Document Information

Date: 1981-01-12
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 36 (12 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 36

Monday, January 12, 1981

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

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

Constitution of Canada

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, 1980-81

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

Joint Chairmen:

Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Connolly
Goldenberg
Lamontagne
Lucier
Murray
Petten
Roblin
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Hawkes
Henderson
Irwin
Mackasey
McGrath
Nystrom
Robinson (Burnaby)
Tobin—15

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Monday, January 12, 1981:

Miss Campbell (South West Nova) replaced Mr. Dionne (Northumberland-Miramichi);
Mr. Tobin replaced Mr. Baker (Gander-Twillingate);
Mr. Beatty replaced Mr. Friesen;
Mr. Robinson (Burnaby) replaced Mr. Rose.

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

On Monday, January 12, 1981:

Senator Connolly replaced Senator Wood;
Senator Wood replaced Senator Williams;

[Page 3]

[Page 4]

MINUTES OF PROCEEDINGS

MONDAY, JANUARY 12, 1981
(65)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 8: 13 o’clock p.m., the Joint Chairman, Mr. Serge Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Friesen, Hawkes, Henderson, Irwin, Mackasey, McGrath, Nystrom, Robinson (Burnaby), Rose and Tobin.

Other Members present: Miss Jewett and Mr. Waddell.

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

In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin, John McDonough and Louis Massicotte, Researchers.

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, 1980, Issue No. 1).

It was agreed,—That the matter of the next sitting of the Committee and the proceedings be referred to the Subcommittee on Agenda and Procedure.

By unanimous consent, the Title, the Preamble, the Address, the Proposed Canada Act, the Schedule A of the Proposed Canada Act were allowed to stand.

The Chairman called Clause 1 of the Proposed Constitution Act.

The Minister made a statement and, with the witnesses, answered questions.

At 10:03 o’clock p.m., the Committee adjourned to the call of the Chair.

Joint Clerks of the Committee

[Page 5]

EVIDENCE

(Recorded by Electronic Apparatus)
January 12, 1981

[Translation]

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

[Text]

May I request the members of the media who have some tape recorders or some cameras to leave the room so that we might proceed with our guest tonight.

[Translation]

May I request the members of the media who have some tape recorders or some cameras to leave the room so that the honourable members of the committee might proceed with the examination of their resolution and hear our witness tonight.

[Text]

Before I introduce the honourable guests that we have the pleasure of having with us tonight, I would like to inform the honourable members of this Committee that tonight we are opening another step in our study of the proposed motion as sent to us by the House of Commons and Senate of Canada.

Honourable members of this Committee might be concerned over the way we will proceed in the forthcoming days with our study of the clause-by-clause of the proposed motion, and I wonder if I can get the agreement of the honourable members of this Committee to have a meeting of the Subcommittee on Agenda and Procedure as soon as possible, maybe tomorrow, so that there will be a general discussion, especially to help the two Joint Chairmen, because honourable members have expressed in the past days their intention and opinion on introducing many amendments, and I am quite sure that I speak on behalf of the honourable Senator Hays to say that the Chair will try, to the best of its knowledge, to help the honourable members in trying to improve the proposed motion, and in order to obey the Standing Order of the House of Commons, in so doing we would like to get the advice and opinions of the honourable members of this Committee through a meeting of the steering committee to get proper advice and guidance from all parties around the table so that our proceedings may be made easier as we have done properly, I think, when we complete that phase of our work which consisted of hearing groups and citizens of Canada.

So if I have the agreement of all parties around the table we could sit after this session tonight and agree on a meeting of the steering committee so that we could see how it will operate in the forthcoming days.

May I request the consent of the honourable members around the table in that respect?

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, you are correct in identifying that we will need some very clear guidelines as to how to proceed in this next phase. I would think that, at the call of the Chair, that we give you the mandate to call a steering committee meeting or a Subcommittee meeting for tomorrow morning.

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

Mr. Nystrom: I also want to express our consent that you, at your discretion, Mr. Chairman, may call a meeting to decide on the steering committee and what time it shall be held. I think we have to discuss some of the proceedings. We have had

[Page 6]

a couple of questions raised before about amendments, what kinds of amendments could possibly be entertained, whether or not indeed we can move amendments that do not appear in the resolution itself, and I think we should try and resolve these as soon as possible, and hopefully get an all-party agreement to that effect.

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

The honourable Bryce Mackasey on the same point of order.

Mr. Mackasey: Mr. Chairman, I share the view, both your view and that already expressed, that some time spent at this moment may save us valuable time later on down the road.

However, I would like some advice from the Chair before too long, maybe an hour or two, as to whether or not, when the next meeting of this particular group will be held, I do not mean the steering committee.

Is it, for instance, your suggestion that while the steering committee is meeting to deal with these particular issues, that we would not be meeting?

The Joint Chairman (Mr. Joyal): Well, I understand, I think that, and I will recognize the hon. Jake Epp in a moment, you will understand very easily, Mr. Mackasey, that the two Joint Chairmen are members of the Subcommittee on Agenda and it would be very difficult for this Committee to go on unless it goes through the procedure of electing interim Joint Chairmen, so I understand that if there is a Subcommittee meeting, it will not be at the same time as the full session of the Special Joint Committee.

If that answers your first question?

Mr. Mackasey: Well, you answered it very gently. It was a point that I did not want to raise, it is a delicate issue, and really what you are saying is that this Committee would not meet in the morning, but the steering committee in turn would meet?

The Joint Chairman (Mr. Joyal): That could be a proposal, or a suggestion you put through, that could be received.

Mr. Epp.

Mr. Epp: Well, Mr. Chairman, I think we have to go just a little further than Mr. Mackasey requested.

I agree with the gist of the proposal that that he made but I have had an opportunity to speak to you informally, Mr. Chairman, as well as the Minister of Justice. Those have been informal discussions as well. The Minister was kind enough to give us an advance copy of his proposal tonight and, having had some two hours to look at that proposal, I think it is important that we keep in mind that after the Minister has made his proposal tonight, that there be a period of reflection where we can study the implications of the proposals that the Minister will make tonight. Call it a hiatus, if you seek another word.

I spoke to the Minister and to you, as I mentioned earlier, and we were looking at possibly two days, that is Tuesday and Wednesday of this week whereby that could be accomplished. I believe the Minister was also in agreement with it and I think that is important that before we break today that be understood or some agreement be found.

The Joint Chairman (Mr. Joyal): Mr. Nystrom on the same issue.

[Page 7]

Mr. Nystrom: Yes, I would like to speak on the same issue and suggest that since we have had a chance to look, some of us, at the amendments suggested by the Minister, and there are many, many amendments, some with very complicated ramifications, that perhaps we could use a couple of days to study and reflect.

You might want to entertain a motion, and perhaps Mr. Epp will make it, that the Committee will reconvene perhaps Thursday morning at 9:30, that will give us Tuesday and Wednesday to do our reflection and study of the amendments that are before us, and if Mr. Epp wants to move that, or if not I would move that we reconvene at 9:30 on Thursday morning.

The Joint Chairman (Mr. Joyal): Mr. Mackasey, and I will come back to Mr. Epp.

Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I hate to get off on a motion at this moment, I am really seeking information. The minister does not determine the sittings of the Committee, we do. I do not say this with any disrespect.

I can visualize why we need to take two full days from our hearing to discuss the effect or impact of amendments which were fairly substantial and were not unpredictable.

For instance, I am in favour in principle of the suggestion, but if for instance the opposition deliver their multitude of amendments, legitimate ones, the New Democratic Party does the same, are we then going to take another two days out of our hearing to deliberate, reflect upon the impact of those amendments?

Mr. McGrath: Why not?

Mr. Mackasey: Well, why not? Because we do not want to be here until next June, we do not have that long a mandate. I think we have sufficient time if it is put to good purpose, and I am not against the 48-hours, I just do not frankly understand the need.

I could understand the steering committee coming back and suggesting a period of time but I do not think we should determine here, until the steering committee has had a chance to debate or discuss whether an appropriate period of time, and I would urge the opposition, rather than make the motion categorically for 48 hours, and I am sure you can get unanimous consent if your motion suggested the matter be referred to the steering committee and they could recommend back to us their period needed.

The Joint Chairman (Mr. Joyal): Mr. Robinson on the same point.

Mr. Robinson: Thank you, Mr. Chairman.

Just very briefly, I believe there is a motion before us and I was pleased to hear Mr. Mackasey say that he is not against the 48-hour suggestion, I think that it is important to keep in mind that all of us are members of caucuses and, to the best of

[Page 8]

my knowledge, many of these caucuses do not meet before Wednesday of this week. This is a substantial package, there are some important changes proposed to the resolution, I think it would be desirable that all of us have an opportunity to discuss these changes fully in our caucus before we come back and start to get into the clause-by-clause study which ·is required.

So as I say, I think the motion is a reasonable one, I am pleased to see that Mr. Mackasey is not opposed to the 48-hour extension.

Mr. Mackasey: Mr. Chairman, on a point of order, so we get off on the right step. I did not say 48 hours, I said I am quite prepared as an individual to accept the principle of the steering committee recommending a period, which may not be 48 hours; it could be 4.8 hours or it could be 96 hours. We need the recommendations, the valued opinion of the steering committee which is their function.

I do not want to get in a trap again, as we started at the beginning of our proceedings, of this Committee dictating to the steering committee. It is the steering committee that should be recommending to us the period of time. I am not against in principle a recess, if you like, from the hearings here, but I do not think I am prepared to vote categorically for 48 hours when in fact we may need 72 or 8 may be sufficient or none may be necessary.

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

The hon. Jake Epp.

Mr. Epp: Mr. Chairman, hopefully we can conclude this very quickly and Mr. Mackasey, having baited the trap, has now fallen into it, but I want to say to you, Mr. Chairman, that it is important that these amendments come before caucus. I also want to say to Mr. Mackasey that it has not been decided or determined in any way as to when amendments by the opposition will come forward. I give the reason why, that everyone understand it:

One, there will be many questions directed to the Minister that relate to his amendments but, additionally, there will be many questions to the Minister which flow from the testimony of witnesses; questions that witnesses raised and members of the government said, well, the Minister will be available to answer those questions. I am pleased that the Minister has made himself available and our discussions, I understand from the Minister and also if you look at the conclusion of his statement, he makes himself available and we accept that offer.

However, additionally, apart from the Minister of Justice, there is another question that will have to be raised and that is that there are other ministries apart from Justice that are very directly affected by sections in the proposed resolution.

Just one example, and I will not delay the issue too long, Mr. Chairman. The Department of Indian Affairs and Northern Development has had a battery of legal experts looking at the implications to that department of the proposed resolution should it go through in the form that we had noted to date.

[Page 9]

Now, we are going to have additional changes as well. What I am saying to honourable members of this Committee is that we do not want them to be left with the impression that immediately there will be amendments before we have had an opportunity with this Minister and, possibly, other Ministers to look at the implications of government proposals. Only then would it make for Opposition amendments.

I am saying to you, Mr. Joint Chairman, that in view of the conversation, I do not think we should delay any longer.

I therefore move that the matter of the next sitting of the Committee as well as the proceedings of the Committee from this point onward be referred to a Subcommittee.

Mr. Mackasey: I could agree to that.

The Joint Chairman (Mr. Joyal): We will next have Mr. Irwin, and with the agreement of honourable members I would like to conclude on that intervention.

Mr. Irwin.

Mr. Irwin: Mr. Joint Chairman, I think the suggestion is quite agreeable. The Opposition needs time; the steering committee needs time to look at it. It is not every day that three parties go through amendments to a constitution. They are important. I think the matter can be dealt with by the steering committee.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.

I see there is agreement around the table.

I am very pleased to welcome, on behalf of hon. members of this Committee and the hon. Senator Hays, the hon. the Minister of Justice, to what is a new step in our study and discussion, namely the clause-by-clause study of the proposed motion.

In order to do so, to request the Minister to testify, I would like with the agreement of hon. members of this Committee, to postpone the title, the preamble and the annex or Schedule A of the proposed resolution, and to go to Schedule B and Section 1.

On Section 1—Rights and Freedoms in Canada.

The Joint Chairman (Mr. Joyal): I now invite the hon. Minister of Justice to make a statement.

[Translation]

The Honourable Minister of Justice, Jean Chrétien.

The Honourable Jean Chrétien (Minister of Justice): Thank you, Mr. Chairman.

First of all, I would like to extend my best wishes for 1981 to all members of the Committee.

I do hope that this issue will be settled within the first months of the year and I would also seize this opportunity to thank the honourable members and senators for their very useful work, as they have spent the last few months considering this proposed resolution. The number of hours spent by all members have been extremely useful. They have heard quite a number of witnesses.

[Page 10]

I am therefore sincerely thanking all of you for the excellent work you have done to date.

Tonight, I am accompanied by my Deputy Minister, Mr. Roger Tassé, and my Assistant Deputy Minister, Mr. Barry Strayer, who are really witnesses Nos. 1 and 3. I, being a good Liberal, am the middle witness, Witness No. 2.

[Text]

Since I last appeared before this Committee on November 13, you have spent more than 175 hours studying the proposed resolution on the constitution. You have heard from about 300 witnesses speaking for about 100 groups from all parts of Canada. Four provincial Premiers have appeared to state the positions of their governments. In addition, you have received a large number of constructive written submissions.

I have studied with great care both the written briefs and the oral testimony of all the witnesses and I have taken into account the points which have been made by all members of this Committee during your deliberations.

In addition, I have had the benefit of the advice of the government members of this Committee of members of the Liberal caucus and of the Cabinet. The government has listened to the views of Canadians as expressed before this Committee.

I am tabling today a document which sets out, for convenience of members of the Committee, changes to the resolution which I would be prepared to support at this stage.

You have been told over and over again that Canadians want a strong Charter of Rights and Freedoms. You have heard this from the Canadian Civil Liberties Association and other human rights and civil liberties groups, from the Canadian Bar Association, from the Advisory Council on the Status of Women, from the Canadian Consultative Council on Multiculturalism, from representatives of church groups, from the Canadian Jewish Congress, from representatives of official language minorities and from representatives of the many ethnic groups making our country.

I was most impressed by the eloquent and moving testimony of the National Association of Japanese Canadians and of those who have experienced discrimination in Canada.

The draft Charter which you have been studying was the result of compromises achieved last summer in negotiations between the federal government and the provinces. You have been told by many witnesses that Canadians are not satisfied with the type of compromise which weakens the effectiveness of constitutional protection of human rights and freedoms. I accept the legitimacy of that criticism.

Today I want to announce that the government is prepared to make major changes to the draft resolution so as to strenghthen the protection of human rights and freedoms in the Charter.

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Section 1: many witnesses and most members of the Committee have expressed concerns about Section 1 of the Charter of Rights and Freedoms. These concerns basically have to do with the argument that the clause as drafted leaves open the possibility that a great number of limits could be placed upon rights and freedoms in the Charter by the actions of Parliament or a legislature.

The purpose of the original draft was to ensure that the people, the legislatures and the courts would not look upon rights as absolute, but would recognize them as subject reasonable limitations. While some believed no limitation clause was necessary, many witnesses agreed such a clause is desirable but argued that a more stringent formulation is necessary.

You have received a number of constructive suggestions. I am prepared on behalf of the government to accept an amendment similar to that suggested by Mr. Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission and by Professor Walter Tanopolsky, President of the Canadian Civil Liberties Association. The wording I am proposing is designed to make the limitation clause even more stringent than that recommended by Mr. Fairweather and Professor Tarnopolsky. I am proposing that Section I read as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,

This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.

Section 2—with respect to fundamental freedoms, the government is prepared to accept the recommendation of the Canadian Bar Association to separate in Section 2 freedom of peaceful assembly from freedom of association to ensure that they are looked upon as separate freedoms.

Legal Rights—there have been numerous representations made with respect to the legal rights in Section 8 and Section 9. The government is prepared to accept the recommendation of premier Hatfield of New Brunswick and of organizations such as the Canadian Civil Liberties Union, the Canadian Jewish Congress, the United Church, the Canadian Bar Associsation and others that these clauses be changed to read:

8) Everyone has the right to be secure against unreasonable search and seizure.

9) Everyone has the right not to be arbitrarily detained or imprisoned.

In other words, the fact that procedures are established by law will not be conclusive proof that search and seizure or detention is legal. Such procedures and the laws on which they are based will have to meet the tests of being reasonable and not being arbitrary.

[Page 12]

Some witnesses have made the point that while Section 10 guarantees the right on arrest or detention to retain and instruct counsel without delay, there is no explicit requirement for an individual to be informed of that right. I am prepared to accept an amendment so that the section will state that:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

A number of suggestions have been made with respect to Section 11 which deals with the rights of anyone charged with an offence.

Mr. Robinson, member for Burnaby, British Columbia, has made strong representation to guarantee the right in serious criminal matters to trial by jury. I welcome his representations as being very constructive and would be prepared to accept the following amendment:

Except in the case of an offence under military Jaw tried before a military tribunal, anyone charged with an offence has the right to the benefit of trial by jury where the maximum punishment for the offence of which the person has been charged is imprisonment for five years or a more severe punishment.

I want to stress that this, like many rights, represents a minimum standard. The Criminal Code will continue to provide for jury trials in many cases where the maximum punishment may be less than five years imprisonment. Jury trials in cases under military law before a military tribunal have never existed either under Canadian or American law.

The Canadian Bar Association and the British Columbia Civil Liberties Association have argued that the proposed resolution should clearly constitutionalize the right of an accused not to be required to testify against himself in criminal proceedings. This longstanding right in our system of justice against self-crimination should be explicit in the Charter. An amendment to Section 11 which would make this clear is included in the material I am tabling.

Representations have been made by the Canadian Jewish Congress and the North American Jewish Students Association and by members of the Committee to ensure that Section 11 (e) and (f) do not preclude the possibility of prosecuting those who are alleged to have committed crimes recognized under international law. The International Covenant on Civil and Political Rights recognizes the right of a country to try to punish a person for an offence that was, at the time of its commission, recognized as such under international law even if not so recognized at the time under domestic law. The Covenant also permits the trial and punishment of a person for an offence for which he has not been tried and punished in another country.

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To reflect these principles in the Charter the government is prepared to accept an amendment so as to provide that:

Anyone charged with an offence has the right not to be guilty on account of any act or omission that at the time of the act or omission did not constitute an offence under Canadian or international law; and has the right if finally convicted or acquitted of the offence in Canada, not to be tried for it again and, if so convicted, not to be punished for it more than once.

Having mentioned the International Covenant, I want to make one point to correct a misinterpretation that is now widespread. The fact that the Charter does not entrench every provision of the Covenant does not mean that Canada is violating it. The Covenant merely requires states to protect or not violate certain rights. It does not require these rights to be entrenched in the constitution.

There have been many representations made regarding Section 11 (d). It has been suggested that the right not to be denied reasonable bail should be subject only to just cause rather than procedures established by law. I am prepared to accept an amendment to read that:

Anyone charged with an offence has the right not to be denied reasonable bail without just cause.

This reflects the wording now found in the Canadian Bill of Rights.

Section 13 of the proposed Charter as drafted does not protect an accused or other witness who voluntarily gives evidence from having the evidence so given used to incriminate him in subsequent proceedings.

I would propose an amendment to ensure that this clearly recognized principle in the law of evidence be reflected in the constitutional protection against self-crimination. Appropriate wording is found in the material I am tabling.

[Translation]

Equality rights—There has been much discussion of the non-discrimination provisions of the Charter as found in Section 15. I want to deal with this in some detail. First, I want to state that I agree with the proposal made by the Advisory Council on the Status of Women and the National Association of Women and the Law that the section be entitled equality rights so as to stress the positive nature of this important part of the Charter of Rights.

I want to take this opportunity to congratulate all of the witnesses who testified on this section. I want specifically to compliment the Advisory Council on the Status of Women for a particularly fine brief as well as for an impressive presentation before you. The work of the Council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

[Page 14]

A provision on “equality rights” must demonstrate that there is a positive principle of equality in the general sense and, in addition, a right to laws which assure equal protection and equal benefits without discrimination. To ensure the foregoing and that equality relates to the substance as well as the administration of the law, I would be prepared to accept an amendment to Section 15(1) so that it would read:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex or age.

I know that many witnesses have recommended either that the grounds for non-discrimination be widened to include handicapped persons or others or that there be no specific enumeration and that more discretion be left in the hands of the courts. The government has studied these representations with great care.

The position of the government is that certain grounds of discrimination have long been recognized as prohibited. Race, national or ethnic origin, colour, religion and sex are all found in the Canadian Bill of Rights and are capable of more ready definition than others.

I want to make clear that the listing of specific grounds where discrimination is most prohibited does not mean that there are not other grounds where discrimination is prohibited. Indeed as society evolves, values change and new grounds of discrimination become apparent. These should be left to be protected by ordinary human rights legislation where they can be defined, the qualifications spelled out and the measures for protective action specified by legislatures.

For example, it was only four years ago that federal human rights legislation specifically provided protection for the handicapped in the area of employment.

Recently the Special Parliamentary Task Force on the Handicapped chaired by David Smith has recommended changes and improvements in the Human Rights Act with respect to the handicapped. The government will be acting on some of the recommendations of the Task Force. The government is also proposing to act on some of the recommendations made by the Canadian Human Rights Commission in this area and will propose amendments to the Human Rights Act.

But if legislatures do not act, there should be room for the courts to move in. Therefore, the amendment which I mentioned does not list certain grounds of discrimination to the exclusion of all others. Rather, it is open-ended and meets the recommendations made by many witnesses before your Committee. Because of the difficulty of identifying legitimate new grounds of discrimination in a rapidly evolving area of the law,

[Page 15]

I prefer to be open-ended rather adding some new categories with the risk of excluding others.

Section 15(2) of the draft Resolution permits affirmative action programs to improve the conditions of disadvantaged persons or groups. I am proposing an amendment to read:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

This section permits programs designed to achieve equality which might otherwise be precluded by the rules against discrimination in subsection 15(1).

The amendment will not preclude other programs to assist the disadvantaged-be it on grounds such as handicap, marital status or other bases of discrimination identified by the courts. It is simply an assurance that an affirmative action program based on a recognized ground of non-discrimination will not be struck down only because it authorizes reverse discrimination for the purpose of achieving equality.

Language rights. Language rights have been a topic for much discussion and debate before this Committee and indeed in many other forums across the country. Let me state clearly the position of the government.

First, our objective is to enshrine in the Constitution the provisions of the Official Languages Act. This means that there will be a constitutional guarantee that English and French are the official languages of Canada and have equal status in all institutions of the Parliament of Canada and the Government of Canada. In addition, it means that there will be equality of status of English and French in the courts established by the Parliament of Canada. Finally, it means that Canadians will have a constitutional guarantee of their rights to receive services from and communicate with their federal government in the official language of their choice.

Second, the policy of the government is to give a constitutional guarantee to all Canadian citizens of the French or English speaking minority in each province to have their children educated in that minority language wherever there are sufficient numbers to warrant the provision of such minority language education. By so doing, the government is giving effect to the principle agreed to by the Premiers in St. Andrews in 1977 and in Montreal in 1978. The Premiers agreed, and, I quote, that:

Each child of the French-speaking or English-speaking minority is entitled to an education in his or her language in the primary or the secondary schools in each province wherever numbers warrant.

It is this principle which the government is enshrining. Our position is that in the area of language rights we will not impose anything on which the premiers have not agreed.

[Page 16]

Third, the policy of the government is to encourage and expand the protection of both official languages in every province, with the support of provincial governments. It has never been the policy of the government to impose institutional bilingualism on any province.

Much as I would like to see Ontario become officially bilingual, with French-language rights within the context of its legislature, translation of legislation, and services to citizens before the provincial courts, all of this with constitutional guarantees, I have to agree with the view Claude Ryan expressed in Toronto last Thursday. He said, and I quote:

I would never impose it on the province of Ontario. It must come from the province of Ontario. This must be crystal clear.

Fourth, it is the policy of the government to protect the acquired rights of Canadians to have their children educated in English or French if that is the language in which they received their own instruction in Canada and if that is the minority language of the province in which they live.

These policies have not changed. It is in this context that I would like to explain the amendments which the government is prepared to accept to the language provisions of the Charter of Rights.

First, Premier Hatfield had, in his appearance before this committee, requested on behalf of the government of New Brunswick that the Charter confirm that English and French are the official languages of New Brunswick, that the use of both languages in the courts and legislatures and statutes of New Brunswick be guaranteed, and that the right of the people of New Brunswick to communicate with and receive services from their government in either official language be guaranteed.

I am very pleased to be able to table amendments to Sections 16—20 giving effect to the proposals of the Premier of New Brunswick. I want to take this opportunity to congratulate Premier Hatfield on his statesmanlike approach to Canada. When other provinces are prepared to emulate Premier Hatfield, the amending formula as presently drafted will allow them upon resolution of their legislature and of the Parliament of Canada to give constitutional protection respecting the use of the English and French languages in their provinces.

Mr. Hatfield has assured us that the amendments being tabled before the committee today will be approved by the New Brunswick legislature as soon as it resumes its sittings.

The second amendment with respect to language rights deals with the rights of Canadians to communicate with and obtain services from the federal government in either English or French. The amendment meets the concerns expressed by the Commissioner of Official Languages that Section 20 should ensure that the right to communicate with and receive services from any federal office in either official language is

[Page 17]

based, not on the number of persons in an area using the languages, but on their being a significant demand for communications with and services from any office in the language. In addition, as suggested by the Canadian Bar Association, the amendment would leave to the courts rather than to Parliament the ultimate determination of where other federal offices should provide bilingual services.

The text of the proposed amendment to Section 20 is included in the material I am tabling.

I have said that the provision for minority language education rights in Section 23 is based on the agreement of the provincial Premiers at St. Andrews and at Montreal. You have heard many representations on this section. All representatives of official language minorities agree with the principle of guaranteeing minority language rights in the constitution although many suggestions for improvements have been made.

Senator Rizzuto in particular has pressed for a guarantee for acquired rights. The amendment I am prepared to accept provides for such a guarantee. Basically, the amendment provides the following:

(a) There will be two alternative qualifications for minority language education rights. Under the first alternative, if a citizen has received his primary instruction in Canada in one of the official languages, he may send his child to school in that language if it is the minority language of the province in which he lives. Under the second alternative, a citizen whose mother tongue is English or French may educate his child in the language of his mother tongue if it is the minority language in the province where he lives.

(b) All children of a Canadian citizen will be able to receive their primary and secondary education in the minority language in which any one of the children has commenced his education in Canada.

The present Section 23(2) deals with the provision out of public funds of minority language educational facilities in an area of the province where there are sufficient numbers to warrant it. This section has been criticized as being too restrictive.

Therefore, I am proposing an amendment which will not refer to the provision of “educational facilities” but rather to “the provision out of public funds of minority language instruction”. This avoids the implication that the obligation is limited to physical facilities, but rather it extends to that obligation to provide instruction by whatever method is appropriate and can therefore take into account technological advances as talked about by the Commissioner of Official Languages.

[Text]

I now turn to the native rights question.

[Page 18]

There have been many groups representing native people who have appeared before you. I am pleased that they have had a full opportunity to be heard. As a government, we have been impressed by the testimony which has been presented to you. Of course, it is not possible to agree to everything that has been proposed.

Most of the matters raised before the Committee remain subject to negotiation between governments and the native peoples. The Prime Minister has made a commitment that these negotiations will take place immediately after patriation.

Yet it is possible to state in greater detail the kinds of native rights which are not to be adversely affected by the Charter and it is possible to set these rights apart from other undeclared rights and freedoms. Therefore, I am proposing somewhat along the lines suggested by Premier Blakeney that Section 24 be reworded to read as follows:

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of:

(a) any aboriginal, treaty or other rights or freedoms that may pertain to the aboriginal peoples of Canada including any right or freedom that may have been recognized by the Royal Proclamation of October 7, 1763;

or

(b) any other rights or freedoms that may exist in Canada.

In addition, as requested by the Inuit Council on National Issues the Order in Council of June 23, 1870 admitting Rupert’s Land and the North West Territory to the Union will be added to Schedule I of the constitution act.

Multiculturalism:

You have received submissions from witnesses representing ethnic groups, be they Canadians of German, Italian, Polish or Ukrainian origin making up part of the Canadian mosaic. You have also heard from the Canadian Consultative Council on Multiculturalism. They have all supported the enshrining of a strong Charter of Rights. They have also asked that some provision be made to protect the multiculturalism nature of Canada.

I would like to see an amendment which would provide a new section which would state:

This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Evidence:

The Canadian Bar Association, the Canadian Civil Liberties Association, the Chief Commissioner of the Canadian Human Rights Commission and others have expressed their opposition to Section 26 of the draft resolution which states that the Charter will not affect laws respecting the admissibility of evidence. In light of the criticisms, the government is prepared to drop the section.

[Page 19]

Remedies:

The Canadian Civil Liberties Association, the Canadian Jewish Congress, many members of this Committee and other witnesses expressed the strong view that the Charter requires a remedies section. This would ensure that the Courts could order specific remedies for breach of Charter rights.

I would be prepared to see a new section stating that:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers just and appropriate in the circumstances.

This would ensure that an appropriate remedy as determined by the courts would be afforded to anyone whose rights have been infringed whether through enactment of a law or by an action of a government official.

Equalization:

Before turning to the amending formula, I would like to speak for a moment about Section 31 dealing with the principle of equalization.

Both the Premiers Hatfield and Blakeney and many members of this Committee have made representations to the effect that Section 31 (2) should state clearly that equalization payments must be made to provincial governments. I am prepared to accept wording somewhat along the following lines:

Parliament and the Government of Canada are further committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

And now the amending formula. Many representations have been made to you with respect to Parts IV and V of the draft resolution respecting the amending formula. The government has been giving careful study to the representations that have been made to you and is prepared to make significant modifications to the original proposal in order to meet many of the concerns.

First, I am prepared to propose three changes to Section 38. The first would provide that an alternative amending formula could be put forward by seven provinces which have 80 per cent of the population rather than eight provinces. This will give increased flexibility to the provinces. The second would require the approval of any such alternative by the legislatures rather than merely the governments of the provinces concerned. The third change would require any alternative’ federal formula to be approved by Parliament rather than merely put forward by the federal government. I believe that this last change meets some of the objections raised in this Committee by Mr. Nystrom and others.

Second, as I have already told the Committee, I will accept Mr. George Henderson’s amendment, MP for Egmont, Prince

[Page 20]

Edward Island, to Section 41 which would provide that an amendment to the constitution require the approval of any two Atlantic provinces rather than two provinces with 50 per cent of the population of the Atlantic Region. This amendment will respond to the representations of many of you and Premiers MacLean, Buchanan, Hatfield and Blakeney before this Committee.

Third, I want to outline amendments which will ensure that a referendum is to be used only as a deadlock breaking mechanism. When he appeared before you, Premier Blakeney stated and I quote:

There must be opportunity for adequate public debate, in Parliament and in provincial legislatures, on the previse terms of a proposed constitutional change before the public is asked to vote.

He objected as some of you to the possibility, even if only theoretical, of an instant referendum.

The amendment I am proposing will make it clear that a referendum may only be called if 12 months after the passage of the required resolution by the Senate and the House of Commons, the required number of provincial legislatures has not approved the proposed constitutional amendment.

Since it is highly unlikely in practical terms that any resolution would be introduced in Parliament before negotiations had been carried out with the provinces and since a further time delay of one year is imposed, there can be no such thing as an instant referendum.

Premier Blakeney also stated that:

the referendum vote must take place within a reasonable and specified time of the amendment’s endorsement by the legislative body commencing the process.

I agree with him and I am proposing that any referendum must be held within two years after the expiration of the time period required for approval of the constitutional amendment by provincial legislatures. In other words, no referendum could be held more than three years after the resolution proposing an amendment is first approved by the Senate and the House of Commons.

Premier Blakeney also stated that:

Provision must be made for impartial referendum rules developed and supervised by an appropriate referendum committee. In the federal proposal, all the rules respecting referenda are to be solely within federal control, with none of the safeguards which have been established over the years to ensure, for example, fair federal elections. This clearly requires some revision. What we propose is a federal-provincial body to establish rules for a referendum.

I do think that this suggestion is constructive and is one which I welcome. I am therefore proposing an amendment to create a referendum rules commission, as suggested by Premier Blakeney, composed of the Chief Electoral Officer of Canada as chairman and two other members, one nominated

[Page 21]

by the Government of Canada and one nominated by the provinces. The role of the commission would be to recommend to Parliament rules for the holding of a referendum.

Further concerns have been raised that the present drafting could allow for amendments to the constitution affecting one or more, but not all, provinces to be made through the general amending formula rather than with the consent of the provinces to which the provision relates. In order to clarify this point and meet the representations made to you last Friday by your final witness, the Denominational Education Committee of Newfoundland, and made to me by Mr. Tobin, Mr. Baker and Senator Petten, I would be prepared to accept an amendment to Section 47 which would state:

The procedures prescribed by Section 41 or 42 do not apply in respect of an amendment referred to in Section 43.

[Translation]

I turn now, Mr. Joint Chairmen, to one general point before I conclude. The present Section 25 states that “any law that is inconsistent with the provisions of the Charter is, to the extent of such inconsistency, inoperative and of no effect”. We believe that it would be better for such a provision to come at the end of the Act and to be more all-encompassing so that it applies to all of the Constitution and not only to the Charter. This would avoid the possible interpretation that the Charter could over-ride other parts of the Constitution. I would propose a section stating that:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This would also prevent any construction that Charter provisions such as freedom of religion or non-discrimination on the basis of religion might be construed as impairing denominational school rights under Section 93 of the BNA Act or Term 17 of the Terms of Union with Newfoundland.

There are some more technical amendments with no policy implications which I have not discussed. These are included in the material which I have made available to you. I will be glad to discuss each of them with you as you study each clause.

In addition, I want to reiterate that the government will accept an amendment regarding resources in conformity with the exchange of letters between the Prime Minister and Mr. Broadbent, Leader of the New Democratic Party, in October.

I will remain at the disposal of the Committee for the period of clause-by-clause study. My officials will be available to all members of the Committee at all times.

Thank you very much, Mr. Joint Chairmen.

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

[Page 22]

[Text]

I would like now to invite the honourable James McGrath, followed by the honourable Arthur Tremblay, with Mr. Nystrom following these two gentlemen.

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

We are about to commence a new phase of our proceedings- and, if I may add, a very important part of our proceedings.

The Minister referred to the fact that over a period of about six weeks we met here for about 17 5 hours, and we have heard from 93 witnesses, representing various groups and individuals across the country.

Because of the constraints of time, a number of witnesses we considered important could not be heard. I might also say, Mr. Chairman, that we, unlike the government, listened very carefully to the evidence which came before this Committee.

I should like, Mr. Chairman, on behalf of the Progressive Conservative members of this Committee, to offer some general reaction to the proposals put forward by the Minister tonight. Perhaps, first of all, I should like to thank the Minister for his courtesy in providing us with a two hour advance copy of the text of his remarks and the amendments.

Now sir, having said that, the sheer volume of the detail in these proposals requires, in our view, thorough review and consideration before any detailed comment can be made in any responsible way.

We note that, in some particulars the government has taken into account some of the legitimate concerns with its earlier proposals which testimony before the Committee has revealed.

Certainly we welcome the affirmation of Canada’s multicultural character.

We welcome some improved wording regarding various protections for individuals and collective rights. We welcome them as desirable proposals—desirable in themselves for Canadian constitutional law; but put in place properly; I repeat, they must be put in place properly—put in place in a federal way here in Canada. That has to be underlined.

However, Mr. Joint Chairman, on behalf of my party—and I am sure on behalf of a great majority of Canadians—I want to emphasize tonight our profound regret and disappointment that the Minister of Justice has not announced the government’s abandonment of its unilateral-and thus illegitimate—divisive approach to constitutional change. As was the case with its original package last October, there are aspects of this amended one which we, too, would like to see in the constitution.

But there has been no moving away whatsoever by the government; the government has not moved in any way whatsoever from the features which made the original October resolution fundamentally unacceptable to our party, and I would submit, to the majority of the people of Canada.

[Page 23]

The government still wants to go to Britain to have our constitution changed. That, sir, is wrong. That is colonialism.

Canadians do not accept that Britain should change our constitution. They want that done in Canada by Canadians, in our own legislatures.

In our view, all that Britain should be asked to do is to formally effect the patriation of the Canadian constitution with the amending formula we Canadians have agreed on. They cannot properly give us a Charter of Rights, Mr. Chairman, however laudable its terms may be, on a unilateral approach by only one of the two orders of our federal partnership.

Only Canadians, sir, through the amending formula of our federation can legitimately do that. We believe that Canadians have the maturity, the wisdom and the determination to do just that, and to make all other appropriate constitutional changes that our federation requires.

We hoped that the government might have turned aside tonight from the course of unilateral action which every sounding of public opinion undeniably makes clear, that Canadians do not agree with it and will not accept this kind of unilateral action.

We know our duties, sir, to Canadians, and we will continue to resist that improper course of action with all the strength we can muster, both in this Committee and in the House. Unless the unilateral character of this constitutional package is removed, it cannot be acceptable to us as the right way to proceed to do anything constitutional, however desirable we, as the peoples elected representatives, in only one of the two orders of government, might think some of them to be.

Now, sir, what about some of the specific proposals made tonight?

The amending formula will be change hardly at all, and will, in my view, regrettably continue to divide the country. Western and Atlantic provinces remain in clearly inferior positions, and indeed for the smaller Western provinces, they will not even have the protection that P.E.I. is to receive—the removal of the 50 per cent Atlantic population approval requirement for the makeup of that region’s provincial consent. We welcome that proposed amendment.

The referendum proposal in Section 42 remains as an end run, sir, around the provinces at the whim of this federal government, and that, to us, is clearly unacceptable. The government’s regrettable failure to address these central concerns of its critics, including I might add, just last Friday its own former Secretary to the Cabinet for Federal-Provincial Relations, Mr. Gordon Robertson, who damned the referendum approach as being fundamentally dangerous to federalism; and that, in our view, will further contribute to creating Canadian disunity.

We will be making very shortly, Mr. Joint Chairman, some major proposals of our own aimed at promoting unity in

[Page 24]

Canada and a way to patriate with a workable amending formula, putting that Canadian amending capacity in place speedily and at building a concensus here among our people and their governments and an effective protection of individual and connected collective rights—put in the constitution through that amending formula.

We are certain, Mr. Joint Chairman, that such a threefold approach is the only sound, constructive way for Canadians to begin creatively the work of our federation, of building on national unity and not tearing it down.

We hope, sir, that even at this late stage, in the weeks to come, both in this Committee, in the House as well as in the Senate the government will listen to the reasonable suggestions we will be making, both about process and substance, so that the current divisions in Canada on unilateral action, divisions which go far beyond political parties and go to the very heart and soul of the federal partnership, will pass away and a new chapter can be opened for all Canadians in our search for national unity.

That, Mr. Joint Chairman, is on behalf of our party and I hope the Committee wil hear in our other official language, my colleague, Senator Tremblay.

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

With the agreement of Mr. Nystrom, the Chair will recognize the honourable Senator Arthur Tremblay in order to allow the Official Opposition to make their statement in both official languages of Canada.

That, of course, is not a precedent, but merely to respect the opening and study of our debate at this point. Do I have agreement?

Mr. Nystrom: Yes, you do, Mr. Joint Chairman.

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

[Translation]

The Honourable Senator Tremblay.

Senator Tremblay: Thank you very much, Mr. Chairman.

I would like to thank Mr. Nystrom for allowing me to intervene at this stage, since normally each of the three parties intervenes on the first round.

I would like to begin by thanking the minister for coming before us to present the amendments that the government plans to introduce to the proposed resolution before us.

I am not questioning at all the goodwill and good intentions of the minister and of the government in their efforts to reflect some of the representations made before our committee.

As far as intentions go, I think that both sides must recognize that they are valid and pure. In this context, I would like to add …

Mr. Chrétien: You might even say that they are christian! chretiennes.

Senator Tremblay: … or that they represent all denominations!

[Page 25]

I would like to make a comment on this very point, if I may. The minister has broadened the context that we each defined regarding our religious origins, but he has not gone beyond the christian chrétien context! This is also somewhat the case with the amendments he is presenting specifically to broaden the resolution.

Having made this point, I will not repeat what my colleague, Mr. McGrath, has stated as our party’s general position regarding the proposals we have heard this evening.

However, I would like to emphasize one aspect which I feel is absolutely fundamental, and which Mr. McGrath referred to as well. I am talking about the fact that the major problem raised by the proposed resolution is one which calls our federal system into question.

Of course the Charter of Rights is an important matter; and of course our committee, just as the minister and his officials have done, will have to look at how the proposed Charter can be improved in order to be better geared to the needs of the Canadian people. However, this is not the most fundamental point in the context of a federal system, in my opinion, however important the Charter of Rights may be.

From the point of view of a federal system, the proposed resolution involves unilateral action at the patriation stage, and unilateral action on the part of the Canadian Parliament on a on-going basis in the future.

From the point of view of our federal system, the proposed resolution therefore raised a fundamental problem.

After listening to what the minister has just told us, I see that this problem remains unsolved.

Section 42 provides that the Parliament of Canada will always be able to take unilateral action. By virtue of this section, the federal Parliament can unilaterally act contrary to the wishes of the provinces, and by definition the provinces will not agree because the idea is that this section is to be used in the case of a deadlock, or disagreement between the federal and provincial governments. Since there is no substantial amendment to section 42, I believe that the problem of the balance of power between the two levels of government in a federation such as ours remains unsolved.

The fact that there are plans to set up some sort of body to oversee the details of the referendum does not change the essence of the problem. The problem is that section 42 is virtually unchanged. The aspects that are changed relate to procedures. It is not the procedures that are harmful, but rather the substance of the section.

In addition, no change has been made to section 47 which provides that the amending formula agreed to or established could also be amended by section 42. In other words, the

[Page 26]

amending formula could be unilaterally amended by the Parliament of Canada.

Since the nonfederative approach to the draft resolution remains unchanged, the objections which we raised from the beginning remain just as valid.

Suffice it to say, therefore, Mr. Chairman and Mr. Minister, that under those circumstances and as long as this will remain in the draft resolution, it is totally unacceptable to us, despite any improvements which might be made on various points.

This way of proceeding does indeed allow the federal to change the substance of our federal system.

This is for the time being the only general comment I have to make.

Thank you, Mr. Chairman, and I also wish to thank once again Mr. Nystrom for having allowed me to interject at this stage.

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

[Text]

With the agreement of honourable members on the government’s side, I would invite Mr. Lorne Nystrom and Mr. Robinson, with the same kind of availability of speaking in both official languages of Canada, if they so want to provide themselves with the opportunity.

[Translation]

Mr. Lorne Nystrom.

[Text]

Mr. Nystrom: I do not know, Mr. Chairman, whether I should be speaking in English ou si je vais parler en français. [Translation] It is a difficult decision to make.

[Text]

But I want, first of all, to thank the Minister for coming before the Committee tonight and for making available to us about 5 o’clock or so, the copy of the amendments that he was going to propose to the Committee.

It has given us a bit more time to study the ramifications of some of them.

I wanted to say, first of all, that I want to refrain from any substantive comment whatsoever on any of the propositions made by the Minister and, instead, to take advantage of my time to pose questions to him in order to solicit more information as to why he is going in certain directions or why he has chosen not to move amendments in other important areas of the bill before us.

Our caucus has decided that the constitutional amendments moved tonight are very important.

Our caucus has decided that the constitutional amendments moved tonight are very important. It is going to take us a couple of days to study them, to reflect, and it is very important that we make a collective decision in a very democratic way as to how to respond to the amendments that are before us.

[Page 27]

[Translation]

As I said in English, the NDP caucus needs time to study Mr. Chrétien’s proposals.

The proposals made this evening are of the greatest importance for the future of Canada and for all our provinces, that is why the NDP caucus needs more time to study them collectively. In the forthcoming days and weeks, we will ourselves table amendments to the proposed resolution. [Text] we will have to then, at certain times of course, take stands on some of the amendments that have been presented by the Minister and perhaps consider some amendments to his amendments and to some of the other clauses in the resolution before us.

I want to spend a few minutes asking him questions about the referendum procedure, the amending formula and a couple of things in the Charter of Rights if I do have time, Mr. Chairman.

The Minister this evening referred on page 19 of his comments to Premier Blakeney of the Province of Saskatchewan, and he quoted Mr. Blakeney when he referred to the creation of the referendum commission, a referendum rules commission to supervise or to develop the rules that may apply to a constitutional referendum in our country. And he referred to Mr. Blakeney and he quoted him as saying that:

Provision must be made for impartial referendum rules developed and supervised by an appropriate referendum committee.

And I underline the words here “developed and supervised by an appropriate committee”, and he goes on to say at the end of his citation of Mr. Blakeney’s remarks, quoting Mr. Blakeney as saying:

What we propose is a federal-provincial body to establish rules for a referendum.

I want to ask the Minister about the amendment that he is suggesting, because it seems to me there is a bit of an inconsistency between what Mr. Blakeney is requesting and what the Minister says he is acceding to when he accedes to that request.

I look at page 19 of the document that was circulated by the Minister of Justice and it says in Section 40(4) that, and I quote:

(4) Subject to subsection (I) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with Subsection (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under subsection 38(3).

My reading of this, first of all, is that the Referendum Rules Committee would be an advisory committee, that Parliament may or may not accept the recommendations made by the

[Page 28]

Referendum Rules Commission and, indeed, Parliament could enact any laws that it wants to in terms of a referendum.

I want to ask the Minister whether or not that is an accurate interpretation of the amendment he is suggesting to this Committee.

Mr. Chrétien: No, it is exactly what we want to do. In other words, establish a committee or commission in the form of three persons who will establish rules, and that we will take the majority report, and within 60 days the Parliament of Canada may act or not act and pass a law.

If they refrain from acting, the report of the Committee will become the law for the referendum, but in fact, if Parliament decided that the report of the Committee is unsatisfactory, Parliament could present a law.

But having established an independent commission like that, in my own view, it would be difficult for the government, unless the government and Parliament had some strong reasons not to accept the recommendation of the Committee. But I do think in any country Parliament is sovereign and in those circumstances, for us to delegate the authority to make laws to a committee, it is a pretty far-reaching concept at this stage.

We have found this device to be useful. So in fact, what the Committee will do, it will prepare some rules and will have only 60 days for Parliament to accept it or reject it.

Mr. Nystrom: Then it is still up to Parliament as to whether or not we accept …

Mr. Chrétien: Yes, Parliament is speaking on behalf of all Canadians and they may overrule.

But suppose that this commission had made a report and that the government is agreed, whoever is forming the government, to come back in front of the House. To over-rule a commission, they need some very good reasons.

If we were to do that arbitrarily in the debate in the referendum, the procedures will become subject of great explanation. But we felt that it was impossible in the last analysis, if the commission were to report something absolutely unacceptable to Parliament, to give the authority of Parliament to change it, but it is not likely that it will happen like that.

Mr. Nystrom: Therefore, Mr. Minister, what you are suggesting to us is something radically different than that proposed by Mr. Blakeney, because Mr. Blakeney said, as you quoted him this evening:

What we propose is a federal-provincial body to establish rules for a referendum.

The body itself would establish the rules.

Mr. Chrétien: I said that there will be a body, but Parliament could vote and change it, if need be.

Mr. Nystrom: Therefore, I am puzzle when you say in your speech, and I quote yourself, Mr. Minister:

[Page 29]

I am therefore proposing an amendment to create a referendum rules commission, as suggested by Premier Blakeney.

Mr. Chrétien: The commission is there. Parliament can pass law.

Mr. Nystrom: But Mr. Blakeney did not suggest we create a commission as an advisory commission.

Mr. Chrétien: I accept his distinction.

Mr. Nystrom: I am glad you accept that distinction because you have just now said that you no longer agree with what you have said to us on page 19.

I now want to, after that interesting revelation, turn to something else that I think is very important in your comments tonight, and that is the amending formula on page 17.

You have said you are prepared to make some very significant modifications to the original proposal in order to meet some of the many concerns that have been brought before the Committee.

Now, one of the concerns that have been brought before the Committee is a concern by British Columbians in particular but also by some people in other parts of the country that future population growths might be such in 40 or 50 or 60 or how many years, that another province might comprise 25 per cent or more of the population of Canada.

I know as Minister, Mr. Minister, you are not changing the amending formula at all. On page 20 of your extensive document this evening you have before us the same wording, and the wording is that:

41 (1) An amendment to the constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least a majority of the provinces includes

And this is the important part:

(i) Every province that at any time before the issue of the proclamation had, according to any previous general census, a population of at least 25 per cent of the population of Canada.

Now, what this does, Mr. Minister, it of course gives Quebec and Ontario a permanent veto in the amending formula, even if in 50 years Ontario hypothetically has 18 per cent of the population or 22 per cent of the population. But in 50 years another province may have 25 or 26 per cent of the population, like British Columbia and Alberta, and it seems to me it would be more consistent that you would have an amendment that would say any future population growth or any province that attains 25 per cent in the future would have the same rights.

I would like to ask you why you did not include that.

[Page 30]

Mr. Chrétien: My reading of that clause, Mr. Nystrom, is exactly that. If ever a province were to have 25 per cent of the population, the day that they attain that level they acquire exactly the same rights as Quebec and Ontario.

Any province that will attain 25 per cent temporarily at one census will be exactly in the same position as Quebec and Ontario is, and the way you read the section is the way I interpret that.

Suppose that tomorrow the western provinces were to decide to have only one province in Western Canada. I do not say that that is likely to happen, automatically that province will have a right of veto because they will form about 25 per cent of the population.

Mr. Nystrom: Thank you very much, Mr. Chrétien.

Mr. Chrétien: So in fact, Mr. Nystrom, if one province attained the same status as Quebec and Ontario today, they will acquire that right and if their population dwindled down for some economic reason later on in relation to the other provinces, they will keep that right.

Mr. Nystrom: So you are satisfied, Mr. Minister, that that right would be there.

Mr. Chrétien: Yes, I am satisfied it would be there.

Mr. Nystrom: I would like to refer now to a couple of things in the Charter of Rights itself.

You have said on page 7, for example, of your comments to the Committee tonight, and I quote:

The work of the Council

and this is of course the Advisory Council on the Status of Women,

The work of the council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

The government has been, as you say, greatly influenced by the groups that have appeared and you have moved some considerable distance in terms of women’s rights, and I think the suggested amendment is very interesting, one we will take a very serious lok at. You have moved some distance in some other areas.

We have also had handicaped groups before the Committee and you said that the groups that have appeared have greatly influenced the government, and I would like to ask you why you do not include in the Charter of Rights any reference to the handicapped, to the physically disabled, to the mentally disabled in our country.

We have had some groups before us who came and made some pretty good arguments, and you said you have been greatly influenced. I would like to know where the influence is.

[Page 31]

Mr. Chrétien: The position is that the list enumerated there is not exclusive and any other rights on discrimination the court could intervene.

The problem is we say that these rights have to mature in the Canadian society. For example, we will still have a Human Rights Commission and we will still pass legislation on different groups to make sure that their rights are protected, but they have to mature and this list that I have enumerated, excluding the others, we have opened up that clause so that other types of discrimination can be taken care of by the courts, if Parliament and legislative assemblies do not intervene.

But to start to enumerate more in that category where their rights are starting to be protected by legislation and so on, and if there is discrimination against handicapped and so on, we say that the court can intervene even if we do not want to enumerate them at this time because many of those rights are difficult to define. It is in the process of maturing, that is why it is not there.

But before, the clause was limiting the element of discrimination. Now it is not limiting them; other types of discrimination can be covered by the courts too.

Mr. Nystrom: I remind you, Mr. Minister, that this year is the International Year of the Handicapped, the year 1981, or the International Year of the Disabled, rather, and I would like to know more of what you mean by rights have to mature. Why are the handicapped singled out? Why are the disabled singled out?

It seems to me that we should be enshrining some rights for them in our constitution. If you are not sure what kind of rights they are, perhaps the wording does not have to be as tight as in some other cases, but surely to goodness there can be some reference that we cannot discriminate against the handicapped.

Mr. Chrétien: I referred in my speech that we have enacted some legislation in relation to the handicapped in the last four years. There will be some more. We still have the Human Rights Commission working on that and we have to prepare some amendments.

But we have opened up the clause so that the clause is not limiting the type of discrimination to the enumeration of discrimination as mentioned.

Just to give you an example. In the Charter of Rights as presented by Mr. Diefenbaker, the word “age” was not there at that time, but over the years this has gained maturity and it is finding its place there, and the first enumeration we had was limiting the type of discrimination. We have opened up to other types of discrimination that can be covered by the courts if the Parliament or assemblies do not take care of the problem.

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So I do think that it is a very important amendment but we do not want to have the problem of definition at this time because it was creating too many difficulties.

Mr. Nystrom: In your personal opinion, Mr. Minister, has the right to enshrine the rights if the handicapped matured by this time?

Mr. Chrétien: If there is positive discrimination against handicapped and nobody is acting, in my reading of that section, the courts could intervene.

Mr. Nystrom: Why not enshrine it then if it has matured?

Mr. Chrétien: They are, because the clause is open.

Mr. Nystrom: I do not have much time, Mr. Chairman, otherwise I would pursue that, but I want to take you to page 14, also on the enshrinement of rights.

We had a number of native groups that came before this Committee, 15 or 16 or 17, if I am not mistaken, and I want to again ask you for a few more details as to why you are suggesting the amendment you do suggest under Section 25.

What you are saying here is that nothing in the Charter shall deny or take away from any rights, treaty or aboriginal rights, or freedoms that may pertain to the aboriginal people of this country; in other words, nothing in the Charter will adversely affect any rights that they may have.

But I wanted to ask you whether or not there still exists the chance that a Parliament could take away some rights or a legislature could take away some rights that may now be enjoyed by they, the native people of this country.

Mr. Chrétien: This is a problem that is a very difficult one. I have been Minister of Indian Affairs for six years, one month three days and two hours, so I know a bit about the problem.

I have to tell you even themselves, when you discuss that, they face the problem of definition of their rights and we have said to the native organizations that because the obligation of the Crown towards the natives are divided between the federal government and the provincial government, that it is very difficult at this time to enshrine it without knowing exactly what that means even in their mind.

It might be that if you have an enumeration, some rights might be taken away because of the drafting, and I just say that this charter will not take away any of those rights. If you want to look at the enumeration, the description of the rights as I understand them …

Mr. Nystrom: Mr. Minister, if I can just interrupt.

You have said this Charter will not take away any of their rights and that is what you were saying in the wording, but is it not still possible for a legislature or a Parliament to take away some of their rights?

Mr. Chrétien: In term of some aspects of Indian rights, they are in the constitution. We have some federal responsibility in the constitution, for the natives, the position of the Indians, and this can be taken only by federal legislation. It will have to go through the process of amending the constitution, but it

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might be that some rights by Parliament or other legislatures can be changed and the problem is exactly the problem of definition.

Mr. Nystrom: So they can still be changed or taken away.

Mr. Chrétien: It can be improved. We say that we have come a long way. For example, when I started on the problem of native rights, we never used at that time aboriginal rights because there was an expert who said that it was not the right expression, but those rights are flowing from the Royal Proclamation of 1763, and I have included that in this Charter as the base of their rights because it is an obligation to the Crown in Canada to protect the rights of the natives, as it was stated long before Canada was formed into a federation.

We have said to the natives that the first item on the next round of discussion with the provinces will be the native rights because we cannot—and I will give you an example, take the question of rights in B.C., the land question, for example.

This had been a problem where land was taken away from the Indians and I was arguing with both the N.D.P. and the Sacred Government in B.C. to restore those rights and those lands to the natives and the provincial government would not act, and there was nothing I could do because the Crown had been diverted to the provincial governments by the federal government some time ago, and the Crown being provincial Crown land, there is nothing that the federal Parliament can do. This is why I say that this problem has to be resolved both by the national Parliament and the legislature.

The same problem exists in Saskatchewan where some Indians claim that some lands have been taken away by previous administration. Even if I want to give them back those lands that are supposed to be native lands in Saskatchewan, I cannot do this because that, land is controlled by Mr. Blakeney.

We cannot put it in here, otherwise it would be a massive intervention in the provincial control over land in every province.

That problem exists in every province. You remember the controversy that we had in James Bay. The land had been given in 1898 and 1912 to the Quebec government because Quebec was not always that Quebec. This was Rupert’s Land and northern lands of Canada and it was the federal government who gave it to the provincial government. But when they started the James Bay project, they wanted to move on Indian lands even if the Indian rights had not been settled.

You may recall at some point in my political career, I gave money to the Indians to stop the projects of the Bourassa Liberal Government in Quebec and eventually that led to an

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agreement. So these are the types of problems that we have to cope with in reality and this is why what I have done in this is to express in the Bill of Rights the nature of their rights based on the Royal Proclamation. But the affirmation of it in reality has to be developed with the provincial government because we do not have the authority to go back and control the Crown lands in any province.

In 1930, unilaterally, we gave the control of the land in Western Canada to the provincial government.

Mr. Nystrom: Just one last question if I have a chance, Mr. Chairman.

You refer on page 14 and I quote:

Most of the matters raised before the Committee remain subject to negotiation between governments and the native peoples. The Prime Minister has made a commitment that these negotiations will take place immediately after patriation.

Now, regardless of how strong the commitment is to negotiate by yourself or the Prime Minister, and I respect and I take both of you at your word that as long as you are in the position you hold and as long as the Prime Minister is there that you will start these negotiations, but I remind you, Mr. Minister, that times in the past, by many different governments, commitments have been broken to the native peoples and Prime Ministers do change from time to time, hopefully, and that Ministers do change from time to time as well, and there is no commitment. There is nothing binding your successor or Mr. Trudeau’s successor to negotiate with the Indian people.

I would like to ask you why you did not present us with an amendment to the resolution tonight that was requested by the native peoples that we enshrine in our constitution a constitutional obligation to negotiate for the native people of this country? It is something they requested so that it is binding constitutionally on your successors and on the Parliament and legislatures of this country.

Why did you not follow that course? Why did you not put in the constitution what you are now saying is strictly a political promise to the native people of this country, and will you do that?

Mr. Chrétien: I do not think that is a political promise by the national government. It is a promise that was made in constitutional conference with all the Premiers who were there when they put that item on the agenda in February, 1979. This is not a question of only our government when, after 1979, there was, I would say happily for us, a short period of a different government, they kept that item on the agenda and I do think that as soon as patriation is done, the Prime Minister has committed his government, and of course we have been elected-in our party, and we are there for some time, at least three years and a month …

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An hon. Member: You never know.

Mr. Chrétien: Well, you never know, but we stand a good chance of being there for some time, even after the next election; I am not that worried.

We will have a constitutional conference in 1981, as soon as this work is over. We will start to negotiate again with the provinces and in the first conference the item of the natives and the constitution will be on the agenda.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

I would like now to give the floor to Mr. Mackasey.

[Text]

M. Mackasey: Merci, monsieur le president.

I want to say to the Minister how pleased I am with your document on the proposed amendments. I may even go so far as to say I am pleasantly surprised at the extent to which you are proposing amendments, and I presume you are open to further amendment; am I right on that point?

Mr. Chrétien: I say that, of course, I said in that speech that there would be an amendment on resources coming from the NOP, there might be a couple of amendments, there is still three more weeks. Of course, time is running short, but it is possible there are one or two amendments I might propose myself, and I will look at the discussions in this Committee, and I am a reasonably reasonable person, if I can use those two words, so I will be listening to the Committee.

Mr. Mackasey: You are also very modest, Mr. Minister, and that makes two of us.

I want to say very sincerely that you have listened, unlike what Mr. McGrath says, you have listened and I think listened very carefully to the procedures, to the debates and to the witnesses that have appeared before us.

For those of us, Mr. Minister, who have been on this Committee for some considerable time, what started out to be a normal function related to our role as parliamentarians I think evolved into a particular type of dedication on the part of all members. On Friday, members, in an unguarded moment, expressed their deep feelings for this country and particularly expressed admiration for the feeling with which the witnesses appeared here.

For instance, significant perhaps that the last group of witnesses who appeared here reminded us of our federal system and the need to preserve the unique culture of some of the regions. I am talking, for instance, of the representatives of the various religious denominations of Newfoundland who came here and expressed concern that some very precious way of life may disappear, and I see that reflected in your proposed amendments, which should allay their fears that somehow a combination of Sections could result in an amending of the constitution in a detrimental fashion, so the amendments that you have brought forward should go a long way to allay the fears of most of the groups that have appeared here.

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I think, Mr. Minister, it would be unrealistic to think that you or anyone else could go all the way to meet all the concerns of all the witnesses, and I think you have wisely come forward with basic amendments which provide an opportunity for the future to reach utopia.

You talk about the aboriginal people and you expressed tonight what some of us felt here, that again unintentionally, by enshrining in haphazard language, if you like, in the constitution the rights of the native peoples we may remove their bargaining powers in the political process, subject to the vagaries of the court where the same sensitivity may not be there, and I know from my talks with many of the aboriginal groups that they, too, fear this, at the same time they want some recognition, I think as Mr. Nystrom put it, overdue recognition in the constitution that we have a unique responsibility to the native people of this country.

Mr. Minister, I am generalizing with a purpose because the time is late, but I think that what does concern me in Mr. McGrath’s statement is that somehow we can patriate the constitution unilaterally and then in this country sit down and make the appropriate changes to the constitution.

That would be possible only if the constitution we were patriating had an amending formula in it, and I have yet to see from any of the witnesses and from any of the contributions of members opposite, any consensus as to what the amending formula would be if we proceeded simply to patriate the constitution and then find an amending formula.

In any event, Mr. McGrath has promised that he will bring one in and it may, I hope for the good of this Committee and the good of this country be one that is acceptable because I think we have to approach this with an open mind.

Mr. Minister, there is a 24-month period after the constitution is patriated which I hope you and the provincial Premiers will take advantage of in coming to some consensus as to what the amending formula of this country should be. I think we would all prefer to see the amending formula reached by consensus rather than imposed on the provinces. I do not think any of us are easy with this process and I plead with you and with the provincial Premiers to take advantage of that 24 months and sit down once more and recognize that there is a time factor and the time factor being that unless you do it in 24 months you wilt be left with this problem, and I want to get some words from you on the possibility on whether you can see anything on that.

Finally, I want to of course thank you for strengthening the Charter. This is the document that restores my faith in liberalism and the Liberal Party. The Conservatives have never pretended to be Liberal, small “l” or in any other way, and they have still to come forward with any substantive suggestions. In fact, they have whetted my appetite as to what they may be. They attacked the form but never the substance.

Now, I do think, Mr. Minister, that you have gone a long way. I would say to you that when we get to clause-by-clause I, too, have some reservations about Section 15, and perhaps

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rather than include handicapped people, just draw it even more terse and reflect nobody, but that would be truly open ended, but we can get into those details later.

What, Mr. Minister, and a hard question, do you see is the possibility of the provinces and the federal government in the next 24 months, after the constitution is patriated, what do you think are the possibilities, from the experience you have acquired this summer in your tremendous trip across this country, the work of a very dedicated Canadian and I want to compliment you on it, what do you think the chances are of us arriving at some consensus on an amending formula in that period.

Mr. Chrétien: I worked on that all summer. I do think one of the big handicaps we had to cope with during the summer, my experience was that people saw this process as a unique occasion to bargain for something else.

I do think that after patriation has been completed that it will be much easier to come to the real negotiations with the provinces and not try to bargain patriation against something else.

I personally think that we have made provision in the way, Mr. Mackasey, that the Prime Minister in the text will be forced to call a constitutional meeting to discuss that once a year for the next two years after patriation. What are the chances? It is difficult for me to judge because at one time in the summer I thought I was close to an agreement, perhaps I was a bit naive, I do not know, but we worked very hard, all the different Ministers of different administrations and we thought that we might have something, but I realized that the idea that perhaps if you agree to patriation you are losing a kind of a tool, it is not there anymore, and what is very interesting for us is now everyone is unanimous about patriation but when you patriate you need an amending formula eventually, now for two years we will have the unanimity, but I do not think anybody—not anybody, some argue we should have unanimity forever but my experience is unanimity forever is a big straightjacket for Canadians.

So they will go with the Prime Minister of Canada. I think there are other amendments possible. There is the so called Toronto consensus, that apparently was a consensus at one time. When we talk about the Alberta formula that became eventually the Vancouver consensus; it was not quite a consensus, the Ministers agreed to discuss what any Premier said they were not in agreement with, but Mr. Trudeau said in the conference in September that if that had been the only problem, even if he did not like it he might even have accepted the so called Vancouver consensus, even if it was not a happy formula because it was leading to opting out of change in the Canadian constitution, and when you have a Canadian constitution you should have rights that are the same for all Canadians, exactly what we are trying to do in this Charter.

The chances are quite good because after patriation we will look at the problems as a problem and not in relation to bargaining in relation to patriation. People will have to come to the reality that we need a good amending formula and if

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there is no agreement we will have to go back to the one formula that was accepted by all the governments at one time in history, it was the Victoria formula.

Quebec pulled back from it not because of the formula but for other reasons. And of course to reply to Mr. Nystrom, this question of when a province who has 25 per cent, who attain 25 per cent in the future, they will all have the same right of veto.

Mr. Mackasey: Mr. Minister, finally, there is no mention in your papers about Section 44. Now, could you tell me why? Section 44 deals with the Senate, for instance?

Mr. Chrétien: I think that this is not a section that has been debated very much in front of this Committee. I have received some representation by the Senate, and of course the Senators, most of them, recognize that their preoccupation is most basically that we have to keep the bicameral system in Canada, and that it is quite an important institution and that the Senate could not be abolished very rapidly without consultation with them and so on.

So I do think that they recognize, and Senator Lamontagne I guess was a chairman of a committee who made a report not long ago about possible reform of the Senate. As you know, during the summer, reform of the Upper House was a very important item on the agenda, to make sure that the Senate or the Upper House, it might be: a different type of Upper House, could reflect better the regional interests of Canada today.

Some provinces want it, some provinces do not want it, but there was a great desire of change there so I do think that it is an area that might be calling for some change and I am working on that at this time.

Mr. Mackasey: What I am about to say should not be interpreted as a desire to go to the Senate, I have had those opportunities and refused them, but I might say that in my correspondence and listening to witnesses there is very little movement in this country to revolutionize, change or amend the Senate and I have become a great admirer of the work the Senators have done on this Committee to the point that I am wondering if we are not looking at the wrong institution for improvement.

Finally, Mr. Minister …

Mr. Chrétien: Are you getting ready to be a Senator?

Mr. Mackasey: There are times, Mr. Minister, when I think you will make it before I will.

Thank you.

[Translation]

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

I still have the name of Mr. Robinson on my list. I remind him that according to a decision unanimously agreed to by the hon. members of this Committee we agreed to adjourn our meetings at 10. However, with your consensus, I will allow Mr. Robinson to ask a short question.

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Mr. Robinson: Thank you, Mr. Chairman.

I appreciate your generosity, but I will not speak now.

[Text]

I simply wanted to request of you, Mr. Chairman, some information as to whether the new practice of hearing from both the francophone and anglophone would be also reflected to a certain extent in the fact that the size of the NDP caucus from Quebec has grown to be equal to that of the Conservative caucus from Quebec.

[Translation]

The Joint Chairman (Mr. Joyal): The hon. James McGrath on a Point of Order.

[Text]

Mr. McGrath: I would respectfully remind Mr. Robinson that the procedure we followed tonight was done with the express consent of his party and he has forgotten that very important fact, and we are grateful to the Committee for the courtesy they have shown to us in that regard.

The Joint Chairman (Mr. Joyal): As I said previously to you, Mr. McGrath, on another occasion, I concur fully with you.

[Translation]

The meeting is adjourned to the call of the Chair. [Text] The meeting is adjourned to the call of the Chair.

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: