Crombie: Mr. Chairman, thank you and let us be generous. Mr. Minister, I take it the answer is that equality does not exist but there are historical circumstances and you would like to try harder. Is that your answer?

Mr. Chrétien: Yes.

Mr. Crombie: Thank you, By the way, one small reference. On two occasions now you have indicated that the Government of the Province of Quebec did not support the four provinces being controlled by Section 133. Document No. 814-085 includes the four provinces, so that is the Quebec delegation from the summer, just as a matter of historical interest.

[Page 45]

Mr. Chrétien: I just want to say that the document was scratched come the Friday morning.

Mr. Crombie: Apparently there were a lot of things scratched, section 18 (2), (3) and (4) among them.

A second area of question, if I could, Mr. Chairman, deals with the charter of rights. As the minister knows, there are a number of people, Native groups, Indian groups, Status of Women groups, civil liberties groups, human rights associations, which have been concerned with specific aspects of the charter of rights. As the minister would know, Mr. Chairman, I am one of those who has sympathy with the charter of rights and the idea of having one. I have great concern about specific groups that have specific concerns which are either being offended by the charter of rights, in the way in which they are described, or feel that they are not being secured well enough. One example would be if you look at the communication which I know has been sent to you, Mr. Minister, and I want to ask you this question specifically and also ask you a general question arising from the charter of rights.

This deals with proposed Section 11(e) of the charter of rights, and the concern comes primarily from the Jewish community with respect to the prosecution of war criminals. The specific wording of proposed Section 11(e) would make it difficult in relation to the prosecution of war criminals, indeed the extradition of war criminals. That is their contention.

In their communication to you they have offered some wording which they think would cover their concern, and it is wording that comes originally from the Universal Declaration of Rights of 1948.

My concern is, will you and your government accept and allow this committee to deal with those specific concerns so that amendments can be made that allows the wording to be changed where it would offer equitable treatment to those groups who so find themselves in a disadvantaged position because of the specific wording?

Mr. Chrétien: First, I have inquired and I have not officially received that letter. I have not seen it and my staff has not seen it.

Mr. Crombie: No, no, I was not asking you specifically on it, but that kind of thing.

Mr. Chrétien: I just said, yes, if some improvement can be made in the charter. . .

Mr. Crombie: This committee can make the amendments.

Mr. Chrétien: They can propose amendments in the report to the House, and we can decide as a government to amend the resolution. To give you an example, Mr. Nystrom or Mr. Broadbent will probably come to this committee about the resources problem. I do not know, but I guess they will, and there was an exchange of letters on that so there will be some amendments that we will receive, there is no doubt about it.

Of course, one thing I would like to say at this moment is that when you have a charter, it is the minimum.

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Mr. Crombie: I understand.

Mr. Chrétien: There could be other legislation that could cover some other specific problem. We cannot cover everything in the charter. It is not exclusive, it is just the bare minimum and there is other protection that comes in other legislation.

Mr. Crombie: I merely wanted to know if you would take amendments. I really appreciate it. The chairman is going to rule me out of order.

I have one final question on equalization. There was a great concern by a number of people that the equalization section, proposed Section 31, did not specifically deal with equalization payments. They wanted it clearly stated that in proposed Section 31 we were talking about equalization payments. They are concerned that the wording was not strong enough now clear enough in that regard.

Would you give the committee an undertaking that you would accept amendments which would make it clear enough that we are talking in that section about equalization payments?

Mr. Chrétien: The problem we are having with that section of equalization payments and redistribution is that we are writing it in the constitution, Now there is a mechanism that is transferring payments to the provincial governments. This is a restrictive type of transfer of wealth from the federal government to the provincial governments, and some can argue that when you write a constitution for a long time this is a very acceptable mechanism today, and we are not planning to change it. On the contrary, we like it. But the concept we want to inscribe here is the concept of sharing, of redistributing the wealth from some parts of Canada to the other parts of Canada. Transfer payments to governments is one vehicle, but it is not necessarily the best one forever.

The Joint Chairman (Senator Hays): You have half a minute.

Mr. Chrétien: So if you want to improve it, the other question is if the committee says that it is restricted to transfer of payments to the provinces, we would consider it. I just say that it is a constitution we are drafting and what had been good for the last 25 or 20 years, is it necessarily the only mechanism available? But the committee can make recommendations.

Mr. Crombie: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): I would have to be fair to all if we are all going to speak, and we will have to obey the orders or we will be in all kinds of trouble. Senator Lamontagne.

Senator Lamontagne: I am prepared to yield, Mr. Chairman, to Senator Petten for one question.

Senator Petten: Mr. Minister, will the proposed resource amendment that has been considered include hydro electric power? That is to say, in the proposed resource amendment

[Page 47]

will Newfoundland, for example, have the right to direct taxation over hydro power?

As you know, it is most important to my province, Mr. Minister.

Mr. Chrétien: First, you are asking me a question which is not in front of the committee because nobody has tabled any amendment. But I can deal with the offer we made to the provinces in the summer which we will be asked by some members of this committee on this side and the other side to reinstate. It was an offer to confirm the ownership of the resources by the provinces with indirect taxation in the resources field, and in the resources field the power by the -provincial government to pass legislation in inter-provincial trade, and this will apply to Newfoundland just like any other ‘province.

Senator Petten: And it will include hydro, it will apply to hydro?

Mr. Chrétien: Hydro was specifically mentioned, if I recall. I do not have it in front of me. Yes, you are right on that.

Senator Petten: Thank you.

The Joint Chairman (Senator Hays): Senator Lamontagne.


Senator Lamontagne: Mr. Chairman, I have some questions, of a preliminary nature, because I have the distinct feeling that we will be seeing the Minister again. My first question is as follows . . . The Minister said this afternoon that the government would be willing to consider the amendments recommended later on by this Committee and it has moreover already decided to introduce modifications to its draft and to submit such modifications to the Committee. I believe it would be very useful to us to have these amendments as soon as possible. I am therefore asking the Minister when the government will be proposing the amendments it is considering? If we had before us the government’s amendments it would be a great help to us.

Mr. Chrétien: Well, Senator, I said we were ready to submit certain amendments… On the other hand, the Committee’s work will go on and some new problems might arise, things might be seen from a different angle. Personally, I am in the hands of the Committee. Nevertheless, I would rather wait and see what direction the Committee is taking before I decide whether my amendments are in order or not. In any case, some of them are still ideas and have not been drafted into legislative proposals.

You are asking me to do it as soon as possible and I am answering you that yes, I will do it as soon as possible. Nevertheless, my advisers and myself would like to see where the Committee is going before taking the plunge but still, we are quite flexible on this, Mr. Senator.

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Senator Lamontagne: This is my second question: Is it not true that draft resolution 43 as drafted is in fact an option formula which would allow the provinces to adhere voluntarily to clause 133 in the constitution?

Mr. Chrétien: Absolutely! You are quite right, Mr. Senator. Any province could amend the constitution for its own purposes according to clause 43 of the draft resolution. Take New Brunswick, for example. . . A simple resolution before the Legislative Assembly, a similar resolution here in Ottawa, this is all it would take to make article 133 binding for New Brunswick. Same thing for Ontario. This is exactly what I was talking about with the Government of Ontario during the lunch hour. ,. And the Government of Ontario assures me that its position is not final because this is the way they want to go. 1 think there is a committee of their Legislative Assembly which tabled recently a very positive report on this subject. There are still some problems regarding the timetable, enforcement, personnel, and so on. In any case, if the Committee has anything to say, we will listen. But I must say, and it is to the credit of the Province of Ontario, that it is not adverse to the idea of binding itself to clause 133. It is a matter of time, a matter, perhaps, of complex political stance, I do not know.

Senator Lamontagne: One last question. I do not know how much time I have left . . .


The Joint Chairman (Senator Hays): You have five minutes.


Senator Lamontagne: I am going back to clause 47 of the draft resolution, the clause Senator Tremblay was talking about this afternoon. To my mind at least, this clause is not quite clear. I would like to know exactly what it covers? In the notes we were given, we see that it is a reference to clause 48 and clause 49. In the English text it says:

but see also 50 . . .

In the French text, it says:

voir aussi l’article 51

To me, there is a potential confusion here and this should be clarified before we go any further.

Mr. Chrétien: I think this is a matter of drafting and I would ask my deputy minister, Mr. Tassé, to be so kind as to answer.

Mr. Roger Tassé, Q.C. (Deputy Minister of Justice): Mr. Chairman, I think the first section we have to refer to in the amending formula is section 41 on the general procedure.

Then there is section 42 that provides for a referendum in certain circumstances. This is the normal procedure but there are exceptions to section 41 and section 42. First, there is section 48 that applies in the case of the Parliament of

[Page 49]

Canada. Then, section 49 that applies to the provinces. So these two sections are exceptions. Yet there is one exception to these two sections. It is section 50 that provides for certain matters to be amended under section 41 even though at first sight some of the matters listed in section 50 could be amended under section 48. Section 50 is more specific. It states that some matters, for instance the office of the Queen, the Canadian Charter of Rights and Freedoms, could only be amended under section 41 or section 42.

Senator Lamontagne: Would section 44 be also covered by section 47?

Mr. Tassé: In some ways section 44 modifies section 41 and states that in some cases, section 44 applies, for 44 and 43, but not in the case of section 48. So, section 47 only makes it more precise by stating what I have just explained to you, that, first, sections 41, 42 and 43 apply in cases provided for and that if on the other hand one wants to modify the amending formula itself, it must be under section 41 or section 42, knowing that section 41 can also apply in the case of a revision or a consolidation of the constitution itself.

Senator Lamontagne: May I have a last question?

The Joint Chairman (Senator Hays): Yes, you may.

Senator Lamontagne: Section 50 states and I am going to read it in English first:

An amendment to the constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by section 41 or 42.

The French text does not seem to translate the word “only”. According to you does the word “only” in the English text cross out completely section 44?

Mr. Tassé: Mr. Chairman, I think that Senator Lamontagne has put his finger on a discrepancy between the two texts. There are a few such instances in the resolution draft that we will have to correct. This is one. Section 50 should indeed state that an amendment may be made only in accordance with the procedure. In other words, the French text should include the restriction included in section 50 in English.

Senator Tremblay: For your information, according to the rules by Mr. Pigeon, the present indicative is compulsory; it means “only”.


Senator Connolly: May I have a supplementary just on that one point?

An hon. Member: Is the time not up, Mr. Chairman?

The Joint Chairman (Senator Hays): I would assume that On Wednesday when we reconvene at 3:30 the Minister of Justice would honour us with his presence. So we would like to stop at 4 o’clock and Mr. Lamontagne has another minute.

Senator Lamontagne: I am prepared to yield to Senator Connolly.

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Senator Connolly: All right, it is ust a very quickie. The insertion of the word “only” in the beginning of proposed Section 50, I take it still does not prevent the operation of proposed Section 44 when you use proposed Section 41. I am really not asking you. Mr. Minister, I am asking…

Mr. Chrétien: I think we will look at this problem because it is a rather technical question you are asking. Sometimes we have to look into that and I do not want to make an off-the- cuff comment on that.

The Joint Chairman (Senator Hays): Thank you very much. We promised the minister we would let him out sharp at 4 p.m. I would like to honour that Commitment. Would you wish him to be here again on Wednesday at 3.30 p.m. as a witness?

Mr. Epp: Mr. Chairman, it is not quite 4 o’clock. I would like to have that minute for Mr. McGrath who is next.

The Joint Chairman (Senator Hays): Mr. McGrath, you have one minute.

An hon. Member: One minute, what a force.

Mr. McGrath: Mr. Chairman, I would just like the minister to expand on a reply he made to . . .

The Joint Chairman (Senator Hays): Well, I think maybe he had better not. This meeting stands adjourned until 3.30 p.m. on Wednesday afternoon.


From the Department of Justice:
Mr. Roger Tassé, Deputy Minister of Justice.

Other Issues:


Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19
20 21 22 23 24 25 26 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57


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