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 37 (14 January 1981)


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Date: 1981-01-14
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 37 (14 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 37

Wednesday, January 14, 1981

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


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

Constitution of Canada


RESPECTING:

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


APPEARING:

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

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980


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

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

Representing the Senate:

Senators:

Austin
Connolly
Lamontagne
Lapointe
Lucier
Murray
Petten
Roblin
Tremblay—10

Representing the House of Commons:

Messrs.

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

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Wednesday, January 14, 1981:
Mr. Fraser replaced Mr. Hawkes.

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

On Wednesday, January 14, 1981:
Senator Austin replaced Senator Wood;
Senator Lapointe replaced Senator Goldenberg.


[Page 3]

MINUTES OF PROCEEDINGS

WEDNESDAY, JANUARY 14, 1981
(66)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 3:40 o’clock p.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

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

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

Other Members present: Messrs. Friesen, Hawkes and Rose. 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 and John McDonough, 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).

The Chairman presented the Fifth Report of the Sub-committee on Agenda and Procedure which is as follows:

1. That the schedule of meetings for this week be as follows:

Wednesday, January 14, 1981
3:30—6:00 p.m.
Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada
Thursday, January 15, 1981
9:30—12:00 noon
3:30—6:00 p.m.
8:00—10:00 p.m.
Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada
Friday, January 16, 1981
9:30—11:00 a.m.
Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada

2. That whenever possible notice of proposed amendments be given.

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3. That questions of procedure, respecting the admissibility of proposed amendments, be dealt with, in the Sub-committee on Agenda and Procedure whenever possible.

4. That during the detailed study of the Resolution, ten (10) minutes be allocated to the members of the Committee, on the understanding that the Chair allow supplementary questions by other members of the Committee on the same line of questionning and that this rule be subject to review by the Sub-committee on Agenda and Procedure.

After debate, by unanimous consent, the Fifth Report of Sub-committee on Agenda and Procedure was concurred in.

The Committee resumed consideration of Clause 1 of the Proposed Constitution Act.

The Minister, with the witnesses, answered questions.

At 6:30 o’clock p.m., the Committee adjourned to Thursday, January 15, 1981, 9:30 o’clock a.m.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 5]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, January 14, 1981.

[Text]

The Joint Chairman (Senator Hays): Order, please. Honourable members, Mr. Minister, the Subcommittee on Agenda and Procedure of the Special Joint Committee on the Constitution of Canada has the honour to present its Fifth Report.

Your Subcommittee met on Tuesday, January 13, and agreed to make the following recommendations:

First, that we schedule meetings for this week as follows: January 14, 1981, 3:30 p.m. to 6:30 p.m., appearing, the honourable Jean Chrétien, Minister of Justice and Attorney General of Canada; Thursday, January 15, 1981, 9:30 a.m. to 12:00 noon, 3:30 p.m. to 6 o’clock and 8 o’clock to 10 o’clock, the Minister also appearing; Friday, January 16, 1981, 9:30 a.m. to 11 o’clock, the Minister of Justice will be appearing;

Second, that whenever possible, notice of proposed amendments be given;

Number 3, that questions of procedure respecting the admissibility of proposed amendments to dealt with in the Subcommittee on Agenda and Procedure whenever possible; and,

Four, that during the detailed study of the resolution 10 minutes be allowed to the members of the Committee on the understanding that the Chair allows supplementary questions by other members of the Committee on the same line of questioning and that this rule be subject to review by the Subcommittee on Agenda and Procedure.

All of which is respectfully submitted: Mr. Serge Joyal, Member of Parliament, Joint Chairman as well as myself.

Is this agreed?

Mr. Epp.

Mr. Epp: Just before you call for agreement, Mr. Chairman, it is possibly more a matter of clarification than either approval or disapproval. There was, I believe, circulated to our offices earlier today a schedule which did not include Thursday morning of this week. Is that correct, because when I take a look at the number I here, that is also not included and I now take it that we will not be meeting tomorrow morning, firstly.

The Joint Chairman (Senator Hays): Oh, yes, we are meeting tomorrow morning, 9:30 a.m.

Mr. Epp: We are back to the question, then. I believe that was circulated in our offices that we were not meeting tomorrow morning because of Cabinet.

The Joint Chairman (Senator Hays): Yes.

Mr. Epp: The Minister has requested that he could not appear before the Committee because of the Thursday morning Cabinet meeting. Could we have clarification of that, first of all?

[Page 6]

Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): Mr. Chairman, I am willing to be here whenever the Committee wants to have me. I indicated to you and to the Chairmen that there are three sessions that, if I could be not invited I would appreciate it. It is on Tuesday morning, and Wednesday afternoon and Thursday for Cabinet business. But I am available and my priority is this Committee. If you want me here tomorrow morning, I will be here with pleasure tomorrow morning. Sometimes I find it more interesting here than in the Cabinet.

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

Mr. Epp: I would agree with Mr. Minister. Certain experiences, probably both of us do from time to time.

That being the case, Mr. Chairman, I think that the Fifth Report reflects what we discussed and possibly for the benefit of members of the Committee we were asked yesterday in the Subcommittee, especially by Messrs. Irwin and Mackasey as to how long we thought we might be calling Ministers before the Committee.

It is our general view, Mr. Chairman, and I am addressing myself to point number 2 of the report, that it would be our hope that the Minister of Justice will be available throughout for clause-by-clause, notwithstanding he cannot be here for every session but will make himself available whenever he can.

Once we are through with questioning him on his proposed changes, additionally as you know, we asked for a certain number of Ministers. I believe we would try and fit that scheduling into this week and early part of next and it would be my intention to give our amendments in the form of a package to the Committee early next week either Monday night or Tuesday, most likely Tuesday.

I believe that answers those questions that were raised in the subcommittee as well.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp. We appreciate your co-operation in this regard. Are members agreed?

Some hon. Members: Agreed.

The Joint Chairman (Senator Hays): In so far as the minister being here this morning, that was probably an error of mine. He indicated that he would be available.

Order of Reference. We are resuming the consideration of the document entitled Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada, referred to the Committee from the Senate on November 3, 1980 and from the House of Commons on October 23, 1980.

On Section 1—Rights and Freedoms in Canada.

The Joint Chairman (Senator Hays): Appearing is the Minister of Justice and Attorney General of Canada.

And now, it will be Senator Tremblay that would like to speak first and question the Minister.

Senator Tremblay.

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[Translation]

Senator Tremblay: Thank you Mr. Chairman. According to my understanding, we will ask some questions to the Minister in order to get as clear an understanding as possible of the amendments that have been tabled by the Minister.

Consequently, I will start by asking questions about the first amendment which has been submitted in the document tabled by the Minister but which the Minister did not emphasize in his statement.

Indeed, this first amendment deals with the very title of the British bill.

Whereas the original title was “An Act to Amend the Constitution of Canada”, the new title suggested by the Minister would be “An Act to Give Effect to A Request by the Senate and the House of Commons of Canada”.

I would like to understand the meaning and the reasons why this new title has been proposed for this British law; I am sure reasons exist, since no amendment would have been suggested without sufficient reason. First, as far as substance is concerned, the first title, which I quoted a moment ago, was “An Act to Amend the Constitution of Canada”; are we to understand that the new title means that the resolution to be submitted to the Parliament of Westminster does not amend the constitution of Canada as the original title implied? As for the origin of this action directed to London, the first version did not mention the origin, whereas the new title does: the action is being taken by the Senate and the House of Commons of Canada, as if other sources were possible and we wanted to exclude them.

Hence my question has two aspects: first, the substance, whether or not we are amending Canada’s constitution; second, the origin of the action, an Act to give effect to a request by the Senate and the House of Commons, as opposed to a request coming not only from those two authorities but also from other authorities which are elements of the Canadian federation, the provinces. Do we want to emphasize those aspects?

Mr. Chrétien: Mr. Chairman, as far as the substance is concerned, I feel that the title ~s amended is a much better reflection of the steps we are taking than was the original title.

The first title we had was simple and clear; it did not, however, precisely reflect the action we are taking at the present time. We wanted to clearly reflect our actions, and give a proper definition in the title of the substance of what we

[Page 8]

are doing. There is more here than an amendment to the constitution of Canada. There is the patriation of the Canadian constitution which is not, strictly speaking, an amendment. There is also the fact that the British Parliament renounces its right to pass future legislation to the Canadian constitution. As well, if I understand correctly, the bill we are now considering amends the Statute of Westminster which is not strictly speaking, Canadian constitutional law as we understand it.

We changed the title to provide a better description in the title, in Section I, of what we are doing; at the same time, the title also defines the origin of this request or resolution as a request from the Canadian Parliament in its present composition, a House of Commons and a Senate.

So the title we are now proposing gives a much clearer definition of what we have undertaken than did the original title; that is why I have suggested this amendment which I consider better than what we had previously suggested.

Senator Tremblay: If I may, Mr. Chairman, I would like to ask the minister a supplementary question. Does this mean that you feel that as far as Great Britain or the United Kingdom is concerned, it is clearer to say that Canada is defined by the Senate and the House of Commons rather than defined as a federation, including all of the federating authorities of which it is made up?

Mr. Chrétien: What we are doing, is clear and precise. The step has been taken by the government. by Canada’s Parliament. Other Canadian institutions could also take steps. This has been done in the past; provincial governments have addressed requests to the British Parliament, and under our present system, as long as we have our present constitution, and as Jong as it is not patriated, nothing prevents other legislatures from addressing resolutions to the British Parliament since those legislatures are autonomous.

As for the response of the British Parliament and the British government, each of us can make assumptions as to what they will do, but the action they have undertaken at the present time is quite clear. It is an action taken by the House of Commons and the Senate, proposed by the Canadian government. It is nothing more nor less.

Senator Tremblay: Since you just mentioned it, then, you do recognize the legitimacy of other constituents of the Canadian federation, the provinces, taking action directed at Westminster. Mr. Minister, and you are the minister of Justice, I did use the world “legitimacy”.

Mr. Chrétien: Well, I do not know what you mean by legitimacy or illegitimacy. We are dealing here with a resolution of parliament. It is entirely legitimate. It is legitimate for the Canadian Parliament, the House of Commons and the Senate, to pass a resolution. We will transmit that resolution to the British government asking it to send it on to the British

[Page 9]

legislature, the Parliament of Westminster, which has the authority to act.

It is also perfectly legitimate for the parliament of any province to pass resolutions on any subject. They can send their resolutions to London, to the United Nations, wherever; they can even send them to the Montreal Municipal Council. It is up to the body which receives the resolution to decide how it will be dealt with.

As for the legal aspects, I have always maintained that the British Parliament could quite legally refuse to accept our request since the Canadian constitution is a British act. However, since 1867, I know that whenever the British Parliament has received joint requests from the House of Commons and the Senate, they have agreed to the Parliament of Canada’s requests.

Senator Tremblay: If I may, Mr. Minister, I would like to continue on the same issue. You recognize the fact that the request, as worded, as identified in the title, in the new title of the bill, means that this is only a request from the Senate and the House of Commons of Canada, and not from Canada as a whole; this would mean that Canada’s provinces would have every right to submit the case of the rest of the Canadian federation, of the provinces, to that same British Parliament.

Mr. Chrétien: Well, the normal practice, which is well known, is for the Canadian Parliament to make its requests, to respectfully submit an address to Her Majesty the Queen asking that she lay a request before the British Parliament. The British Parliament decides to accept it or not. In the past, they have always accepted our requests without question.

We know that in the past the provincial governments have presented similar requests, and that those requests were not accepted by the British Parliament. I do not think that it is up to me to decide whether it is legal or illegal for any parliament or legislature to pass a resolution. They can pass resolutions on any subject. The question is how the British Parliament would react if it received a request of this nature.

On this, tradition has been clear since 1867. In 1869, the Nova Scotia legislature, chaired by Premier Joseph Howe, made a request to leave confederation; they passed legitimate resolution in their legislature, and the British Parliament refused to accept it. More recently, when you were in fact a Deputy Minister, Mr. Lesage’s government addressed a request to the British Parliament to have Quebec’s legislative assembly abolished.

Senator Tremblay: Council.

Mr. Chrétien: Quebec’s Legislative Council. I was not old enough at the time to remember all the details.

Senator Tremblay: It is too bad that the voice of history is not often heard in our proceedings.

[Page 10]

Mr. Chrétien: I wish to say that the request submitted by Mr. Lesage’s government was not accepted by the British Parliament. Nonetheless, Mr. Lesage and the Legislative Assembly of the day acted perfectly legitimately in passing that resolution, as far as I am concerned. That action did not shock me. And if others wish to take similar action, I will not be shocked; it will be up to the British Parliament to decide whether or not they wish to accept such resolutions.

Senator Tremblay: Mr. Minister, you have just said the key words: it will be up to the British Parliament to decide.

Mr. Chrétien: It will be up to their government to decide whether they want to submit resolutions to Parliament.

Senator Tremblay: You have just said that it will be up to the British Parliament to decide between different requests coming from Canada, between requests coming from Parliament and requests coming from the provincial legislatures. On this, Mr. Minister, I want you to realize that I am prepared to offer a positive contribution.

Mr. Chrétien: Such contributions are always welcome.

Senator Tremblay: I think that your amendment is a mistake. I would not have made such an amendment, precisely because of what we are now discussing. You now maintain that the British Parliament will be the one to decide between various requests coming from Canada, either from Parliament or from the provinces. My position is that we do not need to ask the Parliament of Westminster to make those decisions. They should be made here.

Obviously, unilateral action does not allow you to resolve the problem. If the action were no longer unilateral, the problem would be resolved; but it is here that that action must stop being unilateral. It is not up to the British Parliament to decide between various requests coming from Parliament or the provincial legislatures. We are not yet at the debate stage, but I would like to point out in passing that I wonder whether this first amendment does not constitute an. institutional error as far as the Canadian Federation is concerned? We are offering to help you correct that mistake.

I have completed my question, Mr. Chairman.

[Text]

Mr. McGrath: Mr. Joint Chairman, may I ask a supplementary question of the Minister?

The Joint Chairman (Senator Hays): Yes.

Mr. McGrath: If I heard the translation correctly, the Minister has indicated each province can make an address to Westminster. He also said that each provincial legislature can make an address to Westminster, the United Nations or to anywhere they want.

Mr. Chrétien: Mr. McGrath, what I said was that any legislature may pass any resolution it cares to and send it anywhere they want. If they send it to London, whether or not action is taken, I can tell you that since 1867, whenever they have received a resolution from the assemblies of any province they have never acted upon it; but they have received some.

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On the other hand, their tradition, in relation to Canada, is very clear: whenever they have received a resolution from the Parliament of Canada, that is a joint resolution of the House of Commons and the Senate, they have always acted upon it.

But I cannot deny that if one legislative assembly wants to send a resolution to the Parliament or Government of England they can. But I cannot guarantee—in fact I know they would not act upon it.

Mr. McGrath: If I may have a final supplementary, Mr. Joint Chairman.

They have never accepted a resolution of the legislatures, because the Trudeau government has never attempted unilaterally to upset the balance of power or to interfere with provincial jurisdiction.

I would submit to you, carrying your logic a bit further, that, given Section 7(2) of the Statute of Westminster, which spells out the balance of power in Canada, if you like, between the federal and provincial Parliaments, if the federal government attempts to tamper with that provincial jurisdiction by way of a joint resolution without the consent of the provinces then according to what you are saying, I would say the Statute of Westminster is conferring the same right on the provinces to make a resolution to Westminster saying that what the federal government is doing is in violation of Section 7(2) of the Statute of Westminster.

That is all I have to say, Mr. Joint Chairman.

Mr. Chrétien: That was a statement. And I can reply to it. I said that we are in the process of passing in the Parliament of Canada a resolution for patriation, a method of amending the constitution and entrenching a bill of rights.

I would submit that the balance of power remains the same. In the Charter of Rights we are not changing the balance of power. The powers remain exactly the same.

What is not the same, however, is that both the Parliament of Canada and all the legislative assemblies of Canada would have to comply with the rights that have been given to Canadian citizens. I think this is clear.

But we are not taking powers away from the provinces to give them to the federal government or vice versa.

And when you make the point that we have never acted unilaterally, well in 1949 when we accepted Newfoundland into Confederation it was not unanimous in Canada. In his wisdom, Mr. St. Laurent decided, after preliminary discussion, when he saw that there was going to be some opposition to the entry of Newfoundland into Confederation, because it was a fundamental change to Canada, because we were accepting some other province, some other provinces felt that it might be a burden to their citizens or did not like the idea, for whatever reason—Mr. St. Laurent decided not to consult the provinces and add one more province to the heap.

Unilaterally, in 1930, in Canada we decided to give to the western provinces control over their resources. The government

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of the day decided not to consult the provinces, because they were afraid, I would presume, that there was some danger of opposition. So, the government decided unilaterally to give the property, control of the resources to the western provinces.

Now, the government of the day at that time, if you look at the situation, was well advised; because if you look at the position in the United States today, there the resources of the states in the east are all under state government control; in the western United States, most of the resources in those states are still under federal control.

Here in Canada we moved in 1930 without consulting the provinces, because it was felt or there was the danger at that time that some premiers might have said “No, those resources belong to us, too, and we do not want complete control to go to the new province that has been created.”

So it is not the first time that we are going to London without consultation and agreement with the provinces.

I could cite other cases if you wish.

Senator Tremblay: Mr. Joint Chairman, I understand that I have a right to ask another question.

The Joint Chairman (Senator Hays): Go ahead, Senator Tremblay.

Senator Tremblay: It is exactly the same subject which I have already raised, but not on the subject that the Minister has just developed. He has just avoided the main question.

Mr. Minister, from the questions we have asked, we are discussing the relations between Great Britain and Canada. It is your definition of Canada in that context which concerns me.

You are giving a definition of Canada merely in terms of the Senate and the House of Commons, just in terms of the Parliament which means that Canada is no longer defined in those international relations between the United Kingdom and Canada; it is just defined in terms of the Parliament.

At least in the first version of your own proposal, the question was not certain; there was some ambiguity by the use of the term “Canada”.

Now, you are removing the ambiguity in the wrong sense, by defining “Canada” as being only the Parliament of Canada. That is why I want to understand why you have done that.

Why have you decided that Canada is no longer to be on the international scene more than the Parliament, that it is no longer to be a federation? I want to understand why you have done that.

At least, in your first wording, the ambiguity was there; but it was an ambiguity and in some cases, as we all know, it is much better to have an ambiguity than less ambiguity. You reduced the ambiguity and in so doing you have raised a new problem. I want you to tell me why you have done this.

Mr. Chrétien: When you talk about the international scene, I have no problem when you talk about that and the Canadian constitution.

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The international aspect of our collective life is the responsibility of the national government. Here we are not trying to define what is Canada. We are describing in Section I the process of what we are doing. I do not see any problem there. What is the problem?

We are not there attempting to define what is Canada. We are merely saying we are having a resolution which is going to London. The description is there. It is a resolution of the House of Commons and the Senate.

Of course, I recognize that it is not a resolution of the House of Commons and the Senate and of the 10 legislative assemblies plus the two territorial assemblies. It is not that.

It is a resolution of the Parliament of Canada. This is a description of Section I. Parliament speaks on behalf of Canada internationally. I have no problem.

Senator Tremblay: May I have a supplementary question, Mr. Joint Chairman?

So you wanted to stress the point that it was unilateral?

Mr. Chrétien: Of course. We are not going with the agreement of the provinces. I think that is perfectly clear. I have no problem with admitting that. I also tried to get agreement. I tried all summer to accomplish that. My predecessors have worked for 53 years in an attempt to reach an agreement. So is it going to be 54?

Some hon. Members: That is not correct.

Mr. Chrétien: The Parliament of Canada is going to London.

Senator Tremblay: Not only do you want to rely upon the fact of these 53 years, but I must stress the point that there is some harmony in that, that not only do you want to act unilaterally, but you wanted through this amendment to say it in so many words, that people will understand very clearly that it is unilateral. I must admire that type of honesty. That is all I have to say.

Mr. Chrétien: When we had agreement of all the provinces in 1940 on the amendment to the constitution for the Unemployment Insurance Act, it was exactly the same way that we proceeded.

There was at that time a resolution of the House of Commons on the Senate—exactly the same thing. There was no reference to the provinces. It was a case of “whereas the Senate and the Commons of Canada in Parliament assembled have submitted an address to His Majesty praying that His Majesty may graciously be pleased to cause” and so on: exactly the same way.

Mr. McGrath: On a point of order.

The Joint Chairman (Senator Hays): A point of order, Mr. McGrath.

Mr. McGrath: Mr. Chairman the Minister of Justice has an obligation when he comes before us with his officials not to mislead this Committee.

[Page 14]

Now, the Minister of Justice knows, first of all, that there was a resolution giving the federal government the power to legislate unemployment insurance, but that resolution only went forward after consultation and agreement with the provinces. You have forgotten to mention that.

The other matter is that the Minister has forgotten to State—and this is the second time it has come up in this Committee—and he has used the Newfoundland precedent to support the unilateral action of the government. The Minister has said that the provinces were not consulted in 1949 when Newfoundland became a province of Canada.

They were not consulted for a very good reason; Mr. Joint Chairman, the Minister knows that reason. Section 146 of the BNA Act, placed in there by the Fathers of Confederation in 1867, expressly made provision for Newfoundland’s entry into Confederation.

I will read the opening paragraph.

It shall be lawful for the Queen, by and with the advice of Her Majesty’s most honourable Privy Council

that is you, sir,

on addresses from the Houses of the Parliament of Canada and from the Houses of the respective legislatures

and Newfoundland, et cetera to make provision for Newfoundland, Prince Edward Island, British Columbia and the other colonies to come into Confederation.

Now, sir, I submit to you if your memory is short you have an obligation not to mislead the Committee, albeit it may be inadvertent.

Mr. Chrétien: I think what I was explaining, Mr. McGrath, is that if you have unanimous approval or not, the format is exactly the same, so Senator Tremblay was trying to extractin the case of Newfoundland . . .

Mr. McGrath: Read Section 146.

Mr. Chrétien: I will ask Mr. Strayer to explain to you the technical aspect of it. What I want to tell you is this, the point I was making is very simple. For the last 15 minutes you were trying to tell me that there was something unusual in Section I because, and I just said, unanimity or no unanimity it is the same format we always have used. That is the only point I want to make.

There was a lot of amendments to the Canadian constitution that were passed without the approval of the provinces. There are other examples, I gave you the transfer of resources to the western provinces. There were others before, too. Perhaps Mr. Strayer can explain to you a few of them.

I do not mean—this great argument that I am trying to mislead—I am trying to clarify, but to see Senator Tremblay trying to make a big point that I am using exactly the same words that have always been used, I wanted to tell him, unanimity or not unanimity it is the same wording. That is all.

Senator Tremblay: Mr. Chairman, I would again like to say a few words on that. It is not a question of my understanding or my proposal. I just want to understand your own way of

[Page 15]

reasoning, when you have gone from your first wording to the second wording. There must be some reason for that. I would like you to explain that to me.

Mr. Chrétien: In the sense you have introduced an amendment [Translation] to make things clear, that is all.

Senator Tremblay: To make the definition of Canada clear. Mr. Chrétien: No. Proof is that . . .

Senator Tremblay: What has changed is that the word Canada . . .

Mr. Chrétien: As I said earlier, it is not an amendment only to the constitution of Canada. It is also a repatriation of that constitution, and a renunciation by the British Parliament of the right to pass future laws concerning Canada.

[Text]

Mr. Beatty: It does not say that.

[Translation]

Mr. Chrétien: It is also an amendment to the Statue of Westminster. So it is more than an amendment to the Canadian constitution, and we simply describe it. We find that this new version that we are proposing is more descriptive than the one we had before. That is all.

Senator Tremblay: So what is changed, Mr. Minister, is that in the title, the words to amend the constitution of Canada have disappeared.

Mr. Chrétien: We are also amending the constitution. I said “it is more”. The greater change embraces the lesser change. It also includes amendment to the constitution.

Senator Tremblay: So, you are admitting that it was not so clear the first time you came before us. Indeed, your Deputy Minister made a few remarks at that time in answer to one of my questions.

When you first came before us, one of the first points that you made was that it did not change the constitution, and I answered that no in fact the title itself said so. And now, you are saying the opposite, that not only is the constitution of Canada amended, but that we are doing more than that. Is that not the intent of the suppression of the phrase “to amend the constitution of Canada”?

Mr. Chrétien: It makes it clear that we are amending the Canadian constitution.

Senator Tremblay: It was not so clear three months ago.

Mr. Chrétien: What I said earlier, and that I will have to repeat is that we are not changing the balance of powers in Canada. Of course we are making changes to the Canadian constitution, that is clear. We are getting an amending formula, we have not got one now; moreover, in the Canadian constitution, we will have a charter of rights we have never had. Of course it is clear we are changing the constitution; however, we are not changing the balance of powers. If I expressed myself poorly, I beg your pardon, but in my mind, it remains quite clear.

Senator Tremblay: At your earlier appearance, you stated that there would be no change in the distribution of powers,

[Page 16]

but that all governments were losing powers that were to be given to the people.

Mr. Chrétien: That is correct.

Senator Tremblay: You used a rather demagogic turn of phrase.

Mr. Chrétien: But one that the people understands! Senator Tremblay: But you are changing the substance of the Canadian federation. That is now quite clear.

Mr. Chrétien: For us as well as for the provinces, because there will now be a charter guaranteeing to Canadian certain rights which are not now enshrined in the constitution.

Senator Tremblay: That is not the only fact, there will also be an amending formula.

Mr. Chrétien: Yes, there will be amending formulas. We do not have any today, and now there will be one.

Senator Tremblay: So, our discussion certainly cleared at least one point.

Mr. Chrétien: For two years, unanimity will be required, and we hope that during those two years, we will be able to find a formula which will be acceptable to all, and that we can celebrate together this fantastic meeting of minds if ever we can achieve it.

Senator Tremblay: Mr. Chairman, I shall terminate by briefly giving my interpretation of the discussion which has just taken place.

In relation to Great Britain, the Minister recognizes that the provinces could legitimately put resolutions before its Parliament on the same basis as the Parliament of Canada. I object, and I think it is an error to have modified the title in this way. Secondly, it is now clear that the Canadian constitution is being amended not only by the enshrinement of the charter of rights, but also by the equality of the two levels of government proposing amending formulas.

That is the interpretation I give to the discussion, and it should be confirmed.

Mr. Chrétien: I think that the honourable senator is interpreting my words. I said that indeed, the legislative assemblies, as the Parliament, can pass resolutions. They do so every day, on all kinds of subjects. I know, and I maintain that since 186 7, when the British government has received resolutions from the Parliament of Canada, and the legislative assemblies, they have not been dealt with in the same way by that government. The British government has accepted resolutions from the Senate and the House of Commons, but it has never accepted resolutions from the legislative assemblies.

I am obliged to say that should a legislative assembly wish to pass a resolution on the matter, just as the legislature of Saskatchewan or Alberta might pass a resolution if it so wishes on the war in Viet Nam there is no way to prevent the MLA’s vote on any subject, although it is not within their jurisdiction.

[Page 17]

Senator Tremblay: One last point, Mr. Chairman, because it is most important that our deliberations be based on very statements to the Minister.

The Minister has just repeated what he has said before, and want to stress the point, that the British Parliament will decide. The matter will not be settled here first.

Mr. Chrétien: I will admit that judicially, the British Parliament will have to pass a law, but in fact it always acts only after the Canadian Parliament has acted. And .that is exactly what we are doing now. That is why it is wrong to say that there is nothing to be done here in Canada. First we will ask the Canadian members of Parliament to vote on a resolution, so that the Canadian Parliament will have taken a position. Then, the British Parliament will routinely adopt the resolution. On a point of historical interest, it is said that the British North America Act required only 15 minutes to be passed in England. I do not know if it is true, but it seemed that it required an extremely brief session of the British Parliament to pass the British North America Act, an act which was the foundation of a country called Canada.

We must face facts. Juridically, the British Parliament must pass a law, and that I will admit.

Senator Tremblay: How long were the Canadian representatives in London?

[Text]

The Joint Chairman (Senator Hays): Thank you very much, Senator Tremblay. Mr. Robinson.

[Translation]

Mr. Chrétien: Some of them loved being in London. On had to go by boat, and it was most agreeable if one could stay several months in London; we read in history books that certain prime ministers wanted to stay longer, to attend coronations, and all sorts of things, and I do not blame them, there must have been some pretty big “do’s” in those times.

Senator Tremblay: That was in 1867.

[Text]

The Joint Chairman (Senator Hays): Thank you very much, Senator Tremblay. Mr. Robinson.

[Translation]

Mr. Chrétien: Yes, and Sir John A. was married in England, during a constitutional conference!

[Text]

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

Mr. Mackasey: Mr. Chairman, before you proceed with Mr. Robinson I would like a point of clarification as to the procedure we are following and I ask that quite objectively because it seems to me there has been little resemblance in the half an hour that I have been here and the decision we made in the steering committee. Perhaps you might remind us what decision we had arrived at in the steering committee as to the procedure.

The Joint Chairman (Senator Hays): Well I have read out the—during the detailed study of the resolution 10 minutes be allocated to the members of the Committee on the understanding that the Chair allow supplementary questions by other members of the Committee on the same line of questioning, and that this rule will be subject to review by the Subcommittee.

[Page 18]

I have been quite lenient this afternoon as far as Senator Tremblay—I thought he had an important point. . .

Mr. Mackasey: Well he did and I would like to, before you move on with Mr. Robinson, ask in the form of a supplementary question, one or two, of the Minister to clarify exactly or summarize—Mr. Minister . . .

The Joint Chairman (Senator Hays): This is on the same subject?

Mr. Mackasey: Yes. When I get the Minister’s attention I will ask the question.

Mr. Chrétien: I have plenty of time.

Mr. Mackasey: I know and I have until next September, if you have, I can assure you.

Am I right in saying that the change of an act to amend the constitution of Canada to an act to give effect to a request by the Senate and House of Commons of Canada is simply to make more precise what we are doing here. We are asking the British Parliament or the British government to deal with a resolution. Would you also agree, as Senator Tremblay emphasized, that we are in effect amending the constitution to some degree? In you opinion this does not in any way affect the division of powers between. . .

Finally, Mr. Minister, again coming out of the arguments, valid arguments or persuasive arguments, if you like of Senator Tremblay, there is no way you can anticipate the response of the Parliament or government to a resolution stemming from one or more of the provinces but independent of the federal Parliament.

Mr. Chrétien: Mr. Mackasey, I do not. I have not asked anybody in England what they will do. But I know since 1867, when faced with the resolution of legislative assemblies from many provinces, they have not acted upon.

Mr. Mackasey: So if they were to act now it would be a departure from tradition and from past practice.

Mr. Chrétien: They had a request that was a very serious one in 1869, when Nova Scotia wanted to get out of Confederation and they said if you want to do that go and ask for permission in Ottawa. So that was a very serious resolution they had to cope with only two years after the BNA Act had been passed in Westminster.

Mr. Mackasey: One final question. Is there any evidence that the provinces intend to present—one or more provinces individually or collectively—is there any intent to present a resolution that you are aware of?

Mr. Chrétien: No, I am not aware of any.

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

Mr. Robinson: Thank you very much, Mr. Chairman. I know that Canadians from coast to coast have been watching spellbound this exchange on the title. I would like to turn to another subject and I trust I will have at least half the

[Page 19]

time with respect to this subject as was alloted to the discussion of the title, fascinating though it may have been.

Mr. Minister, I would like to ask you some questions with respect to the proposed Charter of Rights and preface my questions by saying that certainly we recognize and we welcome the fact that you have moved, you have moved in a number of important respects on the Charter.

We started out with a document which, by your own admission, had been watered down substantially, as a result of the negotiations which have been taking place over the summer months, which had been watered down from the original July draft which was presented by the federal government to the provinces.

In light of that, Mr. Minister, and of course the fact that there is now a remedies clause, there is what I consider to be largely, an effective remedies clause there. You moved on the question of trial by jury; you have restored a number of the provisions which originally were contained in the July draft and as I say we recognize that there has been a substantial movement on a number of important aspects of the Charter.

I was pleased to hear you say, however, to hear you confirm, that you are still open to other reasonable amendments, we want, as I am sure you would agree, to get the best possible Charter and it is in that light that I am asking my questions. I think you would also agree that we want to get the best possible Charter before it comes back to Canada where the provincial Premiers once again will be the persons who decide, together with the federal government, what kind of Charter Canadians are entitled to.

I might say in passing I find it rather interesting that you are prepared to leave to the same provincial Premiers, whose views you largely discarded on the Charter. you are prepared to leave to those provincial Premiers the very important question of treaty and aboriginal rights. But that is another question for another day.

With respect to the proposed Charter, Mr. Minister, I gather that you would agree as a minimum, you would call this a minimum floor of rights, that the Diefenbaker Bill of Rights, the 1960 Bill of Rights, should at least be contained within the framework of this proposed Charter of Rights.

Mr. Chrétien: Basically, yes, I do not know if there is some wording that had been changed because of evolution and so on. There is perhaps, I do not know what you are referring to, I would like to know which part of the Bill of Rights of Mr. Diefenbaker that there is some aspect of it that are not in this Charter. I have been asked to raise the question, I hope to have a satisfactory answer.

Mr. Robinson: Specifically I would certainly hope that we would want to have a Charter that at least went as far as that 1960 document.

Mr. Chrétien: There is at least one aspect that was in the Bill of Rights of Mr. Diefenbaker that is not there. It is in relation to ownership of the land, property rights. We have concluded that the argument put forward on that aspect by the aboriginals and the Minister of Provincial Relations . . .

[Page 20]

Mr. Robinson: Mr. Minister, if I could just stop you, I appreciate you attempting to answer but you are answering a question I did not ask. I would ask. . .

Mr. Chrétien: All right. I have a lot of time. I will come back on that.

Mr. Robinson: I am not sure I have as much time as you do, sir, that is why I would like to ask my question.

My question is with respect to a right which is contained in the Canadian Bill of Rights which was contained in numerous federal drafts, which was contained in Bill C-60 proposed in 1978 and that is the right to a fair hearing for the determination of one’s rights and obligations. Now we know that there has been an explosion in administrative and quasi-judicial bodies in this country and it is essential that the basic elements of a right to a fair hearing be included in this package as indeed it is included in those words in the Canadian Bill of Rights.

I assume that this is perhaps an oversight but I wonder if you might just indicate why this particular right which has been contained in earlier drafts, and is contained in the Canadian Bill of Rights, is not included in the proposed Charter.

Mr. Chrétien: I will let Mr. Tassé reply to you.

Mr. Roger Tassé, Q.C. (Deputy Minister, Department of Justice): Where in effect, as you have point out Mr. Robinson, that is an area of the law that has received a great deal of attention recently in the Supreme Court. The Martineau case in terms of the proceedings that are taking place inside institutions, incarceral institutions, the Nicholson case. It is an area which is very much right now in evolution.

In effect the Supreme Court has identified or evolved a great deal through these decisions but there are still nonetheless some areas of uncertainty which will need to be clarified by further pronouncements from the courts.

Now, I might point out that the concept of a fair hearing in administrative procedures would continue to apply in so far as the federal legislation is concerned and federal administration. And that the Bill of Rights will continue to bind both Parliament and the administrations because that section of the Canadian Bill of Rights will continue, will not be affected by what is proposed here. In addition, perhaps I could mention that the provincial area of administration is reaching into areas of life and government, state administration, that do not have in some respects resemblance to the kinds of activities we fire engaged in. The provincial officials were very forceful in putting to us that because of the uncertainty of the law, because of the impact it might have on their administration, that it would be premature to in effect embody in the constitution, crystalize in the constitution, that right at this time.

[Page 21]

Mr. Robinson: Mr. Tassé, perhaps I am not hearing you correctly. Surely you are not saying that because there is some uncertainty on how this particular provision would be applied that it is not going to be included. You are including in this proposed Charter whole new areas of law, concepts of fundamental justice, and there is no jurisprudence on that whatsoever. But this is a fundamental right of Canadians. It is a fundamental right which is recognized in the Canadian Bill of Rights. It is a right which you yourself proposed, the federal government proposed in 1979, in February of 1979, which the federal government proposed in Bill C-60 in 1978.

Mr. Minister why is it that this right which was so important then, and which was so important in 1960 has suddenly disappeared in importance in proposing this Charter.

[Translation]

Mr. Chrétien: Mr. Robinson, I must tell you that this right has not become less important to our eyes. In accordance with Mr. Diefenbaker’s law, we are still bound and we have every intention to respect our obligation. But, as was explained by Mr. Tassé, it became evident, following the many discussions that we had with the provinces, and because it would directly affect the administration of the provinces, that it would be premature to impose a decision on that right away, and that is why we made that concession. We intend to wait until this whole legal question is much more clear. We ourselves are bound to it, as are several provincial governments, in virtue of their own legislature; the provinces asked us not to bind them in any definitive way by including this in the constitution and we thought it wise, although you may not agree with me, to comply with their request.

[Text]

Mr. Robinson: Thank you, Mr. Chairman. So in summary what you are saying then is that this was a concession to the provinces.

[Translation]

Mr. Chrétien: Yes.

[Text]

Mr. Robinson: Thank you. Turning to another area . . .

[Translation]

Mr. Chrétien: Because it applies to them. . .[Text] because it is applying to them. But it is not a concession, we keep it for us. Mr. Robinson: It applies to the Canadian people of course, not to the provinces.

Mr. Chrétien: But as far as their relation with the provincial government is concerned.

Mr. Robinson: Mr. Chairman, turning to another area of the proposed Charter of Rights and that is the question of the prescribed grounds of discrimination, Mr. Minister, I suggest to you that you have betrayed the hopes and the expectations of many, many Canadians in refusing to include as a prescribed ground of discrimination, disability. This Committee heard witness after witness appearing before us insisting that disabled Canadians, whether that be physically disabled or mentally disabled, should be entitled to protection from discrimination.

[Page 22]

This, Mr. Minister, is the international year of the handicapped.

Now, your justification, your rationale for not including the handicapped in your speech before this Committee was that there were difficulties in definition and that society is still evolving.

I would like to take up those two questions. Are you saying, Mr. Minister, are you suggesting that as of today, the day that you are proposing this Charter, that society has not evolved in Canada to the point that the handicapped deserve to be protected from discrimination?

Mr. Chrétien: We say that we have passed legislation on the subject. I just say that the problem is that there are many types of handicaps in this society. And this is the nature of the problem that we are faced with.

We all have handicaps. The way I speak English, some would say it is a handicap for me, others would say it is an asset, I do not know.

There are all sorts of handicaps that exist.

Mr. Robinson: Are you talking, Mr. Minister about substance or about. . .

Mr. Chrétien: I am talking about a substance that is difficult to define satisfactorily, what is a handicap, to enshrine it in the constitution at this time.

There is legislation that has been passed. There have been recommendations, for example, by many of the Human Rights Commissions, making recommendations to improve the nature of our legislations on that. There is some legislation that has been passed and still is being passed in the different legislatures in Canada.

Of course I am not happy, personally it would have been much easier to just say yes to you because I am quite uncomfortable to be obliged to say that the best advice I am receiving is that it is not appropriate to put it here at this moment.

But in order to cope with this problem, if you look at Section 15, what we have done is we have tried in Section 15 to not limit the list. We have opened up. There was some recommendation, for example, that we should not list anything at all.

Some of the briefs that you have received said: take out all the lists you have in there and just talk in general terms, in terms of discrimination.

So we have opened it up, we have a descriptive list of the six items that are there and we say that the others will evolve and if there is evident cases of discrimination that the court could intervene because the list is not limiting the areas of discrimination. It is descriptive of areas of discrimination.

So in that way I am advised that the court could intervene. Now you say why do you not just use the word, and put after 6 as part of the description, the seventh one, that would be disabled.

Mr. Robinson: That is right.

[Page 23]

Mr. Chrétien: I would like to do that. But I am told and the best advise I am receiving, is that it is premature at this time. I am willing to look again at it, if it could be done, but. . .

Mr. Robinson: Mr. Minister I suggest that you look again at this particular section. I suggest you go back to your advisors. You yourself have indicated that the handicapped are dealt with in federal legislation. Well, if the handicapped area dealt with now, in federal legislation, there must be some definition. You must know in that legislation who it is you are talking about there. Why can we not apply the same kind of definition in this particular Charter.

Let me ask you at this point, are you prepared to go back to your advisors and at least to seriously consider, possibly adding this as a ground, an additional sixth ground, the question of disability following the advice of these many witnesses, listening to the concerns of disabled Canadians, listening to the Committee, the special committee on the handicapped, the chairman of whom appeared before our Committee asking that this be included.

Mr. Chrétien: You understand my problem. Yes, I will go back to my advisors, they are here. They are not such a big gang, they are all listening to this discussion. Of course there have been many members of the Parliament who have been on that committee; the chairman, David Smith, keeps talking to me about it and so on.

But at the same time we are not here just to do something that is pleasant to do. There is nothing that would please me more to add that word there. But I have at the same time to make sure that we are not creating a problem that will be very difficult for the administration of the law, the judgment of the court, the legislature and so on.

So, we say that this is an area of evolution in the law that has not attained the same maturity as other areas. We have opened up to make it possible for the court to intervene in obvious cases of discrimination to persons if they are handicapped, without having to put the word handicapped. Because after that I am told that, yes, there is a lot of types of handicaps, and this creates some problems for the court to make decisions.

Myself as a human, as a politician and as a man who has always been preoccupied with the disadvantaged groups in this society, I am not happy to give you that answer and I will look back again if I can but at the same time sometimes you do not do everything you want to do.

I admit very clearly that it is not perfect what I have here.

Mr. Robinson: One final question if I may, and naturally I appreciate the Minister’s undertaking to have another look at this important question; and his recognition that while there may be problems for the courts that there are problems for

[Page 24]

hundreds of thousands of handicapped in this country as well that would be remedied by this kind of amendment, and they will be watching your response, Mr. Minister.

Mr. Chrétien: I intend to introduce legislation to that subject.

Mr. Robinson: Legislation that is given today can be taken away tomorrow, Mr. Minister.

Mr. Chrétien: I know, I know. It is better than nothing at all.

Mr. Robinson: Mr. Minister, we are not asking for nothing at all.

My final question Mr. Chairman, if I may, relates to another element of the proposed Charter and that is with respect to the right to counsel. I must say there are other concerns with respect to the Charter, with respect to the question of referendum on the Charter, with respect to Section I, there is still some problems with that; there are certain grounds which should never be permitted to be abrogated and I am sure that your officials will have told you that that Section still needs working on and I will be raising that further.

But my final question relates to the right to counsel. Mr. Minister, you have indicated that in the case of a serious offence that the person, or in fact in the case of all offences, that a person who is detained is entitled to be informed of the right to retain counsel.

Now, one of our obligations under the International Covenant on civil and political rights, and indeed under a number of federal proposals has been the obligation that in the case of a serious criminal offence where the interests of justice so require, that the state has an obligation to an indigent accused; a person who has no money, to provide them with counsel.

I would draw your attention, as I say, to the International Covenant; that you have a right to retain counsel, you have a right, and I welcome this amendment, a right to be informed of this opportunity to retain counsel and finally, Mr. Minister, the right to have legal assistance assigned to him in any case where the interests of justice so require and without payment by him in any such case if he did not have sufficient means to pay for it.

My final question, Mr. Chairman, if I may, is this: if there is to be a right to retain counsel, as there should be, if there is to be a right to be informed of this right to retain counsel, what good is either of those rights if the person who is accused of a criminal offence has no money and cannot afford to retain counsel? Should not that be included in the constitution and not left to a statute, a simple statute which can be amended or taken away, to ensure that that right has some substance.

Mr. Chrétien: My reply to you is that it is a different thing to pay or not to pay. I do think that to cope with that problem,

[Page 25]

some time ago in Canada we passed a bill that established a program for helping the individuals who cannot afford to have a lawyer to get them.

It is a program that is working very well . . .

Mr. Robinson: That bill can be repealed tomorrow, Mr. Minister.

Mr. Chrétien: I will be in the House and you will be in the House, too and I do not think that it will be repealed.

You have to keep in mind that you cannot put everything in a bill of rights. It is a fundamental law of government—you cannot inscribe all aspects of the Criminal Code in a Bill of Rights and we have legal aid established as part of the Canadian society for a long time. It is not going to disappear. Of course, you know, you say that if it is in a bill of rights it is better but at the same time the minute that you try to make out of a bill of rights the Criminal Code, it is no more a bill of rights.

It is basic rights of the citizens, and I do not think that having this tradition in Canada of legal aid for years, that it is appropriate to inscribe it in the constitution.

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

Mr. Irwin.

Mr. Irwin: Mr. Minister, I have found this whole process a very interesting process of action and reaction—you say something, the public says something, and you come back with amendments. We are getting very close to the end of the process as far as this Committee is concerned. There has been reaction to the things that you are proposing from some of the Premiers, Claude Moran, Mr. Ryan, Mr. Peckford, the Canadian Bar Association, the Status of Women, Mr. Tarnopolsky, Mr. Fairweather, the Indians.

The Indians have been difficult because we have had so many different ones and there seem to be no unified voice coming back with a reaction. There has been editorial reaction on the understanding of what we are proposing for the immigrants in Quebec.

Would you have any comments on this reaction from your proposed amendments that may have changed or firmed up your opinion on what has been proposed?

Mr. Chrétien: I do think personally that the reaction so far is quite satisfactory to the government. We were on the horns of a dilemma when we started and now we want to secure the support of as many provinces as possible. We have introduced a bill of rights to be entrenched in the constitution that was meeting a lot of the objection from the Ministers during the meeting I had with them during the summer.

Despite a very conciliatory attitude on our part, the provinces who were opposed in the summer to the whole process did not offer any support to the Bill of Rights whatever, after we came in public, even if they had some great interest in the

[Page 26]

summer to have the Charter of Rights inscribed. I do think that the ones who were the most opposed in principle, I guess, it was Manitoba. Mr. Lyons who always said he did not want at all the Bill of Rights in the constitution entrenched.

But most of the other provinces had kind of a sympathy to it and did not want to oppose it squarely.

We introduced that watered down Bill of Rights in October but that did not change the attitude of those who were opposing.

So we have decided to listen to the witnesses. They have come and reacted very positively, in my judgment. Of course, like everybody else, I am a bit disappointed but I have to proceed without the accord of the 10 provinces and the federal government. It had been my desire all summer and I tried very hard. We do not have that accord.

But speaking for myself, a bill of rights giving rights to Canadians and protection against the capricious actions of the federal government or Parliament or provincial legislatures, is a collective desire of all Canadians. This is not something new in the Canadian process.

Someone was telling me that in 1939 Louis St. Laurent, who was acting for what I think was the Rowell-Sirois Commission, posing questions to the Quebec lawyer at the time, whose name I have forgotten now, asked, “Should we enshrine in the Canadian constitution a bill of rights?” That was in 1939. That was one of the questions put. The first bill of rights passed in Canada was passed by T. C. Douglas in Saskatchewan; and Mr. Diefenbaker took a lot of pride in passing the Bill of Rights. And if you read any of his statements on that, you will find his big frustration was that he was not able to have it entrenched.

The first piece of legislation that Peter Lougheed passed in Alberta was a bill of rights for Alberta.

So what we are now doing is making sure that the rights of Canadians vis-a-vis all legislatures are enshrined, and the reactions since my amendments are, I think, quite positive.

But I have to warn the Committee, as was said in Mr. Fairweather’s presentation, when you seek perfection sometimes, you can kill a good project. One example is that there was a body of opinion in the United States urging and wanting to have a new criminal code. Some felt at that time that it was right to kill it. It so happened that the people who wanted to have the best criminal code possible for the United States nit picked so much about it that they killed it. It is a great danger. That is why I am very pleased with the reaction. We are very keen on finishing the job.

Mr. Irwin: Apropos what you are saying Mr. Minister, it has been said that even a stopped clock is right twice every 24 hours.

[Page 27]

Now there are, Mr. Joint Chairman, three concerns I have: native rights, the handicapped; and language rights. I see Mr. Robinson wants perfection. I do not think he would ever have perfection.

Mr. Robinson: I recognize it would not come from you.

Mr. Irwin: Native rights, the handicapped, and language rights in Ontario. Will the government pursue negotiations with the provinces after patriation on these matters? Will there be continuing discussions?

Mr. Chrétien: Yes; on the native rights, Mr. Trudeau and all the first ministers in February, 1979 agreed that should be an item in the constitutional debate—natives in the constitution. It is a very difficult are&. Requests of all members of this Committee have come with new language, confirming there are some native or aboriginal rights and that they are based upon the Royal Proclamation of 1763—the Inuit, Tapirisat, the Order in Council regarding Rupert’s Island.

So we have made sure that these rights exist and are recognized and the negotiations as to the definition of these rights and how they can be implemented will come at a future constitutional conference, and in the first one it will be one of the items on the agenda. That was promised by Mr. Trudeau and all the first ministers agreed.

Similarly, on the question of the disabled, when the law in this area evolves to maturity, it would be very nice then for the premiers and the national government to cause an amendment to the Canadian constitution to include them precisely. I do not think that would be a problem. Every government, whatever its stripes, in Canada has always shown a lot of preoccupation for the disabled.

The third item—the question of the so-called Section 133: you do not know how disappointed I am that Ontario did not want to join.

In 1970 they were ready to accept it. They said so in Victoria. They were also ready in 1978. Again, in June 1980, July 1980, August, 1980; and suddenly in September they said no. I am disappointed extremely disappointed.

But when you look at the whole project, at no time, never, has the national government decided to impose it on them. The national government has never decided to impose it on them.

We were ready with the text for them to be included because they had told us that they wanted to be included, just like New Brunswick.

We have the text for New Brunswick. It is in front of you today. Mr. Hatfield said that he would pass a resolution in his assembly, when that assembly resumed.

Now, some of my colleagues were telling me that I should wait until it was voted on, but I did not. Mr. Hatfield had given his word. I took him at his word. Some would say that

[Page 28]

perhaps I was naive; but I would say that Mr. Hatfield on that subject has been extremely good.

He asked for it and he wrote to us, and he was saying that his assembly was not sitting at that time.

In Ontario, the NOP Party is in favour; the Liberal party is in favour; but they do not want it imposed. The chairman of the committee on the subject is in favour. So they do not have very much to do.

So I do not understand why Mr. Davis does not want to bind himself there. Because he claims that already you can make speeches in the legislative assembly in Ontario; so why not have it entrenched in constitution, even if they do not go as far as Mr. Hatfield.

You were telling me that last week in Sault S. Marie for the first time there was a trial in French. There is not a revolution. Why not entrench it?

Of course, under the Criminal code we have used our powers and worked it out with them and now it is possible to have a trial in French in Ontario. Of course, there are still some technical problems about location and what not.

I believe Mr. Davis today would want to bind himself, because when he went to Quebec during the referendum he said tht what is needed will be done. I encouraged him to go there at that time. I am very disappointed that he is not delivering.

Mr. Irwin: On the handicapped, Mr. Minister, did I hear you to say that you will be introducing legislation to improve the federal human rights act with regard to the handicapped? Mr. Chrétien: There are some recommendations that were proposed by the Human Rights Commission on that. We are styding those recommendations and we intend to introduce legislation on the subject when the matter is ready.

Mr. Irwin: Thank you Mr. Minister.

The Joint Chairman (Senator Hays): Mr. Mackasey had a supplementary question on your first subject.

Mr. Chrétien: If I may interrupt, I would like to make a clarification. In Ontario in 1970, they offered to bind themselves not to all, that is from Section 16 to Section 20 or Section 133, but some part of it.

Mr. Mackasey: Mr. Minister, two matters. You have given us the reason for not extending Section 133 to Ontario, in that you do not want to impose things on the provinces.

Surely there must be something more fundamental as well. You were expressing an opinion, and perhaps you do not want to repeat it here, but you do not want to jeopardize the passage of this human rights section, because there are other advantages or rights in there long overdue for recognition for the franco-Ontarians, for instance, in the field of language and education. In other words, you do not want to jeopardize those.

Mr. Chrétien: When I worked on that, one of the big problems I felt was that in my judgment, there was a big

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problem in Canada since 1867, namely, that we had not inscribed in the Canadian constitution at that time the right for francophones to receive education in both languages, in French anywhere in Canada, and the same thing for the anglophones. Perhaps Canada would have been completely different today if that situation had existed then. Because that has cut down very substantially the mobility of the francophones in Canada, because they could not move wherever they wanted because there was no school. For us, our language and culture are extremely important. If we know we will lose it, then we will not move.

Knowing that, I felt it was extremely important to move in the field of education, and I felt it was quite appropriate to do so in the light of the Montreal and St. Andrews agreement of 1977 and 1978.

So we moved, and we found it was not perfect, but decided to move with education first.

It was not too complicated. I suppose some will accuse it of creating some problems for the Quebec government in relation to Bill 101; but in fact, the treatment of the anglophone minority in Quebec was such, that even with Bill 101 was not affecting them substantially; but I was gaining in making equal the lot for the francophone outside of Quebec and to re-establish the right for the Canadians who spoke English who moved to Quebec to send their children as a matter of constitutional right to the school; because now Canadians moving to Montreal have to have permission to go to an English school. They do not have the right.

Mr. Mackasey: Am I right in saying that one of the concerns you have about the application of Section 133 to Ontario at this time is that you may jeopardize the total package and in so doing deny the constitutional recognition of French as the language of education anywhere in Canada?

Mr. Chrétien: It is clearly one of the dangers; it has been like that since 1970.

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

Mr. Beatty, a supplementary.

Mr. Beatty: Mr. Joint Chairman, I would like to get some clarification on a matter raised by Mr. Mackasey. It certainly whet my curiosity. Mr. Mackasey indicated-and the Minister agreed—that one of the reasons why the Minister had decided to impose Section 133 on Ontario was that by doing so it might jeopardize the passage of other rights in this package. What exactly does he mean by that?

Mr. Chrétien: We never intended to impose it on Ontario. I do not think it would be appropriate to change our policy at this time.

Mr. Beatty: That is another question. Mr. Mackasey asked you several times and you agreed to his final suggestion that you were not imposing Section 133 on Ontario because doing

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so might jeopardize the passage of other rights in the package. What did you mean by that?

Mr. Chrétien: I agreed to the statement by Mr. Mackasey that it will not help the situation.

Mr. Beatty: Precisely, it would jeopardize the passage of the other rights in the package?

Mr. Chrétien: It is very clear. We have a package. We have a strategy, a system which existed since 1970. We said we would not impose it. Now we are at the eleventh hour and we are being asked to change completely our policy? I think it would not be appreciated by members of this Committee, because we made it clear in the summer, in the fall, that we were not going to impose it and would not impose it.

Mr. Beatty: Are you saying it is your judgment that the Liberal majority on the Committee would revolt and not support a decision to impose Section 133 on Ontario? Is that what you are implying?

Mr. Chrétien: We said that the government, as a government, were not going to do it. That is the answer.

Mr. Beatty: How, then, would that jeopardize the passage of the package? That is what I am asking you?

Mr. Chrétien: Because it would be a reversal of our policy at the eleventh hour.

Mr. Beatty: How will it be jeopardizing it?

Mr. Chrétien: In the matter of credibility.

Mr. Beatty: Are you saying the Committee would turn it down, or are you saying as a sine qua non of going forward to Westminster that you have the Ontario government’s support for the package?

Mr. Chrétien: We have a package. Everyone knows it. We said all along that we were not going to impose Section 133 on any of the provinces if they did not want to apply it to themselves. At the eleventh hour we do not propose to impose it on Saskatchewan. I understand that the representative from Saskatchewan is very much in favour of Section 133; but I am sure that he is not proposing today to impose it on Saskatchewan; and I do not intend to! If I were to do so, they would have complete legitimacy in telling me that I have taken them by surprise in that I said that I was not going to impose it, and now at the last moment I am imposing it. So I will not do it, because I said that all summer as well as in the fall.

But I am tempted! I am tempted!

[Translation]

However, we must not fall into temptation. Deliver us from evil. Amen!

[Text]

Mr. Beatty: So what you are saying is that you are prepared to trade off what you consider to be a fundamental right for the support of Ontario for the entire package? You are

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prepared to trade off what you consider to be a fundamental right for the support of Ontario?

Mr. Chrétien: I am not prepared to trade off the rights of anybody, because that has always been the policy of the government. It is well known for a Jong time.

But I do think that in the summer, and when we prepared the text, we had an understanding that they wanted it, just like New Brunswick; they wanted to bind themselves.

They were saying, “Yes, we are ready to go that far; but it might be that in that area it might take four, five or 10 years to implement it.” We were having very honest discussions with them, until come September, all of a sudden from one night to the morning, it was no more; the discussions were not working anymore.

We had said to them that we were not going to impose it on them; the policy has remained the same.

But my disappointment is that Mr. Davis changed his mind come September, and you are in a better position than I to understand why.

Mr. Beatty: I want to thank Mr. Mackasey, Mr. Joint Chairman, for having raised this question.

The Joint Chairman (Senator Hays): Thank you very much. Mr. Nystrom, you have a supplementary?

Mr. Nystrom: Yes.

The Minister said that he is very frustrated. I am very puzzled. The Minister said that if Section 133 were applied to Ontario it would be an imposition on Ontario.

Why is it an imposition in one case and not in the other? There are many other rights for people in the resolution before us which are being imposed on provinces which do not agree; we have education rights being imposed on Quebec, and the Quebec government does not agree. Why is that not an imposition?

Now, all of a sudden, applying Section 133 to Ontario, why is that an imposition? What is the difference?

An hon. Member: Politics!

Mr. Chrétien: On educational rights we have given Canadians some rights. We are giving Canadians some rights; and in that case, what we are doing is that we are saying it is very much within the jurisdiction of the provincial government and it should be dealt with, as in the case of New Brunswick, by the legislature and the government of the province. I am not alone in asking for that. Mr. Ryan in his speech at the Empire Club last week said the same thing: “I want it, but it should not be imposed by the national government.”

We have always taken the view, that because it is the legislature, it is in the service of the provincial government, to put . . .

Mr. Nystrom: Why is it an imposition in one case? Because the nondiscrimination rights are an imposition in a provincial

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area, whether one agrees or not; the educational rights are an imposition in the provincial area, whether one agrees or not. Why are those not impositions, and all of a sudden the language rights pursuant to the courts and legislatures are an imposition?

Mr. Chrétien: I said that in education there was an agreement of the first ministers at St. Andrews and Montreal.

Mr. Nystrom: But Mr. Davis agreed at one time for Section 133 and now you say that he does not; there are some provinces that agreed in Montreal and now they do not. Why is that not an imposition when this is an imposition?

Mr. Chrétien: We said that we had decided not to impose that on the legislatures. That is clear.

Mr. Nystrom: I know it is very clear.

Mr. Chrétien: We could impose it; but we do not want to impose it.

Mr. Nystrom: I know it is clear, but why is it not an imposition but educational rights in terms of Quebec where Mr. Levesque said no, is not an imposition?

Mr. Chrétien: They had agreed to it—all of them.

Mr. Nystrom: Mr. Joint Chairman, he also said that Mr. Davis had agreed at one point; Mr. Levesque had agreed at one point; I follow your logic, and I ask you: why treat Quebec differently from Ontario? Quebec disagrees now; Ontario disagrees now.

Mr. Chrétien: It is because the educational rights apply to all Canadians in all the provinces in exactly the same way, and in the case of Ontario for Section 133 it applies only to one province and you would be forcing it on one province and not on the others.

If you want exactly the same pattern and to have it applied exactly the same to all Canadians, as suggested by Senator Roblin at our first meeting here who said that if Manitoba has it everybody should have it, then you would be in exactly the same position.

But now you are moving and singling out one province. This I do not want to do.

But if you want to apply it to Newfoundland, to B.C., and Saskatchewan as well, then, fine. Let us do it together, but not selecting. In the case of education they have all approved and we are giving exactly the same thing to all Canadians. But I will not single out one province like Ontario just in those circumstances, because it would be creating and applying something to that government which is not forced on other governments.

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But if you want to impose it on Newfoundland—that is another matter: do you want us to impose it on Newfoundland? Come on, McGrath, yes or no?

Mr. McGrath: I simply want you to be consistent.

Mr. Nystrom: Mr. Joint Chairman, the Minister has mentioned Newfoundland and Saskatchewan. I want to quote to him an authority and, I am sure he will agree with this authority. It is the Prime Minister of Canada, Pierre Elliot Trudeau, speaking in the House of Commons on Bill C-60 on June 27, 1978. He said on page 6785 of Hansard:

We think it would be unrealistic and probably impossible, within the future which I can foresee, to see the provisions of Section 133 which protect the English in Quebec apply in every province of Canada, but we do suggest that the provisions should protect French-speaking Canadians in Canada in those three provinces where 95 per cent of all francophone Canadians live, that is to say, New Brunswick, Quebec and Ontario.

I ask you, Mr. Minister, you are now bringing up the arguments of Newfoundland, Saskatchewan and Prince Edward Island. You are clearly going against the intent of your leader, the intent and politics that he has stood for for many years, his principles and so on, his caucus-and I know from representations made to me by members of your caucus: why are you doing this? Why is it an imposition in one case and not in the other? Can you please respond to this?

Mr. Chrétien: Yes, I will respond—with pleasure. Because in Bill C-60, it was an opting-in provision. It was not imposed. Just like now. Take the present constitution: if one province wants to impose it on its citizens, they can pass a resolution and we pass a resolution and they are bound forever.

In 1960, as today, we prayed for Ontario to opt in, just like in Bill C-60, the provision was not imposed. Mr. Trudeau said it was absolutely logical for Ontario to get in, but at no time was he imposing it. He was giving them the opportunity, the possibility, to opt in. It was not an imposition. The option is still there. Any province who wants to opt in can pass a resolution, you then pass a resolution in Parliament and they are locked in forever.

Senator Tremblay: No.

The Joint Chairman (Senator Hays): Order, please.

Senator Tremblay: It will take an amendment to the constitution.

Mr. Chrétien: Of course, that is what I mean. But you do not need the approval of the other provinces.

Senator Tremblay: It will need the approval of the other provinces.

The Joint Chairman (Senator Hays): Order, please.

Mr. Fraser on a supplementary.

Mr. Chrétien: May I speak?

The Joint Chairman (Senator Hays): Of course.

Mr. Chrétien: We cannot have Section 133 or Section 12— look at Section 16 to Section 20 applying to New Brunswick—

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we could tomorrow amend and apply it to any province to have the same thing. If they want to do so, they only have to pass a resolution asking to have Section 16 to Section 20 apply to them, and if the Parliament of Canada approves it, it is done. The constitution has been amended in relation to that province to that effect.

The Joint Chairman (Senator Hays): Order, please. Mr. Fraser on a supplementary.

Mr. Fraser: When can I get the Minister’s attention, Mr. Chairman.

An hon. Member: He has just been told that he is wrong.

Mr. Fraser: Through you, Mr. Chairman, to the Minister, Mr. Mackasey has talked about the fact that if Section 133 was imposed unilaterally by your government on Ontario, that it would put in jeopardy the other aspects of this proposal.

The Joint Chairman (Senator Hays): Supplementary on 133, Mr. Fraser.

Mr. Fraser?

Mr. Fraser: This is following along the exact point that the Minister has been discussing Mr. Chairman.

Mr. Mackasey asked you what in law is called a leading question, and he invited an answer and you were only too quick to answer, and you agreed with him.

You say that the reason you will not impose unilaterally on Ontario is because you have a policy and the policy is not to impose unilaterally with respect to language rights on just one province.

But this whole package is a unilateral imposition on provinces of a great many matters, and I fail to understand your distinction between not wanting to impose language rights on a province, and yet you are quite prepared to impose unilaterally amending formula which over half the provinces do not agree with.

What I am suggesting to you, Mr. Minister, is that what you have done is, in order not to put in jeopardy, because you wanted some public opinion behind this entire proposal, and as what Mr. Mackasey must have been getting at, what you have done is you have sold out the French speaking Canadians in Ontario to try to get enough public opinion to put unilateral impositions of a number of things on all the other provinces.

Now, that is not what you have done then your whole explanation falls away and has no logical base to it.

Mr. Chrétien: You said, Mr. Fraser, that we have a policy, and it is true.

Mr. Fraser: No, I said that you have sold out.

Mr. Chrétien: The policy is very clear, that in terms of institutional bilingualism in the province, in the Bill C,60 or in 1970, it was a provision of opting in. If they wanted to opt in, we would make it possible to opt in. We never wanted to impose it on the provinces, and it was very clear.

When you say in your previous statement that we are imposing unilaterally an amending formula, that is not true. We are patriating the constitution. For two years we are

[Page 35]

imposing on Canada, yes, an amending formula unilaterally with the unanimity rule; everyone has to agree for two years.

An hon. Member: And a referendum.

Mr. Chrétien: After that, after two years, during that period of time if seven provinces agree to an amending formula, and we might accept or not accept, if we do not accept, Parliament of Canada will be able to put an alternative and we will have a referendum, and the people will decide. It will not be the Government of Canada imposing an amending formula unilaterally, it will be by referendum.

The Joint Chairman (Senator Hays): Point of order.

Mr. Epp: Just a moment, with great respect . . .

Mr. Chrétien: I just want to tell you that when you say we are letting down, we are not imposing unconditional bilingualism in Ontario, it is true, and it is not out of any deal. It has been the policy of the government since 1970. The Joint Chairman (Senator Hays): Order, please.

Mr. Epp: Point of order.

Mr. Chrétien: Nothing has changed, what I said to Mr. Mackasey is very simple. On a fundamental question like that, we do not want to change our policy at the eleventh hour. The Joint Chairman (Senator Hays): Order please. We have a point of order. Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman. Just the same admonition again to what was raised earlier by Mr. McGrath. The Minister, Mr. Chairman, can use whatever arguments he chooses to defend a very difficult wicket, but I simply ask you, Mr. Chairman, that when he does so, that at least he stays with the facts that are before us in the proposed resolution. He is dealing with imposition and an amending formula and leaves our part of the amending formula. If he wants to stay with that argument, then he should use the total argument.

Mr. Fraser: Mr. Chairman, may I just respond to the Minister. The Minister is just not stating the facts and I am sure that he is not doing it with any dishonest intent when he says that this proposition which is in front of us does not unilaterally impose an amending formula on provinces that do not want it. It does. You do not get around that by saying that for two years if the provinces agreed they night get a different amending formula. That is begging the point.

Now you come along and say that you have modified the amending formula by saying that you do not need eight provinces, you only need seven, but you still hold it up to 80 per cent and you know and I know the one province that is supporting you and without it you cannot get 80 per cent even if all the other provinces agree and that one province is Ontario.

What I am asking you is this. How do you morally justify letting down about 400,000 French speaking people in Ontario by arguing that you do not impose it on Ontario unless you

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impose it in British Columbia where we do not have a large speaking French population, or Alberta, or Saskatchewan where it is small, or Newfoundland.

Now, there is something that is not very nice about the reasoning that the Minister and the government is trying to put up to justify their position, and I say, Mr. Minister, that what you leave us with is the impression that when you came right down to it you did not have the guts to do what you wanted to do. You admitted that you have wanted to do it and what you have done is you have sold out the next largest francophone population outside of Quebec in Canada.

You may be able to justify it by politics but I do not understand how you can justify it morally.

Mr. Chrétien: We have selected, to begin with, the area, as I explained earlier in my testimony, that the most vital area for the francophone outside of Quebec is the area of education, and we have solved that problem. I am very pleased to see that outside of Quebec that is very little controversy about the proposition on education in French all across Canada, and I am very pleased with it. There are some controversies in Quebec, but that is the most important thing. We feel that it is very much within the confines of the province of Ontario about how the speeches are made in Ontario in the legislative assembly, or how the law is translated or not translated and other types of problems of that nature very much in the area of the provincial authority of Ontario, that it was not for us to do it for them, that they should do it themselves; and this has been the policy of the government since 1970.

When Mr. Nystrom quoted what Mr. Trudeau said, and I agree, why I am pleading with Ontario and why I am not pleading with Saskatchewan is because there is a bigger group of francophones there.

But the policy remains the same, and I do not mean to imply that we were ready to impose that in 1978. That was not true, Mr. Nystrom, it was an opting-in provision, and it is still there, it is still there. When there is a constitutional matter that affects only one province it can be implemented by a resolution of that province and approved by Parliament of Canada.

So if Ontario, if there is election, and I do not think that Mr. Davis is taking some chances because in Ontario the majority of the francophones for year~ have voted Conservative in their elections, generally speaking. You know, there was the area of Cornwall. For example, now they have an NOP but before it was a Conservative for years. In Northern Ontario, the same thing; in Hawkesbury, the same thing; and if he does not care about those people who have voted for him and led them down the path, that is his own risk.

An hon. Member: Then they will vote NDP.

Mr. Chrétien: Or probably they will vote Liberal.

An hon. Member: No way.

An hon. Member: That is your attitude.

Mr. Chrétien: It is their problem, and some francophones outside of Quebec were elected in this House who said to me that they did not want us to proceed right away with New Brunswick until it is voted in New Brunswick because they are

[Page 37]

afraid to be double crossed. I said I would take a chance, but you know there is a feeling that we should proceed only after the New Brunswick assembly has voted, but we took and I think I was well advised to take the word of Mr. Hatfield.

In the case of Ontario, Mr. Davis does not want to commit his government, and I am glad to see some members of the Tory party put pressure on him. If this Committee wants to pass a resolution, you know, asking Mr. Davis to do it, it is up to you, but we will not change it because we said as a government we were not to do that.

But if you want to pass a unanimous resolution pleading with Mr. Davis to do it, in order to do the right thing, fine. I do not have the right to vote—yes, I guess I have the right—no, I do not.

Miss Campbell: No, but they do.

An hon. Member: That is your problem.

The Joint Chairman (Senator Hays): On a supplementary on Section 133, maybe we could confine it to that, please.

Mr. Robinson: Mr. Chairman, thank you.

The Joint Chairman (Senator Hays): Did you have another question, Mr. Fraser.

Mr. Fraser: No, Mr. Chairman, thank you.

Mr. Robinson: Thank you. I do have a supplementary on Section 133. I also have a supplementary arising from Mr. Mackasey’s questioning with respect to the handicapped, but my problem on Section 133, Mr. Minister, is this. One of the reasons for the haste with which the government has been moving, as a matter of fact the major reason as stated by the Prime Minister, was that following the referendum in the province of Quebec that certain promises had been made to the people of Quebec that there would be constitutional change.

If I am a francophone in the province of Quebec and I examine this proposed package carefully, what would strike me it seems very, very clearly is the fundamental lack of equity and the hyprocrisy in the language provisions.

Now I do not understand, Mr. Minister, how it can be suggested that when these are the people that are certainly very important to us, that this is the justification for the speed with which we are moving, is it that we are particularly concerned about the francophone Quebecois, that 40 per cent who voted yes in the referendum who were overwhelmingly francophone.

When they look at this package, Mr. Minister, they say to themselves, well the anglophone minority in the province of Quebec has got protections here as a result of this package; they have protection here not just in education, Mr. Minister but they have protection through the provisions of Section 133 in the province of Quebec and yet the francophone minority, the largest francophone minority in this country, some 600,000 francophones in the province of Ontario are abandoned.

Now, how can you suggest, Mr. Minister, that this answers the concerns of that 40 per cent of the Quebecois who voted

[Page 38]

yes when they ask for equity, when they ask for fairness, which you as a Minister say as well, you have something on education that should satisfy you.

Why is it that you are not prepared to answer the very legitimate concerns of those francophone Quebecois who are asking for equity, who are asking for fairness and impose Section 133 on the province of Ontario, as we will be suggesting, and apparently, judging from the questions of the Conservative members, as they will be supporting.

Mr. Chrétien: You know, you say that the Quebecois are asking for that. I was in the referendum and I made, personally, a lot of speeches and I repeated, all the time, the same thing: I said if the position is rejected by the Quebeckers, we will have a new constitution patriated in Canada; that he will make in the constitution two official languages, that the law we passed in the federal Parliament will become part of the constitution; we will have a Bill of Rights that will protect the rights of the Canadians forever in the constitution. And I said, on minority rights, I have always said, at last, we will give the francophones outside of Quebec their rights to education that they never had.

We never spoke about Section 133 and its so-called institutional bilingualism. And the policy is well-known on top of it. I am not alone talking like that.

Mr. Ryan, for example—I agree sometimes with him, sometimes I do not agree or he does not agree with me—but in Toronto last week he said the federal government should not impose it. So how come you, coming from B.C., not willing to do anything for the francophones in B.C., tell me that we should do more than the leader of the Liberal party in Quebec wants to do at this moment.

You know, I think that it is very easy to be bleeding from where you sit and not coping with the reality. I am telling you that it is a very controversial problem and as much as I will be personally very satisfied if we could do it, and if Mr. Davis would not have changed his mind; you do not know how sad I felt when he changed his mind. But we have maintained the same policy and I am still asking all of you and anybody who can have any influence with Bill Davis to ask him to accept, to do for Canada what Hatfield has done and if you want more, it will not cost much for the people of B.C. because there is nothing.

When you talk about rights, rights are for everybody. So you go back in B.C. and you ask Mr. Bennett to say yes; and you ask our good friend Mr. Barrett to say yes: and Mr. Blakeney. And for Mr. McGrath to go and ask Mr. Peckford, and so it goes. You will be very good to Canada if you are able to persuade them to do that.

[Page 39]

It is not an easy problem, but I am telling you the policy has always been the same and we do not intend to change it at the end of an hour.

There is still time for Mr. Davis to change his mind. He came in Quebec during the referendum and he said so, that what is needed will be done and this had a lot of influence. And I can tell you, on top of it, some people did not want him to go to Quebec, and I encouraged him to go because it was a problem that counts on all Canadians.

It was not only a referendum that was a preoccupation for the Quebecois; it was a problem that was affecting the structure of Canada forever. And he went there.

And, come September, he changed his mind. I am not happy but it is his choice.

Mr. Robinson: Mr. Chairman.

The Joint Chairman (Senator Hays): On Section 133?

Mr. Robinson: Mr. Chairman, yes, on Section 133, I regret that that is the answer to the francophone Quebecois and I would certainly be interested at some point in hearing from the Joint Chairman of the Committee from the Province of Quebec on this particular subject. Mr. Chairman, I think that might be relevant.

Some hon. Members: Order.

Mr. McGrath: Point of order, Mr. Chairman.

Mr. Epp: On a point of order.

The Joint Chairman (Senator Hays): On a point of order, Mr. McGrath.

Mr. McGrath: On a point of order, Mr. Chairman.

The Chairman of this Committee, like the Speaker of the House of Commons, has to behave impartially. The Joint Chairmen of this Committee have done just that and to try and involve the Chair in this kind of partisan debate in an unfortunate intervention and I am sure on reflection, Mr. Robinson would not have made that suggestion. The Joint Chairman (Senator Hays): I will ask that Mr. Robinson withdraw those remarks.

Mr. Robinson: Mr. Chairman, certainly I would do that.

Mr. Epp: I would like to give Mr. Robinson the opportunity to respond to Mr. McGrath’s statement but I want to reiterate, as far as members of our party, we have absolutely no intention of putting either Joint Chairman in that kind of a difficult position and I do not think we have the right to do so.

Mr. Robinson: Mr. Chairman, certainly I recognize that I exceeded the bounds not only of parliamentary practice but of propriety and I am quite prepared to apologize to the Joint Chairman, and to withdraw that particular suggestion.

The Joint Chairman (Senator Hays): You are forgiven.

Now, we might go to Mr. Irwin on Section 133. Supplementary, Mr. Irwin.

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Mr. Irwin: Mr. Chairman, I did not realize we would be getting into this discussion. It has been very enlightening.

We have come to know each other over the last six weeks and I get the impression that if we were the Premiers of Canada, we would have solved the problem of Section 133 within about an hour. I mean, what is it really, the use of French in the courts and the use in the legislature and there are not that many people who would even speak it in the legislature if it were available.

But, getting to the Minister’s suggestion, on the resolution from this Committee, or the fact that he would not be opposed to a resolution from this Committee asking Mr. Davis to state his opinion; perhaps if it were done in such a way that we do not even talk about Section 133; we talk about things that he is already doing, the allowance of French in the courts, the allowance of French in the legislature, it might be an appropriate part.

I would like to get to something very fundamental, Mr. Chairman. Being in the Liberal party I have a certain sense of the deep feeling there is amongst the francophone members on this particular issue.

They expect the anglophones—I consider myself an anglophone—to solve that problem the same way they solved the problem in Quebec as far as the rights of the anglophones there. They find it a humbling experience that they have to come here and keep forcing it and raising the issue. I think you all appreciate that.

That is why I say I see hope when I see a Scandinavian from Northern Saskatchewan and I think an anglophone from Great Britain, in the former Mayor of Toronto, and an Irishman who can talk about this and talk about it in such a way that we could reach the solutions. And maybe that is the way we have to go.

I think the problem is ours, Mr. Chairman, the English speaking Canadians.

Do we understand the concept of Canada; can we find a solution?

But coming from that, to you, Mr. Minister, we understand that you do not want it to breach any agreements that we have had over the last decade that we would not impose Section 133 on Ontario, what type of questions to the Ontario Legislature—I do not even know if you have thought about this—or to Mr. Davis, do you think would be proper in view of that government’s policy at this particular time? Have you given it any thought or as a general concept is it something we should work out?

Mr. Chrétien: I am frustrated. I thought it would have been very consistent to what was expected if Ontario had accepted it like New Brunswick and there are more severe critics of Mr. Davis than that. It is not just me, it is Mr. Atkey. They both belong to the same party.

If, as a member of this Committee, you can do something to put more pressure on Mr. Davis, that would be great. There are members of the Tory party here from all parts of Canada and there are some NOP members and some Liberal members

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from Ontario, especially the people from Ontario, the members and Senators from Ontario. If they want to put some pressure on Mr. Davis, fine, but my view is, like the view of Mr. Ryan, it should be done by the Legislative Assembly in Toronto to make the gesture. It is not a big price to pay. I do not understand.

Because, I have been I 4 years a Minister, 18 years a member of Parliament and nobody can doubt what I am in terms of ethnic background and I do think that the people of Ontario will be quite pleased if the Legislative Assembly, following the traumatic experience of I 980, were to go that distance.

Mr. Irwin: Thank you.

The Joint Chairman (Senator Hays): Mr. Nystrom, on Section 133, supplementary.

Mr. Nystrom: Yes. A supplementary on Section 133.

And I want to preface this, Mr. Minister, by saying I feel very, very strongly about the future unity of my country. I want Canada to stay together and I really believe that one way of making Canada stay together is to treat Ontario and Quebec the same. I think that is very, very important.

And you said something in this Committee today that I did not know before and I think it is very important. You said that Mr. Davis had consented at one time to have Ontario bound by Section 133 of the BNA Act and I just wanted to ask you whether you can provide the Committee with the important information as to when he agreed and perhaps table documents to that effect.

Mr. Chrétien: It was not a final decision. I want to clarify that. In all of the discussions with the provinces in the summer Ontario had indicated to us, not in writing and so on, that they were to accept to be bound by Section 133, but they never made that a public statement. That was my understanding. In the type of discussion we were having at one time on some aspects of Section 133 or whatever it is, it might be Section 16 to Section 20, depending, the way you implement it. There was some discussion, for example.

Sure, we gave them five years to 10 years to adjust to the process and so on but they felt they could not put it in place right away and so that was the nature of the discussion.

Mr. Nystrom: But you said earlier that . . .

Mr. Chrétien: That they did not have to say a final yes or no, because we were in the process of negotiation and then came the conference in front of the camera in September, he said I am not going to do it. But I was really taken by surprise because I was led to believe that if we were to make some accommodation, you know, give them some time to adjust to it, that they would come along and suddenly they decided not to come along and I was disappointed. I am still very disappointed.

Mr. Nystrom: Did I hear you wrong? I thought I heard you say before that Premier Davis had said before, during the summer, that he did agree.

Mr. Chrétien: Did not agree.

[Page 42]

Mr. Nystrom: Did he say this to you? Did he say anything to the officials about it?

Mr. Chrétien: Not to me, no. The nature of the discussion was very clear.

Mr. Nystrom: Did he say it to your officials because you said Premier Davis had said he agreed.

Mr. Chrétien: I just gave you the explanation that we were discussion that and there was a lot of discussion and the trend was, I do not know if he said that to me, not to me anyway, but the others, precisely; he never made it the official policy of Ontario. But I just say that in the discussion that we were having with them I was led to believe when they were asking me could you entertain the possibility of giving us five years. I said, fine. 10 years? I said fine. So, when I say that, you know he never signed a piece of paper and said, I agree. That is not what I said. If you interpreted my words like that, it was not what I meant. I have been describing to you the process. It was well-known in the public.

The Joint Chairman (Senator Hays): Miss Campbell, on Section 133.

[Translation]

Miss Campbell: Mr. Minister, in the past, was there any agreement between the provinces and the federal government regarding trials before various courts in Canada?

Mr. Chrétien: Here is the situation.

Miss Campbell: I mean that they should be bilingual.

Mr. Chrétien: There are two kinds of trials. There are criminal trials and civil trials. I think that back in 1970, at the Victoria Conference, the premiers had accepted to be totally bound or virtually bound and as it is well known, Ontario went along. Obviously, Quebec and Manitoba had been bound since the BNA Act so there are vested interests there. If I remember well, amongst the provinces who had accepted in 1970 to be bound partially or totally by 133, there were Newfoundland and Ontario. To answer your question, with respect to the courts, only New Brunswick, Quebec obviously, and Newfoundland had accepted in 1970 to be bound.

Miss Campbell: Only those three provinces?

Mr. Chrétien: For the hearing of trials, yes.

Miss Campbell: You mean for trials before the courts.

Mr. Chrétien: Since then, there have been bilateral agreements with the provinces and we have made a great deal of progress in this area as far as criminal procedures are concerned. I believe that a definite understanding was reached with Ontario with respect to criminal trials and is now in effect.

Miss Campbell: Then the amendment which you tabled does at least ensure, through Section 19 of the resolution, this right throughout Canada at the federal level at least.

[Page 43]

Mr. Chrétien: Before federal courts, trials can be held m either official language.

The Criminal Code does come under federal jurisdiction but the administration of justice is a provincial responsibility. We are negotiating with the provinces to reach a definite agreement on this point, we do have one with Ontario which is now in effect and things are working quite smoothly, from what I have been told, with New Brunswick and the Territories as well.

Mr. Hatfield, for example, made an offer to help Nova Scotia by making judges and legal counsel available, if necessary, to prepare, defend and present any cases. He did this as a gesture of courtesy towards the neighbouring province.

Administratively speaking, I think that it might be preferable to develop mechanisms allowing for a type of mobile court able to provide trials for the French speaking minority throughout Canada but this would give rise to complicated problems of jurisdiction.

[Text]

The Joint Chairman (Senator Hays): Thank you very much, Miss Campbell.

I go to Mr. Corbin on Section 133.

[Translation]

Mr. Corbin: Thank you, Mr. Chairman. Let me first of all make a brief comment. I have been a member of the House of Commons for 13 years. I was a member of the special committee responsible for the official languages legislation in 1969. At that time, I made efforts to obtain the recognition of Francophone rights outside of the provinces where they were traditionally respected and I was rebuffed by the then Minister of Justice. I did however enjoy the support of English speaking Liberal members of Parliament who went along with my point of view but, in view of provincial misgivings, we did not go as far as we had intended.

The same thing happened a year and a half or two years ago when the Criminal Code was amended to allow for trials in French. Some provinces once again expressed their reticence, the same reservations were voiced by the official Opposition and, following the report of the committee of the House of Commons, I even heard some disparaging remarks to the effect that Francophones had been done out of their due once again. What impresses me today is to see that finally the majority, not the political one, but the language majority group, is starting to show some understanding of this whole question. The fact is that basic rights are being flouted in this country, rights flowing from the British North America Act which are not extended to all French Canadians in the areas where they may happen to live.

French Canadians in Manitoba and Saskatchewan are not seeking a favour from the political majority, they are asking for the support of the English speaking majority in this country. This is why I was pleased to hear the remarks made by Mr. McGrath, Mr. Fraser, Mr. Nystrom and his colleagues because I think this realization is starting to come about, but

[Page 44]

not only will you have to convince Premier Davis, but you will also have to attempt to convince all the other provincial premiers to accept this point of view.

I do not want to receive something which is not given gladly. I do not want to receive something which is given grudgingly and, in this respect, I go along with several of the comments made by the Minister of Justice. This is not what French Canadians are seeking, Mr. Chairman.

It is for this reason that I would like to call upon that sense of fair play which has always been recommended to us and held up to our admiration in our history classes, even though in my day, the history taught in our New Brunswick schools was not the history of Canada but the history of England. I am asking that this sense of fair play be demonstrated by the provinces in settling this matter. The federal government is more than willing to co-operate, as the Minister of Justice has reaffirmed today. This is all we are asking for, we do not want any crumbs or anything which is not given willingly, gentlemen.

Thank you, Mr. Chairman.

[Text]

The Joint Chairman(Senator Hays): Thank you, Mr. Corbin.

Senator Tremblay on 133.

[Translation]

Senator Tremblay: Mr. Chairman, thank you for giving me the floor at this time. My remarks are related to Section 133 to some extent but, more particularly, to a point made by the Minister which I challenged and since it is important for the understanding of the draft resolution, I would like to bring this matter up once again to have my interpretation either confirmed or corrected by the Minister or the Deputy Ministers accompanying him.

I am referring to whether there is indeed an opting m formula with respect to languages. The Minister remarked that a resolution from the provincial legislature and the Canadian Parliament would be sufficient to have a province acquire the same status as New Brunswick, as far as this proposed resolution is concerned.

From my reading of the proposed resolution, I would conclude that much more than this is necessary and that the amending formula in 41 or 42 would have to be used. This understanding is based on section 50 of the resolution which states that amendments to the constitution of Canada in relation to any of the following matters are to be carried out in accordance with sections 41 or 42, and among the matters mentioned is the charter of rights.

The extension of Section 133 would involve sections 16, 17 and 18, if my memory serves me right, which are part of the charter. Therefore, I take it that the procedure described in Sections 41 or 42 would have to be followed to bring in another province. Is this correct?

[Page 45]

Mr. Chrétien: You are right in that connection. A province may opt into 133 through section 43 which provides for a resolution of the provincial legislature and of Parliament but I will ask Mr. Tassé, who is better versed in the technicalities, to explain this to you.

Senator Tremblay: Yes, I would appreciate that.

Mr. Chrétien: I will ask Mr. Tassé to give you an answer.

Senator Tremblay: Yes, I would like to have the matter clarified.

Mr. Tassé: Mr. Tremblay, Section 133 will continue to be in effect once this legislation is adopted and it is one of the provisions to which an amendment can be made through Section 43. Section 43 provides that a provision of the constitution may be amended when it applies to one or more provinces but not to all of them.

It would thus be possible, under Section 43, to amend 133 in order to add a province such as Ontario by way of a resolution of the Ontario legislature and the House of Commons and the Senate of Canada. This would be a way for the Province of Ontario to bring itself under the provisions of Section 133 but such provisions are taken up again in Sections 16 to 20 and are applicable to Canada as well as to New Brunswick. It would be possible, should the Minister’s amendments be made to Section 16 to Section 20, to add to New Brunswick other provinces.

Senator Tremblay: Not under 50?

Mr. Tassé: I was getting to that. In such a case, if it were decided to amend Sections 16 to 20 in order to add another province, the procedure described in Section 41 would have to be followed.

Senator Tremblay: I see.

Mr. Chrétien: The distinction is that if the bilingualism formula advocated by the federal government and New Brunswick is chosen, then the ordinary amending formula would apply.

Senator Tremblay: In that connection, then I was right.

Mr. Tassé: Sections 16 to 20.

Mr. Chrétien: If a province wants to come under the obligations prescribed in Section 133, it does not need to use the amending formula. Its legislature merely passes a resolution, the same is done by the Parliament of Canada and the province then comes under 133 without resorting to the amending formula.

Senator Tremblay: A supplementary question, Mr. Minister. It is a technical matter but quite basic. I gather that either the province chooses to have its name added after that of Quebec and thus be bound by all the provisions of 133 or else it accepts only a part of the requirements set forth in the draft resolution and in that case proceeds under 41 or 42.

[Page 46]

Mr. Chrétien: Yes.

Senator Tremblay: Are we both fully aware of the implications of what has just been said?

Mr. Chrétien: Yes, indeed.

Senator Tremblay: This means that it is not Section 133 which is in the draft resolution but something quite different. Mr. Chrétien: Obviously, what I have been asked to do since the beginning of this afternoon is to impose 133 on Ontario, not Sections 16 to 20. I am being asked to impose 133 on Ontario and the mechanism is not the same.

Senator Tremblay: Therefore, there is a certain ambiguity which Mr. Nystrom might like to have clarified since the position they have always taken is in favour of extending 133 to Ontario.

Mr. Chrétien: Yes, of course. Extending 133 to Ontario; sections 16 to 20 do, to some extent, represent more than 133 . . .

Senator Tremblay: Rather less than.

Mr. Chrétien: Not less than but more than 133.

Senator Tremblay: Both more and less.

Mr. Chrétien: No, no. It is more than 133 because, in view of the situation in Canada at this point, it is probably marginally more but still it is more. Communications with government offices are not specified in 133 whereas they are in Clauses 16 to 20. In other words, the protection that francophone citizens of New Brunswick would enjoy henceforth, with the passing of Clauses 16 to 20, is greater than the protection that anglophones enjoy in Quebec.

Senator Tremblay: In a certain way, yes.

Mr. Chrétien: That is what I meant.

Senator Tremblay: In other respects, it is less.

Mr. Chrétien: Here is the situation. There are some elements in clause 16 to 20 that are not found in 133. However, if there are elements in 133 that are not found in clause 16 to 20, I would like to know what they are. They are all there.

That means that New Brunswick will have for its francophone population a greater protection than Quebec has for its anglophone.

Senator Tremblay: Mr. Chairman, I thank you for allowing me to clarify this point . . .

Mr. Chrétien: That is what we are here for.

Senator Tremblay: I think that we have explained part of a possible misunderstanding.

Mr. Chrétien: This is what we are here for, Mr. Chairman.

[Text]

The Joint Chairman (Senator Hays): Thank you very much, Senator Tremblay.

[Page 47]

I notice that the clock is 5.59 p.m.

We have Mr. Crombie as our next speaker and we have exhausted Section 133 as far as speakers are concerned. Do you wish to go on now or tomorrow morning, Mr. Crombie?

Mr. Crombie: Mr. Chairman, I gather I was second on. the list. Can I deal with one matter in the one minute that I have, both a question of order and then secondly a question of substance.

I admire the way in which the Subcommittee on Procedure has dealt with the procedure before the Committee through these many weeks, but acceptance of a procedure which says you can have a supplementary is normally intended to mean you can finish a thought and go on. That is the urge towards having that kind of procedure.

I was scheduled to go on two hours ago and I wanted to make some comment, I enjoyed the discussion and I have some contribution to make with respect to Section 133 at the appropriate time but, if the Subcommittee procedure is allowed to go the way it has gone then we are not going to go through any orderly discussion of the amendments coming from the Minister.

So I would ask the Subcommittee to either reconsider its position or ask the Joint Chairmen to redfine the application of that decision.

On the question of substance, if I could, Mr. Chairman, I wanted to make an initial comment with respect to the questions raised by Mr. Robinson with respect to not including the handicapped and disabled, both physical and mental, the Minister’s decision not to include them on the basis that there would be some difficulty with respect to definition.

I would like to be able to return to that tomorrow because our party intends to move an amendment which will so include them and I would ask the Minister and his officials if they would please look at the recommendations which have been made in the past by the Human Rights Commissioner in that regard and before this Committee.

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

We will consider what you have said in so far as the supplementaries are concerned tomorrow, and I at this time on behalf of Mr. Joyal and all the members of this Committee thank the Minister for being here and we are looking forward to having him back again tomorrow morning at 9:30.

In the meantime this meeting is adjourned.


WITNESSES

At 3:30 p.m.

From the Department of Justice:

Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.


Other Issues:

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

*On Order — Available Soon


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