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 3 (12 November 1980)


Document Information

Date: 1980-11-12
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 3 (12 November 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 3

Wednesday, November 12, 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


RESPECTING:

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.


APPEARING:

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

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980


SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

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

Representing the Senate:

Senators:

Asselin
Austin
Connolly
Goldenberg
Lamontagne
Lucier
Petten
Roblin
Tremblay—(10)

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Corbin
Crombie
Epp
Fraser
Henderson
Irwin
Lapierre
Mackasey
Manly
McGrath
Nystrom
Tobin—(15)

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Wednesday. November 12, 1980:

Mr. Henderson replaced Mr. Gimaiel;
Mr. Irwin replaced Mr. Chenier;
Mr. Fraser replaced Mr. Nowlan;
Mr. Beatty replaced Mr. Malone;
Mr. Robinson (Burnaby) replaced Mr. Knowles;
Mr. Manly replaced Mr. Robinson (Burnaby);
Mr. Mackasey replaced Miss Campbell (South West Nova).

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

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


[Page 3]

MINUTES OF PROCEEDINGS

WEDNESDAY, NOVEMBER 12, 1980
(6)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 3.38 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, McGrath, Nystrom, Robinson (Burnaby) and Tobin.

Other Members present: Messrs. Allmand, Duclos, Gauthier, Mackasey, Malepart and Reid.

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

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

Your Sub-committee met on Friday, November 8, 1980 to consider its Order of Reference from the Senate, November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980.

Your Sub-committee has agreed to recommend the following:

1. That the weekly schedule of meetings be as follows:

Mondays 8:00 p.m.—10:00 p.m.
Tuesdays 9:30 a.m.—12:00 noon
3:30 p.m.— 6:00 p.m.
8:00 p.m.—10:00 p.m.
Wednesdays 3:30 p.m.— 6:00 p.m.
Thursdays 9:30 a.m.—12:00 noon
3:30 p.m.— 6:00 p.m.
8:00 p.m.—10:00 p.m.
Fridays 9:30 a.m.—11:00 am.

2. That in reply to his request to appear, the date of Monday, November 24, 1980 at 8:00 o’clock p.m. be reserved for Premier A. Blakeney of Saskatchewan.

3. That the Joint Clerks of the Committee distribute all documentation including briefs to the initial membership of the Committee in the language received as soon as possible with the translation to follow.

4. That the Committee use the services of the Research Branch of the Library of Parliament.

On motion of Senator Cvoldenberg, the Second Report of the Sub-committee on Agenda and Procedure was concurred in.

[Page 4]

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23. 1980 both relating to the document entitled “Proposed Resolution for a joint address to Her Majesty the Queen respecting the constitution of Canada” published by the government on October 2, 1980 (See Minutes of Proceedings, Thursday, November 6. 1980, Issue No. 1.)

A point of order being raised by Mr. McGrath relating to the sharing of alloted time, the question was referred to the Subcommittee on Agenda and Procedure.

Questioning of the Minister and the witnesses was resumed.

A point of order being raised by Mr. Epp relating to the recognition by the Chair in the 10-minute round, it was agreed, —That pending recommendation by the Sub-committee on ‘Agenda and Procedure of this question, the Chair recognize the members in the 10-minute round by alternating between the opposition and the government side.

Questioning resumed.

Mr, Beatty moved,—That this Committee requests the Minister of Justice to table forthwith the Committee any public opinion polls relating to constitutional change, including any analyses of such polls, if conducted for the Canadian Unit, Information Office since March 1, 1980.

Mr. Robinson (Burnaby) moved,—That the motion be amended by deleting the word “forthwith” and by adding after the words “March 1, 1980” the following “and that the polls relating to the constitution be presented as soon as possible, and in any event by Friday of this week, and that if any member wishes to question the Minister he may be allowed to do so”.

After debate, by unanimous consent, the amendment was agreed to.

The question being put on the motion, as amended. it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Nystrom
Robinson (Burnaby)—10

NAYS:

The Honourable Senators

Austin
Connolly
Goldenberg
Hays
Lamontagne
Lucier
Petten

[Page 5]

Messrs.

Bockstael
Corbin
Henderson
Irwin
Lapierre
Tobin—13

Questioning resumed.

By consent, the second paragraph of the Sub-committee on Agenda and procedure was deleted.

At 6:08 o’clock p.m., the Committee adjourned until 8:00 o’clock p.m. this evening.

EVENING SITTING

(7)

The Special Joint Committee on the Constitution of Canada met this day at 8:08 o’clock p.m., the Joint Chairman, Mr. Serge Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, Manly, McGrath, Nystrom and Tobin.

Other Members present: Messrs. Allmand, Gauthier, Hawkes and Robinson (Burnaby).

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, I 980, Issue No. 1).

Questioning of the Minister and the witnesses resumed.

At 10:07 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent,
Paul Bélisle,

Joint Clerks of the Committee.


[Page 6]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, November 12, 1980

[Translation]

The Joint Chairman (Mr. Joyal): Ladies and gentlemen, it is my pleasure to welcome you for this next session.

As we had agreed on Friday when we adjourned, we will resume our questioning with the Honourable Minister of Justice, but I would first like to give you the report of the subcommittee on agenda and procedure,

Before that, I would simply indicate that our assistants told us that the best way to use this little device that you are carrying is to switch to channel 3 for English and channel 5 for French and that the reception is better if you lay this little box flat and orient it properly. This has obviously nothing to do with the work of the Committee!

Having said this, I will read you the report of the subeommittee on agenda and procedure.

On Friday, November 7, 1980, your subcommittee adopted the following recommendations: [Text] that the weekly schedule of meetings be as follows: Mondays, 8 p.m. to 10 p.m.; Tuesdays 9:30 a.m. to 12 noon; 3:30 p.m. to 6:00 p.m.; 8:00 pm. to 10 pm; on Wednesdays, 3:30 p.m. to 6:00 p.m.; on Thursdays 9:30 a.m. to 12 noon; 3:30 pm. to 6 p.m.; 8:00 p.m. to 10 p.m.; and, on Fridays, from 9:30 am. to 11:00 a.m.

That in reply to his request to appear, the date of Monday, November 24, 1980 at 8:00 p.m. be reserved for Premier Allan Blakeney of Saskatchewan; that the Joint Clerks of the Committee distribute all documentation including briefs, to the initial membership of the Committee in the language received as soon as possible with the translation to follow; that the Committee use the services of the Research Branch of the Library of Parliament.

Those are the main recommendations that we would like to put forward. If there is someone to propose, I would be open to comment or adoption of the report.

[Translation]

Who is the mover?

Senator Goldenberg: I so move.

The Joint Chairman (Mr. Joyal): Senator Goldenberg moves the adoption of the subcommittee report on the agenda.

Any comments, discussion?

I therefore declare the report adopted.

We are resuming consideration of the document entitled “Proposed resolution for joint address to Her Majesty the Queen respecting the Constitution of Canada”, referred to the Senate Committee on November 3. 1980 and to the House of Commons on October 23, 1980. Appearing today is the Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada who is accompanied by his officials.

[Page 7]

Mr. Epp.

[Text]

M. Epp: Mr. Chairman, just before the Minister gets down to testimony, could the Chair give us some indication from the clock as to the witnesses who have been lined up so that we could establish our work schedule for the remainder of this week or at least into the week?

The Joint Chairman (Mr. Joyal): Yes, certainly. I can inform you and repeat that we did agree last week to hear the Chairman of the Human Rights Commission, Mr. Fairwea- ther, after we have finished with the Honourable Minister of Justice, and then we will go on with the official commissioner later on this week. The meeting has yet to be fixed in terms of a date because we do not know how members of this Commit- tee would like to extend their questioning of the honourable Chairman of the Human Rights Commission; but the two are at our disposal for this week.

So far as the next meetings are concerned, I think I can leave the Joint Clerk to inform you accordingly.

Mr. Epp: That is acceptable, Mr. Chairman.

The Joint Chairman (Mr. Joyal): What I could suggest is this. I know that there are two suggestions: two different groups; but, if you could agree on this floor to have a meeting of the Subcommittee on the Agenda maybe tomorrow and to make up our minds over those two other witnesses who are available,

It means that we have plenty of work for the rest of the week, and I think with a short meeting on the Subcommittee on the Agenda we could agree to the method of proceeding with our work.

Mr. Epp: That would be acceptable, thank you, Mr. Joyal

[Translation]

The Joint Chairman (Mr. Joyal): Any other questions before we resume?

[Text]

Mr. McGrath: May I have a point of order, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Senator Goldenberg. Yes, Mr. McGrath.

Mr. McGrath: Mr. Chairman, I hesitate to raise a point of order. It has nothing to do with the report of the Steering Committee. My point of order is based upon events subsequent to the meeting of the Subcommittee on Agenda and Procedure, and has specifically to do with our meeting last Friday.

Mr. Chairman, we are operating under a very severe time constraint imposed upon us by the Order of Reference of both Houses. We have to have a report to both Houses of Parliament on or before December 9. That leaves us approximately three weeks. In terms of hearings it does not leave us with a great deal of time.

I find myself exceedingly frustrated, Mr. Chairman, by the other inhibitious that have been placed upon us in terms of the length of time that we have, each one of us, to question the witness.

To say that the subject is complex is to use an understatement. I find it very difficult, without legal training, to have to get my questioning together in a period of ten minutes to the Minister of Justice of Canada with all his learned counsel and

[Page 8]

advisors behind him on a question as complex as the Constitution of Canada. Quite frankly, that places me at a very serious disadvantage as a member of this Committee and as one who feels he has some responsibility both to the country and to the members of the House who ordered us here.

Now that is not, however, my point of order. My point of order is based upon what happened in Committee on Friday afternoon. I realize you will say, Mr. Chairman, that this is not an unusual practice and that this has happened before. However, that does not make it right.

I examined the record on Friday and I determined, by an examination of the record, that eight honourable members opposite were recognized for the purposes of answering questions.

On this side of the table, in other words, for the combined Opposition there is a total of four, counting the New Democratic Party; a total of four on this side and eight on that side. Now that does not suggest any partiality or unfairness on the part of the Joint Chairmen; but it does suggest something which the Chair, perhaps without giving it sufficient thought, agreed to on Friday, and that is to allow an honourable member to share his time with somebody else.

Now, we only have ten minutes, and I can argue that ten minutes is not enough; indeed, I propose to ask that the steering committee take a look at the time allocation.

But I would like to have a ruling today on whether or not it is in keepingwith the Standing Orders of the House. I can give you a citation from Beauchesne, the current edition. The citation is 569 at page 189 which states:

The committees are regarded as creatures of the House and are governed for the most part in their proceedings by the same rules which prevail in the House with the exception as to seconding of motions, limiting the number of times of speaking and the length of speeches.

“Governed for the most part in their proceedings by the same rules which prevail in the House…” well, Mr. Chairman, if I am participating in a debate in the House and I have twenty minutes under the Standing Orders and only use ten minutes of those 20 minutes, I cannot say, “adam Speaker, I want to give the rest of my time to my seatmate, the honourable So-and-so,” because that would clearly be in contravention of the rules and I would be laughed at in the House.

I would submit to you that the same procedure—and I cite Beauchesne to support my contention—should prevail in this Committee.

This is not an ordinary Committee ofthe House. This is not a Committee charged with some cursory examination. This is a special joint committee charged with the examination of the Constitution of Canada with certain constitutional proposals which have been placed before Parliament by the Government of Canada with a very severe time constraint. That makes us an extraordinary kind of committee. The fact that we are meeting in this room speaks to the extraordinary nature of the Committee; the fact that the House today, as a result of second thoughts on the part of the Liberal caucus, agreed tentatively to provide for television and broadcasting of the

[Page 9]

proceedings of this Committee, that makes it a special committee, and no other Committee has had these privileges bestowed upon it.

I would say it would be incumbent upon you, sir, and your Joint Chairman, to look upon this Committee in that light, and it is especially incumbent upon you, and your Joint Chairman, that you should be absolutely scrupulous in terms of the way in which you administer the rules of the House which apply in this Committee. I submit to you that if a member is given ten minutes for questioning, then that member should not be allowed to share his time with any other member of the Committee.

Now whether or not the Chair entertains a supplementary, that, of course, should always be left to the discretion of the Chair.

But to make it a general rule for a member to say, “Mr. Chairman, I give the rest of my time to Mr. So and so,” I believe that would be a clear violation of the Standing Orders of the House which apply in this Committee.

Finally, Mr. Chairman, I want to say this: I hope that your distinguished colleague, the Joint Chairman, will not be as fast with the gavel from now on as he was on Friday. About one minute to four, when we were about to adjourn on Friday, the Chair agreed—and the Minister subsequently agreed—to entertain one question; and for some reason, the Joint Chairman changed his mind and hit the gavel and said, “On second thought, we will adjourn.” Now, that is not the way this Committee should function, given the extraordinary nature of the terms of reference before it. I hope, sir, that the distinguished Joint Chairman from the other place will accept my remarks in the spirit in which they are given; because I do believe that we have an exceptional responsibility in this Committee, meeting under extraordinary circumstances.

In conclusion, may I submit to you, that you can reserve your ruling on my point of order or you can refer it to the steering committee, I believe it should be ruled upon today, But, in any event, I would submit that you should refer to the steering committee the whole question of time allocation and whether or not it is appropriate, given the nature of these proceedings, that we should only be allocated ten minutes to examine witnesses.

The Joint Chairman (Mr. Joyal): Thank you, Mr. McGrath. If you agree, as we have previously done at our meeting last week, that any procedural questions should be referred to the Subcommittee on Agenda, I would take the initiative, with the consent of Honourable members of this Committee, to refer the very specific point of sharing the ten minute allotment to the Subcommittee on Agenda for further discussion.

The only thing I would like to remind you of is that last week, when I was asked by a member to transfer the rest of his time to another member on the Liberal side, I did ask for the consent of the Committee and nobody opposed it.

Mr. McGrath: It then became the general practice.

The Joint Chairman (Mr. Joyal): Yes. It is on that precedent, then, that on the second turn around at the table, that I

[Page 10]

accepted another member sharing his time with another colleague. But that was essentially on the ground that I run the business of this Committee with the consent of the other members each time.

You will have noticed that I never took any initiative contrary to our rules unless I had the full consent and participation of the members around this table, and I am certainly open today to refer the very question to the Subcommittee on agenda. You are a member yourself and I think you will have a fair opportunity to debate there on the nature of that practice, taking into account the essential nature of our Committee.

On the other hand, I would like to point out that it was on that very ground that you might have counted that there were more Liberal members taking part because if I recount the allotment of time, I think it was a fair proportion between the Parties around this table, essentially on the ratio of the participation of the Parties around this table. So I do not think there has been there any breach of the rules that we have already accepted.

On the last point of your comment, which I will transfer to our Honourable Joint Chairman, Senator Hays, I want to just say to you that I have tried to be flexible in terms of the ten minute allotment which is, if the Chair has the conviction that with another one, two or three minutes more, the Honourable Member, on whatever side it may be, will have an opportunity to complete his set of questions; I do not apply the ten minute rule, as I should say the couperet of the guillotine; I try to be flexible and recuperate those two or three minutes, or give two or three minutes more to the other party, the following party, That is essentially the way I approach the situation.

But on the very point of your minute of questioning that was accepted by the Honourable Minister of Justice, I would like to refer it to Senator Hays, our Joint Chairman.

The Joint Chairman (Senator Hays): Thank your Mr. McGrath, ifI seemed to be in a bit of a hurry, I apologize. It looked to me like it was 4 o’clock and I had promised the Minister that we would have him out of here at 4 o’clock, he had another important commitment and if I have erred, then I apologize.

Mr. McGrath: Mr. Chairman, I thank the distinguished Joint Chairman and I appreciate what he has said.

May I just say to you, Mr. Chairman from the House of Commons, that while I appreciate your referring the Point of Order to the steering committee, only the Chair can rule but I presume you are submitting it to the steering committee in order to keep procedural arguments off the floor of the plenary as much as possible and I agree with that, I think it is a good thing.

The Joint Chairman (Mr. Joyal): Mr. Irwin?

Mr. Irwin: I just wanted a clarification. At the steering committee I thought this point was dealt with, that we could share our time and it was that way we approached the first day and today. If that is not the understanding, then perhaps it should be clearly agreed upon, as adults I assume we can, at

[Page 11]

the next meeting of the steering committee. If we cannot agree, then the Chair would have to make a ruling, naturally, but I understand from that first steering committee that we can allocate our time; it was not numbers, if we had ten minutes, we could have two or three people take up that ten minutes. Perhaps I was mistaken but this was my understanding that I left that first meeting with.

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

Mr. Epp: Mr. Chairman, I did not have that impression that Mr. Irwin has, the impression I had is that every party would get 15 minutes on the first round and ten minutes on the second round. I do not believe the question of splitting the time between various members was discussed.

The Joint Chairman (Mr. Joyal): No. I would corroborate Mr. Epp’s statement that we discussed an allotment of time for each Party but not splitting the time within a Party. If we have to agree, I think there is no doubt in my mind there will be a ruling, but I would like to hear from different parties around this table before making a ruling because I think it is essential to make our work easier and more profitable for each member around this table.

So if there is no other comment on that very point, I would like to turn then to Mr. McGrath who was the first questioner with our witness, the Honourable Minister of Justice.

[Translation]

Agreed?

Mr. Duclos: I have already given my name to the Chair.

[Text]

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

Mr. McGrath: Thank you, Mr. Chairman.

While I am going to peg my question on an intervention or a question by my friend, Mr. Tobin, with regard to certain concerns that were expressed by the Premier and the Government of Newfoundland with respect to the implications of Sections 42 and 43, I do feel that it does have general application. However, it is appropriate that it should be referred to in the Newfoundland context because the Premier of Newfoundland expressed concern over what was taking place and the implications and the far-reaching consequences of Sections 42 and 43 with regard to the terms of union between Newfoundland and Canada, which was a contract entered into in 1949 and confirmed by a statute of the Parliament of Westminster, and subsequent amendment to the BNA Act. But in his reply to Mr. Tobin the Minister indicated that there is no way we can amend that part of the constitution that relates specifically to Newfoundland without approval of the provinces, and here he was referring to the integrity of the Newfoundland/Quebec boundary which is disputed by the Province of Quebec, the Labrador boundary, and the denominational system of education in Newfoundland for which special provision was made in term 17 of the terms of union in order to ensure that that unique system would continue and would not be interfered with by any act of the Dominion or any subsequent act of the Dominion. But what I find difficult to reconcile that with is the Minister seemed to hang his assurances on Section 47.

[Page 12]

He cited Section 47 with regard to the amending provisions of 41, 42 and 43, but, sir, if you read Section 47, it is not a long section and I think it is worth reading, you will find my question, and Section 47 reads that

Procedures prescribed by Sections 41, 42, 43 do not apply to an amendment to the Constitution of Canada where there is another provision in the Constitution for making the amendment, but the procedures prescribed by Section 41 or 42 shall nevertheless be used to amend any provision for amending the Constitution including this section.

This Section being Section 47. In other words, what the Government has done by a very neat trick of hiding the pea under the shell is put their arguments on what I consider to be a very questionable section and I would like to have some response from the Minister because I can assure him that the Government and the people of Newfoundland feel very strongly about this, and the assurances to Mr. Tobin notwithstanding I just want to know exactly what are the powers of the Federal Government under Section 47.

Hon. Jean Chrétien (Minister of Justice): Mr. Chairman, we say that in 47 it is very clear that the intention of the Government is that when there is other provision in the Constitution in relation to one province or some provinces, that does not apply generally to all Canadians, it cannot be changed unless there is approval of that province, and it is the intention of 47 as described, and it is still. Of course under 47 one can argue that we can change completely the Canadian Constitution.

Mr. McGrath: You can change 47 to suit yourself.

Mr. Chrétien: Yes. In fact, today, as we are doing at this moment, we can go to England and change anything in the Canadian Constitution, including, if we wanted to amend the act of union between Newfoundland and Canada, we could go to England and ask them to change it and legally they can change it.

Mr. McGrath: Unilaterally?

Mr. Chrétien: They could. But we do not have any such intentions, and neither in 47 do we have the intention of changing the conditions of the act of union, but under 47 it might be that some day Canadians, after the referendum having the majority in all parts of Canada, could decide to go to the extremes, could decide to abolish the National Government, they could decide to abolish the provinces.

For example. if we wanted to change the constitution in relation to the borders of the provinces, that presumes that the Canadians will accept that the borders of all the provinces could be changed, of all of them. and in order to do that you would have the ‘majority of the people in Western Canada, the majority of the people in the Atlantic Provinces, the majority of the people of Quebec and the majority of the people of Ontario would agree that the borders of all the provinces could be changed. So that what is in the present Constitution, what we call the Constitution Act of 1871, could be changed but it will be only after it has been approved by all the citizens of

[Page 13]

Canada, and of that majority, a majority in all the four parts of Canada and

just like I said earlier, theoretically if you put the rationale to the end Canadians could decide to abolish the Canadian Parliament and have ten principalities in Canada, or the extreme reverse, to abolish all the provinces and have only one government.

It is possible today, if the British Parliament were to vote that there are no more provinces or no more federal government, and it is in theory still possible in the future but with 47 we are making it much more complicated because now we will have to have the consent of the citizens of Canada, and under the present circumstances we have to ask the British Parliament to act.

The Joint Chairman (Mr. Joyal): Mr. McGrath?

Mr. McGrath: Mr. Chairman, with respect I am not interested in the Minister’s good intentions. I am not interested in the Minister’s theory. I am interested in the legal implications of Section 47.

As I read Section 47, which you have used, and the Prime Minister has used in the House as a means of protecting the rights of provinces under the amending provisions of 41, 42 and 43, that section says very clearly that these provisions can be used to amend any section of the act including Section 47, the very section that is supposed to be the protective section.

Mr. Chretien: I replied to that question. I said that accord ing to the constitution as it will exist, these clauses will protect the borders of the provinces and the denomination school system in Newfoundland.

I just said that under 47, the second part of it, we could decide through a referendum to have a complete different nation as I described it. That is my view, if you put the ultimate question of course in theory, one federal government could abolish another federal government with the consent of the provinces. The other extreme is still possible because Canadians would be master of their own constitution.

Mr. McGrath: Mr. Chairman, what the Minister forgets is that under Section 42 he can go over the provinces and go direct to the people by way of referendum and he can change any section of the act including the protective provisions of Section 47. That is clearly what it says.

Mr. Chretien: But, Mr. McGrath, I would like to tell you that in the drafting of Section 4] and Section 42, and I said earlier in my testimony, that we are planning to provide an amendment so that Section 41 will have to be used up before we go to Section 42.

Some had said that the way it is described now in Section 42, we could go right away to the people without consulting the provinces. I said if there is an oversight in the drafting of Section 41 we would clarify that and in the future we would have to go to the amending formula and if, through the amending formula, there is a deadlock it is only after the deadlock has been clearly established that we will be able to go to a referendum.

[Page 14]

It was confirmed; that was a point that was raised by Mr. Davis and by Mr. Blakeney. In a letter last week by Mr. Trudeau to Premier Davis he confirmed that there will be a mechanism that will make sure that the amending formula with the provinces will have to be tested first before we can go to Section 42.

Mr. McGrath: Yes, but I am concerned about Section 47.

Mr. Chretien: But we can not use Section 42 even if Section 47 gave us permission to use 42. We will have to use Section 42 after Section 4i has been exhausted, and I would provide the Committee with the appropriate amendment.

The Joint Chairman (Mr. Joyal): Mr. McGrath?

Mr. McGrath: Mr. Chairman, I would like to reserve an opportunity to examine what the Minister has in fact said in reply to my question, and get back to this.

I would like to go to the Charter of Rights and get the Minister to explain something that bothers me because why I am concerned, I am concerned for it number of reasons, I am concerned in the light of Mr. Tobin’s question with regard to the impact of the Charter of Rights, for example, on Newfoundland’s unique protection that has under the terms of Union of its denominational system of education.

Getting back to the wording of the Charter of Rights, the Minister explained to me what it means when he says the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Surely that makes everything that follows redundant because a free and democratic society would have within it in a parliamentary system freedom of conscience and religion. Ours does; it operates under the practices and conventions and traditions of the British Parliamentary System.

It seems to me that you have fallen into the same trap here as the Canadian Bill of Rights because you are going to exclude all the very commendable rights and freedoms that you have set out in Section 2 of Schedule B. It either means that they apply or they do not apply. What are the reasonable limits as are generally accepted in a free and democratic society.

Surely the reasonable limits as are accepted in a free and democratic society with a parliamentary system would include freedom of conscience and religion.

Would you agree with that and if you agree with that then obviously spelling out freedom of conscience and religion is redundant and so is freedom of thought, belief, opinion redundant. We enjoy these freedoms now.

[Translation]

The Joint Chairman (Mr. Joyal): The Hon. Minister of Justice.

The Hon. Minister of Justice: Mr. Tassé will answer.

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

[Text]

Mr. Roger Tassé (Q.C., Deputy Minister): In effect, Mr. Chairman, that Section 1 is meant to bring forward the concept that these rights that are spelled out in the Charter,

[Page 15]

those you have mentioned and the others, Mr. McGrath, are not absolute rights.

If you just take, for example, the freedom of expression, there are limits to the freedom of expression that already are spelled out in the Criminal Code and that will continue and should continue when a Charter of Rights like this is entrenched.

What the Section is meant to do is to bring that concept not only to the legislatures but also to the judges because in effect the judges when they are faced with cases where government action or parliamentary action, legislative action is being tested and being challenged, in effect they have to decide whether limits, restrictions, that may have been imposed, because again these rights are not absolute, are reasonable ones. That is only what Section 1 is intended to do, that in effect the judges, when there are challenges brought before them, wherein effect people would claim that their rights have been unfairly or unreasonably restricted that in coming to a conclusion when they are so challenged that in effect the courts will have to take for granted that there are some limitations that may well be reasonable and legitimate in the kind of society in which we live.

Mr. McGrath: What is the meaning of the word “reasonable”, Mr. Tassé?

Mr. Tassé: That is the test that the Court would have to apply and that is the whole purpose of the Charter of Rights. In fact, when you entrench a charter of rights like this one you are saying that Parliament and the legislature will constrain themselves when they legislate.

Mr. McGrath: I am saying that your charter of rights is not a charter of rights at all.

Mr. Tassé: Pardon me?

Mr. McGrath: I am saying that your charter is meaningless in the light of what is said in Section 1 of Schedule B when you make it subject to the reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

[Translation]

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

[Text]

Mr. Chrétien: I just want to say that we have a Charter of Rights but this text is a limit; it is an indication to the court how to interpret the charter in relation to the different legislation because if you do not put those words there it could lead to all sorts of change by the courts that will not give them any limits of interpretation. As said by my Deputy Minister there is some legislation that has been well established in the Canadian society that are recognized, and we have to make sure that the courts do not destroy all the previous work of the evolution of our society. Otherwise we will be in great legal difficulty, so they will have to apply the test of reasonableness in their decisions. I do think the Charter of Rights has its own limits, as you will find out when you are studying it, section by section.

[Translation]

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

Mr. Corbin: Thank you, Mr. Co-Chairman.

[Page 16]

I would first like to make a comment. I am obviously very pleased to see that we are enshrining the official languages in the rights of the education of minorities in this charter of rights.

I think this is an important step that is quite welcome by the minorities, by the French minorities wherever they live in Canada.

However, I notice that strictly speaking of rights we are still making a distinction related to numbers and regions for the implementation of this right and of the Official Languages Act.

The charter, where it concerns official languages in Canada, applies on a regional basis. However, the honourable minister will certainly agree, Mr. Chairman, that the government and, in effect, Parliament, have not yet established bilingual districts in Canada uner the Official Languages Act although they have been defined after a fashion for the purposes of the federal Public Service.

I feel that the charter is quite incomplete in that sense and that there are gaping holes which concern me.

Also, I would like to say that I consider the entrenchment of official languages and of the language of education in the charter not like breaking the sound barrier but rather like the first time man walked on the moon. I feel that there is yet a lot of ground to be covered before we even break the sound barrier as far as legislation regarding the integral application of the principle regarding the use of official languages in Canada.

What concerns me above all is that the related sections appear to be drafted according to what those politicians known as provincial premiers are ready to accept or to reject. The Prime Minister of this country has stated on many occasions that there must be no tradeoff between rights and oil supplies. However, I get the impression that there has, in fact, been some horse trading going on which means that this document is quite incomplete in my opinion.

So if there has been praise around this table of the determination of some provincial premiers to follow the intention of the federal Parliament in the area of official languages and language of education, I feel it is rather a question of having no other choice. Whether the premiers desire it personally or not, they have no choice. They must move in that direction because minorities within their provinces are strong and able enough to leave no options open to the premiers where official languages are concerned.

Perhaps you can call it courage; I say that some provinces have no choice. However. it also appears that some premiers have no other choice but to reject the principle of equality of both official languages and of language of education in their

[Page 17]

province because the majority groups are applying too much pressure. I regret that fundamental questions have been traded off against political considerations. On many occasions, I have heard it said in the House of Commons as well as on television that the entrenchment of these rights in the Constitution would avoid this bartering, this negotiation, this bilateral accommodation that takes place between the provinces, between Quebec and the other Canadian provinces.

So, I do not think that we have reached our objective and, before going any further, I would be happy to hear the minister’s comments on the subject.

Mr. Chrétien: Your statement is twofold, Mr. Corbin.

First, you have raised the question of education in the mother tongue. Obviously, this was the imperative question for me and one which had to be solved by the ongoing constitutional reform process. As far as language rights are concerned, I feel that we have attempted, through this formula, to give equal education rights to Francophones living outside Quebec, to give them the opportunity to receive their education in French and to give equivalent rights to the English-speaking minority living in Quebec. We wanted to draft a provision which gave equality both outside and inside the province of Quebec.

You have referred to the number of children which is sufficient to warrant minority language educational facilities. That criterion was used by the premiers themselves at the time of the 1977 agreement in New Brunswick as well as in 1978.

Whatever the case may be, this criterion would have been upheld in the courts because they would have had to apply some sort of reasonable standard when making their decision for very practical reasons. It cannot reasonably be expected that one family in a village should warrant one school so that their children may receive instruction in the language of their choice at prohibitive costs. With this mechanism, Mr. Corbin, the courts will be able to interpret the situation in English Canada based on the situation in Quebec. The more generous Quebec is towards its anglophone minority, the more often the courts will be able to use the Quebec precedent to impose criteria on French speaking minority groups elsewhere in Canada.

To turn to the question of education, I believe the second part of your question was related to I33. I have stated and I repeat that neither in 1971 nor at the time Bill C-60 was published was it ever the intention of the Canadian government to impose institutional bilingualism in the provinces.

In 1971, seven provinces were ready to bind themselves to 133 through an “opting in” mechanism. Now, obviously Quebec and Manitoba are bound by the constitution and the Province of New Brunswick is ready to do the same. Ontario has indicated that it was not ready to commit itself at the moment but that it might be in the future. Under the constitution as it would exist, it would be possible for a province at any

[Page 18]

time to bind itself through a joint resolution approved in both legislatures or by both governments. Once it is written in the constitution, it could only be amended through the amending formula.

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

Mr. Corbin: Mr. Minister, Mr. Chairman, I am happy to hear the minister say that he believes the courts will interpret “in which the number is sufficient” or the word “reasonable” based on the treatment which English speaking minorities are given in Quebec. That is what the minister has said, is it not?

Mr. Chrétien: Yes. If I was defending the francophones outside Quebec, I would call that province as my first witness so that the bench could hear how English speaking minorities in Quebec are being treated.

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

Mr. Corbin: The text of the resolution will remain unchanged.

Senator Asselin: Yes, but people have to wait before the courts can interpret the provision.

Mr. Chrétien: We must have confidence in the courts. Having confidence in the provinces has not proved very satisfactory over time.

Mr. Corbin: Obviously, we have to trust the courts, Mr. Chairman. Otherwise this exercise would be fruitless since all hopes founded in law are eventually left to interpretation before the courts.

In any case, I am a little more encouraged by the minister’s remarks than I was when we began consideration of the resolution. However, it appears to me that there is no backbone in this country. There does not seem to be enough determination on the part of the provincial premiers to recognize that we must recognize and grant, in the text of this charter. the same rights which anglophones have in Quebec at the present time. Frankly, I must admit that this obviously political game escapes me totally. I know that politics is the art of the possible, I know that as far as possible there was a desire to respect the texts which were adopted in 1971 and that the federal government did not want to give itself more rights than it has at the moment or take any away from the provinces. However. in my opinion it is an opportunity missed. The amendment of the constitutional provisions has not requested the provinces to take a more affirmative, a more positive stance. The minister may tell me that this is beyond his jurisdiction, but I have, nonetheless, to express my regret.

Mr. Chrétien: Obviously, Mr. Corbin, it is refreshing to hear that we have not been bold enough. Many have told us that we have gone too far.

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

Senator Connolly.

[Text]

Senator Connolly: Mr. Chairman. I would like to refer. . .

The Joint Chairman (Mr. Joyal): I certainly abide by an agreement that we had to apportion the 10 minutes to each

[Page 19]

party in proportion to the members of each party around the table. In accordance with that I am entitled, at this point, to recognize the Liberal party in terms of seats, as you well understand.

There are 15 Liberals on the Committee, eight members of the Conservative party and two members from the New Demo- cratic Party; and that is the way we have accepted it. As I mentioned earlier, if there is any comment arising out of that, we could raise it at the Subcommittee on the Agenda, as we have agreed that any procedural question might be raised in the same context as we have discussed previously on the point of order put forward by Mr. McGrath. It is essentially on that ground, and I will ask McGrath to provide you with the apportionment of time that we have decided upon in that respect.

[Translation]

On a point of order.

[Text]

Mr. Epp: Mr. Chairman, on a point of order, I believe that most Members sitting around this table have had some experience in committee. I believe that the practice has always been to alternate between Opposition and Government. That means, obviously, that on the Opposition side that time is shared by the New Democratic Party and ourselves on the proportions as they relate to the Opposition. In fact, the debate in the House on this very question will follow the same procedure whereby a Member of the Government was then followed by a Member of the Opposition on the basis that 50 per cent of the time in that manner, then, was given to the Government and 50 per cent to the Opposition, and then again that 50 per cent of the Opposition was divided between the New Democratic Party and ourselves on the basis of our membership in the House.

It was my understanding that that is how we would proceed with this Committee rather than the apportionment be given now on the basis that, in view of the fact that more than 50 per cent of the Members on this Committee is Liberal, therefore they now get more than 50 per cent of the time.

Senator Connolly: Mr. Chairman, if it would help any I would be glad to stand down.

Mr. Epp: Mr. Chairman, I am not referring to Senator Connolly . . .

Senator Connolly: No, I realize that.

Mr. Epp: But I think we should clarify this so that we can have a smoother running committee.

The Joint Chairman (Mr. Joyal): Exactly. I am open to comment on that. Mr. Nystrom on that same point of order?

Mr. Nystrom: Yes, Sir, on the same point of order. I would have to check the records from Friday to see what was actually said but my understanding of what you said was that we would recognize members of this Committee according to the proportion of the Parties in the House and I think you said the House, I think you meant the House of Commons and I may be wrong on that but I would like to check the record as it is very important to us that that be the case. We only have two members here, and represent in the last election some 20 per cent of the Canadian people and a fair proportion in the House of Commons.

[Page 20]

Senator Connolly: Why do you not call me later, Mr. Chairman?

The Joint Chairman (Mr. Joyal):

[Translation]

Mr. Corbin: My time was . . .

The Joint Chairman (Mr. Joyal): Your time is up, Mr. Corbin. You even exceed by a few seconds the 10 minutes that were allocated to you.

Mr. Nystrom, on the same point of order.

[Text]

Mr. Nystrom: I have just had a chance now to check the records from the Friday session and I will read, it is quoting yourself, Mr. Chairman, and you say on page 2-20, it says:

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,

[Translation]

Le coprésident (M. Joyal): This is correct.

[Text]

Mr. Nystrom: Not referring to the Senate.

[Translation]

The Joint Chairman (Mr. Joyal): This is correct.

Are there any comments on the same point of order?

Mr. Beatty.

[Text]

Mr. Beatty: Mr. Chairman, most committees on which I have operated, if there is an imbalance in terms of numbers between the government and the Opposition it has always been a case of alternating on the first round, alternating Government Opposition, Government Opposition, until all of the Opposition members have had their first turn, then if there were Government members who still have not had their first round, then there would be an argument that can be made then for hearing them before beginning the second round, but the suggestion you would have to two Government members and then one Opposition member and go back to the Government and have more puts the Opposition at a serious disadvantage.

[Translation]

Le coprésident (M. Joyal): Very well. Mr. Tobin.

[Text]

Mr. Tobin: Mr. Chairman, I just wonder if I might suggest, and I just do it as an individual and certainly not representing the Liberal party, but perhaps for today we should alternate between sides and then if the matter needs to be further discussed, that it be discussed in steering committee. I think we should alternate.

[Translation]

The Joint Chairman (Mr. Joyal): If the honourable members agree, I believe Mr. Mackasey has something to say on the question.

Mr. Mackasey.

[Text]

Mr. Mackasey: Mr. Chairman, I think that the subject matter of this particular Committee is of extreme importance to all of us, all Canadians, and I do think and continue to think that members opposite as well as members of the Government realize the importance of this resolution, realize that we have the unique opportunity as members of this Committee to improve the lot of all Canadians and it seems to me that unintentionally we appear to be too legalistic, too concerned with numbers. and I think that the Committee has got to be given an opportunity for a week or ten days to let that good will dominate proceedings and as much as possible eliminate

[Page 21]

the legitimate adversary principles that tend to dominate Parliament by its very nature and I would urge the Committee to accept the suggestion of Mr. Tobin that we alternate side to side. It works out over a period of time, as you can see, and I think this is the general practice of the more important committees.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you for your participation in the debate. I believe we have now a consensus to alternate from side to side.

If Senator Connolly agrees, I will give the floor to Senator Roblin.

Mr. Senator Roblin.

[Text]

Senator Roblin: Thank you, Mr. Chairman.

I would like to ask the Minister some questions relating to particular clauses in the Bill and 1 direct his attention to Section 38, that is the one which provides for the provincial governments to devise among themselves an alternative amending formula to the one that the Government is sponsoring, and arrangements to put the two different formula to the vote.

Now, my particular point has to do with Section 38(3) of (a) which states that insofar as the Government of Canada is concerned they really seem to have two options open to them and I would like the Minister to explain this to us.

The paragraph states that the Victoria formula, as I read it, may be submitted as the federal alternative in the case of a referendum on the amending formula, or any alternative thereto proposed by the Government of Canada.

So I take that to mean that the Government of Canada, when it comes to propose its amending formula, has got two options: it can either put forward the Victoria formula or, as the Section says, any alternative.

Would the Minister please explain to me what “any alternative” means?

Mr. Chrétien: An alternative.

Senator Roblin: Well, that means something else. Perhaps I could get a little closer to the nub of the thing ifl were to ask him if the alternative amending formula might be perhaps a straight majority of the people voting, without any regard to provincial designations?

Mr. Chrétien: I do not know what would be the other alternative. What we say is that we will have unanimity for the first two years and during that period of time the province will be invited to make an alternative amending formula proposition and if eight provinces agree to’an amending formula, a different amending formula, and comes that day we could decide to accept the new proposition as one alternative. if we do not accept, there will be a referendum. The referendum will be the proposition of the provinces or the Victoria formula as Proposed in this Bill that might be changed slightly ifl refer to the request of the Member, Mr. Henderson of P.E.I. It could be a completely new one in light of the proposition of the provinces.

[Page 22]

Senator Roblin: Well, if I may put my own interpretation on what I think the Minister has said, he has really confirmed my statement that the federal government can introduce at that time any alternative amending formula that it desires to produce.

Mr. Chrétien: Only if the provinces have agreed on their own amending formula.

Senator Roblin: it does not say that here. It says that if there are two formulae to be presented to the voters, one is the provincial one if they agree on one, and the other is the federal Victoria formula or any other thereto proposed by the Government of Canada.

Mr. Chrétien: Yes.

Senator Roblin: Why does the government need that extra alternative which I think opens the possibility of an amending formula that perhaps would be completely unsatisfactory, why is that alternative required?

Mr. Chrétien: It will be at that time for us to make another one than this one. At this moment our intention would be to go with the Victoria Formula, but in light of the discussion in the next two years we could come to the conclusion that the Victoria, our formula, could be changed and that would be our alternative to the provinces.

We reserve the right to go to the people with the federal formula, that.might or might not be Victoria, and the provinces will have their own so we will be on an equal basis with the provinces that day.

Senator Roblin: Well, the words “might or might not be the Victoria Formula”, I submit, Mr. Minister, are significant because you cannot give us any assurance that it will not be something so foreign to the Victoria Formula as to be unrecognizable. If you can give us that assurance, I would like to hear it.

Mr. Chrétien: I just say that it might be something completely different than Victoria coming from the federal government.

Senator Roblin: Well, I again say that, and I suppose this becomes argumentative, but it seems to me that that alternative could well be dropped, or if it is not dropped it should be circumscribed that it does not lead us into an amending formula that is so foreign to Victoria as to be out of sight. I express that opinion.

Now, I want to ask…

Mr. Chrétien: But you have to keep in mind, Mr. Senator, that the mechanism will be to give the Canadian people the choice between an amending formula proposed by the federal government and an amending formula proposed by the provinces, and it would be up to the Canadian people to choose one or the other.

Senator Roblin: Very true, but we are now suggesting what should be in our constitution and this is such a wide, openended thing that I think it has no place whatsoever in a constitutional document because no one can say what it means, not even the courts.

[Page 23]

Mr. Chrétien: After the referendum it will be very clear, there will be an amending formula.

Senator Roblin: Well, I submit that is a vote of confidence in the wisdom of our rulers which I for one, am not prepared to subscribe to.

Mr. Chrétien: I am sorry, I subscribe to the judgment of the people.

Senator Roblin: Well, I think the people are well able to make their judgments, but I think that to include this kind ofa proposition in a constitutional document is not wise.

I now ask the Minister if he would be so kind as to turn to Section 31 of the bill which deals with equalization. or at least that is what it says in the heading, “Equalization and Regional Disparities”, but unless I have not read the clause closely enough that is the only reference to equalization I find in it, and I suppose that equalization in a title would not have much status in a court of law.

I presume, Mr. Minister, that this Section—is the word judiciable, it can be examined by the courts?

Mr. Chrétien: It is an affirmation of the principle of equalization and a commitment of all governments that there should be equal opportunities in Canada for all Canadians. One of the controversies at this time is that we have a system of equalization payments that go to the provinces. I argued in front of this committee last week that this is a very acceptable mechanism today. We are making payments to the provinces. In this draft we say that it might be in the future that another mechanism to equalize the opportunities of all Canadians could be something else other than to transfer the money to the provincial governments and it might be done in another fashion.

So what we are trying to do here is to recognize the reason why we are in Canada, that is to make sure that when the situation is good or bad, we all are there to share both the advantages and inconvenience, sometimes, of being together, and this text is broader than some of the texts that were suggested to us during the summer where the provinces wanted to limit the mechanism through payments by the national government to the provincial governments.

This envisages the possibility of making equalization payments in Canada in a different fashion than payments from the national government to the provincial governments.

Senator Roblin: Well, Mr. Minister, I subscribe to the sentiment. Coming from the part of the country that I do, equalization is a very important thing and that is why it came to my notice. What I am trying to determine is, what does this paragraph really mean, apart from the expression of a desirable sentiment?

For example, you refer in Section 31(1)(c) to essential public services of reasonable quality, and coming down again to Subsection (2) of the paragraph we find that we are committed to take such measures as are appropriate to provide essential public services without imposing an undue burden.

[Page 24]

My problem is I do not know what those words really mean. Do they mean equal? You have used the word “equality” in your previous remarks. Do they mean average? What do they mean, because if some court is being asked to interpret these things, I think it would be advisable for us if we can to give them a closer definition ofjust what we expect them to do.

Mr. Chrétien: The Committee can make suggestions if they want, if they are not satisfied with that text. That is why we are in front of the Committee. The problem is for us in that field, when we talk about essential public services of reasonable quality, that we do not want to pass judgment on the quality, to have uniformity in Canada of services. I do think that if we were to inscribe it, it would be too inflexible criteria because it might be that what is an acceptable level to all Canadians could lead some provinces to have much better schemes if they can afford it, and some provinces who are less rich or who have other priorities could decide that they do not go above that reasonable level.

If you want to have a more precise text, one of the problems is that you might bind the flexibility of the provinces tremendously in the operation of their own jurisdiction.

Senator Roblin: Mr. Minister, I wonder ifyou would consider, in view of what you have said, a definition of the word “equalization”? As I say, it does not appear in the text which the courts will be asked to rule upon. It is only in the heading.

What do you mean by equalization? Would you consider favourably a definition of the word “equalization”?

Mr. Chrétien: Certainly if some have a suggestion to make, we will consider any improvement in the drafting.

Senator Roblin: Have you got any suggestion to make?

Mr. Chrétien: No, You said that you are not satisfied, so I am waiting for you. You just asked me if I would entertain some better draft. I would be delighted if you have a better one.

Senator Roblin: Well, I do not know whether I have, but I think the men who have been working on this document could certainly provide us with a draft if you asked them to do so.

Mr. Chrétien: I just want to know exactly what you want in the text because I said earlier that of course, if one wants to refer to equalization payments just in terms of payments from the national government to the provincial governments, that is one of the things that was debated all summer, and the federal government came to the conclusion that for the time being it is a very satisfactory mechanism but it might be in the future, because when drafting that text for a long time, to make it more flexible than to just have payments to the provinces. But if the Committee wants to have a look into that and make some recommendation, I would be delighted to look into that and report the view of the government.

[Translation]

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

Senator Connolly will now have the floor.

Senator Connolly.

[Text]

Senator Connolly: Mr. Chairman, I would like to direct the Minister’s attention to the decision of the Supreme Court in

[Page 25]

connection with the reference to the Judgment having been handed down in December of 1979. The Judgment had to do with a proposal in Bill C-60 which had the effect of abolishing the Senate. It is not really the question of the Senate that I raise when I mention this, but it serves as a good example.

The Supreme Court said at that time, as I read the Judgment, that invoking the provisions of Section 91(1) of the British North America Act, Parliament alone could not do this,

I think the suggestion is generally understood that one of the motives of the Court, one of the reasons, or part of the rationale of the Court’s decision was that there was a third party interest involved here, and that interest was a provincial interest.

Now, here we have a situation where, under some of the provisions of the proposed bill, the same thing could be done, namely, the second Chamber of the Parliament could be abolished, without its consents, really, after a three-month period of delay.

Now, what I ask the Minister is this: whether or not the government is not contravening the provisions of the decision of the Supreme Court of Canada in that it has no formal consent from any of the provinces to the submission of this proposed bill to the Parliament in the United Kingdom.

Mr. Chrétien: The way I understand the judgment of the Supreme Court in relation to Bill C-60, what the court ruled is that it was not possible for the national government to amend, using 91(1) to make some change to the Senate because it was affecting, as you said, Mr. Senator, a relationship between the provinces and the federal government. And 91(1) did not make that provision.

In fact, what the Supreme Court of Canada had decided in that judgment is that in order to amend, to proceed with Bill C-60 in relation to the Senate, there was only one way to do it and that was to go to Westminster and ask the British Parliamentarians to change the Senate, if we wanted that. What the judgment was is that just by a piece of legislation, the Parliament of Canada could not change the status of the Senate, but in fact what they were telling us was that if we want to do that, we have to go to London, and that is exactly what we are doing now. We are going to London.

Senator Connolly: I take that what is implied in what you say, Mr. Minister, is that even if there have been, in connection with Bill C-60, or in any similar situation, approval of the House of Commons, even approval of the Senate and even approval of the provinces, and even approval of all of the provinces, if it were attempted to be done in Canada, it could not be done?

Mr. Chrétien: At this moment?

Senator Connolly: Yes, at this moment.

Mr. Chrétien: We have to go to London.

Senator Connolly: That is the point you make?

Mr. Chrétien: Yes.

Senator Connolly: Well then, could I carry on one step further, and this is really my last question.

[Page 26]

Section 44 now is going to restrict the consent that is normally, that is at the present time required to such moves as contemplated here by the Senate, and I wonder whether there are any special reasons for having Section 44 in the proposed bill?

Mr. Chrétien: I do think that we have to envisage the possibility that at one time we will have to reform the Upper House of Canada. And it was one of the topics that was very widely debated during the summer with all the provinces, and it is an area that some provinces have great interests in changing the format of our Upper House in Canada so that the provinces will feel better represented in Ottawa than in the present system, Some are for it and some are against it.

We have made some provision that way because we do think it will be unreasonable not to envisage the possibility that after the constitution had been patriated, that we could not be in a position to amend the Upper House in Canada. Of course, it involves, if you have to change fundamentally the Senate, that the constitutional amending formula that we are proposing will be there, that it will be after consultation with the provinces and with the amending formula that will have been agreed upon, and I do not think it will be reasonable at this time to give, I think that the Senate could block it for ever and I do think that we have to make provisions that eventually the people of Canada could decide.

Senator Connolly: Well, if I may just make the comment, I do not think that the Senate could possibly stand up against the unanimous decision from the provinces that it should be abolished or that its powers should be severely restricted. I do not think any senator would make that proposition.

On the question of reform, of course, I think everybody, including senators, would agree that reform of the Senate is a very desirable proposition but I just wonder whether there is any special reason other than what you seem to indicate, the prevention or elimination of deadlock between the Senate and the House of Commons for the existence of Section 44.

Mr. Chrétien: We do think that it is the very nature of the problem to argue for that kind of clause there, because I agree or subscribe with you that if it was the wish of the provinces and the wish of the House of Commons, I do think that the senators will oblige.

The intentions of the government are very clear, that we want to keep the Bi-cameral system in Canada, we have no intention of abolishing it, we do think that an Upper House in Canada is a very useful instrument, but we should improve on it. And that was the wish as expressed to me by the provinces this summer and we do feel that we should have a mechanism that will permit that to happen in the future, and if we were to leave it with a veto, an absolute veto with the Senate over their own future, it will be the only institution in Canada that would have a veto on its own situation and I do not think that is desirable. But I do know that there is some preoccupation concerning the senators, but if the formula that is provided for in 44 can be looked into and improved, I have no objection, but the ultimate goal is that after we have patriated this problem of improving the Upper House and with the many possibilities that exist, that I could discuss at length during the summer

[Page 27]

with the delegates from all the provinces, it was quite evident to me that it might be that in future years the new Upper House will be completely different in terms of appointments, in terms of status, in terms of tenure and so on, that we have to build in a flexibility to make sure that the wishes of the provinces and the House of Commons be respected.

Senator Connolly: It may be a purely theoretical point but you said that the Senate would be the only House that did not have a veto. It should not have a veto on its own continued existence.

I tell you that I think the House of Commons has such a veto on its own existence.

Mr. Chrétien: Until the next election.

[Translation]

The Joint Chairman (Mr. Joyal): I think that Senator Connolly has finished; he nearly took in any way, all the time that was allocated to him.

Mr. Robinson, please.

[Text]

Mr. Robinson: Mr. Chairman, I have a number of questions for the Minister relating in particular to the Charter of Rights sections of the proposed constitutional package and as the Minister is well aware certainly we support the principle of an entrenched bill of rights.

However, I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this ggttntry than had this particular Charter not been implement-

Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test?

Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these.

Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision?

Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on.

Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in

[Page 28]

relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

Mr. Robinson: Mr. Minister, let me ask you a specific question using an example from 1970.

In 1970 the proclamation of the War Measures Act was supported, according to the Gallup Poll, by some 85 per cent of Canadians.

Would it be your intention that this particular provision would act in such a way as to provide general acceptance, certainly at least in numerical terms, general acceptance of the measures which were taken in 1970 pursuant to the War Measures Act.

Mr. Chrétien: I think that if the War Measures Act was to be re-enacted under some possible circumstances in the future of course the Bill of Rights will apply and some of these so—called abuses that occurred at that time would be limited by this, in terms of individual rights.

We are not as well protected as we will be when this Charter is in effect.

Mr. Robinson: Which specific abuses then would you consider to have not been generally accepted in 1970?

Mr. Chrétien: I do not know, perhaps some individual, for example, did not have permission to see their lawyer within a reasonable time. Now, under the Bill of Rights, the right to go to court and to have recourse according to that Charter would be provided.

I think when we go into the analysis of all those clauses, my officials would be willing to make some specific comments about the application of the Bill of Rights in relation to a future proclamation ofthe War Measures Act.

Mr. Robinson: Mr. Minister, would you not agree that it is important that Canada at least as a minimum in our domestic law accept the criteria which we are bound by under the International Covenant on Civil and Political Rights that binds us both federally and provincially.

Mr. Chrétien: I do think that the rights that we have agreed upon in international agreements should be reflected in the laws or the Charter of Rights that we will have in Canada.

Mr. Robinson: In view of that and accepting that as a principle why is it, Mr. Minister, and perhaps your officials can assist you, that the International Covenant on Civil and Political Rights states very clearly in part two, article four that the delegation from the rights that are set out in that particular charter, that particular covenant, can only be made under very defined circumstances and that there are certain rights which can never have limitations put on them; even if those limitations are generally acceptable in Canadian society.

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

Mr. Tassé: Mr. Robinson, I would think that in effect the courts will read this as an objective test that is being spelled out in section one and that in effect they would have to address their mind as to whether the restrictions that are being chal-

[Page 29]

lenged before the court are generally acceptable ones in a democratic society. I think in coming to that conclusion it would be quite legitimate for them to look at the International Covenant and see whether in the kind of society that we live that is the kind of restrictions that are being challenged and are before the Courts and should stand as a legitimate and justifiable restriction.

Mr. Robinson: The International Covenant, if you accept that as being a guideline which the court should accept, under the International Covenant, there could never be even in time of war or apprehended insurrection, for example, discrimination on the basis of race, colour, sex, language, religion or social origin. There can never be the use of torture or cruel and unusual punishment.

Now, Mr. Minister, would you be prepared to consider an amendment to section one of this Charter to at least bring it into conformity with those minimum guidelines which we have accepted under the International Treaty.

Mr. Chrétien: You are asking me the question, but if you have some very precise suggestion I am willing to consider that of course, but, as we say, the Charter of Rights is a minimum, it is not an absolute.

There will be other legislation in terms of human rights that will be formulated by different levels of government. One restriction that we are suggesting in this Bill of Rights was to find now the equilibrium in the discussions that we had with the Auditor Generals in the surhmer, that it was more or less acceptable at that time. If it is a minimum, we can always improve on it.

Mr. Robinson: Mr. Minister, I appreciate your undertaking to look at reasonable amendments to section I and I would like to turn to another section and to take up a comment that you made earlier, a very important comment with respect to the role of the Charter of Rights being to protect minorities from a majority at any given time.

I assume that you feel that that is a cardinal principle in this charter, do you?

Mr. Chrétien: Yes.

Mr. Robinson: You have indicated in the affirmative.

If that is the case, Mr. Minister, how can you possibly justify the use of the referendum process which would permit a simple majority, albeit requiring regional majorities, but which would permit a simple majority at any given time to take away any of the rights in the Charter.

Mr. Chrétien: The problem is you could have a situation where you have to change the Charter of Rights, and there could be some objections by certain sectors of the community. I think in the last analysis it might be that the people of Canada will arbitrate but the process is such that there will be considerable debate about this situation. For example, should a situation occur that we would want to amend the Bill of Rights, we would have to discuss that first with the Provinces and if we want to have the amendment we would have six provinces representing the majority of the government to agree

[Page 30]

to it, come to the Parliament of Canada to agree, and it would be amended.

If there is a deadlock between the federal government and the provinces and it is a difficult situation, after all that process we could go to the people of Canada. I think that you have in some circumstances the possibility of, through a lengthy process like that. to be able to amend the constitution. I would agree with you if there was to be capricious intervention of the federal government to limit rights but that would not be possible because this process involves very lengthy debates and many debates at both levels of government.

Mr. Robinson: Mr. Minister, there is a very important question which you have not answered here and that is quite simply that you have said that minorities should be protected from the majority at any given time, and that is one of the provisions of the Charter.

If it is not the position that the provinces and the federal government together, using the existing amending formula, cannot arrive at a consensus on amendments to the Charter, how is it that you would permit a simple majority of Canadians in a referendum to take away these rights which in fact are meant to protect minorities.

Would you be prepared to consider or at least to examine the possibility of restricting the referending mechanism to cases of deadlock because what we are talking about is surely deadlock between levels of government, and not cases where the Charter of Rights is affected.

Is that not really your concern?

Mr. Chrétien: I do not know what you mean. Ijust said that there will be a referendum only after deadlocks that had to be clearly established.

Of course, I said earlier in replying to a question from a member that Section 41 will have to be clarified to make sure that it is completely exhausted before Section 42 occurs. I recognize that there is a problem there and I have said to the Committee that we will clarify that situation, that the process will be such that consultation will occur with the provinces: a deadlock will have to be realized; there will be, after the realization of the deadlock, as outlined in the letter from the Prime Minister to Mr. Davis and in reply to some objection of Mr. Blakeney, a cooling-off period of whatever—a year before we can have a referendum.

I am just saying that there will be many debates before we can take away, in your expression, some of the rights that are under the Constitution.

Mr. Robinson: One final question, Mr. Chairman, ifl may.

I would of course point out that you have confirmed that at any given time. even after deadlock. that a majority of the voters in Canada can trample on rights of the minority which are allegedly protected by this particular Charter, because regional majorities are not in fact significant here.

Mr. Chrétien: You will have to have the majority of each part of Canada.

[Page 31]

Mr. Robinson: A regional majority does not affect the Charter of Rights question on whether or not there should be fundamental rights.

Mr. Chrétien: I just say that in terms of security. The point you are trying to make is we should have a Charter of Rights that can never be amended and I do not think . . .

Mr. Robinson: No, no. I am saying no referendum on a Charter of Rights. Do it through the amending formula.

Mr. Chrétien: But we say that you have to go through the amending formula first.

Mr. Robinson: That is as far as you should go on a Charter of Rights, if we are going to be serious about protecting minority rights in this country.

[Translation]

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

[Text]

You have more than passed your twelve minutes, now.

[Translation]

Senator Lucier.

[Text]

Senator Lucier: Mr. Minister, my questions really pertain to the Mobility Rights Clause. Clause 6 in the Bill, as they relate to the North.

I would like to start out by saying that northerners generally agree with the concept of mobility rights.

Some hon. Members: Hear, hear

Senator Lucier: In fact since only the natives were originally there, most of us are there enjoying the North because we had an opportunity to go there and to seek employment and to make our homes there.

So we do agree generally with the concept of mobility rights.

What we are concerned with is with the possibility of the northern gas pipeline with a very real probability of it being built now, there could be a very large influx of people into the North in a very short period of time, which could have a devastating effect on the people of the Yukon. I speak of the Yukon right now but I am sure that this will affect the Northwest Territories in later years.

I am wondering if something cannot be done in conjunction with Section 6 to protect the Yukon from the possibility of this influx of people coming in. The government of the Yukon Territory went to great lengths during the preparation for the pipeline to protect themselves against that type of thing happening. I am really very concerned that, for instance, the whole Yukon consists of 25,000 people, and it is not unlikely that the pipeline would bring in 25,000 people more.

That does not sound like very large numbers to the people down here, maybe, but you could compare it to 8 million people dropping into Ontario for a couple of years. I think when you look at it in that light you will find that it could have a devastating effect and I am just wondering if something could not be put in or if in some way the people of the Yukon and the people of the North could be protected against that type of thing happening.

[Page 32]

Mr. Chrétien: I do not know how Mr. Lucier, I am not in a position to tell you clearly how that can be done. Of course there is some limitation in terms of employment to outsiders in the construction of the pipeline in the North. I say that under this provision of mobility rights it will be possible to pass legislation that could provide for affirmative action. I think that affirmative action should not be based only on a criteria of the origin of the person. I think that would be against the law. We have to recognize the danger in the Yukon situation where there could be a huge influx of people coming and creating the same type of social disturbance that existed in Alaska at the time of the Alaska oil pipeline.

We have some problems at this moment about this Charter of Rights and the affirmative action that exists in our own legislation. I think that we will have to study and try to find some solution. Among these solutions that were provided in this Bill was hiring for people coming from outside should be done outside, that the people will not just flock into Whitehorse and wait for a job there; and the question of training. and so on.

There are some areas there that ought to be looked into, I realize that the social impacts of short term projects like the construction of the pipe line that will last only a few years; and the stability of the society in those areas after the construction occurs, or during the construction time. We are looking into that. I am aware of your concern.

What we are seeking at this moment is to make sure that we do not limit the rights of Canadians to move across Canada and, in fact, in the Yukon most of the residents now who are not Indians have come from all parts of Canada including Windsor, Ontario.

Senator Lucier: Thank you Mr. Chairman.

My second question to the Minister is, Section 24 concerning the protection of the rights and freedoms of native people. It seems to me a rather negative statement. It really says that the rights that they now have will not bejeoparized.

I am just wondering if there could not be something more positive than that to protect the native people. There really seems to be nothing in there that would protect what they feel are very genuine concerns of theirs.

I wonder if anything can be done to make it more positive than tojust say that we will not do anything to hurt you.

Mr. Chrétien: What we are trying to do in. I think it is Section 24 we want to protect all the rights of the natives. The problem is, some are arguing at this time it is in a negative way rather than in a positive way. Exactly the reason why we are doing that is to make sure that all the rights be protected because in Canada we still need some clarification to come to an agreement about native rights.

I have been working on that problem myself for many years and there is the right based on the treaty, the right that was

[Page 33]

given to the natives at the time of the royal proclamation of 1762 or 1763 by King George II and the instruction he gave to his colonies at this time to settle the rights of the natives, there is the question of the rights that have been either abandoned by some of them or have been taken away by different actions of governments in the past.

It is a very complex issue. and in having this Clause drafted that way we wanted to make sure that we were not creating any prejudice to their rights, so we say all the rights they have today will not be changed by this bill.

If we were to move into an affirmative declaration of the rights at this moment, if the Committee wants to make the change, it could be that in affirming the rights we could make an error.

Now, negatively, we are telling them there is no way we want to take any rights away from you, but if you start to affirm them you might leave some rights outside of the affirmation and that is why the drafter decided to proceed by the negative route.

As you know, we have agreed with the provinces that in the future when we resume the negotiations on the constitution we will have an item, the Natives and the Constitution. There are many aspects of it that have to be clarified and in fact we have provided the natives with substantial funds lately in order to study that and to try to find the proper text to protect their rights under the Constitution. In proceeding in a negative way as we have done we were making sure that we were not causing any prejudice to their rights. The Committee can look into the matter, but we felt that it was the safest way to proceed.

It is extremely complex, and I do not have to tell you how complex.

Some of the questions that I have tried to resolve in 1969 have not been resolved as yet and they looked so simple when I approached them at that time. For instance. the question of the women who marry white men loose their Indian status, but after eleven years of discussion with the native organization and the bands and so on we have not been able to arrive at a concensus with them. Some want to keep the old way. and some want the women not to lose their rights.

The question that this Committee and Parliament will have face some day is should we impose a solution. In 1969 I started to debate that with them because I was appalled myself at that time that when a woman was married to a white man I had to sign a paper that meant that she was disenfranchised. I had no flexibility, the law forced me to sign that paper, but I have never been comfortable with it.

This has been going on with the Indians for a long time and to incorporate that type of problem in one of the clauses could be very dangerous, to try to solve it in six lines; so in having a negative presentation like this we are trying to protect and

[Page 34]

keep their rights as they are without prejudicing them in any way.

Senator Lucier: Thank you, Mr. Minister, no more questions then.

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

Mr. Beatty: Mr. Chairman, I would like to come back a bit later to the question of studying the specific provisions of the resolution, but I want to ask the Minister for some information relating to the context of the discussions taking place here today.

As the Minister should be aware, one of the responsibilities of this Committee will be to try and ascertain the public’s reaction to the proposals before us, what their attitude is on constitutional reform, to give us some indication as to the expectations of the Canadian public as to the work currently before Parliament.

I would like to ask you whether or not the government, since assuming office early this year. has conducted any public opinion surveys touching upon the issue of constitutional reform which have not yet been made public.

Mr. Chrétien: I made some public in the summer. I believe— I am not sure—but there were two or three made by my Department which have not been made public. I do not know how many questions there were which related to the Constitution. But there were some on that as well as on other subjects.

I have released the ones I made earlier in the spring and summer, but not the last ones.

Mr. Beatty: I understand that there are some three polls out of sixteen commissioned by CUIO which have yet to be released to Parliament.

Mr. Chrétien: Yes, I agree. I said that in the House many times in the past.

Mr. Beatty: Well, can I ask you specifically for an indication as to whether or not material in those public opinion polls, commissioned by the government and financed out of public funds, touch in any way upon constitutional reform?

Mr. Chrétien: Well there are some questions which relate to the constitution.

Mr. Beatty: Are you prepared to table those polls before the Committee? Because it is relevant to our work.

Mr. Chrétien: No.

Mr. Beatty: Why not?

Mr. Chrétien: Because, as I said earlier, there were related questions. and if you want me to extract some from those polls and make them public, I might consider that. But if you are asking me to release the whole poll, then I do not think I can do that at this stage, because some of the matters there relate to questions which are not pertinent to this Committee.

Mr. Beatty: Mr. Chairman, I would like to ask the Minister whether he would give us an undertaking that he will put before the Committee all the results of public opinion polls relating to constitutional reform. including the analyses of those raw data.

[Page 35]

Mr. Chrétien: Are you asking me to take part of those and table them, or are you asking me to do this with all? You know, we have tabled 120. For my part, I have released 13 out of 16.

Mr. Beatty: Yes, indeed.

Mr. Chrétien: You know, that is a great improvement.

Mr. Beatty: Yes, you have certainly whetted our interest as to what is contained in those polls which you are suppressing.

Let me repeat my question to you. Are you prepared to table before the Committee the results of those polls as they relate to constitutional reform?

Mr. Chrétien: I will look into that and reply when I come back.

Mr. Beatty: You will reply this evening?

Mr. Chrétien: I do not have the documents before me.

Mr. Beatty: But you are coming back this evening. Will you give us an answer?

Mr. Chrétien: I do not know ifI will have the time to look into that matter. I have to have my meals like everybody else, I guess.

Mr. Beatty: Mr. Chairman, I do not think that this is terribly adequate. The Minister does have officials and can check to see whether anything in those polls are germane.

Mr. Chrétien: I am the Minister and I make the decisions; I have to look into that and decide. I would be called to blame if I said no. I never wash my hands off a matter.

Mr. Beatty: Presumably you could ask your officials to produce those polls for you.

Mr. Chrétien: No; I want to see them first.

Mr. Beatty: Will we have an answer? When will we have an answer?

Mr. Chrétien: When I am ready.

Mr. Beatty: Mr. Minister, I do not think that this kind of stalling is terribly helpful!

Mr. Chrétien: It is not a matter of stalling. I gave an answer to the House three weeks ago.

Mr. Beatty: Yes. the answer was no. You suppressed this information and refused to give it to Parliament and the Canadian people.

Mr. Chrétien: I would not say that. I will look into it, and when I am ready I will give you an answer. But I will not make any commitment as to whether I will do so now, tomorrow, next week or next year.

Mr. Beatty: Mr. Minister, that answer is totally unsatisfactory. I want to ask you this. Are you prepared to table before the Committee a breakdown of the cost projections for all Public opinion surveys related to the Constitution, either conducted this fiscal year by CUIO or planned for this fiscal year.

Mr. Chrétien: Will you repeat the question?

[Page 36]

Mr. Beatty: Are you prepared to table before the Committee a breakdown of the budget for CUIO for this fiscal year as it relates to public opinion surveys concerning the Constitution, either conducted already this fiscal year, or else, planned?

Mr. Chrétien: I have no objection to giving that information. In fact, I was before my Committee last week and was expecting that question, but nobody put it to me.

Mr. Beatty: So. in other words, you will bring that information before us.

Can you indicate—and if you do not know, I am prepared to await the response; do you know offthe top of your head what a ballpark figure for those polls would be? Would a million dollars be a good round figure?

Mr. Chrétien: I do not know, and I would not like to guess. I would prefer to give you a precise answer. I know that for the same price for the survey you made last year I had six.

Mr. Beatty: Can you also indicate to the Committee what the Government’s budget is with regard to advertising for constitutional reform? Can you tell me those figures at the same time?

Mr. Chrétien: Well, I was in front of my Committee on my estimates last week and you should have been there. I had all the figures in front of me. I do not want to guess at the figures at this moment, but I did have them ready and nobody asked for them. So next time I will ask one of our members to ask the question.

Mr. Beatty: Mr. Chairman, I am not asking the Minister to produce them at this minute. I am asking whether, when he returns to the Committee, he would table that information before the Committee. CUIO in supplementary estimates, to which the Minister is referring, is asking to increase their budget through a supplementary estimate by more than 100 per cent. The previous estimate was for $10,345,000. You are asking for supplementary estimates of 17 million dollars, including 15,172,000 dollars for information, namely, public opinion surveys and advertising.

I am asking the Minister—and he does not have to produce it at this moinent—whether he is prepared to produce for the Committee the cost breakdown for that advertising and public opinion survey.

Mr. Chrétien: You know, I will be appearing in front of the Committee, which asked those questions, on the estimates and I would be delighted to give all the information-you know, if all these supplementary estimates will go before Parliament, and I will answer those questions at that time.

But I would just say yes, we have asked for an increase in the budget of this unit, because we had some advertising in the summer which was stopped in terms of the press, television. before the First Minister’s Conference opened in September. Of course, in the case of the billboards which were rented, we

[Page 37]

could not stop that right away; but the last one was closed down on October 15.

We have made some provision for more advertising, and at this moment there are some provincial governments who are buying time in relation to television and radio advertising and in the press; and I have to make a decision at this moment whether I should not at this moment go back into those provinces and use the same tactics that they have used. There have been some billboards in my own Riding, all over Quebec, which have been barred by the provincial government with reference to this subject, and if they have to do that, then perhaps I have to do the same; and it is the same thing in other provinces.

Mr. Beatty: Mr. Minister, you have gone to considerable length to justify the use of 17 million dollars of the tax payers’ money in this way.

All I am asking you is whether you will now give an undertaking to the Committee to produce the media plans for that and a breakdown of that budget.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Mackasey, on a point of order.

[Text]

Mr. Mackasey: Mr. Chairman, I do not wish to be legalistic or attempt to be, but my point of order is this. This Committee is charged with a discussion of the resolution in front of us, and the questions which Mr. Beatty has been raising are valid and Parliament is entitled to an answer.

But there is another forum for that. The Minister is not out of order in not answering these questions. These are legitimate questions being put to the Department of Justice, and they are hardly germane to the problem in front of us; and, in view of the timetable as well as the fact that there are many witnesses and that we want to talk to the resolution, it seems to me it would be much more profitable if we were to direct our questions and observations to the resolution before us rather than to the estimates of the Department of Justice which appear before another committee.

[Translation]

The Joint Chairman (Mr. Joyal): No. I actually stopped my small chronometer. Be assured that I am not taking off this point of order from your time.

Mr. McGrath on the same point of order.

[Text]

Mr. McGrath: Mr. Chairman, Mr. Mackasey is missing the point. Mr. Beatty has asked for three polls which have been taken in connection with the public’s reaction to the government’s constitutional proposals. They have been denied to this Committee.

The second part of his question was, since it has been denied to the Committee, what was the cost of these polls,

However, my point is that it seems to me that this Committee has the right to demand that these polls be presented to the Committee; otherwise the Minister has a considerable advantage over the rest of us, because he has the advantage of these polls. What has he got to hide? The polls are certainly relevant to the discussion now before the Committee.

[Page 38]

[Translation]

The Joint Chairman (Mr. Joyal): Are there any other honourable members who want to speak on this same.point of order?

Mr. Beatty.

[Text]

Mr. Beatty: On a point of order, Mr. Chairman. I would like to clarify my concern here. First of all, as Mr. Mackasey would be aware, one of the responsibilities of this Committee is to determine what the public expects in terms of constitutional reform.

What the Minister has indicated is that he is totally unprepared to give us the results of public opinion surveys financed out of public funds which deal expressly with this area.

In addition, the Government over the summer, spent money to promote its constitutional reform package, and moreover they have further funds set aside for further expenditures on the constitutional reform package before us today.

This, then, Mr. Chairman, is clearly germane to the work of the Committee, and I say this, in reference to Mr. Mackasey’s point of order, to indicate the direct relevance of the questioning which I undertook to the work which is before the Committee right now.

If there are no more interventions, I would like to resume my questioning.

[Translation]

The Joint Chairman (Mr. Joyal): Then, following the interventions made, I would ask the honourable member to kindly direct his questions to the minister, taking account of the information that could best enlighten the members of this committee on our mandate, that is, the discussion on the resolution on an address to Her Majesty.

Consequently, what is most directly germane to the figures as such and the budget seems less directly linked to the question before us. But what seems to me most directly germane to the public reaction to the government resolution package such as it stands now is, in my opinion, a valid question that can be addressed to the Honourable Minister of Justice.

Then, if you go on with . . .

[Text]

Mr. Beatty: Mr. Chairman, may I get some clarification on your ruling? You are not saying that the results of these surveys are not germane to the work of this Committee?

The Joint Chairman (Mr. Joyal): What I have said is that, to my mind, it is quite a pertinent question to ask of the Minister. Of course, the Minister is free to answer or not to answer—to ask the Minister what kind of a reaction or the state of opinion on one or other questions relating to the proposed motion that we are discussing at the present time; but other questions related to the budget are more in the hands of another committee or forum which are provided for within our institutions.

I am certainly ready to entertain questions relating to the reaction of the public which, to my mind, are more in relation to the content of the motion, rather than those dealing specifically with figures or the budget involved in those polls.

Mr. Beatty: Thank you, Mr. Chairman.

[Page 39]

If the Minister is unwilling to produce the information, then I will not pursue that aspect of the matter.

Mr. Chrétien: I did not say I was not willing, Mr. Chairman. I said I was not willing to produce them at this time. I would like to look into the matter and report to the Committee.

Mr. Beatty: Mr. Chairman, I would like to move that this Committee requests the Minister of Justice to table forthwith with the Committee any public opinion polls relating to constitutional change, including any analyses of those polls conducted for the Canadian Unity Information Office since March 1, 1980.

[Translation]

The Joint Chairman (Mr. Joyal): So, in accordance with Section 65, paragraph 8 relating to the powers of special or standing committees, I would ask you to submit your proposal to me in writing so that it can be put to a vote.

Are there any comments, amendments or interventions to be made on the proposal as formulated by Mr. Beatty requesting the honourable minister to table forthwith the reports or results of public opinion polls held on the Constitution or on amendments to the Constitution in Canada.

[Text]

Any questions, any comments or amendments?

[Translation]

Mr. Lamontagne.

Mr. Lamontagne: If I understood the motion correctly, it states that the minister be requested to produce this information, these figures, immediately. Now, he has just told us that he does not have this information at hand but that as soon as he can obtain it he will table it with the Committee. In that case, I feel the motion does not apply to the current situation since the minister does not even have the figures requested.

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

[Text]

Mr. Robinson: Mr, Chairman, I certainly appreciate the point that was made by my friend opposite; and I would move an amendment to the motion that the polls in question, those aspects particularly relating to the constitution, be tabled before this Committee at the earliest possible time (that gives the Minister the opportunity to obtain the polls); so that they could be tabled before the Committee at the earliest possible time, and if the Committee or individual members of the Committee so desire, that the Minister should be recalled for questioning on the contents of those polls.

Finally, Mr. Chairman, that in any event, that the polls be tabled by Friday of this week.

Some hon. Members: Oh, oh!

Mr. Robinson: There are three elements to the amendment, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): So, if Mr. Robinson . . . Order, please.

Mr. Robinson, if you are formulating that as an amendment, I would ask you to submit it to me in writing, please, so

[Page 40]

that I can reread it for the benefit of all the members of the Committee.

Any other comments?

Mr. Lapierre.

Mr. Lapierre: Mr. Chairman, concerning the motion made by Mr. Beatty, I think that we are witnessing stalling tactics once again and I am not convinced of the purpose of discussing this at great length and of forcing the Minister to produce the polls. The Minister has already given his version of the situa tion. This question has benn discussed at great length in the House of Commons already and I do not see how useful these results would be to the work of the Committee.

You know that it is not customary for us to legislate through polls, at least, I hope that is the case on the other side of the House. Frankly, I do not see what new information could be brought to the debate through this motion. Mr. Beatty is free to make all these dilatory motions if he wishes, but I think it is sad because it delays the consideration of the provisions contained in the proposed resolution. Also, I feel it is not our place to give orders to the Minister of Justice in that area, Personally, I will be against the motion.

The Joint Chairman (Mr. Joyal): Mr. Mackasey has asked for the floor.

Unless he is not ready to put Mr. Robinson’s amendment to the vote, I will recognize him now.

[Text]

Monsieur Mackasey.

Mr. Mackasey: Mr. Chairman, can we see the amendment?

The Joint Chairman (Mr. Joyal): That is exactly what I have requested Mr. Robinson to forward, the amendment, so that I could read it for the benefit of all members present so that they would be in a position to make up their minds and vote accordingly.

[Translation]

Fine. I will reread the amendment.

So, for the benefit of all the members of this Committee, I will first read the main motion and then the amendment since, in accordance with our rules of procedure, we must debate the amendment first.

The motion as formulated by Mr. Beatty reads as follows:

[Text]

That this Committee request the Minister of Justice to table forthwith with the Committee any public opinion polls relating to constitutional change, including any analyses of such polls conducted for the Canadian Unit Information Office since March 1, 1980.

The sub amendment reads:

And that the polls relating to the constitution be presented as soon as possible and in any event by Friday of this week, and that if any member wishes to question the Minister he may be allowed to do so.

[Translation]

The Joint Chairman (Mr. Joyal): So, we are now discussing the amendment requesting that the results of the polls be

[Page 41]

tabled by Friday of this week at the latest and that any member wishing to question the Minister be allowed to do so.

Are there any comments or interventions related to the amendment?

Mr. Irwin.

[Text]

Mr. Irwin: Mr. Chairman, when this came up before in the House, there were 141 polls referred to. The Minister presented before the House 129. He has indicated today that he would like an opportunity of looking at the polls. I think this should be granted and both the motion and the amendment be defeated for the simple reason that the publication of an opinion poll at this time can change public opinion. Is that not what most of the members of the Opposition say during debate close to an election? They say: “Do not publish the polls. Make it illegal.” I have heard this from several responsible people. You should think about what I have said, because I have heard it said on the outlawing of public opinions polls.

[Translation]

The Joint Chairman (M. Joyal): Order, please.

[Text]

Mr. Irwin: Secondly, although the government and all of us are here to vote according to our conscience and vote the way we think on things, we have a very grave responsibility to take serious cognizance of what the public wants because we can go too far in a democratic forum with our own ideas. And I think it is important to any government, be it P.C., N.D.P. or Liberal, to know what the population wants, and I think this is a legitimate role of any government in power, and to force these polls, immediately on their taking, before the public does not serve any useful purpose.

Now, you saw what happened when we produced the 129: nothing. Nothing happened. Most of the things in the 129 you knew already.

An hon. Member: That is a good argument as to why we should have them.

Mr. Irwin: The Minister has said he would like to review them and he will come back. I think he should be granted that request because, as I say, he has produced 129 of the 140 or more that you requested the next day, on request. So I do not think his request is unreasonable.

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

Mr. Mackasey: Mr. Chairman, if as the parliamentary secretary to the Minister of Justice suggested, it is important for the government to have information from the public in order to formulate a referendum, it goes without saying it is equally important to the Opposition to have that same information to answer the criticism. So my opposition to the amendment is not based on that, it is based on the fact that we are using the valuable time of this committee for the wrong Purpose, and I do, perhaps naively think that we have a tremendous responsibility here to come up with a better resolution and accept some of the amendments, incidentally, that have been proposed.

Now, my concern with the motion on the amendment, and if perhaps I did not have very deep respect for the members

[Page 42]

opposite, I would be forced once again to conclude that what we are doing here through procedural amendment is avoiding our responsibility, which is to discuss the substance of the resolution before us, and I think the press best exemplified their concern Friday and Saturday at the procedures of Thursday when we appeared to be bogged down with the procedural matters rather than getting to the heart of the resolution before us.

Now, I think it is, in our realization as serious members, some of us I am sure, that we tried Friday to put an end to procedural hassle. Now, I am as curious as anyone else around this table as to what those polls contain and I think it is desirable that we have as many of these polls as possible, that may or may not exist or may or may not have some form of embargo on it, so we are in a catch 22 situation, Mr. Chairman, which I never particularly liked and on which I am quite prepared to use those tactics all the way through if the members opposite force me to do so.

Now I have to vote against this for one reason: I am not voting against the amendment on the motion because I do not want the pools made available, I am voting against it because this matter was first raised in the House of Commons where it should be raised, I do not know what the disposition of the House was, whether to accept or reject but I do think that my recollection is the same as the parliamentary secretary, that is as many of the pools were released as possible but in any event, that is the form, After all, the House has not come to an end because this Committee is sitting, and the legitimate request of Mr. Beatty as amended by Mr. Robinson is again for the House of Commons.

Now, if we are going to waste time or spend most of the time of the Committee on procedures which normally should take place in the House of Commons, then it is very obvious that we are going to very rapidly lose or run out of time, but if we run out of time on this Committee without completing our function, then I do not want that to be on my head, I leave it on the oppositions’ head or someone else, I have just got to make the point, Mr. Chairman, in conclusion that I intend to vote against the amendment not because I do not want to see the polls released, and I hope the Minister might in his wisdom announce categorically, that sure, you can have the pools but I do object to the periodical abuse of this committee on procee dural matters.

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

Mr. Nystrom: Mr. Chairman, I think the subamendment and the amendment are really reasonable. It is the Minister himself that pleaded with the Committee to give him some time to consult his officials. What we are doing here is giving him two days to do that, and I know the Minister is a very competent man, he can consult his officials in two days and he can make a decision in two days. And what we are doing is being very reasonable in following his wishes so we do not stall for time, so we do not waste time before the Committee.

The other two points that should be made is that in response to the member from Sault Ste. Marie, he said that the government needs to know what the population is thinking and surely to God we are all equals here as members of parliament

[Page 43]

and if the government has that right to know, as Mr. Mackasey says, then certainly the opposition does as well.

We should all have the same right to know It is a basic point of freedom of information and I think that should be provided to all of the committee members. We are studying the constitution. The government is studying the constitution, the committee is studying the constitution, all parties are studying the constitution, and the government has information that we do not have. Now maybe we should have that information. Why should we not have it?

The other point is that they are spending public money to get that information and they are doing it on a government proposition, not government policy that has already been passed through Parliament, and to me there is a difference. I do not think there should be advertising of spending money on a government proposition. It is a political partisan measure at this particular point in time. When you spend public money for a partisan measure, the access that the government has to public funds should be provided to the Opposition parties as well, I think that is only fair and only just.

The other point that Mr. Mackasey has made is that he agrees with the motion, he agrees with the sub-amendment but he is not going to vote for it because he thinks it is a procedural thing and we are going to waste time. But I want to say to Mr. Mackasey: I think we should do what he thinks is right and what he thinks is proper. If you are going to have Liberal Members across the way voting against amendments that they know are right, that are proper, but doing so because they think the Opposition is doing it to stall and to waste time before the Committee, then indeed there will be a lot of stalling and a lot of wasted time because they will be creating a lot of frustration and it will be on the heads of the Liberal Members across the way. So I appeal to Mr. Mackasey to reconsider what he has said. He is voting against his principles.

Mr. Mackasey: Mr. Chairman, I know what I said and I want you to understand one thing, when you are talking about Liberal Members, I am independent on these things and maybe I am operating on a different plane, and the wrong plane, maybe I should become partisan and I am quite prepared to do it. What I said in effect is that I have no objections as an individual to the production of the papers, I hope the Minister produces them, I am simply saying that the House of Commons is the proper forum in which to make that request, and you sound like the NDP’s position is: Keep giving us our way or else we are going to sulk and spend, and this was the gist of your remark, we will keep bringing procedural matters forward for the next two months, theoretically, if you oppose us at this moment. That I think is an indirect form of blackmail.

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

Mr. Nystrom: All I am saying is that your attitude is very provocative. If you agree with the amendment and do not Support the amendment, it becomes a very frustrating thing for the committee.

Mr. Epp: Excuse me for being legalistic, but I do not think the witness can speak on a point of order.

[Page 44]

An hon. Member: Are you arguing that the Minister can . . .

Mr. Epp: I am suggesting that we . . .

The Joint Chairman (Mr. Joyal): Do you want me to rule on that?

Mr. Beatty: Mr. Chairman, I believe it is the Chairman’s prerogative to rule and I think there have been procedures in the past along that order.

[Translation]

The Joint Chairman (Mr. Joyal): Since we have the privilege of having the Minister of Justice with us and he is the person most directly concerned by the text of the motions and of the amendment under consideration, if the members agree to hear out the minister on this question I personally feel it would be to our advantage. I am in your hands. It is true that when debating a motion like this one, the witnesses cannot take the floor. However, I would point out to the hon. members that the Minister of Justice is also a member of Parliament and there is nothing in the rules preventing us from recognizing him at this committee. Consequently, I think that it would be to the advantage of all of us here to give the floor to the minister as he is the person most directly concerned by the motion. If that is the wish of the members of the committee, I will recognize the Honourable Minister of Justice.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): Agreed.

Mr. Chrétien.

Mr. Chrétien: One thing I have already said and would like to repeat is that I am ready to consider the copmmittee’s request. However, many questions are asked in those polls and, at the risk of being accused of screening them, some of the questions deal with the Constitution, others, with internal administration and still others may be related to two or three areas.

So I would like to see which questions are related strictly to the Constitution, which of the questions in the three polls have already been considered by the committee and which questions are related to questions other than the Constitution. I have not taken a look at them myself recently.

So, I have no objection in making public questions relevant to the Constitution in those two or three polls as soon as possible. However, sorting through the questions to determine those related to the committee’s work requires a certain time.

The information I have about those polls does not upset me; I would like to make them public.

Personally, it would not embarrass me in the least.

[Text]

Mr. Epp: Mr. Chairman, I do not intend to prolong it. I am ready to have the question put, and I think it should be put.

[Page 45]

[Translation]

The Joint Chairman (Mr. Joyal): So, Mr. Epp, you have asked that the question be put, but I still have Mr, Crombie and Senator Austin on my list.

If those two gentlemen are in agreement, we will put the question immediately. Otherwise, I will recognize either of these gentlemen.

Do you agree that we vote on the question? So, all those in favour of the amendment as . . .

Yes, Mr. Austin?

[Text]

Senator Austin: I wanted to have a brief word, to say that throughout this procedural debate I have understood the Minister to be prepared to produce the information requested, and on the basis of his undertaking I think that a resolution and a vote is absolutely unnecessary and therefore, while I am in favour of the production of the polls requested, I am going to vote against the motion because I consider it unnecessary and provocative.

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

Mr. Crombie: Mr. Chairman, since the Minister spoke on the question of order with unanimous consent, I wonder if I might put a question to him on the matter that is before us because it seemed to me, and I think it seemed to a number of Members, that in fact he was saying yes, but sometime, it could be next year, in fact I think was one phrase. Well, next year, given the Prime Minister’s timetable, would not be useful for us.

So it seems to me that if the Minister is in fact saying: Yes, I will produce them, but I need some time to do so, then I would like to ask him, now that he has agreed to produce them, how long he thinks he needs given the work of this Committee.

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

Mr. Chrétien: It might be tonight, it might be tomorrow, it might be next week, I do not know. I saw them in September and I said I would like to see them and if I can see them tonight, 1 will do it tonight, the problem is some of my officials, we were not prepared for that question. We were all prepared in front of the Committee on Estimates the other day and I have not asked those officials to come. The people who are with me today are people who advised me on the substance of the resolution, about the publicity we had in thesummer and the publicity we might have next week. It is not part of this job in the committee, not what I expected. I thought I was coming to study a resolution here, but one of my advisors in that matter is not in Ottawa so I will have to try and reach him wherever he is. It is not my fault but I was expecting those questions in front of the other committee last week.

If I have some ready tonight, I will give it to you tonight. Personally, I am not very embarrassed by that.

Mr. Crombie: Mr. Chairman, I thought I heard the Minister say that he was prepared to give the information last week in

[Page 46]

the Justice Committee. Now, it is the same material so it seems to me, with other than a cursory look it, it cannot be much different than what you were dealing with last week, so it seems to me, Mr. Chairman, we deserve at least some attention from the Minister with respect to advising the Committee when he thinks he might be able to give it to us.

Mr. Chrétien: I do not know, but the sooner the better.

Mr. Crombie: I would just as soon have the question and vote in a date.

[Translation]

The Joint Chairman (Mr. Joyal): Order, please.

So, the question which has just been asked leads us back to the amendment proposed by Mr. Robinson, and I am going to read it once again for the benefit of the honourable members of the Committee: [Text] that the polls relating to the constitution be presented as soon as possible, and in any event by Friday of this week, and that if any member wishes to question the Minister, he be allowed to do so.

Mr. Beatty: On a point of order, just to facilitate the work of the Committee, I was the mover of the main motion, and if there is unanimous consent I would be prepared to accept the amendment and have the vote taken on my motion. If, on the other hand, that cannot be given, then it would be required for us to take two votes possibly.

[Translation]

The Joint Chairman (Mr. Joyal): Do the honourable members agree with Mr. Beatty’s suggestion?

We shall therefore vote on the motion as amended, and I shall read again the original motion.

[Text]

That this Committee requests the Minister of Justice to table forthwith with the Committee any public opinion polls relating to constitutional change, including any analysis of such polls conducted for the Canadian Unity Information Office since March 1, 1980.

[Translation]

The Joint Chairman (Mr. Joyal): Those who are in favour of the motion as amended?

[Text]

Mr. Beatty: I am sorry, you did not read the amendment. You did not incorporate the amendment.

The Joint Chairman (Mr. Joyal): And that the polls relating to the constitution be presented as soon as possible, and in any event by Friday of this week, and that if any member wishes to question the Minister, he may be allowed to do so.

Mr. Beatty: I think, Mr. Chairman, that when Mr. Robinson moved that, he intended that the word “forthwith” be struck from my motion because . . .

The Joint Chairman (Mr. Joyal): Exactly, that is what I have now, since the two motions are included in the. ..

Mr. Beatty: Could we have a recorded division, please?

The Joint Chairman (Mr. Joyal): Certainly.

Motion negatived: yeas, 10; nays, 13.

[Translation]

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

[Page 47]

[Text]

Mr. Mackasey: I do not recall my name being called out to vote, Mr. Chairman.

An hon. Member: Do not worry about it.

Mr. Mackasey: But I do worry about it. I want to make sure that I am still on the Committee.

The Joint Chairman (Mr. Joyal): That is right, Mr. Mackasey. I see that your name is not on the list today and I will have to check. The Chair has a list as it is provided by the Clerk and your name is not on the list, I am quite sure that it is an emission, there has not been any advice on my side that you should not be on the list, I will check that and come back to you.

Mr. Mackasey: Mr. Chairman, any time you are advised that I am not on the Committee, I would presume that I would be consulted first. Nobody consulted with me on my removal from the Committee and I would like you to investigate with the Clerk why my name was not called.

An hon. Member: I will second that.

[Translation]

The Joint Chairman (Mr. Joyal): I will certainly investigate the reason of this situation.

[Text]

Mr. Mackasey: But if it had been called, you know how I would have voted.

[Translation]

The Joint Chairman (Mr. Joyal): I already knew how you intended to vote. Mr, Mackasey.

Order, please.

We therefore come back to where we were with Mr. Beatty.

You have one minute left, Mr. Beatty.

[Text]

Mr. Beatty: Mr. Chairman, I will not protract this. Suffice it to say, Mr. Chairman, that this is the only government, probably in the history of Canada which would feel it had the right to classify public opinion.

Mr. Chairman, perhaps I would cede the rest of my time to my friends opposite.

[Translation]

The Co-Chairman (Mr. Joyal): All right.

Mr. Lapierre has the floor.

Mr. Lapierre: Mr. Minister, I would like to come back to the Canadian Charter of Rights and particularly to the section dealing with mobility rights.

As you probably know, section 6 begins with . . .

The legitimacy and the practicality of this section raise doubts and I would like you to refer to an article published in Le Devoir during the weekend, on Saturday, in which Dr. Camille Laurin, the Quebec Minister of Education, was reported to have said, and I quote:

If we are not cautious, the federal project could lead to a pan-Canadian standardization of the criteria for admission to the studies and the professions as well as for the statutes now established in Quebec by the members of the professions themselves.

He was then speaking to the Conseil interprofessionnel du Quebec, and he later added:

[Page 48]

It is inconceivable that you should give the responsibility to regulate the professions and their members to an organization which does not know the regional needs.

I know, Mr. Minister, that this speech fits very well into the famous paper called, Le Coup de Force Constitutionnel d’Ottawa, which has been prepared by the Canadian affairs directorate within the department of inter-governmental affairs.

In view of the fact that this has received some coverage during the weekend, several professionals are wondering whether the statutes which govern the admission to the Quebec Bar or to the Order of the Architects or to the Office de la Construction du Quebec, would be pre-empted by the new provisions of section 6. After they heard what Dr. Laurin said. I think that many lawyers are wondering whether they should pay the next fees to the Quebec Bar or to the Canadian Bar.

I would therefore, like to have some clarification on the actual meaning of section 6 and particularly on its impact on the provincial statutes, in particular, the professional statutes.

This is my first question.

Mr. Chrétien: On your first question, Mr. Lapierre, I must tell you that section 6 does not intend to standardize the statutes which govern the professions. This is a provincial jurisdiction and it will continue to be; it means that any profession, whether it be legal, medical or other, will still be governed by provincial statutes; the terms of reference will be established by the provinces.

The only thing that section 6 does is that people who want to enter any such profession, cannot be barred from it if they are not a resident of the province; suppose that in order to become a plumber in Quebec, you must satisfy 25 conditions, any Canadian citizen who will meet those 25 conditions will be able to become a plumber in Quebec or a physician in Quebec.

There should not be a 26th condition saying: “You must also be a Quebec citizen.”

The conditions will be established by the province based on the criteria which must be met within each specific profession. So, this section means that any Canadian citizen who meets those criteria may practise his career or profession in the province in question.

So, in no way is it the intention of the government to, as Mr. Laurin stated on the weekend, standardize all the professional criteria and control all professional organizations in Canada through the application of Section 6.

Mr. Lapierre: At one point in his speech, Mr. Laurin spoke of the umbrella organization under which all professions would fall. I know that in his line of work he knows what it means to have a fertile imagination but, personally, I do not see where

[Page 49]

that type of organization would come into play through Section 6. I get the impression that it is nothing more than imagination.

Mr. Chrétien: There is no organization provided for in Section 6. All we do there is establish the principle that there can be no discrimination against people because of their place of origin in Canada. However, they must meet all the professional criteria established in the different provinces.

Mr. Lapierre: Mr. Minister, to come back to Section 6 once again where it is stated in Paragraph 2 that every . . .

Mr. Chrétien: Perhaps I might point out that Section 28 provides for the powers of organizations.

It states:

Nothing in this charter extends the legislative powers of any body or authority.

That includes the federal government.

Mr. Lapierre: Now, at Section 6 it is stated that:

Every citizen of Canada and every person who has the status ofa permanent resident . . .

When you refer to a person having the status of a permanent resident, does that include landed immigrants?

Mr. Chrétien: The answer is yes.

Mr. Lapierre: The answer is yes.

Mr. Chrétien: They are landed immigrants. Those are the people whom we wished to cover as there is a certain period during which a person may be permanent in Canada but not yet a Canadian citizen. We would not want this charter to exclude legitimate residents of Canada who have not yet obtained their status as citizens.

Mr. Lapierre: Fine.

Now, would this section affect the legislative provisions provided in the Public Service Act which requires that people be Canadian citizens before they are employed?

Mr. Chrétien: I do not know. I will check that out and reply later.

Mr. Lapierre: That is all.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre. Senator Asselin now has the floor.

Senator Asselin: Mr. Chairman, it is almost 6 o’cIock.

Should we not leave off here so that I do not have to break up my questioning?

The Joint Chairman (Mr. Joyal): Of course.

I will recognize you for just a minute, Mr, Nystrom. I have three small announcements to make before requesting an authorization to adjourn.

[Page 50]

First of all, I took the liberty to ask the support staff to slightly lower the temperature of the room where we are now because I have noticed that some members were incited . . .

[Text]

The second announcement is a request put forward by Mr. Fraser to the effect that the transcript be made available as soon as possible. I will make the necessary representations to our clerical service to make sure that each member receives the transcript the next morning so that they have it to work on for their meeting the following afternoon.

[Translation]

I also have a memo from Mr. Nystrom to the effect that he will table a telex from the Prime Minister of Saskatchewan, the Honourable Allan Blakeney.

Apparently, Mr. Blakeney has not yet formally communicated with the members of the committee and therefore we cannot say for sure that he will appear on November 24 at 8.00 pm.

I will ask you to table this document which I will then transmit to the committee on agenda so that we can make the necessary arrangements.

Mr. Chretien, before we adjourn?

Mr. Chrétien: Mr. Chairman, I have here a copy of the letters exchanged between the Prime Minister of Canada and Premier of Davis about Sections 41 and 42.

It might be useful to the members of the committee and I will ask my officials to give them to you.

The Joint Chairman (Mr. Joyal): Certainly and I thank you.

Mr. Nystrom.

[Text]

Mr. Nystrom: I think it is a bit more important, Mr. Chairman. I was a bit taken aback by the announcement of the agenda today. It says that in reply to his request, his being the Premier of Saskatchewan, to appear, the date of Monday, November 24, 1980 at 8 o’clock be reserved for Premier Allan Blakeney of Saskatchewan.

Since you announced the agenda a couple of hours ago, I have been in contact with the Department of Intergovernmental Affairs in Saskatchewan and they were quite shocked at this announcement because they did not request that the Premier come to this Committee to be heard. In fact, I will read you part of the telegram that was sent this morning by Howard Leeson, the Deputy Minister of Intergovernmental Affairs, Government of Saskatchewan, a telex sent earlier today to Senator Harry Hays and M.P. Serge Joyal and, it says, in part:

In the event that Saskatchewan should wish to appear before the Joint Special Committee on the Constitution I would like to request information concerning the appropriate procedure.

Specifically would you advise me as to: . . .

There are four things here that they want advice on; I will not read that part of the telex.

[Page 51]

Some hon. Members: Read it.

Mr. Nystrom: On a, b, c and d and with the last of item d with respect to procedure.

It goes on to say that should a decision to proceed be taken, and this is of course by the government of Saskatchewan:

I expect the date of November 24 would be most convenient.

A reply at your earliest convenience would be appreciated.

This was signed by Howard Leeson, Deputy Minister, Intergovernmental Affairs, Government of Saskatchewan.

I think it is obvious from that telex, Mr. Chairman, that no decision has been taken to appear on November 24 or on any other date by the Premier of Saskatchewan. I think it is also obvious that if Saskatchewan does decide to appear no decision has been made on who would appear before the Committee. It could be the premier of the province; it could be Roy Romanow the Minister of Intergovernmental Affairs who was the co-chairman with Mr. Chrétien during the summer, or it could indeed be an official of the government of Saskatchewan.

I also understand that the premier held a press conference this morning and he said essentially the same thing to the media publically in Saskatchewan as he said here in the telex; and I think it is a bit embarrasing to the Premier and to the Government of Saskatchewan that we have now announced he is coming when he indeed has not made such a decision. I would like to have you perhaps contact the Premier’s office and clarify what I think is a very unfortunate misunderstanding.

The Joint Chairman (Mr. Joyal): I think that the initiative was taken by our Joint clerk following information provided in the Joint clerk’s office that the Premier of Saskatchewan wanted to appear. It is after consultation with Mr. Weese who is Executive Director of Intergovernmental Affairs Department with the Saskatchewan Government that that date of November 24 was mentioned as a possible date, or reserved date, where the premier of Saskatchewan could appear. That is where it starts. That is why I was mentioning in my report earlier in the afternoon that the date of November 24 could be reserved for the appearance of Mr. Blakeney. You yourself are a member of the Subcommittee on Agenda and will have an opportunity to liaise with the other members as to appearances and so on later on tomorrow.

Mr. Nystrom: That is why I say it is embarrasing to the Premier because we are saying here that it is in reply to his request to be here that arrangements have been made for the Premier to be coming; and that decision has not been made in Saskatchewan, as confirmed by a telex sent to yourself and Senator Hays earlier today.

The Joint Chairman (Mr. Joyal): We will take proper steps so that it will be corrected from our report.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Irwin, on a point of order.

[Page 52]

[Text]

Mr. Irwin: On the last vote where Mr. Mackasey was omitted, I believe this was in error. Mr, Mackasey left early on Friday, just before the end, and Mr. Gimaiel replaced him only so that we would have sufficient members in case there was a snap vote, as we had today.

Mr. Gimaiel, it was indicated, was only supposed to be a replacement for Friday; and I would like to have that corrected on the record.

The Joint Chairman (Mr. Joyal): That is the way I understood the proceedings, Mr. Mackasey so that is why your name did not appear on the list today. It is a mere correction that has not been provided, but everything has been set in order.

Mr. Mackasey: Mr. Chairman, it is not my feelings that would have been hurt. You would have been embarrased ifyou were short one vote.

[Translation]

The Joint Chairman (Mr. Joyal): The meeting is adjourned until 8 h 00 tonight.

EVENING SITTING

The Joint Chairman (Mr. Joyal): Order, please. We will carry on with this afternoon’s discussion.

The Honourable Senator Asselin.

Senator Asselin: Much like other Canadians, I would like to tell the minister that I am obviously surprised that the resolution we have before us is really quite as urgent as the government says. If we look at the bill on constitutional reform presented in 1978, Bill C-60, especially concerning the charter of rights, Mr. Minister, your government or the Minister of Justice of that time, Mr. Otto Lang, said, in his explanatory notes which you will find on page 6, and you will allow me to quote:

As constitutional responsibility in the area of the protection of rights and liberties is divided between the federal and provincial governments, the implementation of the charter should be subject to debate and decision both by Parliament and provincial legislatures and, concerning language rights, by territorial councils as well.

In Bill C-60, there was also this explanation:

The charter will take effect at the federal level as soon as the bill becomes law. However, in so far as these provisions are a provincial responsibility, the charter will be implemented in each province only when it has been passed by the province in question. The provisions concerning language rights will take effect only when territorial councils adopt them.

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Those explanatory notes were introduced in 1978 with Bill C-60 and we are now in 1980. Could the minister tell us what crisis has suddenly surfaced concerning this bill of rights in the last two years, since 1978?

In 1978, it was being said that, to amend the bill of humah rights and liberties, and they were quite right in this, it would take the consent of the provinces because we all know that the provinces have also, within their respective jurisdictions, adopted bills of collective and individuals rights and that by accepting the federal charter which, in my opinion, would be vested with supremacy of interpretation over provincial charters, that might create condemnable discrimination against existing provincial bills of rights.

So, Mr. Minister, I would like to know what has happened since 1978 that has led your government to change its ideas in such a way that the consent of the provinces is no longer required, no more than consultation with the provinces concerning the bill of rights. What grave and serious crisis have we known in the last two years for the government to change its mind to that point?

Mr. Chrétien: The situation is not the one we had two years ago because we have spent three months, last summer, exhaustively discussing with all provincial governments the possibility of inserting a bill of rights in the Constitution; secondly, circumstances have changed in that the Canadian government, Canadian parliamentarians, have been saying, in a very recent period, that we had to take all means available to give ourselves a new Constitution and enshrine within the Constitution a bill of human rights, of individual rights and liberties.

Of course, circumstances have changed because, first of all, consultation has taken place and, secondly, commitments have been made by all political parties to make profound constitutional changes. And if you really believe in the bill of rights, as your long ago leader Diefenbaker did, you try, as he did when you were in his government, to have this enshrined in the Constitution.

The difference between a bill of rights voted by Parliament or voted by legislative assemblies and a bill of rights enshrined in the Canadian Constitution is that the latter is fundamental. which means that the rights of all Canadians will be protected equally whereas, if that will were not enshrined in the Constitution, you could have bills of rights for certain provinces and certain rights might not be protected in other provinces.

So we believe that fundamental rights must be enshrined in the Constitution. Of course, one of the reproaches we then hear, and I heard it from your neighbours on the left earlier this afternoon, is to the effect that we are not going far enough with the enshrinementtof rights in the Constitution.

There is the question of an acceptable middle road to be followed and in the formulation of this Bill of Rights, I must remind the committee that many provisions which are found in it right now are changes as compared to the provisions which existed two years ago and these changes were brought about

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through the nutnerous discussions we had with the provinces during the summer. This is a subject of intense discussions with provincial governments and I must say that the number of provincial governments which were opposed to the enshrining of this bill in the constitution was rather limited. I believe there were only a few provinces that had fundamental objections.

Senator Asselin: Would it perhaps not have been possible to arrive at a consensus so that the provincial bills of rights of each province could reflect the reality of each of the individuals of each province concerning the federal bill which you want to insert into the Constitution?

Mr. Chrétien: The federal bill will be binding upon all parliaments, the federal Parliament as well as provincial legislative assemblies. It is binding upon all Canadians; it gives rights to Canadians and, up to a certain point, limits the operational facilities of the provinces because we believe that after so many years our country has, in the area of human rights, achieved a maturity which will now be found in the Canadian Constitution, You use the word consensus. What is a consensus? is it 50 plus 1, is it all provinces except one? I mean, if you insist, it is both an agreement and a disagreement because a consensus means that not necessarily everyone agrees. It means that there is a majority of people who agree. And I will only quote your leader who, a few months ago in a speech in Toronto, said that if the provinces cannot agree with the federal government, Canadian parliamentarians will have to take their responsibilities in hand and that is what we are inviting you to do right now.

Senator Asselin: You agree, Mr. Minister, that enshrining the Bill of Rights in the Canadian Constitution will, in certain cases, put a limit on certain rights which exist already in provincial bills,

Mr. Chrétien: Yes, it will put a limit on certain activities undertaken by all levels of governments with a view to the liberties and fundamental rights of Canadian citizens.

Senator Asselin: Well then, if it is to limit provincial rights, would it not have been at least decent of the federal government to agree, at least, with the provinces on such an important ease as the enshrinement of a Bill of Rights in a federal text, in a federal Constitution?

Mr. Chrétien: It binds the national legislature as well as the provincial legislatures. If you are talking about a sharing of powers between the federal government and the provinces, I might say that you are right up to a certain point but, in the present context, it does bind both levels of government, These rights are given to Canadian people and not granted to one or the other of both levels of government but rather are granted to each citizen individually.

Senator Asselin: In my mnd it does impose limits upon certain rights which now belong exclusively to the provinces if we refer, such as many members of the committee did this afternoon, to clause 23 on the right to education in the language of the minority, which means that through a federal

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law you are amending a provincial law which is already in existence, known as law 101 and you are intervening in an area which is really exclusive domain of the provinces without even asking for the consent of that province.

By so doing, you are creating discrimination between two classes of immigrants. The Italian immigrant will be treated differently than the Pakistani or Australian immigrant.

By virtue of clause 23, it is the intention of your government and yourself to bring in amendments to avoid discrimination by creating different classes of immigrants?

Mr. Chrétien: First of all, we have not changed the balance of power in matters of education. Education remains a provincial responsibility.

Senator Asselin: So you really put your nose in it thanks to clause 23.

Mr. Chrétien: No, no. We are only enshrining in the Constitution the proposal made by Mr. Levesque and accepted by all provincial premiers during the St. Andrews conference in 1977 and the Montreal conference in 1978.

Senator Asselin: Is is not true, Mr. Chretien . . .

Mr. Chrétien: It is exactly the same text.

Senator Asselin: Is it not true that you are amending law 101 indirectly, while you could have done so through the powers . . . ‘

Mr. Chrétien: We are giving French-speaking Canadians outside of Quebec the same rights that the English-speaking Quebeckers are said to have presently. And during this summer’s conference, how many times have I heard Quebec representatives say that they hoped the English provinces would do for francophones what they were doing for anglophones in Quebec and that is exactly what we are putting into the Constitution at this point.

Senator Asselin: What are the rights of the French minorities you are protecting? Is there anything being said for French minorities, say in Ontario, where there are 600,000 French Canadians and where your law does not apply, where you do not even apply or try to have applied Clause 133. I do not know why the representative from New Brunswick, Mr. Corbin, has let it be understood that there was negotiation of certain rights, I do not know. Anyway, the Acadians in New Brunswick as well as the French Canadians in Ontario are not at all affected by that law.

Mr. Chrétien: I am sorry.

You are neglecting two aspects of this problem. First, the question of education. You spoke about education before and I answered that question.

Now, if you want me to pick up the question of 133, I will repeat what I have already told the committee. That is, that neither in 1971 nor in 1978 the federal government intended to impose 133 to the provinces. 133 now binds Quebec and Manitoba, it has been in the Constitution since I867 and we invited the provinces, in 1971, to opt in for 133 either in part or in whole.

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Senator Asselin: With your permission, I will interrupt you for a moment.

if 133 applies neither in Ontario nor in New Brunswick if Quebec wanted to get rid of 133, would you allow Quebec to withdraw from 133?

Mr. Chrétien: I have already stated that vested rights should not be withdrawn from Canadian citizens and that two wrongs do not make a right, I believe that the present climate gives us the opportunity, and it is the Premier of New Brunswick who said so, thanks to the amending formula in this Constitution, at this moment while I am speaking to you, in the future the federal government and a province will be able to opt in and Mr. Hatfield has already said he would do so.

As for Ontario…

Senator Asselin: Why have you not done that with . . .

Mr. Chrétien: No, no. It is optional. It has always been optional.

Senator Asselin: lt is not optional for Quebec nor for Manitoba.

Mr. Chrétien: The Fathers of Confederation bound Canada, in l867, as well as Quebec and Manitoba and we hope . . .

Senator Asselin: And Ontario?

Mr. Chrétien: We hope that all parts of Canada will want to opt in. If you want to make a proposal to the committee I think that Mr. Crombie and Mr. Nystrom have already said something about that.

We have maintained, in all circumstances, that we did not have the intention of forcing the provinces. If the committee wants to take a different direction, I will report to Cabinet. What really surprises me at this point is that everyone was reproaching me my timidity, because, not that long ago, it was being said that it was a Machiavellian document which would impose the federal views on everyone and right now you would want us to force 133 on Ontario, New Brunswick, Saskatchewan, British Columbia.

Senator Asselin: But mainly upon Ontario and New Brunswick, Mr. Minister.

Mr. Chrétien: But why not upon all the others?

Senator Asselin: When you know that there are 600,000 French Canadians in Ontario who have been fighting for almost 100 years to have their educational rights recognized and that the federal government . . .

Mr. Chrétien:No, no. . .

Senator Asselin: The federal government in revising its Bill of Rights and its rights to education in the language of the minority says it is not worth it . . . You have set aside involving Ontario under Clause 133 . . .

Mr. Chrétien: Yes, but you are not making a distinction between . . .

Senator Asselin: I am sorry . . .

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Mr. Chrétien: You are not making that distinction.

You have been speaking about education. Education is protected under Clause 23. Clause 133 has nothing to do with education.

Senator Asselin: Listen . . .

Mr. Chrétien: You have just said something about education. I say to you that Clause 23 will give the French minority in Ontario constitutional rights to education in the French language and to all French-speaking people outside Quebec. and the same rights will be given to English-speaking people in Quebec. That is what education is all about, that is Clause 23.

Senator Asselin: English-speaking people have long had that right in Quebec. There is no problem for them.

Mr. Chrétien: Do not start mixing up 133 and education. Clause 133 is institutional bilingualism. It has nothing to do with education. It is the right one has to make a speech in French in the Legislative Assembly of all provinces. the translation of statutes. and also the use of bilingualism in the institutions. It has nothing to do with education. So do not start getting them both mixed up. Francophone battles for education will be constitutionally solved with Clause 23.

Senator Asselin: Well, then, I will make good note of that…

The Joint Chairman (Mr. Joyal): Senator, I am terribly sorry to have to interrupt you, but you have already gone way beyond the period of time allocated, but I thought it best to let the debate continue as it is a subject which had already been raised during our previous meetings, as the Minister reminded us, by Messrs. Crombie and Nystrom and I think it is a subject upon which the Committee will most certainly like to hear all the members and hon. Senators.

I now recognize the Hon. Bryce Mackasey.

An hon. Member: (inaudible)

The Joint Chairman (Mr. Joyal): Yes, he is a full-fledged member.

[Text]

Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I think I am back in good grace here. In any event, Mr. Chairman, prior to the dinner hour, the member representing the New Democratic Party, Mr. Robinson, spoke very eloquently and persuasively on the rights of individuals and minority rights in this country. I was quite impressed because the honourable member has a legitimate reputation. based upon his speeches in the House and his activities across this country, as being sincerely concerned over minority rights.

He raised a matter which concerned me, while I listened to his persuasive arguments, about the possibility (or probability) that a referendum could be used despite all the safeguards and other steps. in some way to take away individual rights which had been enshrined in the constitution. It worried me, and in looking over the constitution, I went to Section 50 to see, if, for instance, this was one of the areas which could not be touched

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by a referendum. It is not. It is one of seven which make it very clear that the referendum procedure, could, in fact, affect Canadian rights and freedoms.

Then, I began to wonder why it was this way, and I suddenly realized that it is much easier to make a legitimate scenario where this procedure, as a last resort. requesting as it does, the support of the majority of Canadians could be used for the opposite purpose. I think it is much more logical that this procedure would be used to enshrine in the constitution the rights of a minority of any particular province, the rights that were being restricted by legitimate provincial legislation. I think this was the thinking of the government (the minister may talk about it in a minute); but I can see the opposite concern to that of the member who spoke earlier today, namely, that this would be a useful instrument, on those rare occasions, when the federal government felt it imperative to enshrine in the constitution minority rights which were clearly being infringed by provincial legislation. Mr. Chairman, this is not a far fetched possibility.

Again, I must talk about my experience in Quebec, not in the Assembly, but in the years I have lived there.

You have quite properly said, Mr. Minister, tonight that you hope that the French speaking minority in other provinces would have the same rights as the English speaking Quebecers. I share that view, and always did.

I would prefer you to say that you wished French speaking Canadians across Canada had the rights and privileges that English speaking Quebecers had five years ago. But there have been subtle changes—quite legitimate provincial legislation. The freedom of choice in the field of education is denied to the majority of Quebccers; not the English: we have freedom of choice; but French speaking Canadians in Quebec no longer have freedom of choice. The rationale, of course. is that any time a majority wants to demand this freedom to be educated in either official language, it has the majority to do so.

But Mr. Minister, many of the rights—and privileges which became rights—of that minority, no longer exist. I know that Senator Asselin shares my view on this.

Mr. Chairman, it is ridiculous that a merchant in the province of Quebec cannot put up a sign in the two official languages of this country, or three or four. That is against the law Billboards cannot be bilingual. There are many infringements on the rights of the minority in Quebec. for which, ironically, are not restricted to other provinces. This is a legitimate piece of legislation founded on the fear that somehow the minority was, in some way, infringing on the growth of the French language and culture, and God knows we want that language to flourish. That is what makes this country so different from the United States.

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But no matter how legitimate the fear was—or ilIegitimate— the fact remains that Bill 101 is a legitimate piece of legislation which, carried to its extreme, could very well infringe on the rights of certain minorities in this country, in the case the English speaking Quebecer—and did!

Now, that does not mean to say the rights still remaining in the English speaking Quebecers are far greater than those which exist in other provinces and extended to French speaking Canadians ln other provinces.

Now, it is quite appropriate for the Minister to say that two wrongs do not make a right when he was talking about 133, and I have got to repeat what I said Friday, that in the Quebec National Assembly, both languages are official and I might say that I was sworn in in English, as is my right. And I only wish that the degree of tolerance that exists in that Assembly Nationale existed everywhere in this country, and that includes the views of the PQ. Members expressed in the Assembly. But nevertheless, Mr. Chairman. English-speaking Canadians from other provinces coming into Quebec can no longer be educated in English. A privilege or a right we had taken away through provincial legislation, legitimate legislation.

The English language is no longer an official language in Quebec. Your ability, if you are part of the minority, to communicate with the Quebec government in English is no longer a right. Now, I know that it is a delicate subject that I am raising, but I have to raise it because it has perhaps more than anything else strengthened my belief that these fundamental freedoms that all Canadians should have, must be in the constitution. I, as a partisan Liberal, know that Mr. Ryan, when elected, will make it possible for English-speaking Canadians to come into Quebec and continue their education. I know that he is very much on record as saying you will be able as a citizen to communicate with the Quebec government in either of the two official languages. I know he intends to do that, but that again will be provincial legislation, in ten or fifteen years it could be reversed again.

So, Mr. Minister, I do hope that Members here, pointing out quite legitimately the need to enshrine in the constitution sooner or later, preferably sooner, 133 to New Brunswick and Ontario if the numbers are there, and perhaps Members opposite may be, or Mr. Crombie may intend to make such an amendment or motion, I do not know, but I think the time is overdue. there is no doubt in my mind, but I would hope that if it does not occur, that we do not suggest as some people have—and I do not mean by that anyone on the Committee, that 133 be removed from its application to Quebec and Manitoba, because then we would be really turning the clock back and setting up two great linguistic ghettos.

Now, Mr. Minister, I would hope that my interpretation of why you have included in Section 50 the points that could be subject to amendments through a referendum, and I am saying not to restrict freedom, as the Member quite properly pointed out, but rather expand freedom when there is a clear-cut example in existence of discrimination in provincial legislation, and if I mention Quebec as an example, I mention the least

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discriminatory of our provinces, the very least, because the treatment of the English-speaking minority in Quebec has been exemplary by French-speaking Canadians. If the politicians stayed out of the act there would be no friction because, as I mentioned Friday, very few of us are millionaires and very few of us were in a position to discriminate if we wanted to, but nevertheless, I did realize the fragility of freedom if you have to depend for that freedom on provincial legislation, and I realize that if I was concerned about the subject, this would be the proper forum, rather than Quebec, and I can only urge the premiers of Ontario and New Brunswick to realize the importance of extending 133 into those provinces, but I must emphasize, Mr. Minister, before I let you comment that we are not for a moment entertaining the possibility of restricting 133 to Quebec or Manitoba.

Mr. Chrétien: Thank you, Mr. Mackasey. Of course I said I do not want to turn back the clock, as you described. the rights should be there and we hope that the same rights will eventually be extended to all Canadians.

To go back to the first point you made, of course this amending formula will be used. Mr. Robinson put it in a negative way, the possibility of some rights being taken away from the charter. I explained to him how complex the mechanism is, and it will not be easy. Now, with the Provincial Charter of Rights, it can be done like that.

Now, in the future there will be consultation between the provinces and the national government. There will be the whole process, there will be a year delay after the deadlock and the referendum, but eventually amendments to the Bill of Rights can be made.

Another thing, too, is that it might be with the evolution of rights, some rights eventually can be entrenched in the Constitution that are not now there, and that could be objected to by some provinces, but by that time we could let the people of Canada decide. This Charter of Rights is not perfect, it is a minimum. There are a lot of rights that will evolve in the society, will mature in the society and will be capable of precise definition so as to be in a Charter of Rights, but in the meantime, the evolution of these rights will be measured and bring about into Parliament through the Bill of Rights, through the Human Rights Bill that will come outside of the Bill of Rights, because the Human Rights Commission will still be there, will analyze the problems, the evolution of society, the mechanism to protect the rights of some minorities today, that their rights are not quite defined, such as the physically handicapped, and so on. So these things have to mature, to find their place in a Charter of Rights, but in the meantime, the Human Rights Commission will be called upon to follow up the evolution and the drafting and the regulations and so on, that it will be easier in the future. However, you are right, I do not want to turn back the clock, and I said in my own personal view that 133, the more provinces will accept it, the better.

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I am very sad that in 1971, in many aspects of 133, seven provinces were willing to bind themselves, and in the period of ten years we have lost five of them, or four of them, and it is kind of sad, and it might be that if we are not acting at this moment, and I am glad at least New Brunswick is willing to bind itself, I elaborated last week about the situation of Ontario, in the summer they gave us some indication, but after that they felt that they could not do it and they said that they need time. But I hope that, for example, Mr. Nystrom will persuade the Saskatchewan government, who are not rebellious to the idea that institutional bilingualism be adopted partly or totally, and I hope you will put pressure on in that respect.

However, I am kind of sorry, after all the speeches that have been made, that we were just sending it too strongly, that today I find myself on the defensive, that we are not going far enough, and I would like to have the advice of the Committee on those problems.

[Translation]

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

The Honourable John Fraser.

[Text]

Mr. Fraser: Thank you very much, Mr. Chairman.

I would like to refer for a moment to Section 41 and 42.

Now, as I understand Section 41, that process of amendment which says, in this proposal, that an amendment to the constitution can be made if there is agreement by the House of Commons and by the Senate, and also by the legislatures of two of the provinces in different regions of the country representing more than 50% of those regions in terms of population, but this is a process which is restricted to the legislatures and to the House of Commons and the Senate.

Now, what I want to ask you, through you, Mr. Chairman, is: What happens if the provinces want a change, what happens if the provinces come to the federal government and say: We can see some legitimate changes that ought to be made in the constitution, and we would like to go through this process?

Now, as I read that section, if the federal government said: No, we do not want to entertain that change at all, then the process is not going tobe initiated. Am I right?

Mr. Chrétien: Of course, traditionally the federal government has always been involved in amending the constitution. In the present constitution, we can amend our own federal constitution as related to the federal government, and the provinces have the same right to do that as related to their own provincial powers.

Mr. Fraser: With great respect, through you, Mr. Chairman. I am not talking about the internal constitution. As these discussions go on, we will start to become familiar with these terms, but you are getting into what is called the “Internal Constitution”, things of federal concern only.

Now, I am not talking about that. The question I am asking is why, under this Section 41, is it the federal government that could say “No” to the process even being initiated? In other words, what I am pointing out, and I have read the section, if I am misinterpreting it, then I want to be informed that I am misinterpreting it, and I am not misinterpreting it intentio-

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nally, but I read the words and the words will govern us and as I read this it means that under Section 41, the federal government does not even have to get into the process if it does not want to. In other words, you can have the provinces coming to the federal government and saying: Look, we would like to suggest changes, but the process does not even have to start if the federal government says “No”.

Now, my question is: Why?

Mr. Chrétien: They could pass a resolution in their assemblies. I can take a hypothetical question, they can pass a . . .

Mr. Fraser: It is not a hypothetical question.

Mr. Chrétien: But we are dealing with what could happen. Suppose that l, in the federal jurisdiction, that all the provinces were to pass in their assembly that External Affairs of Canada will be conducted from thereon by all the provinces and no longer by the national government. And it was be passed in the ten legislatures, and they could pass it, and we decided, the national government, that we would not respond. That will be it.

I do think that the national government, as a national government, has to take some national responsibility in those matters, but suppose it is a reasonable request of the provinces and we refused to act, but we do not know if it will be a reasonable request and then that will become a political debate.

It is just the same thing that suppose there is a deadlock, that we want something with the provinces and the provinces say “No”, and we have evidently a deadlock, we could decide not to go with the referendum because it would be useless.

Mr. Fraser: Just a minute. I am talking about the other kind of deadlock. You see, what the Prime Minister has always said when there is a deadlock is that that is when other people do not agree with him.

Now, I am talking about the other kind of deadlock, and that is when the federal government does not agree with the provinces. Now, let us just move on, because I think it is clear in Section 41 that the federal government retains a veto.

Now, you can argue that there may well be cases where it would be irresponsible for the federal government to go along with it, but I am saying that the process is not even going to get initiated.

Now, let us move to Section 42.

Now, Section 42 is there, as I understand everything that has been said, everything the Prime Minister has said because he talks about deadlock all the time and I again reiterate that his deadlock is when other people do not agree with him.

Mr. Chrétien: But he will not be there forever.

Mr. Fraser: Just a minute.

Mr. Beatty: We can hope.

An hon. Member: There will be no deadlocks.

Mr. Chrétien: We cannot draft a constitution in relation to one Prime Minister or one Minister of Justice, we have to do

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that for the future, but I would like to reply to your question, I did not give you all the answers earlier.

You talk about 41, but you read 45 and in 45 it says that the procedures for amendment described in Section 41 and Section 43 may be initiated either by the Senate, or the House of Commons, or by legislative assembly of the provinces.

Mr. Fraser: I still come back to 41, and say that there is a final and absolute veto with the Federal government.

Mr. Chrétien: Yes.

Mr. Fraser: Now, just let me continue. Now, let us take a look at Section 42 . . .

Mr. Chrétien: But, can I reply to that 41? If the federal government is abusing its power, there is one general election every four or five years and the people of Canada can pass judgment on their action, but when you have the reverse situation, you have ten different provinces, you have different periods of elections and so on, it is not the same situation. It is very clear-cut at the federal level; every five years, or someti- mes every nine months, you can change a government.

Mr. Fraser: Let me just reply to that. Section 42 is supposed to be there to break a deadlock.

Mr. Chrétien: Yes.

Mr. Fraser: Now, what I am putting to you, Sir, through you, Mr. Chairman, is that you could have ten provinces come to the federal government and say: Look, under Section 41 you do not want to agree with us, but we are ten provinces that have decided that it is time to make a significant change in the constitution of Canada. Those ten provinces cannot say: Well, let us go to the people. You see, there would be a deadlock, the federal government would not agree. Assume the federal government would not agree, and we all know that Mr. Trudeau is not going to be here forever, but . . .

An hon. Member: Do not bet on that.

Mr. Fraser: . . . what I think people ought to understand is that the rules that are being laid down here are Mr. Trudeau’s rules and they will be here with us a long time, whether he is here or not.

Now, the point I am making is this, and if I am wrong, somebody can point it out to me, I am looking at the words, and I know that the words are going to govern us, not any of the rhetoric that we have listened to for the last three or four months, or for the last ten years. The words are going to govern us, and my point to you is this: Assuming that the provinces want change, they cannot go to the people because the federal government, under Section 42, can refuse. The only initiative that can be taken for a referendum is with the federal government alone.

Now, I want to ask why—why is this side of the equation so heavily weighted to a federal government? Even if you could have ten provincial provinces who came in and said: We think that in the interests of this country changes ought to lake place, you do not want to go along with it under Section 41, and that is your privilege, but we would like to put it to the people.

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Now, why can they not do it?

Mr. Chrétien: Because the initiative for a referendum can only be made by the national government, because it is the sole legislature that has people elected across Canada for a national mandate, and if you are telling me that we should have a referendum initiated by the provinces, I do think that we do have or we do not have a national government, a national Parliament, and if suppose that the national Parliament or the national government is so unreasonable that all of the provinces are in agreement to do something and the national government says “No”, you will have your referendum pretty quick come the next election, where the national government of that day will have to justify to all the people of Canada why they have not gone along with the ten provinces.

Mr. Fraser: Just a minute. Just stop right there.

Mr. Chrétien: It would be a denial of a national government, if it were to be the reverse.

Mr. Fraser: Just a minute, That has not been the way we have run our affairs up until now. You can say: Well, that is why we have not run them better, but I am just saying that is not the way we have run things. We have tried to run it on some kind of consensus.

Now, I am not at the moment arguing whether we should have referenda or that we should not, that debate will come up before this is over. What I am saying is this, and what I think everybody ought to understand, is that you say, well, you could cure this deadlock, that is an intransigent federal government that is refusing to exercise its power under Section 42 to allow the provincial proposal to go to the people, and it is implicit in your answer that you agree with me that that is the situation, but let us just remember that in I688, I think when we traded in the Divine Right of Kings for the divine right of a Prime Minister with a majority at his back, we just got the Divine Right of Kings for four to five years. So let us not talk foolishly or in a facile way about the fact that because the provinces might come in with a unified request, that there will suddenly be a national election that will sort it out, because there is not a politician in this room who does not understand that national elections are very seldom waged on an issue that took place three or four years before.

What I am saying is that under this proposal you could have a situation where you had all the provinces desiring change and the federal government saying “No”, and the provinces do not have the chance or the right under this proposal to go to the people of Canada.

Now, I have listened to a lot of talk about what is wrong with going to the people of Canada and what I would like to know now is if you are going to have that sort of a set-up, what is wrong with a certain number of provinces being able to request the opportunity to go and see what the people think? Now, that is not in here, and to the degree that it is not in here, this proposal is changing the relationship between the federal government and the provinces in a very dramatic way. Now, it may well be the Canadian people want that, I do not know yet, but I want to know that they understand what they are doing and what I would like to have is a better answer than

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I have been given so far in this brief discussion, and there will be others, as to why that equal right to a referendum does not lie with the provinces or a number of the provinces?

Mr. Chrétien: I gave you the answer that we need a national government to take the initiative in that respect and it cannot be initiated by the ten provinces. Take the case of Australia, for example, or the United States, when there are referenda in those two countries, the initiative has to be taken in the United States by Congress and in Australia by the commonwealth government.

It seems to have been a very satisfactory process in Australia, They had, I am told, something like 32 amendments initiated in referenda.

Mr. Fraser: With respect, I have limited time, Mr. Chairman, and if we really wanted to have a constitution like every other country in the world, or some of them, then we would have adopted it a long time ago.

I am not much interested in what other countries do but I am interested right now in whether Canadians understand what they are being asked to approve. You say you have to have a national government. I agree with that. I think a national government has to be strong in the areas in which it has its legitimate and necessary powers in the interest of the public, but what I am also saying is that under this section as proposed all the power to initiate and to block lies with the federal government, and that has not been the way we have conducted ourselves the last 113 years,

Why? Why are you so afraid that this remedy to break a deadlock, by which Mr. Trudeau means when everybody else does not agree with him, suppose everybody is in agreement and only Mr. Trudau or our federal government is not in agreement? Why should not the thing go both ways. Where is the quid pro quo? Where is the tit for tat?

Mr. Chrétien: There is a lot of discussion that has been going on last summer on this very subject on what we called the Alberta formula that was transformed during the summer in the Vancouver, the so-called consensus, because there was no consensus, in that formula there was a provision for a federal veto on any amendments that would be initiated by the provinces. In the general discussion in the summer with all of the provincial governments, everyone recognized that the authority of the national government as a national government having a veto right on those matters because in the reverse situation, the four provinces of the west, or two of them, with the majority of the people; the same thing in the Atlantic provinces, and Quebec and Ontario, on any amending formula they have a veto right and the people in those areas have a veto right too.

I think in term of the initiation or the start of the referendum, it had been taken for granted that it has to be a federal initiative and that in every formula we have looked into the past years there was always a veto for the federal government to more or less keep the initiative on any amendments to the constitution.

Mr. Fraser: I have no objection to a federal government . . .

[Page 66]

The Joint Chairman (Mr. Joyal): Mr. Fraser, I have allowed you more time than the ten minutes.

[Translation]

I am sorry, Mr. Minister.

[Text]

I am sorry, Mr. Fraser.

[Translation]

Mr. Henderson.

[Text]

Mr. Henderson: Thank you Mr. Chairman. I just have a couple of short questions that I would like to ask the Minister through you for clarification and it is on, once again, the Charter of Rights and page 4 of this resolution. Section 6, and it is the right to move and gain livelihood, or the rights of citizens to move in the country. 6.2 states that every citizens of Canada and every person who has the status of a permanent resident of Canada has the right to (a) move and to take up residence in any province and to pursue the gaining of a livelihood in any province.

The Minister is probably aware of provincial legislation in the Province of Prince Edward Island and probably other provinces whereby the selling of land to non-residents, if you will, land over ten acres in acreage is prohibited to non-residents. Knowing that Prince Edward Island of course has a limited amount of arable land to sort of head off the speculators from especially the U.S. but in other parts of the country, this legislation was put through and I believe challenged at the Supreme Court, and the Supreme Court upheld the provincial legislation.

I notice here also that there is a qualification of becoming a resident. Could I have clarification from the Minister that there is nothing within this legislation or this package that would supersede the provincial legislation of the Province of PEI in regards to land use?

Mr. Chrétien: Mr. Henderson, we discussed that during the summer at the conferences, and the possibility that this question of owning lands in the province could be affecting the legislation of PEI in terms of people who buy lands there, absentia ownership. The way I understand it, the mobility rights will not permit absentia ownership in the case of PEI.

We are not interfering, but the way I understand it it will not supersede the provincial legislation in that matter.

Mr. Henderson: I have one other question on Section 23 on minority language educational rights, and I applaud the government for putting this in, but there is one question that I would have to ask and it is in Section 23(1). Down at the bottom it says if they reside in an area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area, now, I put this in the province of Quebec or indeed in a francophone or an anglophone province. What and who decides that sufficient numbers to warrant the provision of public funds. is that by the Courts?

Mr. Chrétien: The legislative authority in terms of numbers will be vested with the provincial government, the provincial legislature, and of course if the citizens are not satisfied with the legislation, they will have recourse to the courts and the courts will have to decide if the criteria they have used are reasonable in relation to Clause 23.

[Page 67]

As I explained earlier to other members of the Committee it might be that, as I have said quite often, that they will look at the other situations in Canada, as Courts will do, because if it is reasonable for the Quebec government to have a school for 200 anglophones, say in Trois-Rivieres, it will be very difficult for, say, your promise to say that if there are 200 children in Charlottetown who are French speaking not to have a school just like in Trois-Rivieres.

Suppose that for some reason you decide the criteria should be 300 instead of 200, the court will decide whether it is reasonable or not, because they will have to analyze why in Trois-Rivieres they came to that conclusion.

But I think that, you know, as I said earlier, the better the anglophone will be treated in Quebec, the better the francophone will be treated outside Quebec and vice versa because the standards will be set in competition perhaps among the provinces and the criteria will be established in terms of reasonableness.

Mr. Henderson: I am looking at it possibly from an economic standpoint because, being a former school board member, and we were trying to integrate the two languages of course, but it is very difficult in some areas where you have 15 or 18 students, we will say francophones, in an anglophone area, to give them the all-round education.

Would we be talking in figures like that, 18 or 20?

Mr. Chrétien: I am told that for example that in some areas of Quebec, the provincial government goes to great expense to take the minority, the anglophones who have the right to go to English schools, the newcomers don’t have it but the residents before Bill 101 still have the right to send their children to an English school. They go to great expense to move them miles and miles to make sure that there is a sufficient number so that they will receive their education in English.

The same problem will occur in any place in Canada but in reverse, it will be for the francophones.

Mr. Henderson: I have no further questions right now.

[Translation]

The Joint Chairman (Mr. Joyal): You have four minutes left Mr. Henderson.

That is all?

Mr. Manly, please.

[Text]

Mr. Manly: Thank you, Mr. Chairman, I would like to ask the Minister some questions.

On Friday, November 7, at his weekly press conference, the Prime Minister said I am convinced there would never be an entrenched charter of rights, particularly there would never be entrenched educational language rights if it were not done now by the national parliament the last time, as it were, that we had a possibility of proceeding in this way to amend the constitution.

In other words, once we have a constitution in Canada, whether it be with the Victoria formula or any other formula, we will never get anything saying that all Canadians are equal

[Page 68]

because there will always be some provinces—and then he goes into some detail about the different provinces.

A week earlier in a letter to the president of the National Indian Brotherhood, and similar letters were sent to the leaders of the Inuit and the Native Council of Canada, he said I believe that Canadians with new found pride in their own constitution and in their new maturity as a country will be more than ever generous in considering the needs and wishes of our first citizens. In short, I believe that Constitutional change after patriation will become easier rather than harder.

To me, this is a very evident contradiction between what he sees as being necessary to do now while there is an opportunity in terms of language rights and things that he cares about. As far as the Native people are concerned he sloughs them off with the suggestion that it will be easier after we have the constitution in Canada.

I would like to ask you, through the Chairman, what factors are there that will make it easier for the Native people to have their rights entrenched after patriation rather than before, as compared with language rights.

Mr. Chrétien: If you read Article 24 of the Charter we say that the rights that the Natives have . . .

Mr. Manly: I am not talking about Article 24. I am talking about the Prime Minister’s response to the Indian people and the Native people who are concerned about their rights that they feel are not covered in Article 24.

Mr. Chrétien: I think that they are covered.

Mr. Manly: But the Prime Minister was responding . . .

Mr. Chrétien: We say that there is nothing in this Charter that will infringe upon the rights of the Natives. I explained this afternoon at length that some say this is a negative affirmation of their rights; we say that nothing in this Charter will take away any rights of the Indians. The Indians and the Inuit and the status Indians, their rights are flowing from different sources. It is not a right that we are creating for them. They have rights. We say that their rights will not be infringed upon by the constitution. The rights of the Natives are flowing from the treaty rights. That is a right; it is written in the 11 treaties that we have in Canada. Their rights are flowing from the Royal Proclamation of 1763.

This is when the king at the time said no people shall move in the colonies and not settle the rights of the Natives when arriving, and it is based on those things that the rights of the Indians exist.

The problem we are having is the definition in front of the Court of what they are. The treaty rights have been debated in Court many times and some of the treaties have been open for re-negotiation like Treaty 11, and we have recognized the rights of the Indians.

Those who never had a treaty have a different kind of rights based on the Royal Proclamation and it is based on that, that we are sitting at this moment trying to make a deal with the

[Page 69]

Indians in the Yukon for example, who are not covered by any treaty. In the MacKenzie Valley, they are covered by Treaty 3, 8 and 11.

The Inuit people never signed a treaty with the Crown and we have entered into negotiation with them. We have recognized that they have aboriginal rights, and it is why we said in Section 24 that rather than have a positive definition of their rights, they are better protected by Section 24 because the Indians have told us that they would like to work on some of their rights to clarify them, so while we are doing that, we are not diminishing their rights.

Mr. Manly: The point is, Mr. Chairman, that Mr. Trudeau was responding to a clear expression of concern by the Native people that section 24 did not meet their rights. He was responding to their concern such as they have over section 25 that says that any law that is inconsistent with the provisions of this Charter is to the extent of such inconsistency inoperative and of no force or effect.

There is no guarantee of their treaty rights or of their aboriginal rights in this Charter and I simply think that you have failed to deal with this inconsistency.

Mr. Chrétien: If you want to take the responsibility of trying to define their rights precisely in section 24, I have dealt with the problem quite extensively myself and it is extremely complex and there are a lot of issues that are still debated.

Mr. Manly: Absolutely.

Mr. Chrétien: Not only between the government and them, but between them, they are extremely difficult. For example, the fact that when an Indian woman marries a white man, she loses her Indian status. This problem was in front of me in 1969 and I tried to resolve it and they said, no, do not touch it, it is our tradition. After 11 years we have not come to terms with them.

If you are telling me today to impose on them a solution and they are the rights of the people who have been disenfranchised through the Indian Act…

Mr. Manly: I am not suggesting that you impose upon them a solution. It was promised to the Native people that they would be fully involved in discussions and participation in all constitutional changes that affected them, and they have not been involved in the drawing up of the charter of rights.

I would like to ask you about the document that is entitled Briefing Material on Canada’s Native People and the Constitution, and on page 2 of that document which was leaked earlier it says:

No answer to the concerns of Native people is likely to be found wholly satisfactory.

However, there are a number of things which should be said that might reduce the intensity of Natives campaigns for public attention and even win a few Native spokesmen to the government’s side.

[Page 70]

I would like to ask the Minister why is the government directing its attention and its energies to try to reduce the effectiveness of the Native peoplc’s campaign to win public sympathy for their concerns rather than to meeting the needs of the Native people and to sit down and meet with them and deal with their concerns.

Mr. Chrétien: At the time of the constitutional debate this summer I met with the Native leaders, the three organizations, the Inuit, the National Indian Brotherhood and the Council of Natives and met—I do not know the term.

Mr. Epp: Native Council of Canada.

Mr. Chrétien: We have debated that problem with them and in the light of that discussion they said we would like to prepare our position.

in 1979. in February of 1979 the Prime Minister, Mr. Trudeau, insisted with his colleagues, the provincial premiers, that there shall be a special item that was called The Native and the Constitution. This summer we decided to fund the Natives to prepare their agenda and their work. We will be debating that in future discussions.

In the meantime we claimed that through Section 24 we are protecting their rights.

I just want to tell you that what we want is to maintain all the rights that they have and at the same time to give the Natives sufficient time to develop their position and to present it to the National Government and to the different provincial governments,

The federal reponsibility in Native matters is well known and since 1969 we have started to negotiate some of those claims.

Mr. Manly: What is there in the proposed constitution that indicates where responsibility for Indian people lies?

Mr. Chrétien: As you know, responsibility for the Natives in Canada under the constitution is divided between the National government who, under the constitution, is responsible for the registered Indians, and in Northern Affairs, we have had the responsibility up to the time that it becomes a province, that is to say, in the North.

Mr. Manly: Where does your responsibility lie under this constitution?

Mr. Chrétien: Well, it is exactly the same as before.

Mr. Manly: Where is that indicated in the constitution? What in the constitution indicates that?

Mr. Chrétien: There are clauses in the constitution dealing with the lndians which are still there—Section 24, for instance; their rights remain the same. So that the registered lndians will remain a federal responsibility; the northern Natives will remain a federal responsibility; and, of course, the Metis and the non-status and the enfranchised Indians are considered under the Law as provincial citizens.

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

Mr. Tobin: Thank you, Mr. Chairman.

Mr. Chairman (and through you) Mr. Minister, I would like to go back to the matter I raised on Friday, a matter referred

[Page 71]

to earlier also by my colleague from Newfoundland, the honourable member for St. .lohn’s East with respect to the concerns which Premier Peckford has raised regarding the possibility of this document somehow, through a pretzelvtype series of manoeuvres resulting in Newfound1and’s boundaries being changed or in some alteration to the present denominational education system in the Province of Newfoundland. it appears to me, Mr. Minister—and l have already asked you this question and you have given me an assurance—that there is no danger whatsoever in the existing document, as it stands today, of either one of these two evils coming to pass.

Another thought which has struck me is that if, indeed there is, through any series of maneouvres a possibility of altering the borders of Newfoundland without the consent of Newfoundland, that same danger must also apply to all other provinces.

If it is possible, as Premier Peckford contends, that Newfoundland’s borders could be altered or changed in the rational way in which he has presented his arguments, then it must also be true that the borders of any other province of Canada could also be Changed.

Now, I am interested in knowing if any other province of. Canada or any other premier of Canada has made representations to you, your officials or to the Prime Minister regarding the sovereignty over their borders,

Mr. Chrétien: Because you know, the way I read the amendments to the constitution, the amendment to the British North America Act of 1871, covering the borders of the provinces, the borders of the provinces cannot be changed for all provinces without the consent of those provinces. This remains a part of the constitution. It was there. The same security which existed yesterday is still there for the future. in theory, if you want to carry the argument to the extreme, today with the new constitution it would be even more difficult than it is today, because in theory, we could ask the British Parliament to change the border of the provinces. We have no intention of doing so; but, in theory, we could do that by sending a resolution of both houses to London, and when they passed it the borders would be changed. In fact, we are making it much more difficult so far as changes are concerned, because from there on it would have to be amended by means of the amending formula, not in England, but here; and that means we would have to have six provinces, two from Western Canada, two from the Atlantic provinces, Quebec and Ontario, agree themselves to let their own borders be decided by somebody else. be it the federal government or some other body. However, in theory, it could happen; but it would be more difficult with the new situation than it is today.

So, we have not received any complaint of that nature from any other province.

Mr. Tobin: Let me see if I understand you clearly. What you are telling me is that, in theory, under the proposed amending formula, if 50 per cent of the people of Canada in the four regions of Canada, plus six of the provinces of Canada, all voted to give up their sovereignty over their borders, thereby limiting the sovereignty of other provinces in

[Page 72]

Canada over their borders, then we can be talking about the possibility of any province’s border being changed; but that could only be accomplished by, in effect, a resolution being passed by the country according to the qualifications laid down in the amending formula, that provinces give up their sovereignty as regards their borders to the federal government.

Mr. Chrétien: In fact, under the present amending formula, one can argue that the federal government could be abolished by the amending formula, and then having a nation of ten principalities and virtually no national government; the other extreme could be, with the consent of six provinces and the population, that we could abolish the provinces. But, with respect to that, it is much more difficult tomorrow than it is today, and that is the point I am trying to make.

Mr. Tobin: Mr. Minister, my memory does not go back too many years with regard to the long constitutional debates which have gone on in this country. But I believe that the Vancouver consensus which is supported by the Conservative Party does have in it correct me, if I am wrong—a veto clause for the federal government. How does that square with Mr. Fraser’s argument that the provinces do not have the right- and I assume he was arguing that they should be given the right—to ask for a referendum when they want one, when in fact the formula they support contain (does it not) already a veto clause for the federal government?

Mr. Chrétien: I have said so earlier and I have to subscribe again to what I have said.

Mr. Tobin: Thank you very much, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Fraser, on a point of order.

[Text]

Mr. Fraser: Very briefly I am talking about the right of either the provinces or of the federal government to go to the people to break a deadlock. The Vancouver consensus does not talk about a referendum at all and we are just not talking about the same thing. You are mixing apples and oranges, and we can discuss it later.

[Translation]

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

Senator Tremblay.

Senator Tremblay: The other day, Mr. Chairman, I learned that one can be interrupted in the course of a dialogue, but that fortunately, there is a second round, perhaps a third one or even a fourth one, and that comforts me somewhat as to the time I have at my disposal.

I want to make an observation, and then ask the minister a question on what has just been said. If I heard the answer to my colleague, Mr. Tobin, at this time, the provincial frontiers are less protected than they would be by the proposal before us.

If I understood correctly, hypothetically, the amendment formula prescribed at Section 41 would allow a change in

[Page 73]

provincial borders. Now then, it seems to me that in the present constitution, in order to change the borders of a province, it is necessary to obtain the consent of seven provinces, but, if the amendment formula is used to change the borders of a province, since it is not a formula based on unanimity but a majority of the provinces, it might happen that a province not within that given majority might have its borders changed.

I do not see how there are better guarantees in the new situation created by this resolution. On the contrary, there is less guarantee if the amendment formula could be used, since right now, under the British North America Act of 1871, the consent of the province is mandatory.

Mr. Chrétien: Legally, at the present time, to change the borders of the provinces of Canada, under the constitutional act of 1871, we must have the consensus of the provinces.

Senator Tremblay: Mr. Minister, do not use the plural since the act of 1871 concerns each province. . .

Mr. Chrétien: Each province. . .

Senator Tremblay: Separately.

Mr. Chrétien: To change the borders of a province, consent of seven provinces is required.

Senator Tremblay: That is correct.

Mr. Chrétien: At this time. But nothing prevents the central government and the Parliament of Canada to amend 1871 by going to London.

Senator Tremblay: Is that so!

Mr. Chrétien: And legally, the British Parliament could change the borders, at the request, no not at the request, it could change the frontiers of a province at this time legally if they were asked to do so by a joint resolution of both houses, and perhaps then they might refuse to do so. I say legally they could. despite the opposition of the province.

Senator Tremblay: So it is through London, Mr. Minister . . .

Mr. Chrétien: Or, if the Act of 1871 was amended, then it would apply tall provinces.

Senator Tremblay: If I understood correctly the answers that you gave to several questions, by using the present colonial situation, that is by going through London, anything can be done. That is your legal position, is it not; I think everyone has noted that, and indeed it is a very important point, which you yourself have stressed in rigorous and strictly legal terms, that it is possible that the use of this colonial tie could allow any change to be made to Canada.

It is to be noted, it is most important.

I had three or four questions to ask, but I believe I should preface them by some comments on a point which came up a while ago, Mr. Minister, and one which we hear quite often. It would seem that there is a sole institution, and only one place

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where all of the people of Canada can express itself, that is the Parliament of Canada.

Earlier, you spoke of a national government. Mr. Minister, you have to take into account the fact that in a federation where sovereignty is shared between two levels of government, that collectively the governments of the provinces and the legislators are the national government. There is no single national government in the strictest sense of the term, in a federation. It all depends on the sharing of powers, and in those sectors where the provinces are sovereign, collectively they constitute Canada, the national government. I think that is quite important, at least to define our perceptions of the Canadian fact.

That constitutes my opening statement, and I should like now to turn to the first of the questions I wanted to raise. Of course, it deals with Sections 41 and 42, and with the way that matters might be dealt with if the resolution were adopted.

The other day, Mr. Minister, we left hanging a very precise question at the end of the time I was allowed. We were discussing the theory of deadlocks, and from the general principles and abstractions, and I had led you to answer me on a question of whether at the September conference, there had been a deadlock or not. You answered at that time, that in your opinion. that federal governement’s that is, or rather more precisely that of Mr. Trudeau, there had indeed been a deadlock, the type of deadlock that justified unilateral action, equivalent to that proposed in Section 42. Mr. Minister, are you sure of your diagnostic, of your conclusion, if you take into account that the Premier of Manitoba, on behalf of all his colleagues, had offered to continue the negotiations?

Mr. Chrétien: Well, I said, I do not have the text before me, but I can get it, that at the meeting of June 9 at 24 Sussex Drive, the premiers had themselves agreed to make a decision on the majority of the proposals on the September agenda, and any observer would have noticed that on Saturday morning, the agreements were rather thinly spread, if there were any at all. To have continued the conference would have not changed the fact that there was an impasse at that time, and the premiers had clearly indicated on June 9, that in September there would have to be substantial progress, which I personally did not see at any time during that conference before the cameras.

During the summer, at the ministerial level, we had thought we might be able to make some progress, but certain ministers present just could not deliver.

Senator Tremblay: It certainly was not Premier Lyon’s feeling, and that is the whole point. When the federal government, yourself in fact and Mr. Trudeau, came to the conclusion that therc was a deadlock, and that the other level of government had not come to the same conclusion, to what extent did you consider yourselfjustificd in acting unilaterally, based on your own diagnostics, and I will refer to an answer you gave to a question asked in the afternoon, to what extent

[Page 75]

can you justify not having resorted to what you have called a year of cooling off, as proposed when an eventual analogous situation, where you might have to decide whether to use Section 42 or not. Why are you attempting for the future to reassure people by saying there would be a cooling off period, when in September situation you did, not use that same approach, and have already committed yourself to unilateral action, as of October 2.

Mr. Chrétien: Well, as of June 10, in answer to a question by the Leader of the Opposition, the Prime Minister. . .

Senator Tremblay: I am talking about the month of September.

Mr. Chrétien: As justification for our diagnostic that there was no agreement, I think it is quite simple to so conclude, since the words that were in the resolution or the declaration of the Prime Minister as proposed to the premiers was as follows, and I quote:

[Text]

To reach conclusion on the work under way.

[Translation]

Yet the premiers of the provinces asked the Prime Minister of Canada to change the text in order to show their determination to accomplish the work within the stated deadlines, because everyone had committed himself to some rapid change, and they asked to change the words “to reach conclusion on the work under way” by the terms “finalize agreements”. But there had been no agreement that had been finalized when the month of September rolled around. So we acted in the context of the June declaration, and the acknowledgement of the fact in September. And now, obviously, what we are asking the provinces in the amendment to Section 41,—and we still do not have the exact text at this time-is to provide for some postponement if the constitutional conference wants to make some amendments, so that the provinces might be able to adopt in their respective legislative assemblies, the necessary legislation to make the agreement effective, and if there is no agreement, then at the end ofthe cooling-off period, the federal government will be able to note the fact that indeed there is no agreement.

Senator Tremblay: Mr. Minister, if I may, since you are going back to the month of June, did the Prime Minister at that time tell his colleagues, that if there was no agreement in September, he would act unilaterally?

Mr. Chrétien: He certainly said so to the premiers on June 9 at 24 Sussex Drive. He repeated it several times.

Senator Tremblay: At 24 Sussex Drive.

Mr. Chrétien: He also repeated it I think several times during the summer. And I mentioned it regularly. I stated that we were reviving up the motors to go to London. Do you remember?

The Joint Chairman (Mr. Joyal): I shall now recognize Senator Austin.

[Text]

Senator Austin: Thank you, Mr. Chairman.

[Page 76]

There have been some references to the Province of British Columbia during the course of the last few days and so I decided to obtain some additional evidence of what might be the attitude of people in the Pronvince of British Columbia to the matters that are before us. and just before I ask some questions of you, I would like to read two or three statements into the record. They appear in the Tuesday. October 28 edition of the Vancouver Sun, and the statements that I will read were made by Opposition Leader Dave Barrett who was, a few years ago, Premier of the Province of British Columbia, and is certainly a strong challenger to be Premier of the Province again.

He is, of course, speaking for his own Party and I think in many ways he is speaking for people who support the Liberal view, and if he speaks for both, I think he is probably speaking for a majority of British Columbians. He says, in part. and I quote . . .

Mr. Fraser: Have you got a poll?

Senator Austin: Mr. Barrett said he believes Canada does not really need a new constitution now but since the federal government is going ahead with the project it is up to everyone to try and co-operate in building the best constitution possible.

He said he supports the constructive approach taken by federal NDP leader Ed Breadbent, whose amendment to the government’s original resolution adding guarantees of provincial ownership of natural resources . . .

Mr. Fraser: “Ownership” was never used.

Senator Austin: . . . was accepted by Prime Minister Pierre Elliott Trudeau.

Mr. Fraser, I am reading into the record a statement attributed to Mr. Barrett. The truth of it is something that you can dispute at a later time.

Mr. Fraser: Well, if that is the kind of steps you want to read in, go ahead.

Senator Austin: Well, I know and everyone in the Committee knows that you do not agree with Mr. Barrett.

Mr. Epp: Do you?

An hon. Member: How about you?

Senator Austin: Yes, in many ways I do agree and I am reading into the record some statements with which I tend to agree.

To continue the quote, Barrett constrasts Broadbent’s stance with that of the federal Conservatives, a few of whom committed the serious parliamentary sin of approaching the Speaker’s Chair in a particularly rowdy debate last week, and with the bickering provincial premiers. And I quote:

At least he, Broadbent, is doing something positive. He is sitting down and proposing resolutions and attempting to add things that he wants and he feels are important, and I think it would have been more appropriate for Mr. Clark to do the same thing considering the fact that the Tories, such as New Brunswick Premier Richard Hatfield

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and Ontario Premier William Davis are supporting Trudeau’s position.

And that is the end of quote. A second quote:

Barrett said he is in favour of entrenching a bill of rights in the constitution because although it is not an airtight guarantee that civil liberties will never be violated, at least it provides a framework for dealing with big government. Politicians can come and go and laws can come and go but I would like to feel that the country has said certainly that there are inalienable rights. It might take a long time to work it through the courts to get my inalienable rights but I feel a lot better about it.

Now, Mr. Chairman, to the Minister, it is about . . .

[Translation]

The Joint Chairman (Mr. Joyal): Excuse me, Mr. Austin. Mr. Robinson, on a point of order.

[Text]

Mr. Robinson: On a point of order, I wonder if Senator Austin would agree to including in the hansard of today’s committee proceedings the full text of that particular article. I think he would agree that there are a number of other excerpts which are equally relevant in this particular context and that if we are to have the full flavour of the future premier’s remarks, that we should have the full article included and we should not just have a selective quoting of the article by the Senator. So I would hope that he would agree to have the full text of the article appended to this hansard.

Senator Austin: Well, I appreciate the suggestion from Mr. Robinson and I note on questions related to the Senate he was very critical, and if Mr. Robinson wants to add those amendments, he is certainly welcome to do so but I am addressing myself basically to the two questions, the question of whether we are in this process to get on with the business of developing a constitution and whether we are here to deal with the issue contained in the Charter, and those guarantees of rights and freedoms that I think Mr. Barrett and I, at least, believe we ought to get on with entrenching and establishing as part of the Canadian fabric.

Mr. Robinson: Mr. Chairman, on the point of order, I assume then the Senator is agreeble to having this particular article appended to the hansard.

Senator Austin: You can put it in when you want to, Mr. Robinson, in the way you want to do it.

Mr. Beatty: I am surprised you fellows do not classify the article, too.

Senator Austin: I hope, Mr. Chairman, that the intervention is not costly of my time in the debate.

An hon. Member: It is a Liberal selection.

Senator Austin: Well, you can tell when you hit a nerve. Now, Mr. Minister . . .

Mr. Beatty: You shot yourself in the foot.

Senator Austin: I would like to take advantage of the fact that you have with you a law officer of the Crown to ask you some questions about interpretation in the Charter.

[Page 78]

One of the questions I would like to ask you relates to question 1. When you refer to reasonable limits as are generally accepted in a free and democratic society with the parliamentary system of government, are you going to, or are you putting before the Court necessarily questions of whether certain societies are free and democratic, or whether they have a parliamentary system of government? Does the U.S. have a parliamentary system of government? Are its principles included in the definition of paragraph 1?

Mr. Fraser: We cannot understand the question either.

Mr. Chrétien: No, no, I am asking him to answer the question. You wanted to have his advice.

Mr. Tessier: Mr. Chairman, I think it is the assumption that the Courts would interpret that in the context of a system like the Canadian system. The reference to a parliamentary system of government, I think, was deliberate, to refer to the concept of parliamentary sovereignty and the things that go with that. I might say that some of the provinces attach a good deal of importance to this in the discussions on the Charter, the reference to the parliamentary system of government, to indicate to the Court some distinction between our system and the American system. It does not mean that everything that a legislature or parliament does is automatically going to be accepted by a Court as being a legitimate abridgement of the rights in the Charter, because Section 25 specifically indicates that the Court is to strike down laws of parliaments or legislatures that do not comply with the general requirements of the Charter.

Senator Austin: I appreciate that, but it seems to me that the draft of paragraph 1, as you have it, section I as you have it really could send the Courts off on, at the request of counsel, on quite a wide ranging and, up until now, quite unusual search into other parliamentary jurisdictions for precedence,

Mr. Chrétien: If I can make a comment on that, I do think that when we discussed during the summer with the provinces this general clause number one, that it was at the insistance of the provinces that we made that qualification there, so that it will not be too strict a proposition of the guarantee of rights and freedoms, that we will restrict too much the activities of, traditional activities of the different levels of government.

It is a very complex problem, and at the insistance of the provinces we put that, I do not know how to describe it, but, not a caveat. but this kind of limitation clause so that it will not limit too extensively the power of the provincial legislature, and of course the National Parliament, to legislate what is considered legitimate in a free and democratic society.

Senator Austin: Under section 2, where you see Subparagraph (b), reference to freedom of thought, including freedom of the press and other media of information, Minister, is it the intention to in any way enlarge the present rights as they are so indistinctly understood of the press and other media in Canada? Is it, for example, now open to argue as to protection of sources in the hands of journalists and press and electronic media people?

[Page 79]

Mr. Chrétien: I do not know how the Court will interpret that, but we are dealing here, we are formalizing the guarantee that exists traditionally in this society concerning the freedom of the press and other media. What will be the interpretation of the Court in terms of the sources of information and so on, it would not be for me, I do not know what the Court will decide or if there will be some different circumstances that will have to be analyzed by the Court before rendering a judgment.

Senator Austin: Your attempt here was to be neutral?

Mr. Chrétien: As tnuch as possible.

Senator Austin: I would like to turn your attention to section 7 and the phrase “Principles of fundamental justice”. Some time ago I had the privilege of taking courses in jurisprudence from Lorne Fuller and Julius Stone and Henry Hart and John Hart, and I do not think there was any concept more difficult to define or understand than the principles of fundamental justice.

How do you see a court beginning to examine the pleading of fundamental justice? Do you go back to St. Thomas Aquinas, that might be a good place to go, or Plato or Aristotle? Are the factums now going to be full of political philosophy?

Mr. Chrétien: I would like to ask the drafter to make a comment.

Mr. Tassé: We assume that the Court would look at that much like a Court would look at the requirements of natural justice, and the concept of natural justice is quite familiar to courts and they have given a good deal of specific meaning to the concept of natural justice. We would think that the Court would find in that phraseology principles of fundamental justice a meaning somewhat like natural justice or inherent fairness. ‘

Courts have been developing the concept of administrative fairness in recent years and they have been able to give a good deal of consideration, certainly to these sorts of concepts and we would expect they could do the same with this.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Epp, go ahead please.

[Text]

Mr. Epp: Thank you, Mr. Chairman.

Mr. Minister, I would like to concentrate on the amending formula and just as a basis begin from this principle and ask for your comment. Do you regard the provinces as equal, one to the other?

Mr. Chrétien: In the amending formula we decided that in terms of population they were not equal.

Mr. Epp: So you say that they are not equal because of population, is that your position?

Mr. Chrétien: Of course, because we say that there are four areas of Canada where you need two provinces in western Canada who will represent 51 per cent of the population in relation to the amending formula. Any province who has more than 25 per cent of the population, who have had 25 per cent

[Page 80]

of the population. are in it different category than those who have not reached that level.

Mr. Epp: I am sorry to interrupt, but l do understand 41.1 am asking you the position. You have then said today that in your mind, because of population, the provinces are not equal; correct?

Mr. Chrétien: in terms of the amending of the formula, they are not equal.

Mr. Epp: So they are not equal. That being the case, I would like to go then to the principle, you said on Friday that you would be willing to accept an amendment from those areas who now feel themselves aggrieved especially. I first of all want to put the caveat: I reject any formula that puts into the constitution the principle that provinces are not equal.

An hon. Member: Hear, hear.

Mr. Epp: But having said that, l was surprised that Mr. Henderson was willing to accept what I thought was not a full guarantee in terms of the position of Prince Edward Island. Now, I willjust take that to begin with.

Would you, Mr. Minister. accept an aniendment to section 41 (b)(2), whereby you would remove the population requirement and accept an amendment where you only needed two provinces in the Atlantic Region?

Mr. Chrétien: We did not want in the original proposition to do that and we have received representations from Mr. Hatfield, he expressed his views on that publicly. and of course Mr. . . .

Mr. Epp: What is your view, sir?

Mr. Chrétien: I will accept that change, to make it two provinces and no relation to the population for the Atlantic provinces.

Mr. Epp: Everywhere? That is Atlantic Canada and western Canada?

Mr. Chrétien: Not for western Canada, the request is from . . .

Mr. Epp: Why not for western Canada if you do it for Atlantic Canada?

Mr. Chrétien: If there is no request for such an amendment, I would like to look into that and decide.

Mr. Epp: Excuse me, I fell that there is a very important principle, quite apart from what we established earlier in my questioning. Are you saying to us now that you would accept an amendment removing the population requirement for Atlantic Canada. thus taking care of the Prince Edward island problem within the region, quite apart from the national scope, but you would not accept the same amendment to pertain in western Canada?

Mr. Chrétien: I just say that the balance of population in western Canada is quite different than in the Maritimes, the Atlantic Provinces. I just said to you that if you make such a

[Page 81]

request I will analyse it because it is not a very symmetric system, because the population of Ontario is greater than the population of Quebec and they have exactly the same situation. The amending formula of Victoria provided in 1971 for that formula, but what they are asking me to do is to go back to the formula that was agreed upon in 1971. So I said, fine.

Mr. Epp: Mr. Minister, I understand the Victoria formula of 1971, so what I am asking you is if you accept Victoria 1971 for Atlantic Canada, do you accept Victoria 1971 for western Canada?

Mr. Chrétien: I guess this is exactly what we have here.

Mr. Epp: No, it is not. With all respect, it is not, Mr. Minister. It is not what we have had in 1971 in Victoria.

Mr. Chrétien: In the west it is. I would like to check that.

Mr. Epp: Would you accept the principle that in Atlantic Canada, in that region two provinces are needed for approval, or the opposite, that they would need or they could be used for a veto, that the same considerations would be given to western Canada?

Mr. Chrétien: My answer to you, sir, is that in 41, the amending formula for the western provinces is exactly the same as it was in Victoria, and you said it is not the same. And if it is not the same I would like you to explain to me where the difference is.

Mr. Epp: All right, if you say that for the west it is the same as for Victoria in 1971, would you accept the principle of my argument, then, that what is right for Atlantic Canada, and I take it your assurance was that Atlantic Canada, you would accept an amendment where two provinces would be needed for approval or rejection, would you accept the same principle in western Canada?

Mr. Chrétien: In the west there is no province where the Population is not a factor, and the reproach that I have been receiving with this amending formula is that we have departed from the Victoria formula in not keeping for the Atlantic provinces the same format. Why we have selected, among other reasons, Victoria, is because it is the one formula that at one time in history was acceptable to all the provinces.

Mr. Epp: Mr. Minister, I am speaking now about 1980. What I am asking you is, why do you use a different yardstick for the west than for the other regions?

Mr. Chrétien: Because it was at the insistance of the western Provinces that we had that formula in 1971.

Mr. Epp: But not in 1980, Mr. Minister.

Mr. Chrétien: But I just respected the wishes of the western provinces at that time, and if there is a request by the provincial government to that effect . . .

[Page 82]

Mr. Epp: With all respect, Mr. Minister, you are not respecting the wishes of the western provinces, because as early as 1975 the western provinces already rejected the 1971 Victoria formula. So what I am asking you is: quite apart from the principle of equality of the provinces, you are now saying to us in western Canada that, apart from that principle, you will not even accept the principle you are now affording to Atlantic Canada. My question is: why?

Mr. Chrétien: I said to you earlier that we have accepted the Victoria formula as it is and we are returning, if I accept the amendment of Mr. Henderson, to the old Victoria formula. One of the reasons in 1971 is the balance of population there. in any combination, in the Maritimes it is not the same as in the west.

If you are asking, if you put to this Committee the question of having any of the two western provinces rather than have two that represent 51 per cent of the population, I will consider that, but it is the first time that this proposition has been put to me by anybody.

So I will look into that, but I am telling you that it was not at request that we have received so far from any provinces in relation to what is in front of this Committee today.

Mr. Epp: Mr. Minister, you know that throughout the summer’s discussion the argument was always put before the federal government that the provinces as provincial partners, I am not speaking of the provinces vis-a-vis the federal government, as partners, the ten provinces, that they were equal and that they have legitimacy each in their own right.

That was the proposition that was always put forward and I am saying to you that while i want to get into a discussion with you later, and my ten minutes will not allow me that tonight, in terms of what is even fair regarding that principle. What I would like to get from you today at least is what you will accept for Atlantic Canada you will not accept any less for western Canada.

If you take a look at your formula, you will find out very quickly that the provinces of Saskatchewan and Manitoba, for example, while they are not in the very same position as Prince Edward Island, they are in a similar position whereby they cannot ever join because of the population factor to stop an amendment which could directly affect them.

Saskatchewan and Manitoba have many interests that are common. The same argument would hold with an Alberta and Saskatchewan combination, with an Alberta and Manitoba combination, so what I am saying to you, you are creating so many classes of provinces, and I am frankly astounded that you are willing to create even more tonight.

What I am asking you is that you go back to the principle of equality of the provinces before you even look at your amending formula.

Mr. Chrétien: The principle of equality of all the provinces, that means that every province has their right of veto.

[Page 83]

Mr. Crombie: Or three classes.

Mr. Chrétien: That it is going to be a very inflexible amending formula, if you want to give every province the right of veto in amending of the constitution.

Mr. Epp: I am not saying that. Do not put that into my mouth. I am not talking about unanimity and I do not think our party has talked about unanimity. What we are talking about is fairness, pure and simple equity and fairness.

Mr. Chrétien: You have affirmed earlier that our proposition was different from 1971, and it is not different. We just took back the formula for western Canada of 1971.

If I accept it the amendment of Mr. Henderson it is going to be exactly the same amending formula we had in 1971.

Now can you say to me that you want a completely different amending formula than 1971. There are two options. The provinces can come within two years with an amending formula where this concern is met and if it is acceptable to us it will be the amending formula; if not, we will use the Victorian formula or another amending formula against their proposition; and let the people of Canada decide.

Mr. Epp: You gave Prince Edward Island a commitment; you gave it to me today. I accept that commitment. I am asking you for the same commitment for western Canada, as a starter. ‘

Mr. Chrétien: The proposition in this resolution is that the federal government is supporting the amending formula that at one time in history, in 1971, was agreed by the ten provinces. and we do think that the wisdom of the premiers and the Prime Minister of that day—if Quebec had not backed off ten days after that, it would be the amending formula that we will have.

Mr. Epp: I am not talking about 1971, I am talking about 1980 and I am asking about fairness. That is all I am asking.

Mr. Chrétien: And I am telling you that the position of the government is that in accepting the Henderson amendment, we are taking exactly the amending formula that the 11 governments had agreed to in 1971.

If you want to propose another new amending formula, you put it on the table. If the provinces are not happy with that one, within two years they will have the occasion to prepare a new amending formula and come back to us. If we like it, we will accept it. If we do not like it, the people of Canada will decide between the Victoria formula and their proposition.

[Translation]

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

Mr. Bockstael, you have the floor.

[Text]

Mr. Bockstael: I am following up on the question that the honourable Mr. Epp put, I would suggest that it is easier for us in the west to get amendments from the federal government by using two provinces, than the population ratio.

Mr. Epp: That is what I was trying to get.

[Page 84]

Mr. Bockstael: Before I am able to formulate there are two or three questions I had hoped to be able to address to the Minister, the time is going to run out on me I am sorry he has left, but I would like to refer back to the question that Senator Tremblay put. He seemed to want to emphasize that the Prime Minister threatened unilateral action in June, prior to the First Ministers’ Conference.

I would point out in Hansard on page 3281 of October 6, and it was read into the record that the leader of the Opposition, Mr. Clark himself, said in Toronto on June 6 of this year that the participants in Monday’s conference speak for 11 governments; parliament speaks for 23 million Canadians. If the first ministers of the federation cannot make marked progress toward changes which fit the Canada of the 1980’s then the Parliament of the federation may have to assert a stronger role. But if it does, that must not be as the instrument of one government, but as the forum of all Canada. Parliament alone among institutions reflects that country and can lift the discussion above the question of what governments need and focus on the question of what the nation needs.

So I would like to alleviate Senator Tremblay’s concern that the Prime Minister may have considered unilateral action when his own leader has done the same thing.

There are about two minutes left. I would like to put forth a question that l have not been able to research myself, but certain British colonies earlier in this century, and more so since World War II, countries that have been part of the British Commonwealth were authorized to establish their own national government with its own Charter. Can the Minister tell us how many former British colonies have matured to nationhood and subsequently patriated their constitutions? That is the first part of a two-part question. And have any done it in the way we are proposing?

Mr. Chrétien: The way I understand it, Mr. Bockstael, is that at this time all the former colonies of Great Britain who have attained independence do not have to go to Great Britain anymore to amend their constitution. We are the only one that I know of. Of course there a few small colonies still, but the people who have attained their independence no longer have to go to London for the amendment to their national constitution. We are the only one.

Mr. Bockstael: Under clause 24, I have had native people in my constituency come forward and I have tried to reassure them that by adopting the new constitution, what existed in the B.N,A. Act, the Treaties that are in force, are not abrogated, and that they are as assured as they always have been of their rights. even if we do repatriate and amend this constitution . . .

Mr. Chrétien: That is exactly as I see the situation, the rights of all the native Canadians, either flowing from Treaties or the Royal Proclamation, are assured to remain as they are, and not being changed by the adoption of this Charter of Rights. its clause 24.

[Page 85]

There is only one aspect that l have some problems with, which is the non-diserimation aspect of the charter, how that will affect the lndian Act in relation to the status of the women who marry white men. This problem will not be resolved and it might be that in the delay of three years as proposed in this charter of rights, in relation to the non- discrimation clause, that we might be forced to legislate in the Indian Act in relation to the rights of the Indian women, despite the fact that in 1969 I promised the Indians that we were not to change it without their advice and consultation.

[Translation]

The Joint Chairman (Mr. Joyal): Fine.

Mr. Bockstael: Mr. Chairman, I have one very short last question dealing with non-discrimination.

As it is stated that “everyone has the right to equality before the law and to the equal protection of the law without dis crimination because of race, national or ethnic origin, colour, religion, age, or sex”, does the minister see any difficulty in adding the handicapped, either physical or mental, to that list?

Mr. Chrétien: There are, of course, some drafting problems which would arise. That is why I stated earlier that the Human Rights Commission will continue to exist as well as the Human Rights Act. Very often, rights which are being asserted at this time are very difficult to define in legal terms. There are many degrees of disability involved; some are physically handicapped, others are mentally handicapped. Fortunately, society is becoming increasingly more aware of the protection of those rights. However, it is very difficult to draft a precise legal wording which could be easily incorporated into the constitution and into the human rights charter.

We are examining that problem at the moment. It is not for want of sympathy or personal desire that l say that I do not know whether it is possible today. If it is not, the amending formula will allow us, in future, to add to it rights which are not clearly defineablc today.

Mr. Bockstael: Thank you. That completes my questions.

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

I would like to point out to the hon. members of this Committee that the agreed time of adjournment this evening has long since past.

I would like to get the opinion of the hon. members of the Committee on our agenda for tomorrow morning.

You know that there are already two witnesses waiting to appear before the Committee. They are the Chief Commissioner of the Human Rights Commission and the Commissioner of Official Languages. The Hon. Minister of Justice has

[Page 86]

been with us for three meetings now. The witnesses whom we had invited and who have expressed their desire to appear, are anxious to find out when they will be heard so that they can organize their timetables in consequence.

I would like to hear the members’ opinions before informing the witnesses of our decision.

Mr. Epp.

[Text]

Mr. Epp: Mr. Chairman, just to better organize the time of the Committee, I think all of us now have had experience in terms of how long it might take, and the amount of questionning.

I believe we all recognize that the Minister is the chief government witness and that being the case I would suggest that we have the Minister here at least tomorrow morning. I would be willing to assess it later on in the morning in terms of how we are proceeding and also obviously then leave the caveat that we could always call the Minister back after that; but I want to hold the caveat that we might want to call the Minister tomorrow afternoon as well, but let us start with the morning, tomorrow.

[Translation]

The Joint Chairman (Mr. Joyal): So, may I take it that, if there are no other comments. we are to resume proceedings tomorrow morning with the honourable Minister of Justice at 9.30 am. and that we may also wish to invite him back in the afternoon before we hear the Chief Commissioner of the Human Rights Commission.

Mr. Allmand.

[Text]

Mr. Allmand: Mr. Chairman, I would like to know if there is going to be any opportunity for those who are not members of this Committee to raise some points with the Minister before he leaves the Committee.

If I understand correctly I and several other Liberals who are not members of this Committee would like a chance to raise some issues which are very particular to our own constituencies and it has been very, very difficult to do so. I have been here all afternoon and all evening. I will come back and wait all tomorrow morning. but l hope that we will have a chance to make our views known as well.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Allmand, for having made that point.

Unfortunately, time does not allow me to ask the honourable members of the Committee to recognize you this evening. However, your name follows that of Mr. Bockstael on the list. As we have completed the first round and some honourable members of the Committee have even had the opportunity to speak twice, I will propose to the members of the Committee that you be recognized as the first speaker at tomorrow morning’s meeting with the Minister.

I appreciate that you have participated and attended the meetings this afternoon and this evening.

[Page 87]

So, rest assured that your wish will be heard tomorrow morning.

Mr. Gauthier, you were also due to speak after Mr. Allmand. I have taken note of your interest and your presence at the proceedings this evening.

So. in order that I may adjourn the meeting, may I have a motion to that effect.

Moved by Mr. Lapierre.

The meeting is adjourned until 9.30 a.m. tomorrow morning.


WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.


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

*On Order — Available Soon


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