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 38 (15 January 1981)


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Date: 1981-01-15
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 38 (15 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 38

Thursday, January 15, 1981

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


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

Constitution of Canada


RESPECTING:

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


APPEARING:

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

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980-81


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

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

Representing the Senate:

Senators:

Austin
Bélisle
Connolly
Lapointe
Lucier
Murray
Petten
Rousseau
Tremblay—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Corbin
Epp
Fraser
Gimaiel
Hawkes
Irwin
Mackasey
Manly
McGrath
Peterson
Nystrom
Tobin—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Thursday, January 15, 1981:

Mr. Hawkes replaced Mr. Crombie;
Mr. Allmand replaced Mr. Henderson;
Mr. Munroe (Esquimalt-Saanich) replaced Mr. Beatty;
Mr. Manly replaced Mr. Robinson (Burnaby);
Mr. Gimaiel replaced Mr. Bockstael;
Mr. Beatty replaced Mr. Munro (Esquimalt-Saanich);
Mr. Ittinuar replaced Mr. Manly;

[Page 3]

Mr. Duclos replaced Mr. Mackasey;
Mr. Mackasey replaced Mr. Duclos;
Mr. Bockstael replaced Miss Campbell (South West Nova);
Mr. Manly replaced Mr. Ittinuar;
Mr. Peterson replaced Mr. Allmand.

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

On Thursday, January 15, 1981:

Senator Cottreau replaced Senator Connolly;
Senator Goldenberg replaced Senator Lapointe;
Senator Rousseau replaced Senator Lamontagne;
Senator Connolly replaced Senator Cottreau;
Senator Lapointe replaced Senator Goldenberg;
Senator Bélisle replaced Senator Roblin.


[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, JANUARY 15, 1981
(67)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:49 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Other Senator present: The Honourable Senator Flynn.

Representing the House of Commons: Messrs. Allmand, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Hawkes, Irwin, Joyal, Mackasey, Manly, McGrath, Munro (Esquimalt-Saanich), Nystrom, Robinson (Burnaby) and Tobin.

Other Member present: Mr. Rose.

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

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

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

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

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

At 12:04 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(68)

The Special Joint Committee on the Constitution of Canada met this day at 3:42 o’clock p.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Allmand, Beatty, Miss Campbell (South West Nova), Messrs. Corbin, Duclos, Epp, Fraser, Gimaiel, Hawkes, Irwin, Ittinuar, Joyal, McGrath, Nystrom and Tobin.

Other Members present: Messrs. Manly, Munro (Esquimalt-Saanich) and Robinson (Burnaby).

[Page 5]

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

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

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

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

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

At 6:02 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING
(69)

The Special Joint Committee on the Constitution of Canada met this day at 8: 10 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Epp, Fraser, Gimaiel, Hawkes, Irwin, Joyal, Mackasey, Manly, Nystrom, Peterson and Tobin.

Other Members present: Messrs. Duclos, King and Munro (Esquimalt-Saanich).

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

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

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

The Committee resumed consideration of its Order of Reference from I 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.)

[Page 6]

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

At 9:47 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 7]

EVIDENCE

(Recorded by Electronic Apparatus)
Thursday, January 15, 1981

[Translation]

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

I will invite the honourable members of the committee to take their seats so that we can resume our work, where we left it last night.

Section 1—Rights and Freedoms in Canada.

[Text]

Before I call our next speaker I would like to inform the honourable members that after consultation with the representatives of the parties around the table, it has seemed advisable to review our agreement on the supplementary questions that the Chairmen would be allowed to recognize after one speaker has completed his line of questioning, and it was suggested, and I think properly so, that we follow the same procedure as in the House of Commons, which is to recognize only one supplementary question after a main line of questioning has been completed, and that I think is a fair suggestion.

In so doing, I think that the Chair will keep a proper balance so as to give an opportunity to different members of the Committee to be recognized on a supplementary, so that we more or less have a complete round around the table after one full session.

So I would like to suggest on behalf of the honourable Senator Hays that we try this morning to follow that procedure and review it maybe later on during the day if we think that there might be some adjustment that could be done. [Translation] I have the honour and privilege to welcome this morning the Honourable Minister of Justice.

We had on our list last night the Honourable David Crombie who unfortunately is not present this morning, but I will keep his name on our list and invite the Honourable James McGrath to start the discussion with the Honourable Minister of Justice.

[Text]

Honourable James McGrath.

Mr. McGrath: Thank you very much, Mr. Chairman. Good morning, Mr. Minister.

Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): Good morning.

Mr. McGrath: I would like to ask the Minister if he could perhaps expand on the statement he made because it is still not clear in my mind from what he said yesterday, and from the press reports, with respect to his response to the meeting in Montreal of the six provincial Justice Ministers and their pursuit of a new accord or some grounds for compromise or some reasonable hope of getting back to the negotiating table, because that speaks to the mandate or the lack of a mandate that many of us feel applies to the government, especially in light of the Gallup poll released the day before yesterday, or yesterday, indication, for example, that 64 per cent of the people of Canada are opposed to the entrenchment provisions of the measure before us, and they are in favour only of simple patriation.

[Page 8]

Well, my view of simple patriation, of course, is patriation with an amending formula. I do not think any of us would support the view that we patriate without an amending formula because that would be to embed in stone the concept of unanimity, and it would make our problems that much more difficult, so I would interpret simple patriation to mean patriation with an amending formula only and nothing more.

In other words, the whole question of entrenchment is left to the Canadian legislatures, hopefully to be preceded by an agreement by the First Ministers.

The Minister indicated to the press, as did the Prime Minister, that there was nothing further left to negotiate, that this was not negotiable, that we in fact have been through this process and this is it. Is that the thrust of what the Minister said, is the Minister closing the door, is the government closing the door on the Premiers?

Mr. Chrétien: We had some statement right in September by some Premier that there should be another round of discussion, and as I said in the House of Commons yesterday, some other Premiers said that it was not worth it to try. I think Mr. Hatfield said that before Christmas, that it would be a loss of time.

So if you are asking for another First Ministers conference, because even if it is a ministerial conference, it will lead to a First Ministers conference, the view of some of the First Ministers, including Prime Minister Trudeau, is that another round of meeting with the First Ministers on patriation, an amending formula and a Bill of Rights, will not produce any concrete results. Yesterday morning I received some communications from some of the people at the meeting in Montreal on Tuesday and they had nothing new to ask me, in fact they wanted to know what was our position but at no moment have I received any message from any of them of any concrete proposition that could lead to resolving the problem.

So for this period of time, partriation, an amending formula and the Bill of Rights, entrenchment of the Bill of rights, we told the First Ministers right on June 9 that come September we had the intention of proceeding and we have done just that, and with the support of some of the Premiers. Because in the meetings with the Premiers in the past the tradition had been that the unanimity rule prevailed. Of course, it is evident that there will be no unanimity on anything, and really there was no request for any meeting at this time.

However, said that there would be some amendments coming in in this Committee and we have received communications from different provinces privately all along, in the fall, and some of their views have been incorporated and in the debate you will see, like yesterday, some questions by Mr. Robinson I had to say to him that I have agreed to accept the views of the Attorney General even if I am not completely happy with it because, I forget what was the problem, anyway it is applying to us, it would not be applying to the problem in the provincial jurisdiction.

[Page 9]

So we do not see any usefulness at this moment in having another First Ministers meeting on the subject.

After patriation there are a lot of constitutional problems that need attention and we have the intention of calling new conferences to resolve the other problems, like the Supreme Court and family law and many other items that were on the agenda, plus the natives and the constitution and perhaps other problems that may emerge.

Mr. McGrath: Mr. Minister, you go back to what you perceive to be the breakdown in the negotiations with the First Ministers last fall but I say to you, with respect, that you tend to close your eyes to what has happened since that time.

At that time you felt that you had the support of the people of Canada and there was some evidence to that effect because there had been considerable advertising and promotion carried on by the federal government, but since that time there have been two Gallup polls; the press, generally speaking the press across the country has tended to support the position of the Gallup polls and that is becoming more and more of a factor, and I submit to you that that is going to be a factor of some considerable importance to Westminster because the word coming out of London yesterday indicates, from both committees that have been looking at this, the Foreign Relations Committee and the other Select Committee, that it is not a simple matter of Great Britain and the Parliament of Westminster merely dealing with the resolution; they cannot be blind to what is accompanying the resolution, to what is going on in Canada, and indeed there is an obligation for them to look behind the resolution, and I submit to you that the Premiers, and that some of us, feel that there has been some movement on the part of the federal government in the amendments that you have brought before us; some movement, not much; there has been some evidence of movement on the part of the six dissenting provinces, that is the six provinces that met in Montreal yesterday; and it seems to me that you are losing a great opportunity if you do not now decide there is some hope of agreement by getting back to the table, because really the most, apart from the principle of entrenchment by Westminster of a Charter of Rights, the most abhorrent provisions in this constitutional package are the amending provisions, specifically the referendum formula whereby you can do an end run around the provinces.

Surely this is important enough to sit down again with the provinces, there has been indication of movement on both sides?

Mr. Chrétien: Mr. Chairman, I do not know where the honourable member sees some movement. I have talked with some representatives of that conference yesterday and there was no movement at all. They did not offer me any compromise at all and I have not read anything in the press that they want to compromise, so I do not know where you are taking that.

When you speak about London and some movement in London, those committees have not reported yet. Secondly, they are not official committees, they are just committees that

[Page 10]

have no, that do not link—or it is not government policy committees, it is a kind of an independent Committee of the House.

The British Prime Minister, Mrs. Thatcher, has always said to Prime Minister Trudeau—and, in fact, there was a statement made by Lord Trefgarne giving a very clear description. It is clear that they see the role in Great Britain as accepting the view of the Canadian Parliament. They have done that since 1867.

As I have explained yesterday, it was a major problem in 1869 when Nova Scotia wanted to quit Confederation, and they were told, “Go to Ottawa; do not come here.” So we know what the position is.

I do not accept what you have said, Mr. McGrath, that it is their obligation to look behind the resolution. To the contrary, I would take strong objection to our going back, as a colony of Great Britain to allow the Parliament of that country to decide for us what should be done in Canada.

Mr. McGrath: With great respect, there is no precedent for what you are doing, so you cannot draw on precedent. You are sending over a package which is going to change the amending formula which now involves the Parliament of Westminster; it is going to break that tie, if you like.

But the most important point which I think you are forgetting is that if the government were to follow public opinion on any other kind of law, well, it could be accused of being weak and vacillating and so on; that on such a law as fundamental as the constitution, surely the right of the people to be heard is also equally fundamental!

Mr. Chrétien: Yes, and they have been heard by the elected members of the national Parliament.

Mr. McGrath: This Parliament has no mandate to change the constitution. It was not an issue in the election. You have come subsequently to the election of this Parliament.

Mr. Chrétien: Yes, we have a mandate.

Mr. McGrath: I say, with respect, you have no mandate.

Mr. Chrétien: We have a constitution. If you say it is illegal, then it is not for me to decide. It is for the court. The matter is before the courts.

We are acting as duly elected members of the Canadian Parliament within the responsibility of this Parliament.

For 53 years we have sought unanimity to do something. This does not necessarily mean that we need unanimity of all 11 governments to move.

But it was our desire—something which I approved of-for 53 years to try and reach an agreement. But now we have to take the unpleasant course of doing what has to be done because we do not want to wait another 53 years.

I do not know, by the way, if you read the same newspapers as I do. But you referred to what happened in England yesterday. But your bible, the Globe and Mail, said this

[Page 11]

morning that the British said that it might not be automatic, but it might take about two days of debate. I do not know what the British Parliament will do. But I know the precedents. They have always cited virtually automatically on the request of the Canadian Parliament.

Mr. McGrath: It is regrettable, Mr. Chairman, that the Minister would, again, use the old chestnut that we have been 53 years trying to get a Charter. The Charter has not been around for 53 years. It has not been around for 25 years. It has been around only for two years. And this Charter has only been around for only a few months!

I would submit that the provinces themselves are responding to public opinion, because public opinion has been expressed through two Gallup polls.

This Committee has an obligation to respond to public opinion. I would submit to you that, on a law as fundamental and important to the future of the country, to the unity of the country, as the constitution, you, sir, and the government have a responsibility to respond to public opinion; you are flying in the face of public opinion and instead of bringing this country together you are tearing it apart!

Mr. Chrétien: I am sorry, but I think when we said during the referendum that there was to be no more standing on the status quo in Canada, that we were to start on some fundamental changes in Canada, you will remember that we said it officially as the government: the Prime Minister of Canada talking in Montreal, in Quebec City—he said that very precisely.

Of course, there are some who have different views as to the nature of the changes which should be made. Now I entirely agree with that. We do not all have the same views.

But it so happens that we form the government, and the views of the Prime Minister of Canada were well known before, during and after the referendum.

I distinctly remember what I have said during the course of the whole referendum. Yesterday I expressed it here in reply to a question from Mr. Robinson or from Mr. Nystrom. I said that every speech I made—if you decide to stay in Canada there will be a new constitution patriated from England with the two official languages enshrined in the constitution, with a Bill of Rights which would guarantee the basic rights of all Canadians and protected in the Canadian constitution, plus the rights for francophones outside of Quebec and the anglophones in Quebec, to receive their education in their mother tongue, plus the notion of sharing. I made the speech over and over again. It was always the standard middle part of my speech. And I was the official spokesman in ·the government!

Nobody, when I came back on May 21, in the House of Commons blamed me for the type of work or the speeches I had made during the referendum.

After that, when I went to the First Ministers in all the provinces they all told me that they had no quarrel with what I had said during the referendum; and I repeated it to them everywhere—in Toronto, Winnipeg, Regina, Edmonton, Victoria, Fredericton, St. John’s, Newfoundland, Charlottetown

[Page 12]

and in Halifax. They all congratulated me on the work we had done.

Some of them came to Quebec to make speeches during the referendum. Some of them even talked to me before going as to whether or not it was wise; and I even encouraged them to do so. We made some commitments, and we are delivering!

To say that we have no legitimacy at all, is going a bit far. I put my neck on the line in that referendum.

An hon. Member: Good.

Mr. McGrath: Mr. Chairman, the Minister and the government do not have a mandate from the people of Quebec for the package that they have presented to this Parliament.

An hon. Member: Right on! Right on!

Mr. McGrath: At no time during the referendum, did the Minister or the government, ever indicate or hint that they would bring in a constitutional package which would interfere with the provisions or the right of Quebec to implement the provisions of Bill 101.

I would submit to you that the Minister not only does not have a mandate from the people of Canada, but he cannot bring in the referendum argument because he does not have a mandate from the people of Quebec for the package that he is trying to ramrod through this Parliament!

Mr. Chrétien: I would like to reply to that, because I distinctly remember that right after the referendum Mr. Joe Clark, the leader of your party, said that if the provinces cannot agree with the federal government, the federal Parliament will have to take its responsibility. I did not make that statement. It was made in Toronto in the week after the referendum by Mr. Joe Clark himself.

I have already explained to you that the way in which the question was put in the poll I would probably have replied in the same way.

I do not want the British Parliament to amend the Canadian constitution forever. That is why I want the amendments to be made in Canada.

But at this time the British Parliament, technically, amends; but what I have to tell Canadians—and I am sure it is something the posters were not telling them when they asked the questions, were not informing them—is that before the resolution goes to Great Britain, that the members of Parliament elected in the I 0 provinces of Canada and the two territories are to vote on it first; if it is rejected by the House of Commons and the Senate, then it is not going to London.

So, technically, of course it is a law in England; that they will not act until e, the Canada Parliament assembled in Ottawa, vote on it and decide yes or no about the fate of this resolution.

The Joint Chairman (Mr. Joyal): I would like to invite Miss Coline Campbell. I have some indication that she would like to

[Page 13]

put a supplementary question following the line of questioning put by the honourable James McGrath.

Madame Campbell.

Miss Campbell: Yes, Mr. Chairman. We are talking about the mandate and the Gallup poll today. That is the process of discussion.

We are all aware that on October 22, 1980, on Opposition Day, Mr. Joe Clark, the Leader of the Opposition, proposed that we go that week with the Vancouver consensus, that we· not consult, have no committee, but to go directly to London.

If you look at the Vancouver consensus and contrast it with the Victoria formula, which had at least four years of discussion according to Professor La Forest who came before us, it would seem to me when you have the Maritime Permiers coming before, three of them saying that they prefer the Victoria formula, because at least you only need three Atlantic provinces in order to veto, under the Vancouver consensus you need four Atlantic provinces to veto, how much consensus could the Conservative Party, who did not have a mandate at the time and who wanted you to act unilaterally—how much consensus was there actually in the Vancouver formula?

We have never actually heard it brought out at the First Minister’s meeting. It seemed to have dropped there. There did not seem to have prior, aside from the summer, consultations on it; there did not seem to be any idea across Canada as to what was being proposed. The only thing I know was that any province could opt out if they did not like it, an amendment, which seemed to. me that they could eventually opt out of everything that might eventually be proposed.

Now, what type of consensus would Mr. Clark have to propose to the Parliament, to the House of Commons on an Opposition Day that we go that week!

I can read you it. It says:

and he presumes,

I am sure he must have had some negotiations to presume that at, page 3939. He says:

I want to emphasize that among those advantages of the Vancouver formula—I draw this to the attention of my colleagues in the New Democratic Party—there is a clear guarantee of natural resource jurisdiction.

Then he goes on to say that the provinces just about can opt out if they do not like a clear guarantee. How can we give a clear guarantee if one province is going to be able to opt out at all times, or several provinces; and yet you have such a disadvantaged area in the Atlantic provinces where you need four provinces in order to opt out.

What type of consensus was there proposed when Joe Clark proposes great unilateral action by Parliament that week, without consultation.

Mr. Chrétien: I agree with you.

Miss Campbell: That is not a mandate.

[Page 14]

Mr. Chrétien: No, I agree with you, when you compare the line of Mr. McGrath and the speech of Mr. Clark on that day, because he wanted us to act unilaterally and with an amending formula, and an amending formula was not there. There was no consensus. There was a consensus to study what was called the Alberta formula but everyone reserved his position. The witness, Professor Remillard, said here that Quebec had reserved its position, and I was there, because in the opting out position there was some who said opting out with compensation or with no compensation; and some said if you opt out you live with your consequences and others said, no, with financial compensation. I never said yes or no but I knew that some were not comfortable with it but we were exploring it because it was a new idea, we pretended it was a new formula. We had looked at the Toronto consensus before, but there was never an agreement. It was not a consensus. It was a consensus to study it and it was still unilateral action because some provinces were not to accept it, and when the first ministers came for their meeting in Ottawa here Mr. Trudeau asked them, is it true you are all agreed to the so-called Vancouver consensus and many of them said, no, no, no. It was discussed but it was not agreed. It was never agreed but it was agreed to study that, so I think it was really irresponsible to try to let the people believe that it was an agreement. There was no agreement, and many of the first ministers said that, and Mr. Hatfield said that publicly and Mr. Davis said that publicly, and I guess Mr. Blakeney too.

The Joint Chairman (Mr. Joyal): I am sorry, Miss Campbell, I have said at the opening of our session that I would allow one supplementary question and I have to remind the honourable members that a supplementary question should never be put on a longer basis than the main question, and I think that the honourable members will understand very easily why I suggest that. The honourable Jake Epp.

Mr. Epp: I have a supplementary question. I think it is important, Mr. Chairman, that I put that question because the Minister here this morning has tried to say that there was not agreement on Vancouver. Every premier that has appeared before this Committee, Mr. Minister, has agreed to Vancouver.

Mr. Chrétien: No. I am sorry.

Mr. Epp: May I finish? Thank you, Mr. Chairman.

There is obviously the question, Mr. Minister, that the premiers have preferences other than Vancouver, but will accept Vancouver in order to make progress on patriation. The same thing can be said about 1971 in Victoria, which you and the Prime Minister like to put forward in the same way, and that it was at that time agreed because of other parts of the package which premiers felt would then make Victoria palatable. So the same argument I think, sir, can be put to you.

[Page 15]

The point that one has to raise with you, then, is it does not stand bold faced that Victoria had agreement because as early as 1974 the provinces already indicated, especially starting with the Province of Alberta, that they could not accept Victoria. That being the case when you look at your mandate, the Gallup poll that was released yesterday does not give you a mandate on unilateral action. National figures, 64 percent oppose your action, I am talking about the process; Atlantic Canada 64 percent; your own province of Quebec 61 percent; the Province of Ontario 67 percent; the Prairies 64 percent; British Columbia 64 percent.

So when I say to you, Mr. Minister, I think you are the type of person who wants to show that the record is quite straight forward, I think you would have to agree that the premiers in the discussions this summer for example obviously would have wanted longer discussion. That was ended by your action, but the point is made and must be made that they were willing to accept Vancouver; they had some other preferences but were willing to do it on the basis of patriation.

Let me just give you one other quote. Premier Davis says he prefers Victoria but would accept Vancouver, and I think the record should show exactly that.

Mr. Chrétien: Mr. Hatfield, when he came here, said that he did not accept Vancouver and I was there and there was certainly no unanimity about it. I expressed my point of view and the Prime Minister put the question to the First Ministers the day before the meeting of September, and they did not agree with it and said there is no such consensus. Professor Remillard said here that the Quebec position, and it is true, they had reserved their position. They wanted to study it and they were on the question of, they wanted to opt out but did not want to take the consequences of opting out. So they wanted to have financial compensation and other things.

So there was no agreement.

Even my Prime Minister said that if we had had all the package on the 12 items that were on the table, an agreement on 12 of them, he might have accepted Vancouver, but he said even if it is pretty bad in the constitution that you end up 100 years from now having some rights in some parts of Canada and other rights in other parts of Canada, but on reflection it might have been an error to have it just in order to have peace because you know there is more than peace in a constitution, in the actual moment; it is what are the consequences in the long run. I do not think, personally, on reflection, that an opting out provision is very good in a constitution. The saving guard that we had as a federal government was that we might veto any opting out because we always kept a veto to any amendment so we would have lived with the status quo forever because of not permitting any opting out, if you had been responsible at the national level.

Mr. Epp: It was the Prime Minister that did not accept Vancouver.

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

[Page 16]

Mr. Chrétien: I am sorry there is much more. He said it in front of the cameras that if it had been the only item that had been in the way he might have accepted that but the question was completely hypothetical because there was no agreement on anything at all.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. I see that Mr. Nystrom is not in his seat so I can move on to Mr. Manly.

Mr. Manly: Thank you, Mr. Chairman. Is this a new question?

The Joint Chairman (Mr. Joyal): A supplementary question.

Mr. Manly: Thank you. I would like to ask the Minister some questions about the meaning of his new Section 25 as it relates to aboriginal rights in light of the fact that the office of native claims supported by officials of the justice department in the past have held that aboriginal rights do not pertain to Nova Scotia or New Brunswick Indian people. Is the government now prepared to concede that these rights do indeed exist.

Mr. Chrétien: Well, of course, there is the problem of technicality there because at the time Nova Scotia was established, or New Brunswick, in relation to the time of federation and so on; Mr. Strayer will explain the difference.

Mr. B. L. Strayer, Q.C. (Assistant Deputy Minister, Public Law, Department of Justice): Well, on the particular point of the application of the Royal Proclamation to Nova Scotia, I think it has been our view that there is serious doubt that the Proclamation does apply there; but Section 25 does not really deal with that question as such, all Section 25 does is to say that if those rights exist, they continue to exist and that the Charter does not affect them. It is not prejudging whether they exist or they do not exist, it is just saying if they do, the Charter does not alter those rights in any way.

Mr. Manly: When members of the Algonquin Council appeared before the Committee last week they pointed to the travesty of justice when the James Bay agreement was signed and they said, and this is a quote from their testimony, that:

The first condition that the Cree had to meet before negotiations could begin on the agreement was the abolition of their rights.

It was the first condition the Crees had to meet before they could sit down to negotiate; in other words, before they could negotiate for what they might get from the agreement, they had to agree on the abolition of any rights they did have.

Would your new Section 25 remove that kind of precondition for any future settlements?

Mr. Chrétien: The James Bay, as the Quebec government was to move into a territory where the rights of the Indians had not been settled by any treaty, I was the Minister at the time and it is I who helped the Indians there, the Cree Indians there, to take an injunction against the Quebec government. There was a judgment by Mr. Justice Malouf, that was reversed later on by the Appeal Court and the Supreme Court, but there was a first judgment that created an injunction and that led to negotiations.

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Of course as there was to be inundation, flooding of the land, the Crown wanted to be completely in possession of those lands with no right over the land that was to be flooded. It was kind of expropriation of those lands in some ways. It was Crown land but with kind of a mortgage for the natives.

The natives, in exchange for giving free title to this land to the Quebec government, complete title to the land, they have extracted from the government probably the best agreement ever to native people in the world. Just like when you go to your bank and you say that you do not want any mortgage on your house, so you have to make a deal to take it out. So they got in exchange a lot of rights, hunting rights, trapping rights and vast lands and so on that are very well defined, and they got a very substantial sum of money and it was part of the agreement and they negotiated that in exchange for giving a free and simple title to the land to the Quebec government.

Mr. Manly: The fact remains that this was not an agreement that other aboriginal peoples across Canada regarded as satisfactory because it demanded the extinguishment of any rights beforehand and I take it from your answer that there is nothing in Section 25 which would remove that necessity in any future negotiations.

On Monday night, in answering Mr. Nystrom, you recognized the Crown’s obligation to protect the rights of native people and you admitted that this obligation predated Confederation and this means very clearly, then, that Canada’s obligations to aboriginal people must take precedence over even the federal government’s responsibility to the provinces, yet you claim that you cannot protect aboriginal rights without agreement from the provinces?

Mr. Chrétien: You are from B.C., and I was the Minister at the time and Mr. Barrett was the First Minister and I had to deal with that government about the cut-off land question in B.C., when some land was taken away from them that had been part of reserve land and one day one government, I forget, around 1912 or 1913, took away land and we have never been able to persuade Mr. Barrett to restore those Crown lands to the Indians.

Mr. Manly: Mr. Barrett did move on that.

Mr. Chrétien: Just a minute. I was Minister quite a long time, I know a bit about this problem.

And the same thing, they had to sue the government in B.C., the Nishka case, in order to get their rights recognized against the government and so on, but the fact of the matter is the Crown land in B.C., it is provincial Crown land, it is not federal Crown land.

If you want us to take back all the Crown land in B.C., okay, we will oblige and take all the responsibilities for aboriginal rights. We will do the same thing.

One might argue that in 1930, when the federal government transferred the land to the authority of the provincial administrations in the prairies, at that time we did not, the government of the day, the Parliament of the day did not protect the native rights enough, but if you want to restore it to the

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original position, and having all the responsibility of aboriginal rights across Canada, we will have to abrogate the legislation that was passed, unilaterally by the way, in 1930 transferring the land to the western provinces.

For example, we might take back all the tar sands and so on, because in that northern part of Alberta, the Indians, I think the people of Treaty No. 7 who covered that area, have never selected their land.

Mr. Manly: If I could just carry on for a moment. First of all, I would like to correct the record.

In August of 1975 Mr. Barrett did very definitely move to take positive action towards the cut-off lands.

Mr. Chrétien: Is it solved?

Mr. Manly: It is not solved yet because he was defeated in an election later on.

Mr. Chrétien: He talks.

Mr. Manly: He appointed a three member commission to look into it and he made a grant of 100 acres as proof of good faith which would establish the basis in court for the cut-off lands people.

Mr. Chrétien: I just want to give you an illustration of the complexity of the problem.

I have to deal with Sacred governments, Tory governments, Liberal governments, NDP governments on that matter.

Mr. Nystrom: Liberal governments?

Mr. Chrétien: In all the provinces. I was there …

Mr. Nystrom: At what time? Historical governments.

Mr. Chrétien: As I said, I was the Minister, six years, one month, three days and two hours, so I had a lot of problems there.

I had to deal with the Manitoba government when a very progressive person, Sid Green, was the Minister. He was tougher than any other minister on this problem. You remember the problem of the flooding of the land in Northern Manitoba, we had to sue them, or help the Indians to fight the NDP government in Manitoba.

So I am just telling you that it is a very complex problem and just to come sanctimoniously and say that it will be resolved easily, I would like you to reflect because you have some work to do in B.C. on that. The Nishka problem is not resolved yet, the cut-off land problem question is not resolved yet. To give a few acres of land in good faith, a lot of other governments have done the same, and the only government in fact who delivered was the Liberal government in Quebec on the James Bay project.

Mr. Manly: I think what you have said, Mr. Minister, really underscores the necessity for having some positive enshrinement of native rights because in spite of your best efforts, you are always working against provincial governments that are

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very slow, if they are willing to make any recognition of these rights at all.

So I think it is absolutely essential that, given the government’s historic obligation to native people, that there be some positive recognition of those rights, and following your statement …

Mr. Chrétien: You have to say how to do that to be effective because if you gave preference to, if you say that the transfer of the land to the provincial governments before all the treaties questions or aboriginal rights questions have been settled when we asked, because in some parts of Quebec or Ontario before Confederation they had been established, but since Confederation existed it was federal land, all the Rupert’s Land and Northwest Territories land were all federal Crown land and we transferred that to the provincial authorities.

So perhaps at that time there was no settlement of aboriginal rights, but it might be that if we have an affirmative declaration of those rights, if that means that in order to resolve it we have to take back all the land that is Crown land and subject to aboriginal rights, I would like you to talk to some provincial governments before doing that.

Mr. Manly: Would it be possible not to have some affirmative declaration of those rights, rights which you acknowledge exist, rights which you acknowledge the Crown has an obligation to protect, would it not be possible to have an affirmative declaration of those rights followed by a commitment to negotiate on the meaning of those rights in different parts of the country?

Mr. Chrétien: We looked at that problem, Mr. Manly, very carefully, and there is nothing that would please me more than to oblige in that situation because of my personal commitment to that problem, but we have come a long way in making an affirmation of the rights, the way we have done it, without creating some legal mess in the administration of the land within the provinces.

It is not easy for me because it is not me who will be caught with the problems if we go too far, because it is not federal Crown land. We have the problem in the North and in Treaty 8 and 11 that applied to the Northwest Territories, they never selected their land and I said: let us renegotiate the treaty. No one had done that before. I did that in 1970, they have not come to terms yet. But I was not obligated and I said: let us renegotiate the treaty in the North.

There was a treaty, their right was to select so many acres of land, but that was creating a problem for us, not what you are asking me to do, to create a problem for all the provincial governments on the administration of the land, on the administration of their resources. For me, in the present problem we are having in resources and in energy, we could take back pretty happily the tar sands, and some of your colleagues in the House would be quite happy, because this land is covered by aboriginal rights because the Indians of that area, some of them have not signed their treaty, have not selected their land as yet, but if I were irresponsible—in fact, I am doing that job for the Premiers today, and I read the statement of Mr.

[Page 20]

Blakeney yesterday and he said that the one giving additional clarification of rights of native people was something that we had urged but he realized, he is a Premier, he came in front of this Committee and he knows what are the problems.

It is very complicated in the prairies. There was the script problem. People who have given away their Indian rights for a piece of land, and very often the land was taken away from them, either legally or illegally, this is not clear.

Some land, some reserve land has been taken back. That is why we go as far as we can legally without creating a legal mess, and if we were to try and affirm there in a narrow way they could lose some rights in the future, so that is the other side of the coin, because if we take the responsibility in a few hours to try and affirm what are those rights, if you do it in order to not create too much problem for the provinces, you might take away rights from the Indian, and if you gave everything to the Indian you might create a legal mess for the provinces.

So I urge you to be careful and, for me, I have a personal pride in what I have achieved because I remember when I started in that game in Indian Affairs problems, the word aboriginal rights was a word that was not accepted at all in Ottawa. You were in the Cabinet, Bryce, at that time and made the advice …

Mr. Mackasey: You will have to tell me the years because I have been in and out very often.

Mr. Chrétien: Some are more persistent than others.

Mr. Manly: You say that entrenchment and affirmation might result in the loss of some rights?

Mr. Chrétien: Depending how you affirm.

Mr. Manly: Could you give an example of what you mean by that? You have said it twice now and I would like to understand what you mean?

The Joint Chairman (Mr. Joyal): That will be your last question, Mr. Manly.

Mr. Chrétien: For example, if you decide to affirm what is an aboriginal right, what is an aboriginal right? If you take the traditional view of aboriginal rights, it is the right to sign a treaty with the Crown before the Crown takes over the land. So from there we have the treaty rights. That is flowing from the Royal Proclamation, that was giving order to the settlers to settle first with the natives.

In those treaties they said that compensation was a medical box in the house of the superintendent of the reserve. We have done an interpretation of that based on aboriginal rights, that the intention was to give something like medicare, and they have, they do not contribute on medicare anywhere; but if you gave a strict interpretation it should be just a medical box in the superintendent’s house.

It is just like the compensation of $5 a year forever; that still exists. The treaty payments, $5, it was like that in the 1800s and it is still $5. No indexation or anything. So if you give a strict interpretation, legal interpretation, you have fixed it in

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stone and the court would decide: yes, $5 forever, but very soon it would be 5 cents in reality.

So that is why I am urging you to be—What we have done here, and I am very pleased that we have made that progress, we said there are some basic rights of the Indians and it is the first time they are written in the constitution, that they have aboriginal rights, but it is a term that has not been fixed as yet, either through negotations or through legislation.

Mr. Manly: You still have not made that definition.

Mr. Chrétien: No, I just say we have recognized those rights exist, but they are kind of undefined, unprecise, and it is the best way to preserve it because when you define them, you are limiting the scope of it because you are defining it in a positive way.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Manly. I am sorry, Mr. Manly, I cannot allow that question.

The honourable Senator Austin, I would like to invite you on a supplementary question on this same issue.

Senator Austin: Thank you, Mr. Chairman. I would like to follow up to Mr. Manly’s line of questioning, Mr. Minister, and in doing so say that I am sure this Committee acknowledges your great knowledge in the field of Indian Affairs and Indian rights, and I want also to say that I believe the government has gone some distance to meet the Indian and native briefs that are before this Committee and they have so acknowledged, in response to your amendments.

There is one concern that I would like to press on you, Minister, and it is not a substantive question but a procedural one, but a procedural one I believe would be of great significance in accelerating the settlement of native claims. Mr. Nystrom referred to it briefly earlier this week when he was questioning you and the question relates to the insecurity that the Indian and native people have with respect to the process of negotiation following the patriation of the present joint resolution.

We have given them assurances, the Prime Minister has given them assurances and you have given them assurances, but what is lacking, in my submission to you, sir, is that the provinces, being a necessary part of that trilateral discussion, have not given such similar assurances as unambiguously as I at least would like to have seen them, and I wonder whether, Mr. Minister, you would be prepared to accept the addition of a subection (c) to the Section 25 which would read as follows:

And the Government of Canada and the governments of each of the provinces shall proceed expeditiously and continuously and in association with the Indian, Inuit, Metis and other native peoples of Canada to negotiate and settle aboriginal rights and claims.

Now, that phraseology does not in any way influence the definition of what those claims are, it does not change the present substantive right they may have, it does not attempt to impose on the provinces any definition, it leaves the definition of aboriginal rights to negotiation, but what it does do is constitutionally commit to the process of negotiation, which is a political commitment which the Government of Canada has

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already made, so in effect it gives those native peoples a constitutional basis for their negotiations and the right to insist that those negotiations be both expeditious and continuous.

I would appreciate your taking that into consideration.

Mr. Chrétien: I will take that into consideration but I think it is a political statement that we are forcing on the First Ministers that they have made anyway, and I do not see—It is not legally binding, the good wishes, but it is not a legal text, it is not any obligation. You say as quickly as possible. Some problems have been dragging, just patriation took 53 years.

Senator Austin: We have, Mr. Minister, in other instances taken a declaration of the First Ministers and put it into this joint resolution and we have such a precedent so I wonder whether you could advance the precedent in terms of the negotiations with respect to these rights?

Mr. Chrétien: I will take that into consideration with pleasure. I just say that we have at the same time realized what we are doing, we are enshrining a Bill of Rights and this is not a right. This is a political affirmation in the Bill of Rights.

The people will wonder, you know, that is not binding at all. It is a political affirmation but the problem will be negotiated; but there is no guarantee that the matter will be resolved with happy negotiations.

Senator Austin: That is correct.

Mr. Chrétien: That is the problem. When you say you are not satisfied with the commitment that the First Ministers made, I must tell you that all of them, agreed in February of 1979 to have an item called “natives and the constitution”. Came September, it was not there for one reason: in July we had agreed to finance the native organizations, to do some research on that problem.

You cannot ask them to negotiate before they have completed their research. You cannot have it both ways. They want time to study their rights. You cannot force them to negotiate before they know exactly what their negotiation position will be.

So the problem seems frivolous with regard to a charter, because it is not a right, not an obligation, not a legal obligation.

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

I do not wish to pass any judgment on the content of your proposal, but I am quite sure that this point will remain on the table when we come to consider the content of our report. As I see it, there are matters which deal specifically with the content of the motion, and there are some other matters which we might consider generally in the context of all the testimony and witnesses we have heard and received at this committee. I am very glad that some members raised issues which we will have to consider in relation to that matter, and I am not making any judgment, of course, on the format of our report.

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Senator Austin: Are you saying, Mr. Chairman, that I can come back to the matter when we deal clause-by-clause with Section 25?

The Joint Chairman (Mr. Joyal): Certainly.

Thank you very much, Senator Austin.

I would like to call now the honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Mr. Minister, I would like to clarify some of the matters you have stated.

There has been a great deal of reference this morning to the Gallup poll, and about Westminster going beyond the resolution.

Now, it seems to me rather ludicrous to presume that Westminster is going to be guided by the Canadian Gallup poll. I do not think that Premier Thatcher is guided by the Gallup polls in England which suggest that her fiscal or monetary policies are disastrous with their level of unemployment and their rate of interest. I am not questioning their judgment.

But I am certainly suggesting that there is much more to governing than reflecting the position of the monthly Gallup poll. I might be wrong on that.

Mr. Chrétien: No, you are not wrong.

Mr. Mackasey: I do not think there was any illusion on the part of any of us, when we took on this task, that we were doing something that the Canadian people were beating the doors down to have accomplished.

The other night I looked at the Gallup poll including the flag debate, and we were more unpopular at the time.

The only poll that any of us really worry about is election day.

I am confident that, with the amendments you have made and proposed, you have gone a long way to reassure Canadians that the exercise is worth it.

I think, Mr. McGrath was correct in saying that we have not been determined to enshrine a bill of rights or charter of human rights for 53 years.

I do agree, would you agree, that we have been looking for that length of time for an amending formula.

Mr. Chrétien: Yes, and to say that we are faced with the proposition of having a bill of rights enshrined in the constitution is a problem we have to go for two years with respect to, is not true. In 1968 Mr. Pearson proposed that; in 1960 Mr. Diefenbaker sought agreement to put his bill of rights in the constitution.

Mr. Mackasey: Mr. Minister, on my own little research and on the basis of that supplied to me here by others, Mr. Douglas is on record in the fifties that he was in favour of a charter of human rights.

Mr. Chrétien: And Mr. Louis St. Laurent, when he was a lawyer for the Rowell-Sirous Commission in 1939, stated in a committee here that we should enshrine a bill of rights in the Canadian constitution.

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Mr. Mackasey: And Mr. Diefenbaker wanted to do so as well.

So regardless of that, the point I would like to come back to is that we probably would not be sitting here today if the Fathers of Confederation had not overlooked the eventual need for an amending formula.

But I would submit that it is of no use bringing back the constitution unilaterally—and I could argue that what we are doing is not unilateral, in the sense that there is support for it—there is no use bringing it back without the elusive amending formula.

Mr. Chrétien: In fact, Mr. Mackasey, if we were as some are suggesting today—and I think it was the Sunday Times, which is owned by the same owners of the Globe and Mail, which suggested patriation without anything else. That means that even if we wanted to act, not unilaterally, but with the agreement of everybody, it would not necessarily be legal; because is it the provincial government? Is it the provincial legislature? Is it the people? It might be challenged. There would be a big lacuna in law, if we do not have an amending formula to come back.

Mr. Mackasey: I wanted it re-emphasized, because Canadians who have voted in the Gallup poll, voted on their conceptions. Many of my misconceptions have been cleared up here. I think we all agree that we must have an amending formula.

My point is that regardless of how the constitution is brought back to Canada, there has to be an amending formula if matters are going to be meaningful.

But the point I would like to make is that, Mr. Minister, if we were to go according to your schedule or your wishes, or hopefully if it is supported by the House of Commons and the Senate, we will have a constitution amended to some degree, and an amending formula and a charter of human rights.

Do you think this would have some influence on the position of the federal government in so far as its flexibility is concerned in agreeing to a proposed amending formula, since there are certain basic things entrenched in the charter of human rights.

Mr. Chrétien: The mechanism which we have selected for an amending formula, because we need one—and one can argue the best thing that can happen for the federal government and Parliament would be for us to take it without any amending formula; we would end up with much more power than we now have.

So what we have done is to call for unanimity in the first two years, so that the provinces could put their act together—seven of them and make their resolution to us. If the package is well accepted the mood would be better for agreement on an amending formula which would show maximum flexibility.

But the problem is if there is no agreement, we have selected the Victoria formula—the one which was agreed; and when Mr. Epp said earlier that it was agreed, but not agreed, well, it was agreed. The paper was there ready to be signed. It was

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only Quebec that withdrew its support, not because of any problem which existed in the formula or anything else, but they wanted to bargain for something else.

So that was a very historical moment at that time. So we said, at least we have this formula to go on if there is no better agreement.

Mr. Mackasey: Mr. Minister, I have been periodically in this Committee suggesting that this 24 months period that the proposed resolution suggested, before the amendments came in had some meaning, some opportunity for the provinces and the federal government to come to some agreement, which, obviously, Canadians would prefer to see.

I have been ridiculed in some areas for this as being rather naive.

So, I would like to ask you—and I am not leading you on this, because I want to know objectively—what is the potential of that 24 months? What could flow when the constitution is back with an amending formula, with a charter of human rights and, in essence, frozen for two years? What is the potential of that period? What, realistically, can some of us who are concerned, anticipate could happen if there was the right approach to a conference in the 24 months if this charter is brought back?

Mr. Chrétien: Well, I have to tell you something—and someone might suggest that I am being a bit political here; but I think there will be something very important which would change, if there is a change of government in Quebec. In all of the summer process, I have always felt that having to deal with a separatist government, who have no interest in proving that the Canadian federal system could work, I think it was a pretty adventurous thing to do; and having in there a dedicated Canadian there, Mr. Ryan—and I have my differences with him; but he is a federalist; he will want to make Canada work. We might disagree on some elements; but that changed the perspective.

The dilemma of the Parti Quebecois this summer was that at one time it was perhaps tempted to make an agreement so that they could win the next election; and after that they were having too many problems with their radical wing and they decided not to make an agreement. I do not know what the political motivation was.

But it was not very reassuring having to face at that conference a government that has as its primary goal to make sure that Canada is not working.

So that with a change of government in Quebec, which wants new federalism—and they have published a Beige Paper on the subject and have expressed their views on all the problems with which we are confronted; and, by the way, when you look at the Beige Paper and what we are doing, there is no great difference. Mr. Ryan objects to the process. Even in the polls which are quoted, it is the process.

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Of course I would like to have a good process; but I am more worried when the people quarrel with the substance.

Mr. Mackasey: Mr. Minister, one last question, because I know my 10 minutes are up.

A matter has concerned me a little. We have made adjustments to the Atlantic provinces formula in the sense of including Prince Edward Island, removing the anomaly there.

There has been some spirited, but objective debate in this Committee about the formula as it applies to the West.

I think Mr. Epp has made a persuasive case for his province. Others have done it for British Columbia.

How flexible would you be, or are you—let me put it another way: under what circumstances would you be prepared to accept an amendment here which would remove the 50 per cent population clause in the amending formula as it applies at the present moment to the West?

Mr. Chrétien: In the case of the maritimes or eastern provinces, the first ministers expressed their views—all of them, at least three of them; and I guess Mr. Peckford too, but not in front of this committee, though I am subject to correction, I am not sure.

Mr. Buchanan said it in front of this Committee, and privately to me; of course, Mr. Hatfield, and the views of PEI were very clear, and of course, Mr. Peckford agreed to.

I think if the same type of request came from the western premiers, I would have no hesitation.

The rationale for having the Victoria Formula is based upon the past agreement. For example, I was told that it was very much the B.C. government who insisted on having it—the father of the present premier, to have the 50 per cent. It was debated at that time and came out that way. The other premiers obliged. I think it was Mr. Schreyer, in Manitoba, Thatcher in Saskatchewan, and Strom in Alberta; they obliged at the request of Mr. Bennett.

There is no symmetry between the East and the West; it was the wish of the duly elected premiers of the day.

Mr. Mackasey: What you are saying in conclusion is that if the four premiers made that request as did the four premiers of the Atlantic provinces, you have no particular opposition?

Mr. Chrétien: I would be delighted.

Mr. Mackasey: So, the initiative is back in their own court to resolve their own differences?

Mr. Chrétien: Yes.

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

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I want to say to the Minister up front that there are two areas I would like to deal with primarily, the latter emphasis I would concentrate on this morning would be resources.

Before doing so, I would like to clarify what I feel requires some clarification on the amending formula, so that the record will show it.

I thought, Mr. Minister, that you were ill advised to use Mr. Sid Green to defend your position. You said that he was a progressive person and progressive minister. You appreciated his views.

That being the case—and I do not know if he is in full agreement or the NDP are in full agreement with him; they probably are because of their association with him; but Mr. Sid Green appeared before the Manitoba legislature and condemmed the action of the government on the constitution unequivocally.

So, if you want to use him as your authority, go ahead, but then use him as your authority.

Mr. Mackasey: On a point of order.

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

Mr. Mackasey: Did he appear as a minister or as a lawyer?

Mr. Epp: The answer to both questions is no.

Mr. Mackasey: If he was not appearing as a minister, that is a fundamental difference.

Mr. Chrétien: Mr. Epp, the point I was making to Mr. Manly was very simply that I dealt on native rights with all different types of governments, and nobody has a monopoly on generosity.

Mr. Epp: That is not my point. I am simply saying if you want to quote your authorities, then quote them. That is all I am saying.

Mr. Chrétien: I disagreed with Mr. Green. I did not quote him to agree with him. I disagreed with him.

Mr. Epp: Mr. Chairman, I know I do not have a lot of time, but I would like to read a letter into the record from the honourable Dick Johnston, Minister of Federal and Intergovernmental Affairs of the Province of Alberta, addressed to Mr. Donald Munro, dated December 19, 1980, as he viewed the consensus arrived on Vancouver. I quote:

Thank you for your letter of December 8, 1980. I appreciated receiving your comments regarding the Alberta position on the federal constitution proposals.

With respect to your specific request as to whether the federal Justice Minister supported the Vancouver consensus formula during our Vancouver meeting, my recollec-

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tion of the deliberations is that while Mr. Chrétien saw considerable merit in the Vancouver formula he did not explicitly endorse the formula on behalf of the federal government. He did indicate, however, that the federal government was willing to consider any amending formula which received general support among the provinces.

It is significant to note that during the federal-provincial discussions over the past summer on the amending formula:

—General support for the proposal that eventually became know as the “Vancouver consensus formula” emerged at an early stage. Subsequent discussions regarding the amending formula focused primarily incorporating technical improvements into the proposal.

—At no point did the federal government advance any proposals. At no point was the use of referenda in an amending procedure formally discussed.

I simply wanted to put that on record, and say that when the Minister indicates one observation of what happened in the summer, I would suggest that is not the only observatin that was prevalent for the summer meetings.

But, Mr. Minister, what I would like to discuss with you today is the matter of a clause including the ownership, management and control of resources. It has been the position of this party, Mr. Minister, that resources are owned by the provinces and that period dates back to 1867 when at the time of Confederation resource ownership was not given to the provinces, it was agreed between the federal and provincial governments of that day, that resources were owned by the provinces. Unfortunately, at least in the history of those of us who come from Western Canada, that view did not prevail at the time we entered Confederation. We were given the same provisions in 1930 through the Natural Resources Transfer Act.

You said yesterday that the federal government gave-while you might be technically correct, I do not think that historically that is the manner in which Western Canadians viewed the events of I 930 but rather it was an agreement in 1930, a moral obligation, that if the other provinces had their resources so also should the western provinces and there was an inequitable position that the provinces should continue in Confederation without the ownership and control and management of their resources, a right which had been enjoyed by the other provinces.

I think the record of 1930, as one reads that period of time, that my interpretation of that period is accurate.

I believe, Mr. Minister, that there has been no question as to ownership of resources until it was raised in the last two years

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by the federal government and specifically the Prime Minister. It was at that point only that I felt suddenly there was a need to reafirm, if in fact a reaffirmation is needed, that resources in fact are owned by the provinces. If there was any doubt, it was raised by the Prime Minister. It has never been raised by any Premier who is now sitting as a Premier for any province or, for that matter, any Premier that held those responsibilities heretofor.

So I want the record to show very clearly that we in this party, looking at Section 92 and Section 109 of the BNA Act that in fact resources are owned by the provinces without question; and if there is any question it is by the Prime Minister.

That being the case that I am putting before you this morning, before I get into the resources question per se are you aware that this Committee might not be in a position to in fact entertain any amendment either the Broadbent, Nystrom amendments on resources or any amendment that we in this party might put forward in order to reaffirm the ownership of resources by the provinces, placing all those caveats of historical precedents that I have placed before you? Are you aware, Mr. Minister, that in fact this Committee might not be in a position to accept, because of the narrow reference under which this Committee is working, to accept any amendments on resources.

Mr. Chrétien: I am informed that there is, under the Chairman, it is up to the Chairman to decide. I am not to deal with the proceedings of this Committee, as procedures. It is for the Committee to pass their own judgment.

Mr. Epp: Mr. Minister …

Mr. Chrétien: Do not ask me. We will see what the result of the deliberation is.

I would like to reply to some of the statements you made because in fact it has been the view of this government and all previous governments that the resources are owned by the provinces.

Mr. Epp: I am glad you said that.

Mr. Chrétien: And this question was not raised by the federal government ever. The first people who sought clarification of it were the Alberta government, not us. They are the ones who initiated the discussion on it.

We never pretended we owned the resources. We always said that we have the right to tax the resources as the national government. This is what we said. We never pretended we owned the resources. The resources were transferred to the provinces in 1930 by the federal government. You say that, you know, you have to put it in an historical context. When the provinces were created in 1905 there was no transfer of the resources and it was not the trend in North America either. The states south of Alberta, I was reading in Time magazine about three weeks ago 80 per cent of the resources in the western states of the United States still belong to the national government.

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Mr. Epp: What you were reading about was the sage brush revolt.

Mr. Chrétien: We have been in Canada, we have done the right thing in 1930, I am not quarrelling with that. The point I am making is that it was done unilaterally for one reason which is that if there had been provincial consultation what might have happened; and I think that Mr. Bennett who was the Prime Minister at the time was well advised to act unilaterally because he might have been faced with one eastern province saying we should do exactly the same thing that they have done in the United States, keep the resources for the national government, for the benefit of everyone; so rather than take any gamble on that he acted unilaterally in order to transfer the resources in 1930 or 1932 to the provinces.

So I am telling you that it has been the view of this government that the resources belong to the provinces, but the power of taxation of the national government exists and the problem is taxation can be taken by one or other level of government, that is the problem. But it is not a question of ownership. Your salary and mine, we own it, but the government taxes it.

Mr. Epp: I know that.

Mr. Chrétien: And it is hurting, and yours too and everyone. We all know, they say you are paid that much an hour or that much a year but at the end in your pocket the government has taken a bit of it. The problem on resources is that. It is not a question of ownership.

Mr. Epp: Mr. Minister, I do not want to get into American politics particularly or the North American experience, as you like to call it, but I want to clarify the record. I do not think you were right …

Mr. Chrétien: It is not to your advantage to do that …

Mr. Epp: Oh, yes, it is. That is why I am going to do.

Mr. Chrétien: Let me have one more comment.

Mr. Epp: Just a minute. What you have referred to is the North American experience, so I will give the North American experience to you. What you are talking about is the sage brush revolt. The point is this, that the resources in western states in the United States are owned by the States. What you are talking about is federal lands reserved within the states to which the states do not have the resource ownership. That is the question. It is not the question of ownership.

Mr. Chrétien: Great.

Mr. Epp: Just a minute, I am not through. Please do not interrupt me.

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Mr. Chrétien: I am very pleased that you state that. The land is federal, but not the ownership of the resources. The whole land is federal, good I agree with you. It is even worse.

Mr. Epp: Mr. Minister, the point that I am making is this that you were fudging the issue again and that you said that the states did not own the resources. You have now conceded that statement was not correct. I said that there were federal lands within those states on which the federal government owned the resources. That, sir, is no different than north of 60° today in Canada. That is no different. So when you want to stay with the issue, then stay with the issue and be accurate. What I am saying to you is do not use the idea that in the United States suddenly somehow that the western states do not have ownership. It is federal lands within those states that we are referring to.

But I would like to get back to it. It is not hypothetical, that is reality, sir, so that is why when you say you want to use an example, use it—I am not through, Mr. Minister.

Mr. Chrétien: You make me laugh.

An hon. Member: Or cry.

Mr. Chrétien: You make me laugh when you say that. When the state government in the state of North Dakota, the government has jurisdiction over, say, 20 per cent of the land within Dakota and they have control of the resources within that …

Mr. Epp: Mr. Minister …

Mr. Chrétien: I will concede that to you but I hope you would concede to me that 80 per cent of the lands of states like that belong to the national government over which the states and the residents of that state have absolutely nothing to do.

Mr. Epp: That is on federal land, but we are talking about the principle of who owns within the states, so do not fudge it; and as you well know that is the same regime that exists in Canada north of 60°, so be careful how you use those details.

The point, Mr. Minister, that I want to get to is this. This Committee, according to one opinion of one of the Clerks of the House, cannot entertain a motion on resources because it is out of the ambit of this resolution. If that is the case, if that opinion is to prevail, are you willing as the Minister in charge of this proposal to take this matter back to the House, to expand the reference that a resources amendment can be proposed either by the NDP, and we definitely will have one, will you give me that undertaking this morning?

Mr. Chrétien: Mr. Chairman, you know I do not have to comment on the procedure of this Committee. I replied earlier, it is for the Committee to decide on the operation.

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

The Joint Chairman (Mr. Joyal): The honourable James McGrath on a point of order.

Mr. McGrath: My colleague has raised a very important question. The Minister has refused to reply to it. I think it would serve the work of the Committee in reaching determina-

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tion on this if the Chair could now give the Committee whatever advice it has received from the table officers of the House?

The Joint Chairman (Mr. Joyal): Thank you, Mr. McGrath, for your question. I have already received an opinion. It is not the final one, it is more an opinion that has raised questions rather than solved questions and I will not propose to the honourable members at this point that it is the decision or the ruling that the Chair wants to suggest to the honourable members.

I am ready to circulate that, I should say, preliminary opinion to the honourable members and advise them later on what could be the proper attitude of the Chair when the time will be open to us to consider that very issue, but I am ready to answer partly to your question, as far as I can answer at this point, which is to circulate that preliminary opinion, as it was forwarded to me.

Mr. McGrath: Could you say for the record, for the benefit of the people who have to report these proceedings, what that preliminary opinion was.

The Joint Chairman (Mr. Joyal): As the honourable members know, we have terms of reference which is contained in our order of the House of Commons and those terms of reference refer specifically to the motion as it has been tabled in the House and as it has been under consideration here and members will know and agree very easily with me that there is no specific reference or no chapter dealing specifically with the question of natural resources; so it is a question which is new in its broadest sense and that is in this respect that doubts have been raised that it might be appropriate on procedural grounds to receive amendments or to include amendments that would deal specifically with the question of natural resources.

Mr. Epp: Mr. Chairman, on the same point of order and I will not pursue my question on the resources question with the Minister, I will take my opportunity the next time you recognize me; but on this point of order I think it is important for the Committee not only on the resources question because of the so-called arrangements between Mr. Broadbent and Mr. Trudeau, but additionally, if it is opened up, that is the procedures of this Committee, to accept amendments on resources, then I take it that the ruling would not only be on opening up resources but any other area in the BNA Act which would then allow this party, for example, to come in with amendments quite apart from either resources or what is before the Committee in the proposed resolution. That is the caveat I want to place before you.

The Joint Chairman (Mr. Joyal): I am glad, Mr. Epp, that you made that statement because I have already made it.

Mr. Epp: I wanted to make sur it was there.

The Joint Chairman (Mr. Joyal): If you remember earlier, I think it was next week, at the suggestion that you made yourself that your party wants to address some other sections of the BNA Act, and I reminded you kindly at that time that the Chair might have some reluctance to entertain some amendment proposals on those grounds that we have to abide

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by the Standing Orders of the House and we have to confine generally our amendments to the very content of the motion as it has been tabled in Parliament and as it has been in consideration here, and that is the proviso that I expressed at that time and I am glad that you recognize taht there is there a question that needs to be answered.

Mr. McGrath: Mr. Epp was really saying that what is good for the goose is good for the gander.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath, for your precise wisdom.

Mr. Nystrom and then Mr. Mackasey. I have recognized Mr. Nystrom first. Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman. I think it is very important, Mr. Chairman, that you circulate that preliminary assessment as soon as possible so we can study it and perhaps refer the question to the steering committee. If we cannot resolve it there, of course, we have to resolve it here. I want to throw out something that perhaps we can consider. It seems to me when the Minister brought his amendments before this Committee on Monday night that he introduced something that was new. He introduced an amendment on multiculturalism. Now perhaps it can be argued that that is part of the Charter of Rights and Freedoms, therefore it was not something that was totally and absolutely new, but as a subject matter, Mr. Chairman, it was something that was not referred to in the original resolution.

Now, perhaps that is not in order but if it is in order then it may by itself set a precedent and may be enough for you to rule a resource amendment or an amendment on anything else, in order. I just wanted to point that out to you and underline it.

The Joint Chairman (Mr. Joyal): That is why, Mr. Nystrom, when there was a meeting of the Subcommittee on the Agenda and Procedure, if I remember well, on Tuesday morning it was agreed that questions of procedure respecting the admissibility of proposed amendments be dealt with in the Subcommittee on Agenda and Procedure whenever possible.

We have already identified the problem and I think that we have approached a solution which is in my mind satisfactory and has been recognized as such because that report was endorsed by the members yesterday, that those amendments should be dealt with at the subcommittee, especially those wherever there might be a question under admissibility; and I wanted to remind the honourable members that that is a procedure that we have already accepted around this table yesterday.

The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, it is obvious that this matter could very well have to come back to the full Committee and I just want to say to the point of order that it was certainly understood in the House of Commons that there would be included in this resolution a clause dealing with resources. I do not want to get provocative at this time. If through procedure we are going to deny one of the provinces something that they feel is very important to them then this Committee will have to

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be judged accordingly, and I reserve my argument until we hear further.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. If you allow me, seeing that the Minister is absent for a moment, I might insert you on the same grounds, and I have made some comments to the Honourable Senator Austin earlier. There are some proposals that we can deal with as amendments to one specific section of the motion and there are some other recommendations that this Committee would like to address to the House. That is why there is certainly a possible solution to the procedural question that we have to deal with, but I think that we are not in a dead end procedural issue on that very question. There are possibilities for this Committee to recognize the very issue of natural resources or any other issues that are dealt with in the BNA Act, but we might not be in a position to add them to any specific section as such or to change the wording of some specific section, but just recommend generally to the House of Commons, as it is our proper mandate, and to the Senate to add those very specific suggestions to one or the other section.

I think there is a possibility to deal with that and I would say, and I think I speak on behalf of the Honorable Senator Hays on this issue, that as Chairmen we have tried to approach that question I should say on the most generous grounds, and I have, as yourself, have listened to all the suggestions that have been put forward and I will really feel uncomfortable if we would not have been in a position to find a solution to those aspects, especially taking into account that from the Official Opposition party and from the NOP party later on next week we will be informed of some very important amendments. I think that the House of Commons has requested us to make a report on those grounds and I think we have to find a solution to that.

Senator Flynn: The Senate also.

The Joint Chairman (Mr. Joyal): The Senate also, of course and the Honourable Senator Flynn should recognize that if sometime I refer only to the House of Commons I must remind him that I have the presence of the Honourable Senator Hays very close to me and I should say he has a very convincing argument on the side of the Senate and I am quite sure that …

Senator Flynn: True. The mere presence?

Mr. McGrath: Mr. Chairman, I note the Minister is absent and I wonder if the Committee might want to take five minutes, to have the same option.

The Joint Chairman (Mr. Joyal): I was going to say, Honourable James McGrath, that I have received a request by an anonymous speaker to adjourn for five minutes. I will grant an adjournment for five minutes.

[Translation]

The meeting will adjourn for five minutes.

[Text]

The Joint Chairman (Mr. Joyal): May I request the honourable members to take their seats so we can resume our hearing with the honourable Minister of Justice. [Translation] Order, please.

May I ask that the honourable members of Parliament and Senators please return to their seats; I would also ask our

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witness, the honourable Minister of Justice, to be seated as well so that we can continue our proceedings.

I would now like to invite Mr. Eymard Corbin to question our witness.

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

To begin with, I would like to return briefly to the question of a constitution made in Canada or, as some opposition members claim, not basically made in Canada.

Personally, I do not have any difficulty with this point, but like the Minister, I think that the public has probably misunderstood the process; that misunderstanding may be the result of insufficient explanation provided by the government about the process itself, leading to the results of the Gallup poll which you know of.

Personally, I make a distinction between two technical or legal aspects; two very clear technical aspects, the proceedings and the procedure.

It cannot be denied that what the Canadian public is now watching on television are proceedings by legitimately elected members of Parliament from all parts of the country leading towards the drafting of a constitutional text. This part of the proceedings are being done in Canada by Canadians.

What we will request, with the agreement of the two Houses of Parliament, is that the Parliament of Westminster pass an act with the short title of “Canada Act” which will be proclaimed by the Queen. All of that will be done in England.

The main point, however, is that the Constitution Act, 1981, which is the result of our proceedings, which is the work of Canadians, will be proclaimed here in Canada on a date to be set by the Governor General of Canada. Hence, Mr. Minister, I have difficulty understanding how anyone can continue to claim that this procedure falls under the sole power of Great Britain.

In any case, I feel it is important to say that as far as I am concerned I feel that I am not only part of the procedure, but I refuse to accept the opposition arguments claiming that a foreign government is building our constitution.

That is what I had to say on this point; perhaps you would like to add some comment.

Mr. Chrétien: Yes, you are perfectly correct and it is important that the public understands.

What I find strangest in all this is that since last October 25 membres of Parliament and Senators have been working from 9 a.m. till 10 or 11 p.m. on this project, and that these same people do a complete about-face to go and tell the public that the work is being done in England.

The work is not being done in England. What is happening in England is just a legal confirmation of the work done here.

Mr. Corbin: That is all!

Mr. Chrétien: In theory, it is up to England to make the decision. I could give you the following example: In theory, the Governor General of Canada could refuse to sign all bills of

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Parliament, in which case no acts would come into effect. Legally, he has that power, but he does not use it. Everyone remembers the Bing incident in which the Governor General had preferred one prime minister to another. What can I say, it is very clear.

The role traditionally accepted by the British Parliament since 1867 has been to approve resolutions sent to them by the Parliament of Canada; they do not accept resolutions coming from provincial parliaments.

The question we have to deal with, whether this is legal or not, seems clear to me: I say it is entirely legal, since it has been their decision, their tradition, their concept of their obligations towards their ex-colony. They do not want to take this back as a colony, and we do not want to be taken back as a colony.

Mr. Corbin: Mr. Minister, I would now like to move on to Clause 23 of the bill, and I would like to say at the outset that you have made certain points much more specific and clear. However, I would like to add that the amendment does not satisfy me entirely. It probably could satisfy me entirely, depending on the interpretation given to the text of the act or which the courts might eventually give to the provisions of the act.

What worries me most is that you have maintained the concept of numbers. Now I have no legal training and I heard—and I heard other things last week on the subject which turned out not to be true—I have been told that keeping the words “where numbers warrant” is not particularly important, that to all intents and purposes, it is meaningless except as a sop to the feeling of the provincial premiers, and since the government did not want to add or detract from the unanimous agreement of the ten provinces on this issue, it decided to maintain this phrase.

The courts, however, could give this an entirely different interpretation.

The word “reasonable” is also used in Clause 23; in my opinion, the word “reasonable” covers everything, and makes the issue of sufficient numbers superfluous. I think the courts would have problems with the word “reasonable”.

In fact French Canadians, the French Canadian minority, has always acted reasonably in all its requests. It has often been impatient, it is still impatient, Mr. Minister, but no one can accuse us of having been unreasonable in the past or now. That is why I find the words “where numbers warrant” offensive.

Mr. Chrétien: Mr. Corbin, you have very clearly expressed the reason why we have maintained that phrase. Those were the terms used by the Provincial Premiers at the time of the 1978 Agreement in Montreal.

You know just how delicate the issue is. Why did they use those words? To establish a criteria of reasonableness; you say yourself that in every instance French speakers have been more than reasonable.

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The same criteria exists at the beginning of the charter, in Clause 1. There were some who did not want any restrictions imposed. The restriction which does exist is a criteria of reasonableness. Some may argue, and I tend to agree with them, that the expression “where numbers warrant” is nothing more than an expression of reasonableness; the expression could be dropped, and the legal situation would not change.

We must not underestimate the importance of this committee. When the courts are called on to decide what the legislator’s intention was, the lawyers and others studying the problem will obviously try to understand the intention of the legislator, but there is no obligation. The discussions we have had will not impose any obligations on them, but in the minds of Canadians at the present time, there can be no doubt that this provision clearly is not intended to demand a school for a single English-speaking family in Saint-Mathieu-du-Lac Bellemare in my riding; if there were no tests of reasonableness, certain abuses which no one wants could be possible.

Perhaps we could have dropped this expression and the courts would have reached the same decisions, but on this issue we felt it was appropriate not to exceed the words chosen by the Provincial Premiers.

Mr. Corbin: Mr. Minister, what distresses me in all this …

Mr. Chrétien: In fact, the oddest and the most surprising thing is that Mr. Hatfield, your Premier of New Brunswick, does not like the expression “where numbers warrant”, but he was a party to the Montreal agreement.

Mr. Corbin: Yes, especially since the first agreement was reached at St. Andrews.

Mr. Chrétien: In St. Andrews, New Brunswick.

Mr. Corbin: In St. Andrews-by-the-Sea, New Brunswick. I understand Mr. Hatfield to a certain extent. He is a politician who likes to compromise, and who, obviously, would like to be re-elected—and I do not mean that in any pejorative way—he is a politican animal like all of us.

Nevertheless, Mr. Minister, Premier Hatfield would be the first to tell you that New Brunswick French Canadians have always been reasonable people, and that in the past, it was perhaps the majority which was less than accommodating.

Now, you also removed the words “educational facilities.” I believe you removed those words quite simply to avoid any restrictive interpretation of them?

Mr. Chrétien: Precisely; I was very disappointed yesterday to realize that the editorialist of Le Devoir did not grasp that point, believing instead that the change was more restrictive, whereas the intention was precisely the opposite.

What we wanted, actually, was to accept Mr. Yalden’s criticism to the effect that when the provision is limited to facilities, to schools, it is too restrictive.

So we chose a broader theme. The new wording allows for methods other than the construction of a building. It is strong-

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er rather than weaker, and though I am sure he acted in good faith, I do feel that he might have asked himself why we were making the change.

It was in response to that objection, to the fact that as Mr. Yalden said, in the future methods other than the construction of a building could be included; we wanted to broaden the scope so that minority language education would be offered in every case, either by the construction of schools or by other methods which might be developed.

Another point which the editorialist of Le Devoir ignored is that we added a clause to the charter, giving the courts the power to decree remedies, not just to decide that discrimination has occurred, but to decree a remedy.

Mr. Corbin: For instance?

Mr. Chrétien: Take the example of my town, Shawinigan and Grand-Mere. We have a Catholic high school and a Protestant high school both paid for by all taxpayers. They are not very big. I do not know how many students there are, a few hundred. They have problems because there are not many of them, but the government has been very generous towards them, as has the school board; so that the taxpayers in the towns with a 15 per cent unemployment rate.

Let us say that In Vancouver, where there are probably 50 times as many French speakers as there are English speakers in Shawinigan and Grand-Mere—for us, it takes 20,000 to make up a school—a French school is requested. The defending lawyer could say, “Listen, if it is possible to have two English-language schools in Shawinigan for a few hundred students, how can you, the Vancouver School Board, refuse to offer a French school?” So the court orders you to provide that school.

This was not included in the original charter, and it is extremely important. So it is incorrect to claim that we reduced the scope of our action, when in fact we did the exact opposite, and radically; you will remember the comments, people saying that the courts would make decisions but the government would not act. Clause 25 resolves this problem; it gives the courts the power to decree solutions.

Mr. Corbin: Mr. Minister, the example you have just mentioned applies to my town as well as yours; Edmundston, New Brunswick, has a population which is 15 per cent English speaking. Nonetheless, the English minority has always enjoyed every right to education in the English language, and we are now prepared to go even further: We want to give them their own school board. I think that New Brunswick’s example in the area of defining and operating school districts could serve as an example to many Canadian provinces.

Mr. Chrétien: Besides, if when setting up school board limits, the courts find that there is clear discrimination because a French speaking community has been shared out to

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four different school districts in such a way that the number is not then sufficient, the courts will take the example of New Brunswick or Quebec and decree that it was a trick used by the government of the province in question to avoid facing up to its constitutional responsibilities.

Mr. Corbin: Finally, Mr. Minister, Mr. Chairman, could you specify what you mean by a competent court? In Clause 25 mention is made of a competent tribunal where school questions could be appealed.

Mr. Chrétien: Those cases will go before Canadian tribunals depending upon the origin of the problem and there will be an appeal process, according to the normal rules of procedure, up to the Supreme Court.

I could ask Mr. Tassé to be more specific about that.

Mr. Corbin: It is a technical point.

Mr. Chrétien: Mr. Tassé.

Mr. Roger Tassé (Deputy Minister, Department of Justice): Thank you, Mr. Chairman.

In fact, that clause which sets up a recourse before the courts could be used in any case where the charter of rights is violated. Those violations could be …

Mr. Corbin: Not only language rights.

Mr. Tassé: All legal guarantees or democratic freedom deemed to be granted by the charter can be argued before the various court levels. These could be argued within the framework of civil procedures, criminal procedures or could even be done within the framework of obtaining redress. For example, in a school case, the main thrust of the action undertaken might be to ask for redress.

The competent tribunal is therefore mentioned so that those seeking justice might have the possibility to invoke the guarantees granted by this charter in any debate. It might be before a county court, a provincial court or whatever court is competent to hear the case set before the tribunal.

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

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

Mr. Robinson, do you have a supplementary question on Clause 23?

[Text]

Mr. Robinson: If I may just ask a supplementary with respect to the remedies clause that has been referred to by the Minister.

The remedies clause is located in Section 24, and certainly, as I have indicated in my initial questioning, I am pleased with the extent and the scope of the remedies clause as I read it and what I am wondering specifically is, Mr. Tassé, you indicated that for violations of legal rights the court can grant an appropriate remedy. I assume that that would include the remedy of exclusion of evidence which has been obtained in violation of, for example, Section 8 or Section 9 of the

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proposed Charter, or indeed that there could be remedies granted for violation of the refusal to remain, to grant or to declare to a person that has been detained that they have a right to counsel?

Mr. Tassé: That is correct, Mr. Chairman. In effect the Charter, as the Minister has indicated in his main statement the other night, the Charter is silent on the question of admissability of evidence but in effect Section 24 is drafted in such a way that in an appropriate case it would be possible for the court to decide that in effect the just remedy that the section refers to here would require that the evidence that has been illegally obtained be declared inadmissable in the proceedings before it.

I mean, that is something that the court will have as a possible remedy.

Mr. Robinson: And in addition the court could award compensation in appropriate circumstances?

Mr. Tassé: Yes, it could, Mr. Chairman.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Merci beaucoup, Mr. Robinson.

I would like to invite now the honourable Senator Duff Roblin.

Senator Roblin: Thank you, Mr. Chairman.

I want to make an inquiry about the Canadian Charter of Rights and Freedoms but before I do so I want to make my position with respect to it clear if I can.

That is that I am very firmly of the view that the process that we are following here is not correct nor good for the country, that we ought to concentrate on repatriating our constitution with an amending formula, and that the rest of the work should be done here. If I may make the observation, I was struck by the suggestion made by some that the public do not understand what we are doing here. I think they understand it. I think they understand it better and better as the days go by. The only trouble, from one point of view, is that they do not agree with it, and it seems to me quite remarkable that the public has gone to the heart of the problem that that is before us, and that is what is legitimate in the Canadian framework with respect to constitution amendment and constitutional development.

I say that because I want to go on the basis of that premise to the question about the Charter and to indicate that while I take that view about the process and the way we are going about things, I do not think it excuses me, for one, for doing what I can to make sure that the words that I see before me with respect to the Charter are as clear and intelligible as they can possibly be, and I certainly intend to take that attitude with respect to all of the various items that the Charter brings to our notice.

I want to direct my inquiry, Minister, to, number one, the first section of the Charter of Rights. I want to direct your attention to the changes that have been made in it.

The Charter as it stood in the first instance, Section I read as follows:

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The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Now, the point is that we heard testimony from some 19 different organizations, I will not name them all but some of their presentations stick in my memory, the Canadian Civil Rights Association, the Canadian Jewish Congress, the Canadian Human Rights Commission, the Canadian Advisory Council on the Status of Women, the National Association of Japanese Canadians, and a good many others, who were concerned about Section 1.

While I cannot attempt to summarize with any accuracy what each one said, some of them, at least—and some of the important ones left me with the impression—that this Section 1, as it stood, was so limiting in its impact and force as to destroy—in fact some of them went so far as to say they would just as soon not have the whole thing if Section l was in there: that the limiting character of Section l was so severe as to destroy the effectiveness of the other guarantees in the Charter.

Some of them asked for it to be completely eliminated—some of the more important bodies. Nineteen people thought there was something wrong with it.

You have obviously taken notice of that testimony, because you have made some changes. The point of my inquiry is to find out just what the extent of those changes are.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject

Up to that point we are on all fours with the previous one.

Now comes the limitation:

only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Well I take it that the purpose of this change was to somewhat reduce the limiting direction to the courts of Canada that this section gives when they interpret the rest of the Charter.

I want to explore with you just how far it really goes in making that change in the rules; because “reasonable limits” is the same phrase we have in the previous one, and it is modified by “prescribed by law”. That is number one. That can probably be married off with “parliamentary system of government” which you have in the first effort.

Then it goes on to say,

as can be demonstrably justified

Will, if there is a law passed by Parliament, I think the initial assumption is that it is justified or Parliament would not have done it.

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Whether the courts will take that view, I do not know. But it seems to me that there is a risk that they will.

Then you go on to say:

as can be demonstrably justified in a free and democratic society.

Well, if a free and democratic society passes a law, what is the difference between the situation that we have here and the one you had in the formal one where you said:

generally accepted in a free and democratic society with a parliamentary system of government.

My fear is that you have not moved very far in removing the objections of these 19 bodies which have appeared before us, and I would like to have your rationale.

Mr. Chrétien: I think we have moved quite far; and, in the case of those who were the main proponents of the change, Professor Tarnopolsky and Mr. Fairweather, it is the text which they have more or less suggested, and they have approved it and commended me on it.

This is to make sure that, even if the law were passed—it was a danger before that it was almost impossible for the court to go behind a decision of a Parliament or a legislative assembly; but here, even if the law is passed, there is another test, namely that it can be demonstrably justified in relation to this Charter.

So this limited clause narrows the limits of the courts. The first one—and you heard the testimony given here, where there was argument to the effect that it was so limiting in scope as to be almost useless, and we would be caught in the same position as we were in the case of the Bill of Rights of Mr. Diefenbaker which has not in fact been used in the courts. Why have we done it?

It was not my initial proposition. I have done it under pressure from the provincial governments. It is a good illustration of trying to get on the right keel and you end up with a situation where it was meaningless. So we went back to the original text. This will permit the courts to appreciate whether legislation passed by the different levels of Parliament and legislative assemblies are in conformity with the Charter.

The intention of a Charter is to limit the scope of the legislature and Parliament in relation to the fundamental rights of Canadian citizens.

Senator Roblin: I put it to you, though, Mr. Minister—and I want to make this quickly because I see the time is 12 noon—that in your reference to Mr. Fairweather, it would have been fairer to give the whole of his recommendation, because while it is true that the first part of his recommendation is fairly well covered by what you have here, I understand that he goes on to add two subclauses, one of which is a prohibition which says:

[Page 43]

No limitation on the legal rights or nondiscrimination rights set out in this Charter may be made under this provision.

You can see that goes a great deal farther than anything you have suggested here, and he goes on to make the same reservation with respect to equal rights for men and women.

So, it seems to me that you really have not gone very far towards meeting Mr. Fairweather’s proposal to us when he was here the other night.

While I appreciate the fact that you are seized of the substance of the matter and are trying to do something about it—a fact which I think should be acknowledged—nevertheless, I am not sure that you have really moved very far towards dealing with the fundamental objections of those who think that the restrictive character of this section is so severe as seriously to limit the value of the rights to follow.

Mr. Chrétien: I am very pleased with what you are stating. I hope Mr. Lyon is listening to you; because the Premier of Manitoba is extremely opposed to any type of Charter at all. Of course it is a proven fact that not necessarily all the Premiers of the provinces speak for all the people of their provinces.

Senator Roblin: I do not wish you, really, to say that members of this Committee have to consider themselves related in the sense that you try to relate them philosophically or any other way with what a Premier may do.

But my views of Mr. Lyon’s policy may be that I approve entirely of what he says, and that is something I would be happy to discuss with you at another time. But at the moment that is not the issue.

The issue is, how can we improve the Charter of Rights which you, yourself, have put before us. I wish you would stick to that point.

Mr. Chrétien: I have discussed this amendment with a lot of people before I came back with it; and I do not think it is advisable that we should have no limitation whatever. This is the best formula I could find. This has received the enthusiastic support of the Human Rights Commission, the Canadian Civil Liberties groups, by Professor Tarnoplosky, and so on—they all made a big and convincing case here. They all supported it. You are telling me I have not gone far enough.

I think under the circumstances it seems to be quite acceptable, and if you want us to go further than that, I do not think it is needed. I think this is adequate, because we do need some form of limitation.

Senator Roblin: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Senator Roblin, for your co-operation.

Mr. Chrétien: Mr. Chairman, I have a statement to add, if I may.

[Page 44]

The idea is that we have to find the proper balance between the protection of individual rights and the legitimate power of any legislative body. You have to respect the fact that there are legislatures and people have been elected there and they should keep some power of legislation.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Minister. I have three speakers on my list on supplementary questions: Miss Campbell, Mr. Robinson and the honourable James McGrath.

I would like to seek the co-operation of all three speakers and of the honourable Minister, too, so that we could adjourn, if possible, at 12:15, because honourable members have to recognize that there is a Question Period and they will need some recess.

Mr. Chrétien: Mr. Chairman, I did not understand that I had to stay after 12 noon. I have made some commitments. Do I have to stay? I do not mind; if I have to stay I will.

The Joint Chairman (Mr. Joyal): Well, I will adjourn to 3:30 p.m. and at that time I will recognize the three speakers whose names I have just mentioned.

[Translation]

Mr. Chrétien: Thank you very much.

The Joint Chairman (Mr. Joyal): This meeting is adjourned until 3:30 this afternoon.

[Text]

AFTERNOON SITTING

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

We will continue with our proceedings this afternoon and I believe when we adjourned for lunch Miss Campbell was requesting to be heard on a supplementary question.

Miss Campbell: Thank you, Mr. Chairman.

You were discussing Section I, the amendments to Section 1, and in particular the reasoning behind it. I have one fairly quick question that can perhaps be answered.

I must inform the Minister, if he is not aware, that of the 19 bodies who perhaps asked us to do away with Section 1 or to improve Section 1, I do not know of any group that appeared before us who asked us not to entrench the Charter of Rights before patriation, because they felt that we would never reach an accord on the Charter of Rights once the constitution and a new amendment formula was founded.

However, of the two groups that were mentioned this morning, the Civil Rights and Mr. Fairweather, I think that you came to a just compromise on that section. I was against the original section and I am sure that was made evident from some of the questions that I did with some of the witnesses, and I am interested in that once we get into a true discussion of Section I, but in my view you changed the preferred Section 1 of Gordon Fairweather by saying, instead of “reasonably justifiable” in a free and democratic society, to “demonstrably

[Page 45]

justifiable”, which I think Professor Tarnopolsky felt it should be stronger, it should be demonstrably justifiable it it was going in, and I wonder if there is a difference in your view in onus between a reasonably justifiable onus on the person before the courts to show that their rights, let us say that the legislatures have not infringed upon the rights of the person, or demonstrably justifiable.

To me it seems there might be a heavier onus on the legislature to show they have not.

Mr. Chrétien: I have explained this morning the policy of why we have done it, and that it was to find an equilibrium between the rights of the citizens to be protected by the courts and the power of the legislature or Parliament to pass law, and perhaps you are asking me a rather technical question and would you reply to that, Mr. Strayer, please.

Mr. Strayer: Mr. Chairman, it was the belief of the drafters that by going to these words demonstrably justified or can be demonstrably justified, it was making it clear that the onus would be on the government, or whoever is trying to justify the action that limited the rights set out in the charter, the onus would be on them to show that the limit which was being imposed not only was reasonable, which was in the first draft, but also that it was justifiable or justified, and in doing that they would have to show that in relation to the situation being dealt with, the limit was justifiable.

So whereas before there was no indication as to who had the onus of proving that the limit was reasonable or unreasonable, or whether it was generally accepted or not generally accepted. This seems to put the onus, appears to put the onus on the government that has to try to uphold some kind of limit to the rights set out in the charter. Uphold the legislation or administrative action or whatever it is in question.

I might add, Mr. Chairman, that this kind of language was recommended by the Canadian Human Rights Commission. They had two possible drafts, and one of them was very similar to the words in the present proposal, the new proposal. They used words such as prescribed by law as are reasonably justifiable in a free and democratic society. Professor Tarnopolsky, in appearing before the Committee, talked about using words such as restrictions as are prescribed by law and are -necessary for the purposes of a free and democratic society, or he said you could use terms such as demonstrably justifiable or demonstrably necessary, but he said the onus has clearly to be on the one who argues in favour of restrictions, and that apparently is what he thought such language would do, it would put the onus on the person trying to justify the limitation.

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

Mr. Robinson on a supplementary.

[Page 46]

Mr. Robinson: Thank you, Mr. Chairman.

I do have a supplementary on Section 1. I am glad that Senator Roblin raised this question, it is an important question and my supplementary has two parts with respect to the proposed revision of Section 1, Mr. Minister.

As I indicated yesterday, I was pleased with the extent to which you attempted to accommodate some of the concerns expressed about Section I. However, there are two major concerns that I think still remain. The first is with respect to a point that was touched upon by Senator Roblin, and that is both Professor Tarnopolsky and Gordon Fairweather of the Canadian Human Rights Commission, and the International Covenant on Civil and Political Rights, and earlier drafts of federal government recommendations on a similar section, all made very clear one thing: that there were certain rights which could never be derogated from, in time of war, in time of emergency, that for example it was not permissible to impose cruel or unusual treatment or punishment. It was not permissible to deny the right to an interpreter to someone who is being questioned. It was not permissible to discriminate on the basis of race, sex or colour at any time.

Mr. Minister, Section I as it stands now modifies everything that is contained in the Charter, and I appreciate that there can be difficulties in defining which particular rights should never be abrogated. Would you be prepared to look as a minimum at least at excluding those rights which are contained in the Covenant’? If you look at the Covenant I am sure you would agree that it is not a very comprehensive listing, but at least excluding, for example, the right to protection from cruel and unusual punishment.

Would you be prepared to look at those areas which this Committee as a whole could agree upon should be protected from trampling upon at any time?

Mr. Chrétien: If you ask me would I be willing to look upon, I can look into that but I do think that why we have proceeded in that way, the technical reason, I will ask my advisor to reply to aspect.

Mr. Strayer: Well, any attempt to make a list is going to be arbitrary, I think, even if you look at the international covenant. It is somewhat arbitrary in the rights it says can never be derogated and those which it implies can be derogated.

For example, in time of emergency or war it forbids derogation from rights such as rights against discrimination on the basis of race or colour but it allows discrimination, apparently, on the basis of national origin; and one can argue overwhat rights ought to be in theory derogable in times of emergency and ones which might not be, but the approach which we are taking here in the new Section I is to leave that as a matter of judgment in the given situation and it is very hard to imagine any situation, for example, where a court would say that it was, in the words of the section, demonstrably justified in a

[Page 47]

free and democratic society to use cruel or unusual punishment. Even in time of emergency.

Mr. Robinson: Mr. Chairman, I understand the argument that was made, but just to conclude this question with respect to Section 1, I do hope that if the Committee can agree on certain restricted areas which, as you say, should never be, I assume you would agree, never be violated, that the government would be prepared to at least consider a possible amendment to that effect.

The second part of my question, Mr. Chairman, relates to the use of te word law in Section 1. Any limitations must be as the section states prescribed “by law”. My reading of that, and I hope I am wrong, but my reading of that is a regulation of the government could limit in fact any of the rights or freedoms which are contained this proposed Charter. I believe that the word law indeed does include a regulation as it has been defined in Canadian jurisprudence and, Mr. Minister I would hope …

Mr. Chrétien: When you talk about regulations …

Mr. Robinson: If I can just conclude my question, Mr. Minister, my understanding is that that is the way the law is interpreted, if that is the case then what this is saying is the government, the Cabinet can take away any of these rights, although there is still the recourse to the courts, and I would hope that you would be prepared to look seriously at an amendment which would make it very clear that it is only legislatures or Parliament which could abrogate these very fundamental rights of Canadian citizens?

Mr. Chrétien: Yes, but the regution that when we vote any laws in Parliament we always make provisions for regulations, and the regulations that flow from law are part of the law that has been passed, a delegation of authority to the executive to proclaim some regulation that will make possible the law that we pass the enforced, and I think that everything is part of the same law and it will be impossible to—I can look at your suggestion but the principles are the same and if any regulation passed by any government in relation to regulation based on the law, this same test will apply, and the citizens will have the same recourse and I do not see the point unless there are some regulations that could be made outside of the law, but there is not. When you pass an Order in Council, we always have to base our decision on some legal, we need a legal base.

Mr. Robinson: There is no debate in Parliament.

Mr. Chrétien: But there is a debate in Parliament to authorize the executive branch of the government to do this and do that, otherwise if we are not autorized by Parliament we cannot do that. Perhaps, I do not know, there might be some exception to that rule. Do you know any?

Mr. Strayer: No.

Mr. Chrétien: I do not. Because if we act without any authority from any law, our action is illegal. So I am not preoccupied with the problem you are raising.

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Of course, you can always argue in the House we should never give any delegated authority to any Order in Council.

Mr. Robinson: No, no.

Mr. Chrétien: No, but y could, and say everything has to be approved by Parliament on a daily basis. We could but it would be a hell of a mess.

Mr. Robinson: Mr. Minister, I am saying that where there are to be abrogations, that Parliament should discuss that at least.

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

Senator Connolly: Could 1 have a supplementary on that?

The Joint Chairman (Senator Hays): It will be later.

Senator Connolly: All right.

The Joint Chairman (Senator Hays): We had two supplementaries before noon, we had Miss Campbell and Mr. Robinson and new Senator Connolly wants a supplementary and Mr. Fraser.

Senator Connolly on a supplementary.

Senator Connolly: Just on that last point, I wonder whether this should not be said, that if Parliament is discussing a piece of legislation which authorizes the making of regulations, it flows from the passing of that piece of legislation that the regulations must be within the four corners of the act, and I suppose the theory is that if Parliament is afraid that something is going to be done under the authority to make regulations which go beyond the act, then I suppose it is up to the parliamentarian at that time to make his objection.

Now, you do say, and you did say, if a regulation violates the mother act under which it is made there is recourse to the courts. Your objection to that, I take it, is that it takes too much time and expense and everything else, and I think that is the risk we run in connection with giving the executive a regulation making authority.

Mr. Chrétien: And there is too, I would like to say there is, under statutory act procedures there is a revision of all the Orders in Council by Committees of the House and you remember that, but I do think that the principles are the same.

We are giving the Canadians some rights and the limits are mentioned in Section I and the courts can intervene and if the rights of the citizens have not been respected in the piece of legislation or any regulation, they are illegal and the court will decide that they do not meet the test that they can be demonstrably justified in a free and democratic society.

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

The honourable Mr. Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

I have got a short point which I would like to ask in the interests of clarification and the Minister may want to seek assistance from his law officers.

[Page 49]

In Chapter One, it reads the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified, et cetera.

Now, in the French version it refers to “une règle de droit”, a rule of law, and my question is: is there a difference? I know it is a rule of law in the French version, not “the” rule of law.

Now, is there a difference, and my second question is: what effect does this have on the law contained in the common law and has this been considered? Specifically, and to make it easy, a contract, contracts in their very nature are discriminatory, and I am wondering if this problem has been addressed?

[Translation]

Mr. Chrétien: Mr. Tassé has to spend a great deal of time in the drafting of acts in both languages; I will ask him to give you the explanation you are looking for, Mr. Fraser.

[Text]

Mr. Fraser: Yes, I had to switch from one to the other to read it.

Mr. Roger Tassé, (Q.C., Deputy Minister, Department of Justice): I think that is an important question you have raised, Mr. Fraser. In effect when you look at the meaning of law, it may mean a number of things and in this context it could mean an Act of Parliament, for example, and we did not want it to be restricted to an Act of Parliament for some of the reasons that have been expressed, and also for another reason that has not been mentioned so far, and that is in effect we wanted also to cover rules of the common law.

For example, in the area of libel, defamation. And in many provinces this has not been clarified. There are rules that have just been expressed over time by the courts and we did not want to upset all of this legislation so that is why in effect in French we have used an expression that would embody as well rules of common law that have been established by courts and it could be in the civil law field or in the common law, most probably in the common law, but also would include the statute and include a regulation enacted under an appropriately passed or enacted legislation.

Mr. Fraser: So what you are saying, then, is that …

Mr. Tassé: Perhaps if I may just expand on what I have just said.

For example, if you look at the freedom of expression, the law of defamation, the law of libel imposes some limits on that so we wanted these to continue to have application and we think that they would fit in effect the tests that are set out in Section 1.

Mr. Fraser: Well, then, by the same token, so does the law of master and servant, the law of contract and the law of partnership, and a number of other common law notions.

[Page 50]

Could you foresee a situation where, on the basis of the rights set out in here, you could have a conflict between what are considered laws which stem from the body of case law that has come down over the centuries which could be in conflict with the right that has been set out in the Charter?

Mr. Tassé: Well, Mr. Fraser, we do not see these rights or these prescriptions of the Charter to have application in terms of a relationship between individuals. We see them as applying in terms of a relationship between the state and individuals, so I am not sure that in terms of contract laws, unless we were looking at the situation where in fact we are talking of contracts passed between the state, the government, and that might offend a constitutional limitation on some of these rights, then the Charter might be called upon for assistance but if we are just looking at in effect relationships, contractural relationships between individuals, I do not see how the Charter itself could be called upon to assist in resolution of conflicts that may arise.

Mr. Fraser: Well, I do not want to take this too far into the realm of theory but individual contracts are constantly formed as a result of discrimination between certain options and certain individuals, and that has always been, within some limitations, an accepted freedom to enter into contract unless there is a specific piece of legislation which forbids it. You can take, for instance, the codes in some of the provinces which now constrain absolute freedom of contract in hiring policies.

But I take it that what you are saying is that in the English version when you say “prescribed by law”, that is not just statute law, but is also the common law?

Mr. Tassé: Yes.

Mr. Fraser: As decided by the cases?

Mr. Tassé: Yes.

Mr. Fraser: But they could still be challenged if somebody could take the issue to a court and say that that law can no longer be demonstrably justified in a free and democratic society?

Mr. Tassé: That is correct.

Mr. Fraser: Thank you.

The Joint Chairman (Senator Hays): Mr. Fraser, you are exploring a very important point, but we were just going to allow one supplementary question.

Mr. Fraser: Thank you, Mr. Chairman. I would also like to thank my colleagues.

The Joint Chairman (Senator Hays): I should like to go to Mr. Irwin, then to Mr. Hawkes and then to Mr. McGrath.

Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

I have two questions. I would like to address my first question to Mr. Tassé, with the Minister’s permission. I would like to address my first question to the Deputy Minister of Justice, and my second question to the Minister.

[Page 51]

Mr. Tassé, as you know, we had several religious groups attend here. They were very influential and very concerned religious groups across the country, who have expressed concern that although they favour strongly freedom of religion, nevertheless, they wish positively to discriminate within their own religions; for instance, that in the case of the Catholics, a rule that a teacher must be a Catholic in order to be teaching in that system is a positive discrimination as far as they are concerned.

They want to make sure that the Charter of Rights, Section 15 and the right contained in there, dealing with nondiscrimination because of religion, does not affect that right positively to discriminate within a group.

I have noticed that you have added an amendment; the Minister has suggested an amendment, 52(1) as follows:

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

Can you explain to the Committee the legal process by which you would draw an inference-which I would assume you are drawing-that these positive rights to discriminate within religious groups will be protected?

Mr. Tassé: In the resolution before the Committee, that is to say the one without amendment, there is a Section 25 which provides, in effect that the provisions of the Charter would prevail, supersede, any provisions of the constitution.

The question has been raised—and you have mentioned it—as to what the effect would be of the inclusion of freedom of conscience and religion on a section like Section 93 of the constitution which provides for denominational school and protects them.

A doubt has been raised to the effect that Section 2 would prevail over all other provisions of the constitution, that we would not unwittingly have imperilled the protection which had been given to denominational schools under Section 93.

That is the reason why we thought it would be preferable to have in Section 52 a reference to the supremacy of all the provisions of the constitution; but the sections of the Charter and the other provisions of the constitution, like Section 93, would have to be interpreted in relation to one another, and there is not one, like Section 2, which would supersede the other one.

We are pretty confident that we are not affecting denominational schools here, and that teachers can continue to be hired in the Catholic, Protestant or whatever religious stream, and that it would be a bona fide requirement for the job in these schools that in effect they share the faith of the school system in which they would be hired.

Mr. Irwin: Have you had any reaction back from the Council of the Catholic Bishops of Ontario? Has there been any consultation since the suggested amendment?

Mr. Tassé: I have not had any. I do not know if the Minister has had any.

[Page 52]

Mr. Chrétien: No, there has been no reaction from any of these groups to my knowledge.

Mr. Irwin: I have one other question.

There seems to be a myth in relation to the Victoria Charter, that because there is a 50 per cent requirement in the west we must have two provinces with 50 per cent, that we are discriminating against the west.

I would like to get to that. But I would like to deal with the formula itself.

We have had so many formulas—the Vancouver, Victoria, Alberta, Toronto, the Pepin-Robarts, the Fulton-Favreau; we are creating, I would suggest, a lot of confusion in the minds of the public.

I would like to draw to your attention, Mr. Minister, that when we had Professor Russell here, who incidentally is the Opposition’s expert, in answer to Mr. Nystrom, he said-and I will not quote him verbatim; but he speaks at page 468 of issue number 34, in effect that the Victoria formula proposed by the federal government is, in his opinion, the best formula.

As it stands now, with the so-called Henderson amendment, the four maritime provinces do not have the 50 per cent requirement. They will only require two of these provinces to vote in the referendum. This was by approval of the four maritime provinces; and a vote in the Province of Quebec because it has 25 per cent of the population; and a vote in the Province of Ontario because it has 25 per cent also; and two of the western provinces with a 50 per cent stipulation.

Now, I have heard both the Official Opposition and the NDP suggest that we are discriminating against the west; in some way we may be in a position to take more of their powers away because there is a 50 per cent requirement.

I have looked at this at least a dozen times, and I think it is a myth.

I want to put this question to you. If the referendum question said “Do you wish to include nondiscriminatory handicapped persons in Section 51 with an amendment as follows” and then gave the amendment, it would seem to me that it would make it easier to pass such an amendment in the west, proposed by the federal government under the constitution, of course, if we did not have to get 50 per cent of the population; we would only require, for instance, Manitoba and Saskatchewan 4 per cent each, to have it passed; whereas, Alberta is, I believe, around 9 per cent, and B.C. is around 11 or 12 per cent, or somewhat in that neighbourhood—or 8 per cent for Alberta. I am not sure of the exact amount.

Mr. Chrétien: Of course with this 50 per cent rule, if the national government wants an amendment to the Canadian constitution, that 50 per cent as a rule in Western Canada would make it more difficult for us to obtain what we want; because if we wanted an amendment and the 50 per cent rule is not there, as it is in Eastern Canada, we might have, say, Manitoba and Saskatchewan alongside; and if it were the same format in the Maritimes, we would have the amendment.

[Page 53]

Now they need another requirement. It means that very often it might be that we need three provinces in Western Canada to get an amendment.

So that, in fact, it is adding to the difficulties for the federal government to obtain an amendment in Western Canada!

If I had my pick, I would take only two; because that is one requirement less.

Why do we have the 50 per cent rule? As I said, it was agreed by all the western Premiers—in 1970, Schreyer, Thatcher, Strom and Mr. Bennett, senior, to have it there. It was at the request of B.C.

So what I said to Mr. Mackasey and to you, is that if western provinces want to have only two out of four, I would be much happier, because it is adding flexibility to the amending formula.

It is not at our request. We prefer to have it the other way round. But it is in accordance with the wish as expressed by the duly elected Premiers of the day that we are keeping that format.

Now, when they say we are creating discrimination, then it is a discrimination that was asked for by western Canada and it has made my life more difficult.

So, sorry; I would rather have the same thing as in the Maritimes; but they have not expressed any view on that.

I do not know what Mr. Blakeney said when he came here, but I have not seen anything in his testimony on that aspect; I have not received any communication to that affect from any Premier of Western Canada.

Mr. Irwin: So you do agree, Mr. Minister, that if we dropped the 50 per cent, it would give more power to the federal government?

Mr. Chrétien: Yes.

Mr. Irwin: But you are prepared to do it if all four provincial Premiers want it?

Mr. Chrétien: With pleasure.

The Joint Chairman (Senator Hays): Mr. Hawkes on a supplementary.

Mr. Hawkes: A brief supplementary, Mr. Minister.

Would you have the same attitude, as a member of the federal Cabinet, that you would prefer a wording for Subsection (1) which said one out of two central Canadian provinces agree to an amendment, that is following the same logic—and I would assume that this desire for greater federal power would take us to that logical conclusion, that one out of the two central Canadian provinces would be similarly acceptable to the Minister, and, indeed, preferable?

Mr. Chrétien: What we are doing, sir, is that the Victoria formula is the one that was accepted by the First Ministers at one time in history.

It was the first time and the last time that all 11 governments agreed to a formula. The reason we are picking it up is that it is the only one in history where there was an agreement. If the Quebec government had not pulled out for other reasons, it is what we would have today. When you look at the record,

[Page 54]

why did Mr. Bourassa refuse 12 days after to go along? It has nothing whatever to do with the amending formula. The papers were ready and all consents were given, and everyone was ready to go along with it, and Mr. Bourassa decided not to do so. It has nothing to do with the amending formula. He wanted to have a different deal on family allowances.

In fact, it is a bit ridiculous when you look back on it, because it is something which could have been solved very easily by some administrative arrangements later on.

He said if you do not give us something on the family allowances then, we do not sign Victoria. But in history, when you look back on the basis, in history that day in Canada all the First Ministers had agreed to it.

So that gave great weight to that formula.

Why they did it was that they decided that Ontario and Quebec, had more than 25 per cent of the population …

Mr. Hawkes: Mr. Minister, I just asked about your personal preference.

Mr. Chrétien: There was a preoccupation that Quebec, being a province, representing the majority of francophones in Canada and so on, that we had to operate in that way, and we said that anybody who reached in the future, that is to say, any province, who in the future reached 25 per cent of the population, would have exactly the same thing. You may laugh, but it can happen tomorrow.

Mr. Hawkes: Personal preference, Mr. Minister; that is all I asked. Would you personally prefer it or would you not personally prefer it, one out of the two central Canadian provinces.

I just follow your logic, your statement of preference and I simply ask if your statement of preference goes to that logical conclusion—one of the two central Canadian provinces.

Mr. Chrétien: My own personal preference—there were so many personal preferences on that matter over the last 50 years that we have not been able to agree.

I think, personally, that the Victoria formula is a good one; it is not perfect in all aspects, but it is the best we could achieve.

There are some historical values to the Victoria formula, and it is my preferred choice.

Mr. Hawkes: You have a personal preference; for the maritimes and for the West …

Mr. Chrétien: I am telling you …

The Joint Chairman (Senator Hays): Mr. Hawkes! Mr. Tobin on a supplementary.

[Translation]

Mr. Corbin: Here we go again!

[Text]

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

Mr. Chrétien: May I reply?

The Joint Chairman (Senator Hays): Yes, go ahead, Mr. Minister.

[Page 55]

Mr. Chrétien: If you want to know what my preference is, well it is I would rather two provinces out of four of Western Canada. That is my preference. It would be exactly the same in the maritimes, and if the western Premiers want it, I would be delighted.

The Joint Chairman (Senator Hays): Mr. Tobin on a supplementary.

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

I would like to go back to Section 52. Mr. Irwin mentioned the amendment regarding the primacy of the constitution of Canada. The earlier proposal in the Canada act put forward made the Charter of Rights supreme, and any other law in Canada, or for that matter, in the constitution, inconsistent with the Charter will be over-ruled by the Charter of Rights.

The amended version now says that the constitution in total and the Charter are supreme.

Now, what I am asking you in particular and for clarification is about Term 17 of the Terms of Union. May I assume from this, then, that Term 17 of the Terms of Union, the term which guarantees the right to denominational education systems of schooling in Newfoundland, that right is equal to the individual right spelled out in the Charter of Rights? Is that a fair assumption?

Mr. Chrétien: That is a view expressed by Mr. Tassé earlier. The Bill of Rights have no supremacy over the constitution. This Bill of Rights, for example, the provision for freedom of religion, in the Bill of Rights, will not have supremacy over Section 93 of the constitution or resolution 17 of the Act of Union of Newfoundland to Canada.

Mr. Tobin: So you are saying, in your opinion, it is not conceivable that, based upon the rights provided for in the Charter of Rights, individual rights, it is not conceivable for one to test the collective rights, let us say, of the churches in operating a denominational school system anywhere in Canada? I am particularly concerned about Newfoundland.

Mr. Chrétien: Yes, that is correct.

Mr. Tassé: That is correct. In effect, Mr. Chairman, what I said earlier about Section 93 would equally apply to Section 17 of the Terms of Union between Newfoundland and Canada.

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

Mr. McGrath.

Mr. McGrath: Mr. Chairman, I would like to continue the line of questioning that was followed by Mr. Tobin.

Premier Peckford in a statement yesterday said that the proposed changes do offer some measure of protection for our pre-Confederation rights—and here he was talking about denominational educational rights; and he continued to say that they do nothing to ensure that the strict guarantees we once had are continued, and that this could best be ascertained by looking at the proposed revised Section 47, which supposedly offers some protection under Subsection (2), but at the same time reserves the right to nullify that protection under Subsection (I) of Section 47.

[Page 56]

That is the first point I want to make, Mr. Chairman, to the Minister.

Secondly, I think the Minister will agree that what this bill does is to change the protection that Newfoundland acquired under Term 17 whereby the Parliament of Canada and the Parliament of Newfoundland were restricted in terms of their legislative capacity to interfere with the denominational rights accorded to Newfoundland under Section 17.

Perhaps I could read a brief part of it. Term 17 states:

In lieu of Section 93 of the British North America Act, 1867, the following terms shall apply with respect to the Province of Newfoundland and for the Province of Newfoundland the legislature shall have exclusive authority to make laws in relation to education, but the legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools.

Et cetera.

That right, Mr. Minister, is removed because Section 20 of the Charter states that nothing in the Charter extends the legislative powers of any body or authority.

Given the fact that the amendments proposed in Section 47 extend the legislative competence of the federal government and the provincial legislature in Newfoundland—read Term 17 of the Terms of Union—Section 20 of the Charter could be deemed inconsistent or of no force or effect because Section 25 states that laws inconsistent with any part of the constitution, not only the Charter, are to the extent of the inconsistency of no force or effect.

Therefore, sir, Section 28 could be deemed to have no force or effect.

What I am saying to you is—and what the Premier of Newfoundland is saying in his statement, and the Denominational Educational Committee in Newfoundland are saying—is that nothing less than 100 per cent will suffice, because we had 100 per cent protection under Term 17, under the general umbrella protection of Section 93. We now lose that 100 per cent protection.

Two points: The Charter can still be challenged with respect to Term 17—the denominational educational rights—vis-a-vis Section 2 of the Charter, as well as the legislature of Newfoundland now has lifted from it the restrictions heretofore placed on it by Term 17 of the Terms of Union.

Mr. Chrétien: It is a long argument, I do not know if I have followed your rationale all along, but my first reaction is we cannot do that presently by the federal Parliament and the restriction applied to the legislature in Newfoundland, and we cannot; but it can be changed. Section 17 could be changed. It could be changed at this moment in passing a resolution of this House, going to London. London might or might not act, but it could be changed.

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So you speak about absolute guarantee, nothing is absolute in the constitution as today because it is British law and can be amended and so we are protected as long as England refuses to act, but they could decide to act and there is nothing you can do about it because the Canadian constitution is a British act.

So, in the new constitution, the protection will be the same. Because of Section 43, the way I understand it, Parliament of Canada cannot change it unless the legislature approves it and of course if you are referring that there could be a situation where in future years the Canadians were to give themselves a completely new constitution and if we have a referendum as it is proposed and it is approved of course, nothing is more than I 00 per cent sure, we can always through any mechanism that we are having in this Charter change the Canadian constitution, but it can be done only by the federal government and the provincial governments; but it could be done by the expression of the will of all Canadians. That is why I argue that in theory we could change the borders of the provinces but we would have to change the borders of all of the provinces and if there is no agreement we could have a referendum eventually on that issue. In theory you can do a hell of a lot of things and when you speak for Newfoundland there is also no possibility whatever to change the constitution of Newfoundland. You can, just like you can change the Canadian constitution, the same mechanism, the British Parliament can do it, they are the one that can amend the Canadian constitution, and it would be even more complicated than it is today when we will have patriated because now it is quite easy, we pass a resolution of the House of Commons and the Senate and we are asking British Parliament to agree; and to be realistic about it since 1867, any resolution of any nature coming from the House of Commons and the Senate has been automatically agreed to be the Parliament of England.

Mr. McGrath: I am not interested in your theory, I am interested in the fact.

Mr. Chrétien: That is a fact.

Mr. McGrath: And the fact is that Newfoundland now has protection under Term 17.

Mr. Chrétien: And they still have it after.

Mr. McGrath: Newfoundland will lose that protection because Section 47 for example gives the power to the legislature to change the denominational education rights of Newfoundland whereas under the existing Term 17 they cannot do that. That is a fact.

I am not suggesting to you that theoritically you cannot do anything with a parliamentary majority but in actual fact there is a law in this country. That law is binding on you as a government and it gives the legislature and the people of Newfoundland protection under Section 7(2) of the Statute of Westminster.

I do not think this is a time for you to be talking about theory, with respect, because we are now into clause-by-clause.

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I want to know why you have not been able to sufficiently meet 100 per cent the very justifiable concerns expressed before this Committee by the heads of all the denominations of Newfoundland, by the Newfoundland branch of the Canadian Law Society, and by the Government of Newfoundland in a statement. You have not done that. You have unilaterally changed the Terms of Union. In addition to that you can at any time, and this is the bottom line to all this, Mr. Minister, you can at any time under the referendum provisions do an end run around the provincial legislature of Newfoundland or any legislature in the land with regard to Section 43, term 17 or anything else.

So where is the protection that we have heretofore enjoyed? I say to you this is no exercise in legal theory. It is a very serious matter. These people came before us and they said that without that protection, whether this is a good thing or not I am not prepared to state, but without that protection Newfoundland would not have become a part of Canada in 1949.

You do not create a province out of a territory. You entered into, as a government, a solemn pact between two sovereign peoples in 1949. You are now changing that solemn pact. Even Professor Cohen, your witness, when he came here supported that fact. I do not think at this late date, Mr. Minister, you can come before this Committee and satisfy this Committee, Mr. Corbin, or anyone else that what you are doing in the proposed amendments which you announced with great fanfare the other night, you did not have the courtesy to include me in it or the Newfoundland Denominational Education Committees, that what you announced the other night does not meet 100 per cent our concerns, and we will settle for nothing less than 100 per cent.

I can assure you, Mr. Minister, and through you the government that the people of Newfoundland consider this to be a matter of the gravest importance not because we believe that our denominational education system, publicly based, is the best system in the world, but because we believe that we had a contractual agreement with Canada which you are now unilaterally breaking.

I submit to you that what you have presented to this Committee does not in fact meet the concerns and the justifiable requests of the Government of Newfoundland and the denominational educational committees of Newfoundland.

Mr. Chrétien: We have the right to disagree. I do not see why the Committee would want to abrogate Section 43, that will affect all provinces, in order to achieve, to take away what you presume has to be forever in Newfoundland, the denominational system of schooling.

I maintain at this moment that we can tell that it will be as difficult to change the Term 17 of the Act of Union of Newfoundland with Canada, with the new system as it is today. I might argue that it would be even more difficult because today in theory might be very easy, just a resolution of the House of Commons and the Senate that will be passed by the legislature. You can argue that it was a contract and you move in and out when you want but that is not the theory that exists, and I would like to correct this impression.

[Page 59]

When Newfoundland came into Canada they knew that in 1869 Nova Scotia had second thoughts about coming into Confederation and they voted out very clearly and the British Parliament said no way, you have to have the permission from Ottawa. Ottawa did not grant that, John A. MacDonald refused to acquiesce to that wish except only two years after Confederation; so when Newfoundland joined Canada they joined Canada to be a province in Canada with the advantages and the disadvantages of being a province in Canada. They knew at that time that the Act of Union could be amended by the Parliament of England and the possibility of such a resolution was possible. I do not see when the patriation will be done we will have to amend and change Section 43 in order to achieve it and Section 43 not only, if we were to change it, that would not affect only Newfoundland, that will affect every province. Every province will have to agree that if they have some special clauses in the constitution that from there on, Section 43 not being there, they would be subject to a so-called new rule.

Mr. McGrath: You have brought in a total irrelevancy in terms of the Nova Scotia experience of 1869 because Nova Scotia did not have its sovereignty under the Statute of Westminster. Newfoundland did, and Newfoundland’s rights were protected.

Now, your Assistant Deputy Minister, can laugh all he wants. Perhaps he might join in the debate, but Newfoundland, when it entered the Union in 1949, did so because of the degree of protection it had under Section 7(2) of the Terms of Union and because of the protection we had under the Terms of Union incorporated under the statute of Westminster and because of the protection we had under the BNA Act in Section 17 of the Terms of Union under the umbrella of Section 93. You are changing that unilaterally and you are bringing in total irrevelancies because Professor Cohen himself agreed when he appeared before this Committee that Newfoundland had a special case in terms of the contractual nature of the Terms of Union entered into between Newfoundland and Canada in 1949.

Mr. Chrétien: I am sorry, but Section 17 is still part of the Canadian constitution, and will be. It is not amended and will not be amended.

Mr. McGrath: How do you explain the provisions of Section 47 which provides the right of the Newfoundland legislature to legislate in terms of the constitution under its jurisdiction, a right that it does not now have under Section 17. Explain that.

Mr. Chrétien: I do not understand the question that you are proposing. We are entrenching in the new constitution the Act of Union with Newfoundland and if we want to change it we will have to change Section 43.

Mr. McGrath: But you can change Section 43 under Section 47.

Mr. Chrétien: Yes.

Mr. McGrath: That is my point.

Mr. Tobin: You can do it with all the provinces.

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Mr. McGrath: I am not interested in all of the provinces, Mr. Tobin. Right now I am interested in one province that has a special contractual link …

Mr. Chrétien: If the majority of the provinces agree.

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

Mr. Chrétien: We can amend the Canadian constitution.

What I am telling you is we cannot do this—now in theory We could do it unilaterally in passing a resolution in this House.

Mr. McGrath: You are doing it unilaterally anyway.

Mr. Chrétien: Yes, but we could change Section 17 today if we wanted to, just in passing a resolution of this House, and in the Senate, and in going to London.

I do not know under which condition we will do that but we could in theory.

Now, after the constitution will be in Canada, what we will have to do, not only will we not be able to do it alone we will have to ask, according to the amending formula, the majority of the provinces to agree; so it would be much more difficult tomorrow than it is today; but of course if you say that today we could not do that you could argue that point, and I am telling you that you are wrong. We could go to London. We are going to London, right away, very soon.

Mr. McGrath: What I am saying to you is that the absolute guarantee that we sought and obtained and was incorporated and enshrined in the British North America Act …

Mr. Chrétien: You never had an absolute guarantee.

Mr. McGrath: We did have it. Read Term 17, Section 93. We are losing that absolute guarantee. That is what you are saying, under the amending formula. That is the concern of the Government of Newfoundland and the Denominational Education Committees.

Mr. Chrétien: Mr. McGrath, you can make that affirmation that you had the absolute guarantee but no such thing exists because the Canadian constitution today is a British law. Today the British Parliament could in theory say that there is no more federal government and we are no more in existence. They could say that there are no more provinces in Canada and there would be no more provinces in Canada. So there is no such thing as you speak about, an absolute guarantee, because they could decide in Britain tomorrow to annex Newfoundland to Quebec, and there is nothing we could do about It. It is true, it is the law of the Parliament of England, so when you talk about the so-called absolute guarantee, there is no such a thing.

Mr. McGrath: May I just put one final position to you. Professor Remillard, when he appeared before us, indicated to us that the Statute of Westminster had the binding effect of international law in terms of it dealing with relationships of independent sovereign countries under that statute.

[Page 61]

That Statute of Westminster, Section 7(2) takes away the right to do what you claim you can do theoretically because Great Britain under Section 7(2) of the Statute of Westminster does not have that right.

Mr. Chrétien: I can ask Mr. Strayer to reply to that technical question but if I understand they never opted in in the Westminster Statute, but could you explain that to the member, Mr. Strayer.

Mr. Strayer: Mr. Chairman, I am not quite sure I understand the point that is being made about Section 7(2), but in the Statute of Westminster there is provision for a number of the Dominions opting into it. One of them that was given the right to opt in was Newfoundland and it never did opt into Section 7 so I do not quite know how it applies to this situation.

Mr. McGrath: What I am saying, sir, to you, how it applies to the situation is that it restricts the right of the federal government to legislate in areas of provincial jurisdiction, that is what it does.

Mr. Strayer: Not Section 7(2), sir, with respect.

Mr. McGrath: It restricts the British Parliament. Section 7(2) does, you read it.

Mr. Strayer: Mr. Chairman, Section 7(2) puts the provinces in the same position as the federal parliament was put in by Section 2 of the Statute of Westminster, that is that it can make laws inconsistent with the laws of the United Kingdom Parliament, except of course subject to Section 7(1) which says that neither the Parliament of Canada nor the legislatures can legislate in a way inconsistent with the British North America Act.

Mr. McGrath: That is right.

Mr. Strayer: It is also, I think, relevant to that to note that Term 48 of the Terms of Union with Newfoundland says that Newfoundland shall be a province like the other provinces vis-a-vis the Statute of Westminster. So far the first time in its history Newfoundland came into the Statute of Westminster at the time of union with Canada, that is 1949, and it came in as a province by virtue of Term 48 which was the subject of agreement.

Mr. McGrath: But do you not also agree that Newfoundland had its dominion status restored to it at 5 minutes before the Act of Union was to take place on March 31, 1949 by the British government.

Mr. Strayer: If you are interested, Mr. Chairman, in my view, the answer is no; and if you are interested in the view of the Attorney General of the United Kingdom at the time the Terms of Union were introduced in the Parliament of Westminster, I would say that his view of that was equally no.

The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath. Probably we can explore that further at a later time.

Mr. Tobin has a supplementary.

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Mr. Tobin: Yes, Mr. Chairman. I would like to ask the Minister and his advisors a few questions regarding this matter to make sure I understand it correctly.

I initially asked some questions with respect to Section 42 but again Section 47 is relevant as well, because Section 47 as amended makes clear that Sections 41 and 42, the amending procedure prescribed in the Canada Act do not apply to Section 43, in other words, matters affecting one or more but not all provinces of Canada such as education in Newfoundland, or any province for that matter. Logic dictates from that that the only way a change could be made to education in any one province is in having the agreement of all provinces to make changes.

Mr. Chrétien: Not all of them, but the majority of them.

Mr. Tobin: The majority under the amending formula.

Mr. Chrétien: But the next two years it is unanimity.

Mr. Tobin: So that is clear. So what I am saying in essence is that Newfoundland has the same protection with respect to education as has any other province of Canada, it is equal to; with respect to denominational schools and the church’s role, it probably has greater guarantees, it is the unique system guaranteed under Term 17.

I suppose the point I would make, number one, 1 disagree with Mr. McGrath’s position that there was some kind of absolute sacrosanct guarantee for Newfoundland. The very fact that we are going to Westminster now and the very fact that the Government of Prime Minister Thatcher has said: yes, we will act; is evidence that the federal Government of Canada could have at any time acted to change anything in the existing BNA Act.

Mr. Chairman, I do not know what Mr. McGrath is suggesting is that the churches in Newfoundland themselves should have a veto over the provincial legislature, that is that the Government of Canada, under the new constitution act 1980 or 1981 should not expect any requests coming from the Province of Newfoundland regarding education unless that request has the express consent expressed to the federal government of the churches in Newfoundland. I do not know how we make the guarantees any more stronger unless Mr. McGrath is suggesting that the Government of Newfoundland should not be sovereign in education and that in fact the churches in Newfoundland be sovereign, and that any request coming from the Government of Newfoundland must be accompanied by the consent of the churches in Newfoundland.

Is that what you are saying should be put in the constitution?

Mr. McGrath: That is essentially what I am saying that the people of Newfoundland enjoyed heretofore, that is what they want to continue to enjoy and that is what they are now losing. I thank you for the question.

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Mr. Tobin: Well, wait a minute, that is exactly what is in Term 17, that the Government of Newfoundland, the Legislature of Newfoundland has a responsibility to vote moneys with respect to the denominational schools of Newfoundland, so what in addition to that are you asking for?

The joint Chairman (Senator Hays): Thank you, Mr. Tobin. Perhaps the Minister could reply.

Mr. Chrétien: I just say, well, you went into a very technical discussion but I would like to make one statement. Section 17 is part of the Canadian constitution today and it will be part of the Canadian constitution tomorrow. To amend this section in the past there was only one way, it was to ask the British Parliament to pass a piece of legislation, and nobody ever asked and nobody has any intention of asking.

In the future it will be much more complicated because, in order to achieve it, we need a constitutional amendment, and this constitutional amendment will require, if we were to have the Victoria formula as the amending formula, the agreement to lose the security of Section 43 by the majority of provinces in order to achieve it.

The joint Chairman (Senator Hays): Sorry, Mr. Tobin, maybe you could make your intervention later and we will be glad to put you down.

Mr. Irwin on a supplementary question.

Mr. Irwin: Because I think it is very important, Mr. Chairman, I want to get this crystal clear in my own mind.

Now, as I understand it, in 1933 Newfoundland went into trusteeship primarily because, as Mr. McGrath has told me, they funded a regiment during World War I and the person responsible for it bankrupted the province and as his reward got a peerage.

However, from 1933 to 1949 it was run by a trusteeship, almost as a trustee in bankruptcy, directly from England, and then as Mr. McGrath indicated, after two votes, very divisive votes, I think they still linger today, at least the last time I was down in Newfoundland there was still some people who wanted to join the United States, after two very divisive votes they opted into Canada in 1949.

Now, as I understand what Mr. Chrétien is saying, under these terms of union it is a contract but it is something that could be changed by the Parliament of England because it is nothing more than an amendment to the BNA Act and …

Mr. McGrath: Mr. Chairman, on a point of order, it is very important that I correct the record and I think Mr. Irwin …

Mr. Irwin: Let me finish.

Mr. McGrath: No, Mr. Irwin will understand the importance of it.

Newfoundland did not declare bankruptcy, Newfoundland did not default. It could have defaulted. Newfoundland, and

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Senator Petten will agree with this, Newfoundland agreed to suspend its own constitution in order to allow a commission to administer the colony. It did this of its own free will. There was no bankruptcy, there was no default, and when Newfoundland became a province of Canada in 1949, it had no debt and a $40 million surplus.

Mr. Irwin: Well, let me address this.

As I indicated to you, Mr. McGrath, I could never understand the action of 1933, I think because I know Newfoundlanders are so proud and I am glad that you explained it to me the way you did; not today, last week, because my recollection of history is that in 1933 …

Mr. McGrath: We could have defaulted but did not.

Mr. Irwin: There was not enough money and they made a deal with England and England managed their affairs and provided the money for 16 years, or whatever it was.

Now, as I understand the situation …

Mr. McGrath: England did not provide any money.

Mr. Irwin: As explained by the Minister, that if we want to change, say, a law pertaining to the denominational schools we would require, first, an act by the government implementing a referendum because I am sure that not all the provinces would agree; first of all, Newfoundland would disagree, and that is highly unlikely, and then having set the question in motion we would require a majority vote in Quebec, which is highly unlikely; we would require a majority vote in Ontario, which is unlikely; two of the Atlantic provinces, and I have been corrected to never call them maritime provinces again, and two of the western provinces representing 50 per cent, which is highly unlikely. I understand your sentiment, Mr. McGrath. Am I stating that correctly that this would be the requirement? Do you not think that that is enough safeguard in a democratic society?

Mr. McGrath: If I am permitted to answer the question, Mr. Chairman, the answer is a simple no. We want the same safeguards, the same constitutional safeguards that we received in 1949 and that we have enjoyed up until now. We will settle for nothing less.

Mr. Irwin: One further question.

Mr. Chrétien: With the permission of the Chair?

The Joint Chairman (Senator Hays): Yes.

Mr. Chrétien: Can I ask, because there was a lot of exchanges, left and right and so on, I would like to ask the Deputy Minister what would be the mechanism if ever we wanted to change Term 17 with Newfoundland and just to explain the mechanism of it so that the people will be reassured, because it is not easy.

Mr. Tassé: With your permission, Mr. Chairman.

The Joint Chairman (Senator Hays): Yes, go ahead. And after your reply we are going to adjourn for 5 minutes, and we will come back to Mr. Ittinuar.

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Mr. Tassé: Mr. Chairman, Term 17 under these proposals will be continued as part of the constitution of Canada. It is a provision that applies only to Newfoundland, so in fact to effect a change to that section you would have to resort to Section 43, and there were some questions that were raised as to whether a provision that can be changed by way of Section 43 could also be amended by way of Section 41.

The proposals for change that the Minister has laid before the Committee would place that beyond doubt, and whenever a provision can be changed by way of Section 43, it would not be possible to effect the change by way of Section 41, and for the first time this will make it very clear that Section 17 can be changed only legally with the consent of the province that concerns it.

Now, to reach Term 17 without the consent of a province that is affected like Newfoundland in this instance, you would have to amend Section 43 to provide that in effect it is not possible, or it is possible to effect a change to a provision of the constitution that concerns more than one province but not all, without the consent of that province.

Now, to effect a change in Section 43 you would have to resort to this Section 41 and that is where Section 47 comes in, so that is all dispossessed with words, so in effect it is not possible or, these proposals as they are to directly affect Term 17 except if you were to go through this whole process that I have just described.

Mr. Chrétien: Thank you, Deputy Minister, but in the presentation to this Committee by the joint Executive of the Denominational Education Committees of Newfoundland, on page 9 they have recognized, and I read, as I expressed earlier:

It is realized, of course, that these entrenchments are not totally sacrosanct and that the British Parliament could be asked at any prior time to repatriation of the constitution of Canada to amend the BNA Act to change these safeguards, but from a practical point of view it is unlikely that any such request would be made in specific terms.

Of course, I agree with them. It is unlikely, but they recognize that it could have been done.

The point that I was making earlier is that you argue that it was 100 per cent sure that nothing could have been done, and it is recognized by them that the British Parliament, as I argued, could have done it.

Mr. McGrath: But read the rest of it.

Mr. Chrétien: What do you want me to read? Read it. If you want to read more, no problem.

Mr. McGrath: Read where you left off, that is germane to my argument.

Mr. Chrétien: Yes, but we have a …

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Mr. McGrath: Well, let me read it for you. It says:

Unless the United Kingdom Parliament was asked and agreed to change existing legislation the only bodies having legislative authority in the matter, the Parliament of Canada and the Legislature of Newfoundland, are now both specifically precluded by the BNA Act from exercising any legislative jurisdiction in the area.

Mr. Chrétien: I concede that.

Mr. McGrath: That is my case.

Mr. Chrétien: I concede that we cannot do that in Canada. We cannot do that today, but we can pass a resolution asking the British Parliament to do it for us, and they have recognized that it is possible. It is as simple as that. Not the Parliament of Canada, neither the Assembly of Newfoundland can do it but the British Parliament can do it and sometime this year they will not be able to do it anymore.

The Joint Chairman (Senator Hays): In that vein we will adjourn for five minutes.

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

If the honourable members would take their places at the table we might get started. I see the Minister has arrived. I should like to call at this time on the honourable Mr. Ittinuar followed by Mr. Allmand.

Mr. Ittinuar: Thank you, Mr. Chairman.

I would like to raise a couple of isolated points in the document pertaining to an even more isolated part of the country and people with the Minister.

In December the Inuit Committee on National Issues presented a series of proposed admendments to this Committee and at the heart of these amendments was the attempt by the Inuit representation to ensure the preservation of their cultural, linguistic and economic identity through constitutional protection; in other words, to provide legal protection from assimilation, and you having been in the north fairly extensively you know what I mean by assimilation.

As an alternative your government is apparently proposing the amended Section 26 which states, and I will read:

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

Well, the fact is that the phrase, the multicultural heritage of Canadians, in legal terms and in my interpretation and others means only the French and English cultures, with all due respect to you people here.

How does this section guarantee the survival of the northern and Inuit culture or their language which, whatever the constitution may say in the future, will persevere in any case?

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Mr. Chrétien: I do not know what you are referring to, you are referring to the language or the cultures and so on. We say that this Charter should be interpreted in such a way to permit the fact that we are not a melting pot in Canada, and have the Inuit or the Indians maintain their culture and language and so on. It is through the programs of the government.

We cannot in a Charter, and we say nothing in this Charter could do away with the possibility of the different ethnic groups in Canada to develop their own culture, their own language, preserve their own tradition, their own history and so on. There are many programs, there is on our federal level because basically the Inuit people, most of them now live in the Northwest Territories, there are some who live in Northern Quebec and the coast of Labrador but most of them live in the Northwest Territories and there are programs that were initiated when I was the Minister in terms of preservation of the language and some teaching of the old ways and so on, in terms of their culture. I do think that it is to make sure that nobody can use this Charter in order to pretend that there is no such a thing as the possibility of citizens having some lessons, say, in the Eskimo language or Inuit language that we have put it there, and for me I think that it is because we see the Canadian society as not a melting pot but as a mosaic.

Mr. Ittinuar: I am glad you recognize it that way because when we say culture, we do not necessarily mean ethnic, and I prefer to say northern culture and not Inuit culture because it is not necessarily only Inuit who live up there and there are two main languages north of the 60°, English and Inuktitut or Eskimo language. French is used somewhat perhaps but the two main languages, working languages and written languages on all documents, legal and otherwise, are English and Eskimo, and I think you are ignoring that very fact by hiding it from Canadians in general, and what I am attempting to do here is to bring out that fact.

I will go on to other things, we can argue about this further, but because of time limitations I would like to make some other points.

Why was the Royal Proclamation, which is critical for native people in Canada and which the government listed as a constitutional document in the appendice to the Revised Statutes of 1970, why has that been deleted from Schedule I of the proposed resolution?

Mr. Chrétien: The Royal Proclamation of 1763?

Mr. Ittinuar: Yes.

Mr. Chrétien: It has never been incorporated there because it is a law that—what is annexed to the Canadian constitution. It is the law in constitutional matters that were passed after Confederation. All the laws that were passed pre-Confederation were not part of the Canadian constitution because the British Parliament gave Canadians a constitution in 1867, and one of the requests of your association, the presentation they made here, asked us to table and annex to our constitutional project the Order in Council of Prince Rupert Land to make sure it is part of the Canadian constitution and we have acceded to that request; but why the Royal Proclamation is not there, it is because it is not really the Canadian constitution, it

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is a right that was given to the natives before Confederation and these rights we say are still in existence and we refer to them in this Charter but they are pre-Confederation and they are still rights of the natives and the original people of Canada.

So I do not think that it is in order to achieve that, that we have, and I am very pleased that we found a way to describe them, the way we have done it. I wish I would have done it in a different way but I had a long argument with Mr. Manly yesterday trying to describe the difficulties of doing it the other way.

However, I would like to tell you that when I became Minister of Indian Affairs in 1968, we were not using aboriginal rights as a term. We could not use it. We were advised it was not a proper term to use, and it took me a long time to get the department that I am heading today to give advice that I could use it legally.

The Royal Proclamation referred to many other states than Canada and I am told here that it even refers to Florida, and so that is why it is not part of the Canadian constitution and we could not pretend in the Canadian Parliament to affect the Royal Proclamation because the Royal Proclamation is affecting a lot of other lands than the Canadian lands.

Mr. Ittinuar: Thank you, Mr. Minister. I think there are lawyers in this country who would argue against you, and I have heard some very good arguments. Maybe the next questioner, who himself is a lawyer, will argue …

Mr. Chrétien: Lawyers argue all the time, they make a profit out of it.

Mr. Ittinuar: And as for your term as Minister of Indian Affairs and Northern Development, you got a lot of free carvings from the Eskimos and not much more, was done on it.

Mr. Chrétien: I am sorry, I do not know what you are referring to.

Mr. Ittinuar: The carvings that were stolen from your house not long ago.

Mr. Chrétien: Oh, there was a few that I cherish very much. I have a nice collection but the majority of them I was pleased to buy.

Mr. Ittinuar: Section 25, and speaking of aboriginal rights, proclaims—another time, Mr. Minister—proclaims that they shall not be denied, is the word you use, by the Charter. Bill C-60, and a similar protection in Section 26 used the wording abrogate, abridge or derogate. Why has this narrow wording been instituted, why is that now adopted? You can laugh all you want.

Mr. Chrétien: No, no, it was just an argument between which of the two is more precise in the meaning of words.

Mr. Ittinuar: Well, why not get both?

Mr. Tassé: Well, I am not sure, Mr. Chairman, that there is much significance …

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Senator Connolly: What is the section?

Mr. Tassé: Section 25. In using the three words that have been referred to, or using one word, we think that the effect is the same. In drafting the constitution we were trying to be as stylish as possible, not to use unnecessary words, although in the drafting of our statutes at some point in time we are trying to be very precise to cover every situation possible and impossible, and that is why we came to add words and words and words, but we think the effect of the section, by using the word “denying” will be the same as the others, but if you have a different view I think that is something we would certainly be pleased to discuss with you or anyone else who has differences.

Mr. Ittinuar: I will take that on record, I will hold you to that.

The Joint Chairman (Mr. Joyal): You have one more question.

Mr. Ittinuar: One more question, Mr. Chairman.

Of the three major native organizations and others from the country suggested the entrenchment of a section that would formalize the Prime Minister’s political commitment to negotiate certain aspects of native relations in Canada.

Now, as a matter of good faith and in terms of what Senator Jack Austin moved this morning, in terms of those words, why was this not included in the amended resolution?

Mr. Chrétien: Senator Austin made a suggestion to me this morning to the effect that we might accept the drafting creating the obligation for the First Ministers to sit down and negotiate the constitutional problem of the natives in the constitution.

My first reaction is that it will not change anything legally, because all the First Ministers in 1979 have accepted to put on the agenda the natives and the constitution. I have explained why it was not discussed in September, it is because we gave to the native organizations some funds last summer to develop their positions.

Mr. Ittinuar: When you gave these funds to those organizations, they were under the assumption that patriation amendment would follow the process of trilateral negotiation. You gave them that assumption.

Mr. Chrétien: We always said it was an item to be negotiated between the provinces, the national government and them at a date when they will be ready, and it has nothing to do with patriation because their rights, as I have inscribed in the constitution and the Bill of Rights, remain exactly the same. This will not affect any of their rights.

So the proposition of Senator Austin, personally the only objection I have is adding something, the expression of the wish in the constitution, and a Bill of Rights is something that is there for a long time, forever, and it is confirmation in that text of what will happen in the next ministerial meeting on the constitution between the federal government and the provinces.

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It is a commitment of all the First Ministers, just like I have accepted the words of Mr. Hatfield in relation to, that he was to pass something in his legislature. I have no reason to not take him at his word.

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

Mr. Allmand.

Mr. Allmand: Mr. Minister, following the tabling of your amendments on Monday night I had the opportunity on Tuesday and Wednesday to speak and meet with several Indian leaders in the country and while they were pleased with the movement that was made by you on behalf of the government, while they were pleased with the changes proposed, they felt they went in the right direction, they are not yet satisfied, at least the ones that I spoke to, but they feel that that with a few changes your words, the words that you propose could be made acceptable. But they feel that the words you have proposed could be made acceptable. Now, the reason they feel they are not acceptable is that, first of all, they are expressed in a negative way—the rights that are supposed to be protected; then the formulation in Section 25 is unclear. What they would like is that that should be made more clear and expressed in a positive way.

I submit to you that, with few changes that could be done. I would just like to suggest to you how it might be done. I do not expect your response today, but I would ask you to seriously consider this. For example, in Section 26, referring to multicultural rights or heritage, you have that formulation in a positive way. If you were to use the formula in Section 26 with respect to the matters you have in Section 25(a) it would be much more acceptable.

Let me suggest to you how it would read. It would read as follows:

This Charter shall be interpreted in a manner consistent with the preservation.

One might use the word “recognition” if you wish … the preservation of any aboriginal, treaty or other rights or freedoms that may pertain to the aboriginal peoples in Canada, including any right or freedom that may have been recognized by the Royal Proclamation of October 7, 1763.

In other words, if you addressed the question of aboriginal, treaty and the rights under the Royal Proclamation in the same way as you did multicultural heritage, you would go a long way towards satisfying many of the Indian leaders, because you will be doing it in a positive and clear way.

I would like you to consider that, because in all cases I am using your words, but formulating them in a different way.

Let me suggest to you another very simple change which could be made, which, while symbolic is nevertheless very important.

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In Section 25 you have put together aboriginal and treaty rights with undeclared rights and freedoms. I would strongly recommend that you put two sections in the constitution; one, with respect to aboriginal and treaty rights, and another with respect to undeclared rights and freedoms. It almost appears as if, with that type of formulation in Section 25 and the one which was in the previous Section 24, aboriginal and treaty rights are an afterthought, added on to some other section, as if they were something less than important.

As I say, while it is symbolic, it is important that you do not mix these two things together. I really consider that aboriginal and treaty rights are an important matter and deserving of its own section.

want to suggest to you another formulation, using your words which could be used, and this refers to Senator Austin’s suggestion this morning and the suggestion that you put in the constitution an obligation to negotiate aboriginal claims. I have forgotten the exact words, but they were more or less to that effect.

You said that you found it interesting, but did not think that would have much legal effect.

Well, Mr. Minister, let me refer you to Section 31 where you have made such a commitment with respect to equalization; and, if it means something there with respect to equalization, surely a similar commitment to negotiate claims would mean something as well.

Now, if I were to use the words you have in Section 31—and I am paraphrasing here; you have “Parliament and the legislatures, together with the Government of Canada and the provincial governments, are committed”, and then you have four subsections which are laudable goals: (a) The promoting of equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities. You are putting in a constitution a commitment on behalf of the Government of Canada to pursue those goals. Why could you not do the same for the negotiation of aboriginal claims?

If you had a section using your words, even if it was just “Parliament and the Government of Canada are committed to the negotiation and settlement of claims based on aboriginal title”, that would be a commitment to negotiate which could not be set aside by any change of policy or of government.

Now, Mr. Minister, you have opened the door to justice for the native peoples part way. Why do you not open the door full way and walk right through?

Mr. Chrétien: I think I said this morning that there is nothing I would be more pleased to do.

As you say, there is a symbolic aspect to it, as well as a legal aspect. There was a long explanation this morning about the legal implications of a positive description at this time of aboriginal rights and so on which could lead to a lot of extreme

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complications in the administration—not my own administration, not our own problem here; but the administration of the land and resources in all the provinces of Canada.

Mr. Allmand: That might happen with Section 31, too!

Mr. Chrétien: I know; but I said this morning to Senator Austin that I would look at the possibility of putting it there.

You know, I would very much like to put it there, and would like to find a way to do so; it might not be perfect, but it would show the intention of the government.

There is a lot of commitment by the Canadian society to the resolution of those problems. If we can strengthen that resolution, then that is fine.

We are looking into the matter. I will do my best. If I can satisfy you and others, I know it would give me great personal satisfaction.

Mr. Allmand: That is all.

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

Do you have a supplementary, Senator Austin?

Senator Austin: Thank you, Mr. Chairman; I had, but I think Mr. Allmand has covered my point.

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

Mr. Hawkes: Thank you, Mr. Chairman.

I look forward to the second 10-minute period of my life with the Minister.

Mr. Chrétien: I, too.

Mr. Hawkes: I hope together we will enjoy it.

The statement which you issued to us on Monday evening indicates in its second paragraph something which you have supported later today. It indicates that you have done your best to study and comprehend what has been brought before this Committee in the way of information.

You have told us that you have travelled the country to some extent and spent a busy summer talking to our Premiers and officials of a variety of governments.

Out of that, in your fourth paragraph you tell us that you are going to give us changes which you are prepared to support at this time. Those changes, quite obviously, do not please me.

Mr. Chrétien: This is coming as a big surprise.

Mr. Hawkes: The reasons for that may in fact be, as some people have suggested, that you and I have a different vision of the country, and in that case those differences may be irreconcilable.

But they may in fact be that we operate from a somewhat different information base, that the information which is available to me, as someone who has been here for some 90 per cent of the time and who has actually heard the witnesses and the questions, may not be the same information base which filters

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through to a very busy Minister, whose information comes by way of summaries and briefing memos to a large extent; because you have not been here and few of the delegation which sits behind you have been here for a large proportion of the time, though one or two have not.

But there is a kind of richness to data. The difference in our information base may in fact be a consequence of language difference. When we communicate—and you can do it in a second language; but there may be nuances of the English language which escape you, and there are certainly nuances of the French language which escape me.

If I were to set that up by way of background, I would like to use my first 10-minute round basically to determine, if I can, whether or not we have a somewhat different information base.

Mr. Chrétien: Ask your question.

Mr. Hawkes: In my region of the country, there is a phenomenon called separatism, and you have familiarity with the brand of that in the Province of Quebec and considerable experience of it.

I have rather, uncomfortably, a growing familiarity with that phenomenon in my province and region.

It seems to me possible—in fact it is going on; but if I could direct your attention to Section 41 of your proposed resolution, simply to provide us with a common information base and an example, a separatist could take Section 41, just Xerox it, walk around the neighbourhood or take it into a meeting and get people to read it, and as they read it, their willingness to support separatism would increase.

Do you have the information base where you can tell me what there is in the words, at least in English, which would lead somebody from my province to have that kind of reaction to what really is a fairly technical paragraph, dealing with amending the constitution, and the so-called Victoria formula. There are words in it and concepts in it which are offensive. Do you know why they are offensive?

Mr. Chrétien: You know, it is your duty to go and explain it. It is not related to the area of separation at all. You have to go and explain to them that we have a Canadian constitution and the big problem which exists in that constitution is that we have not been able to find a way to agree on an amending formula.

Now, if we have to amend the Canadian constitution, we have to go the Great Britain and Canadians and every member of this Parliament want to patriate the constitution. When the constitution is patriated, we need to have a mechanism to amend the Canadian constitution.

Some argue that the provinces should have a right of veto and eveything. That is the view of the Premier of Prince Edward Island.

The majority view of Canada is, in my judgment, that it is too rigid a system, and we need some flexibility. In seeking some flexibility, we have tried many, many ways to amend the

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constitution which would protect the rights of everybody, and at the same time to giver some flexibility.

It so happens in Canada that the country is divided into four sections or areas; the maritimes, Quebec, Ontario and the western provinces; and there is a proportionality there which has been as a feeling by a lot of people like that. There is the additional problem. We picked up the 25 per cent population system and say any province who attains 25 per cent of the population will have a right of veto.

Of course, if you go to Alberta, they do not have the right of veto; Prince Edward Island does not have the right of veto; Newfoundland does not have the right of veto. But two provinces of those areas can have a right of veto, but not in Western Canada.

In Western Canada the two smallest provinces of Western Canada together do not have a right of veto, like the two smallest provinces in the maritimes.

But it was a desire expressed in 1970 by the Premiers of Western Canada, and they agreed to it. I said today that if the western Premiers want to have the same system, that would please me, because this 50 per cent requirement makes it more difficult to attain any change in the constitution in the fugure, because you could have Manitoba, Saskatchewan agreeing with the rest of Canada, and the amendment would not pass.

So, for me it is not advantageous for the federal government; but it is advantageous probably and mainly for British Columbia and closely, in terms of population, to Alberta. It is negative for Saskatchewan and Manitoba at this moment.

If they want to change it, and all the Premiers agree or three out of four, or if I had a unanimous request from all the western members elected to Parliament I might change it; I would consider it.

I would explain it in that way to your friend in Alberta who is a separatist. I have made a career of not patting their backs in Quebec, fighting them.

Mr. Hawkes: You have addressed yourself to two things. Do I take it from what you have said that you cannot see offensive words? You have identified for me to some extent a different vision of Canada. You have a regional vision. From my culture, the place where I was born and raised, I have a sense that Canada is made up of 10 provinces; that our system of government is that we do elect governments, province by province; and that we have the balance that exists in our system between those two kinds of elections in which we participate—the election of people provincially and the election of people federally.

In your fight with the separatists in the Province of Quebec, earlier today you gave us a menu of promises; but absent from that menu of promises was a commitment to the people of Quebec and one which you felt other provincial Premiers and other federal politicians shared—a commitment to ignore the

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democratically elected people who represent us in provincial governments, which the process addresses.

Mr. Chrétien: Still on Section 41, if you are on the amending formula, the discussion is a very simple one. Are you or are you not for the unanimity rule?

I respect the wishes, the views of the people who want a unanimity rule. That is a logical thing to propose. But it is very inflexible.

So, the problem is there. If you do not have the unanimity rule, what? That is a problem. If I were from Prince Edward Island I would ask you right after that, do you want a veto for Prince Edward Island in all matters?

Mr. Hawkes: I would like to try and help you, perhaps, comprehend how I feel by doing something or putting to you a situation out of your own experience.

But it is not too long ago when I sat on the government benches, albeit in a minority situation. I would like to paint you a scenario: that we determine, as a government, to adapt the Privy Council memo in the process, that you and your government are adopting; and that we were sitting here in this room considering a document that had one subtle change; that looking at Section 41(1)(iii) at the bottom of the page, that that section read:

One or more of the central provinces that have in the aggregate, according to the then latest general census, a population of at least 50 per cent of the population of all the central provinces.

Now remember we had two members from Quebec; today you have two representing your party from the West.

Now, if you could pause for just 10 seconds and put yourself in my place, and I am sitting in your place, and you are facing that separatists movement in your province and facing that referendum, and I am determined to proceed with this process, to proceed with this bill written in that way, do I make you feel comfortable? Do I make your job easier? Are you going to go out of here with enthusiasim to say to the people of Quebec, “Defeat that referendum! Canada is a great place!”

Mr. Chrétien: You are asking me a purely hypothetical question.

I will grant you that it is a good question—you speak about when you are in the government and in the opposition. There is a party in this House who does not fall within both circumstances—the NDP. Many of their members come from Western Canada, just like you. It is not your province, but they have the same problem. The official position of that party is that they approve this package. They are seeking some improvements. I know Peter says that he is not completely sure. Neither am I. It is not a job of perfection; but they voted in principle for that in the House of Commons. At that time they knew about the amending formula and so on.

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So they have the same thing. The NDP, being in politics, or any opposition party, is never comfortable to be with the government. It is not in the nature of our adversary system. It makes you very uncomfortable when you are in the opposition.

So you have to look at the reality. I think when you refer to Section 41, I am not too embarrassed by it, because this provision-you know about the so called Victoria formula—is something which has been agreed 10 years ago by the First Ministers of the western provinces.

So it is not something which we are imposing. It is something which has been agreed upon by those Premiers at that moment in history. But if it is not good enough, if seven provinces in the next two years found something better they would come and make that proposition to the government. If we, the national government, do not agree the people will decide.

Mr. Hawkes: Mr. Minister, three of the four provinces and maybe the fourth say it is not good enough with the crystal clarity which is represented by a court action which is trying to stop the federal government from separating the people of the West from their legal traditions, their governing traditions and to some extent their economic traditions, but that is how strongly we feel.

Mr. Chrétien: Mr. Hawkes, I would like to tell you this. The fighters, the people that have always, because of the component of the society in Western Canada, who have been the greatest advocate in the past generations for a Bill of Rights in the Canadian society have not been Eastern politicians. They have been the Tommy Douglas’ and the John Diefenbakers and the like who made a career because of the component of their society, many of them, people coming from countries behind the Iron Curtain and those people have seen the freedoms of their relatives or of their cities disappear. These have been the ones who have fought over generations to have the rights of the Canadians to be enshrined in a bill of rights and in the Canadian constitution.

It has never been the big debate in my province and in other parts of Eastern Canada, to my recollection. It has been very much a problem of Western Canadians, so when you make this affirmation that we are doing something alien to the mentality of Western Canada, I have to ask—I am obliged to tell you that I have to disagree very strongly.

The first bill that your Premier passed after being elected as Premier of Alberta has been a bill of rights for Alberta so when you are telling me that I want to strengthen those rights to have them equal for all Canadians it is not alien to the tradition of Alberta.

The Joint Chairman (Senator Hays): Order, please. Thank you very much, Mr. Hawkes.

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With consent of all of the honourable members I should like to call on Mr. Duclos. Do I have consent?

Some hon. Members: Yes.

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

[Translation]

Mr. Duclos: Thank you, Mr. Chairman and honourable colleagues.

Mr. Minister, yesterday when you answered a question put by a news person who was asking your comments on the results of the last Gallup poll according to which 64 per cent of Canadians are opposed to the fact that by going to London to repatriate the Constitution we are also asking the British Parliament to amend the Canadian Constitution you said that, personally, you did not like the idea of having to go to London but as things were as they are, we have no choice, we must go there.

Now, for the information of the Committee and the general public, I would like you to make a distinction which is that we of course must go to London, Mr. Minister, to repatriate the Constitution but do you not recognize that we could easily, once our Cosntitution has been repatriated, adopt a charter of rights including the language rights here in Canada, and I would also like you to tell us why the government is being so obstinate since you have often said that it would be easier from now on, once the Constitution has been repatriated with an amending formula which could be the Victoria one, why the government is being so obstinate in using this pilgrimage to London to have the Constitution of all Canadians amended by the British?

Mr. Chrétien: I think that going to London is a technicality, but Canadian Parliamentarians will be called upon to vote here, in the Parliament of Canada, and you will be called upon to vote yourself.

Going to London is a legal obligation. Now, if you are saying that the Committee has not studied this document in depth, we are passing it here before going to London. It does not have force of law.

Mr. Duclos: Going to London, Mr. Minister, is a legal obligation to obtain repatriation of the constitution, but it is not a legal obligation to get amendments to the Canadian constitution, for example, in getting a charter of rights through an act of British Parliament.

Mr. Chrétien: We have decided that we were going to proceed with the entrenchment of Canadian rights in the Constitution. That is the government’s decision. Why are we doing that? Because we made commitments to make fundamental changes in Canada and the dream of being able to do things unanimously in Canada, using the rule of unanimity, is a dream that has been shown to be tragically ineffective during the last 531/2 years and you are asking us to do the same thing anyway? Well, you know, in theory before we get an amending formula in Canada it will take two or even five years.

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Mr. Duclos: So, Mr. Chairman, let us go from what the Minister has just said …

Mr. Chrétien: If it is unanimity you want, I can tell you right away that Mr. Lyons, the Premier of Manitoba, has told us clearly that he will never accept any kind of charter whatsoever to protect the rights of the citizens of Canada.

Mr. Duclos: Mr. Chairman, I would like to put a question to the Minister. The Minister has often repeated that he particularly likes the Victoria formula. I know that it poses problems for other provinces, but for the purposes of our discussion, dear colleagues, suppose we agreed on a Victoria formula which would not require uanimity, Mr. Minister, or upon the Vancouver formula which, as an added advantage, would help us get the assent, the approval and agreement of all political parties in Canada or of an imposing majority of the provinces.

I think that even Quebec would be ready to rally behind that formula because I -think that now, as Quebec feels that there is important momentum, that there is solidarity between the provinces with a view to constitutional reform, I think that Quebec could be persuaded not to demand that the first thing to do would be to provide for a new sharing of constitutional jurisdictions.

I even think, Mr. Minister, that we could get Quebec’s agreement on that. Why not drop this charter of rights, agree on an amending formula, ask the Britisi1 Parliament to repatriate the constitution and then, thank God, confrontation would be over in Canada, we could agree and take care of economics, bring down unemployment and fight inflation.

Mr. Chrétien: Look! You can always use that wishful thinking and pray to the good Saint Ann and our Lady of the Cap-de-la-Madeleine, only …

Mr. Duclos: Some joke.

Mr. Chrétien: Not at all. There would simply be no charter of rights in Canada for a very long time. You yourself are advocating that a charter of rights applied to all Canadian citizens without exception. The Vancouver formula which seems to be acceptable to many allows opting out for any constitutional change, therefore the charter would apply in a certain way to some citizens and in other ways to others.

Under the circumstances, I find this unacceptable. Opinion polls have long shown whether they want their basic rights to be entrenched in the constitution and thus protect, 90 per cent are in favour of such a charter. They would of course prefer, as I do, that this be done with the approval of the 11 governments, but this is an impossibility.

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Mr. Duclos: Mr. Minister, since 90 per cent of all Canadians are in favour of entrenching such rights, I think that once the constitution was repatriated with an acceptable amending formula, public opinion throughout Canada would be strong enough to oblige all provincial governments to provide Canadians with such a charter of rights.

Mr. Chrétien: You are entitled to your opinion. Let us take Section 15 as an example. This section prohibits any discrimination based on age, a provision which the Government of Saskatchewan objects to. It would prefer that no reference be made to age, and have made representations to us to that effect. They did not give this a lot of publicity, but the Saskatchewan government did make its opinion known, claiming that the provision would result in administrative problems.

We have decided, and this is what we are proposing to the Canadian Parliament, that all clauses of discrimination, in so far as possible, be enumerated in Section 15 of the charter.

I maintain that if you draw up a charter of rights and submit it to the provinces, as you are suggesting, you will never end up with any agreement. You can always say it is possible and theoretically it would be.

Mr. Duclos: Even if 90 per cent of all Canadians are in agreement on this.

Mr. Chrétien: Yes.

Mr. Duclos: Mr. Minister, do you believe in the legal equality of the two main language communities in Canada?

Mr. Chrétien: Yes.

Mr. Duclos: Yes.

Does Section 133 of the Canadian Constitution reflect this legal equality of the two main language communities?

Mr. Chrétien: We would like it to be universally applied. But it must be remembered that the Canadian Constitution of 1867 provided different language guarantees to different provinces, and we have decided to take action in the field of education. As far as Section 133 is concerned, we will not impose it on all Canadian provinces, except those which willingly adhere, which we are pleased to say is the case for New Brunswick. We deplore the other provinces unwillingness to go along with such a measure in matters of provincial jurisdiction, that is with reference to their provincial legislature, their legislation and services.

Mr. Duclos: Mr. Minister, if I have understood you correctly, what you consider to be important is that certain principles be entrenched in the constitution. With reference to Section 23, for example, as far as the language of instruction is concerned, it is your intent to ensure, and I hope that I am interpreting you correctly, that no provincial legislature shall enforce or be in a position to remove such entrenched rights

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relating to the language of instruction. The only way to tamper with them would be to have a change made in keeping with the approved amending formula.

By the same token, that is acknowledging the need to entrench certain rights in the constitution, is it not just as important to guarantee Francophones rights to use French before Ontario courts as well as in the Ontario legislature, thereby preventing Ontario from withdrawing such rights in the future or from granting them sparingly? Is it not important, in keeping with the same principle, to impose on Ontario the same obligation as that imposed on Quebec, whether there is agreement or not?

Should not the same reasoning or principle apply to the Government of Ontario as well as the Government of Quebec and to other provinces, of course, which are not totally in agreement with the requirement to provide French education outside of Quebec?

Mr. Chrétien: Nothing is now being imposed on Quebec by 133.

Mr. Duclos: No, 23. Quebec does not agree with Section 23, Mr. Minister, as you know quite well.

Mr. Chrétien: No, but …

Mr. Duclos: It will have to change Bill IOI because of Section 23 and in spite of its disagreement it will no longer have any choice.

Mr. Chrétien: We are ensuring certain rights in the field of education. Using the same logic, why do you not ask Mr. Nystrom why he does not want it to be applied in Saskatchewan?

Mr. Duclos: It is not Mr. Nystrom’s problem nor is it mine.

Mr. Chrétien: Let me explain the problem. Why should we impose Section 133 on Ontario and not on the other provinces? Because of the size of the French-speaking population? It is not a matter of numbers. If we proceed in this way for education as far as the other provinces are concerned, we should have to do likewise in other matters. We have concluded, Mr. Ryan expressed the same opinion last week in Toronto, that such an initiative would have to come from the population of Ontario.

Mr. Corbin, a Francophone from outside of Quebec, stated yesterday to the Committee that such a step would have to come from the population. The provincial government is responsible for this and this has always been the government’s position; 133 applies to Quebec, the equivalent applies to Manitoba because of rights flowing from the 1867 constitution and the Manitoba Act.

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New Brunswick is being brought in through the resolution and we shall continue to pressure the other provinces to do likewise.

Mr. Duclos: In that case, let us impose Section 23 on Quebec when the population of Quebec so decides in the same way as Section 133 of the constitution will be applied to Ontario at their request.

Mr. Chrétien: There is a great difference, because Section 23 enshrines in the constitution the agreement reached in Montreal in 1978 …

Mr. Duclos: It is not correct to say that. It is not right! The province did not ask for this provision to be enshrined in the constitution, Mr. Minister. The provinces agreed on reciprocal agreements that might or might not have been revoked at any time if conditions in each province that was party to the agreement were to change. The situation is completely different. I do not want to hear that argument anymore.

Mr. Chrétien: Well, you have attended three of the sixtyfour sessions …

Mr. Duclos: I am not a member of the Committee, so …

Mr. Chrétien: Nor are you obliged to …

If you do not want to hear the arguments anymore, well you need not come. I will tell you what I said, I .find your double standard quite shocking. For the first time in the history of Canada, we are going to give francophones the constitutional right to have French schools in Canada and we are telling Quebec that English speaking Canadians in Quebec will be entitled to the same type of education as francophones outside Quebec. If you do not want us to do that for French speakers, I am not very impressed with your nationalistic feelings.

Mr. Duclos: Oh for heavens sake!

[Text]

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

Thank you very much, Mr. Duclos. I would like to go to Mr. Beatty in conclusion.

Do you have a supplementary?

[Translation]

Senator Tremblay: I have a supplementary question, Mr. Chairman, on the very point that has just been raised, and that the minister has frequently raised, regarding the consensus reached in St. Andrews and in Montreal regarding the language of education.

I think we should put the Montreal agreement on the record, and with your permission, I will read it. I have an English version. I will leave out the first two paragraphs, which merely provide an introduction. These are the main points of the document:

[Text]

The Premiers reaffirm their intention to make their best efforts to provide education to their English or French speaking minorities, and in order to ensure appropriate levels of services, they also agree that the following princi-

[Page 82]

ples should govern the availability of, as well as the accessibility to, such services;

The first principle:

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

The second principle:

(ii) It is understood, due to exclusive jurisdiction of provincial governments in the field of education, and due also to wide cultural and demographic differences, that the implementation of the foregoing principle would be as defined by each province.

[Translation]

You were saying, Mr. Minister, that Section 23 of the proposed resolution is similar to this provincial consensus, however in my opinion, Section 23 is very different from this consensus. The only aspect you have borrowed from the consensus is the phrase “wherever numbers warrant”. However, the second part of the consensus provides that the provinces are to implement this program. This is fundamental from their point of view.

I am not talking about the decision you make. You often tell us that “we decided” to proceed in a certain way. It is clear that you decided on something, but do not tell us that it is based on a provincial consensus. You decided on something that runs contrary to one of the two fundamental principles of the consensus reached in St. Andrews and Montreal.

I would also like to quote the last paragraph to illustrate just how important the second principle is for the provinces:

[Text]

The Premiers requested the Council of Ministers of Education to assume the responsibility to suggest ways and means of achieving further progress in minority language education and second language instruction consistent with the progress thus far made.

[Translation]

Not only did they not request you to include that in a charter, but they decided to refer it to an interprovincial body thus involving all of Canada. I repeat, it was an interprovincial organization, the Council of Ministers of Education.

To me, that is the antithesis. It is the antithesis of including the Montreal consensus in the charter.

Mr. Minister, I think this issue has to be settled.

Mr. Chrétien: As well as the principle recognized by the premiers which we decided to entrench in the constitution, that is, that each English speaking or French speaking child have the right to receive instruction in his or her mother tongue.

However, none of the premiers followed up on that principle, they did not act upon it immediately. As I have already stated,

[Page 83]

we decided that as this principle took priority, as the premiers recognized that each English speaking or French speaking student had the right to receive his or her education in the mother tongue, that that same principle should be given the status of a constitutional right. That, we are doing unilaterally.

Senator Tremblay: I see! You are imposing it.

So, Section 23 is as obligatory …

Mr. Chrétien: As the charter.

Senator Tremblay: As the whole thing.

Mr. Chrétien: Certainly!

Senator Tremblay: Well, then may I ask you …

Mr. Chrétien: It is a principle which they themselves recognized which has become obligatory. It has been imposed.

Senator Tremblay: May I ask you then …

Mr. Chrétien: I will not apologize to anyone. When I state today that I support the principle of a French speaking or English speaking Canadian being able to receive his or her education in his or her mother tongue and that principle I am proud of it.

Senator Tremblay: So, Mr. Minister, should you not then, in all fairness towards the public, stop claiming that you are using the Montreal consensus? You are misleading people in saying that you are, because this wording does not represent the Montreal consensus.

[Text]

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

[Translation]

Mr. Chrétien: Listen. The principle is the same. The mechanism is different, but the principle is the same. They had said that:

[Text]

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

This principle that what we have agreed to is now by us enshrined in the Canadian constitution. Because the way that they wanted to do that was not to give the Francophones outside of Quebec effective rights to their schooling and the same thing for the Canadians of English speaking language moving to Quebec, because by Bill 101 the anglo English speaking Canadian moving to Quebec had lost the right to go to English schools, and now the English in Quebec will have exactly the same right as the francophones outside of Quebec.

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

I see it is 6 o’clock and we will now adjourn until 8 o’clock.

[Translation]

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

May I ask the honourable members of this Committee even though they have every reason to be uneasy because of the presence this evening of a nocturnal visitor to try and concentrate on the object of the meeting.

[Page 84]

When we adjourned for dinner, Senator Hays had mentioned that he would give the floor to Mr. Perrin Beatty.

I would therefore invite Mr. Beatty to address our witness.

[Text]

The Honourable Perrin Beatty.

Mr. Beatty: Mr. Chairman, I might just observe at the outset that the government’s batty constitutional proposals seem to have friends here in this room.

Mr. Chairman, I want to say at the outset, just before getting into my questioning, Mr. Duclos made a point which is I think very valid, and that is that Mr. Chrétien, in his testimony here this afternoon to Mr. Duclos, indicated that it was his judgment that the amending formula which is being proposed by the government for incorporation into our constitution would not be able to deliver substantial changes in the constitution of the nature proposed by the Minister, and I think, Mr. Chairman, it should give pause for this Committee to be somewhat cautious in terms of looking at the government’s constitutional proposals if they have so little confidence themselves in the amending formula that they believe that something which is as important to them as the Charter or Rights could not be put into the Jaw under these proposals, but I would like, Mr. Chairman, to draw the Minister’s attention to a brief by Mr. William Christian of the Department of Political Studies of the University of Guelph who, on page 7 in his brief, raised a point which I think should probably be dealt with by the Committee and I would appreciate getting some guidance from the Minister and his officials, and I will perhaps read the appropriate passage onto the record and perhaps the Minister and his officials could comment on it.

Mr. Christian said this:

The final point that I want to make involves Section 5 which provides that “there shall be a sitting of Parliament and each Legislature at least once every 12 months”.

The explanatory note suggests that this provision would “modify Section 20 of the BNA Act”.

The note is rather subtle since Item 1(2) of Schedule I to Schedule B actually repeals Section 20 of the BNA Act. The repeal of Section 20 and its replacement by Section 5 has two effects: the most obvious is to bind the provincial legislatures in the same way the federal Parliament is bound to annual sittings, but it also eliminates the requirement that “there shall be a session of the Parliament of Canada once at least in every year”.

It is not immediately clear what if any the effect would be of eliminating this requirement. The Committee may well wish to make further enquiries concerning this matter.

Could I ask the Minister what the purpose was of eliminating the reference which there is in the current Section 20 to an annual session of Parliament? Why is this not included in the government’s amendments when they are striking Section 20 out?

[Page 85]

Mr. Strayer: Mr. Chairman …

An hon. Member: You are being pre-empted.

Mr. Chrétien: The arms of the clock are in line and so I let him speak now.

Mr. Strayer: Over the years there has been some debate as to what the meaning of the word “session” in Section 70 of the BNA Act meant, whether it meant that you had to have a new session start every year or whether you could have one session which continued. If a session went on six months of one year and six months of another year, would that comply with Section 20? And it was simply to make it amply clear that what the purpose of this section was, was to ensure that Parliament sat every year and that is why the wording was changed.

Mr. Beatty: But is there not a requirement in Section 20, if indeed there is to be a “session of the Parliament of Canada at least once every year”, does this not require at least regular Speeches from the Throne, regular disclosures by the government of its mid-term priorities? Would your wording, which you are proposing, not allow the government to simply have one Speech from the Throne opening each Parliament and no subsequent Speeches from the Throne even over a four or five-year period between then and dissolution? There is no reference whatsoever in the amendment you are proposing to sessions of Parliament?

Mr. Chrétien: No.

Mr. Beatty: No what?

Mr. Chrétien: There is no reference to a session. We said that the Parliament has to sit. But it has so happened in the past that some sessions of Parliament were longer than 12 months and it might be possible that, you say it might be possible that a government or a Parliament could sit without a new session for a year and a half; one can sit two years. What is important is not a Speech from the Throne, what is important is that the people of Canada, through their representatives, can meet and debate the national issues, but to put a requirement that there be a Speech from the Throne, it is for the government to decide if they need or do not need a Speech from the Throne. I see no great necessity for that.

Mr. Beatty: Pardon me, but my understanding is that when you hold a new session of Parliament, when a new session begins, it is required that a Speech from the Throne be given to open it?

Mr. Chrétien: Yes, but the BNA Act does not refer to Speech from the Throne at all.

Mr. Beatty: It refers to a new session.

Mr. Chrétien: And one of the reasons why sometimes we are not proroguing and coming back is at the request of the members of Parliament because some of the regulations say that when we prorogue, some of the services of the members of Parliament are not any more applicable, and of course there is the staff and so on.

It was designed, the old rules, when Parliament was meeting two or three months a year but now even if members are not in Ottawa very often, the services that they have to provide to

[Page 86]

their constituents, they have to provide it in the summer and that is why we are not proroguing, we are just adjourning.

Mr. Beatty: That is irrelevant to the point being made …

Mr. Chrétien: No, but it is …

Mr. Beatty: Just a second. You know as well as I do, Mr. Minister, that what the government does if it is going to have a new Speech from the Throne is it simply has Parliament meet for part of one day on the old session, then prorogues, then has a new Speech, from the Throne the next day, and that can easily be done with the requirement that there be regular sessions of parliament?

Mr. Chrétien: Yes, but there is no reference to the Speech from the Throne in the BNA Act and it has been the decision of the government of the day to decide if they want to have a Speech from the Throne or not and I do not see why we should change it in the constitution.

Mr. Beatty: Well, I do not believe that is correct, though, Mr. Minister. Let me put it to you again:

Is my understanding incorrect, and my understanding is that when there is a new session of Parliament it must be opened with a Speech from the Throne; is that not the requirement, yes or no?

Mr. Chrétien: It has been the practice but it has never been a legal requirement.

Mr. Beatty: So what you are saying is that you are not in the least concerned about the fact of doing away with the requirement for annual sessions of Parliament may alleviate, may eliminate the government’s responsibility to have periodic Speeches from the Throne in which they disclose their midterm priorities?

Mr. Chrétien: I am not worried about it, I think that the government of the day has to take that responsibility if there is no new Speech from the Throne in one session. I am told that in 1974, 1975 and 1976, one session expanded touching three years. Parliament was in perpetual session almost at that time and there was no need at that time for the government to interrupt the session and have a new Speech from the Throne, it just carried on with the business.

Mr. Beatty: What is the argument in favour of dropping references to sessions which is included in Section 20 at the present time? For what reason did the government decide to drop any reference to new sessions of Parliament?

Mr. Chrétien: Because to cope with the reality that some session might last more than a year, sometimes a year and a half, and I do not think that if we are in a continuing session we should interrupt the work to have a debate of six days that interrupts the process.

The government could in theory open a new session and have no Speech from the Throne, say that we are coming here and do our best, and bang. And then introduce a bill and

[Page 87]

another bill and another bill. That is a tradition to have a Speech from the Throne but there is nothing legal about it.

However, if we present one, that some rules apply in the House of Commons and the Senate, but we could come back and just say: we are having a new session, we have no Speech from the Throne, there is the bill number 1.

I think that because of the continuing sitting of parliament we felt that it was not needed to say that there shall be a session every year.

Mr. Beatty: I want to come back to that, Mr. Chairman, but can I ask two brief questions?

The first, Mr. Minister, there has been a great deal of discussion in the past couple of days about surveys which have been taken which disclose that there is massive public opposition to the government’s decision to ask the British Parliament to make substantive changes in Westminster. Now, in the submission to Treasury Board that was made by the Canadian Unity Information Office asking for major expansion in its funds earlier this year, a proposal was made for a succession of surveys including trace surveys as follow ups to the ones which were done and which you have released parts of.

Have in fact any trace surveys been done, any follow up surveys following those ones which you have released to the Committee to date?

Mr. Chrétien: Not for the constitutional package. I do not know what the other departments do, but not for my own responsibility.

Mr. Beatty: So there have been no subsequent surveys of the public relating to the constitutional package?

Mr. Chrétien: No.

Mr. Beatty: One final question, Mr. Minister.

Mr. Chrétien: To my knowledge. I have not authorized any and I do not know of any.

Mr. Beatty: Earlier you indicated you did not rule out the possibility of once again entering into advertising to promote the government’s constitutional package. Do you now rule out that possibility? Is government advertising, using taxpayers’ funds, being envisaged at the present time to promote the government’s constitutional options?

Mr. Chrétien: We are not doing that today but we have not discarded the possibility of doing it because, for example, in Quebec there is a campaign going on since the beginning of November, they have spent $1.5 million I am informed, or close to it, in 1980, and they carried on those expenses in January and I am informed that they might start a new campaign because they are finding the old one is not effective, so they will have a new series of clips and whatever it is soon, and I always reserve my position that if need be there will be some.

[Page 88]

Mr. Beatty: So has the government prepared an advertising campaign as a contingency they would put in place?

Mr. Chrétien: Oh, we have a lot of contingency plans, we are always ready.

Mr. Beatty: Including this? Have you prepared a campaign?

Mr. Chrétien: No, we are working on that and we have some ideas.

Mr. Beatty: You are working on a campaign at the present time?

Mr. Chrétien: No, we are ready for a campaign. I have only to say go ahead and they are going, but I have not said so and I do not intend to say that today.

Mr. Beatty: What budget has been allotted for it?

Mr. Chrétien: You will know when it is spent. We have the money …

Mr. Beatty: All the money is spent?

Mr. Chrétien: We have the money, it has been authorized by Parliament. Now, it is up to us to spend it or not to spend it and I am telling you today I am not spending it. Tomorrow I might change my mind.

Mr. Beatty: This is your attitude with freedom of information with parliament, that Parliament will learn about it after it has been done?

Mr. Chrétien: No, but you have authorized the Parliament- Parliament has authorized me in the supplementary estimates to spend it.

Mr. Beatty: Yes, and I have asked you a very simple question: how much money have you earmarked for a campaign on the constitution if you decide to go ahead?

Mr. Chrétien: Well, I have not earmarked any because I do not know when I will start and when I will finish.

Mr. Beatty: How much have you available?

Mr. Chrétien: But you have it, it is all in the—I do not know the amount of money but you voted on that not long ago and it has been approved by Parliament and when I spend the money I will tell you, do not be worried, but I do not know. I have enough money to do it, no problem about it.

Mr. Beatty: Yes, and I expect you will do it, too.

Mr. Chrétien: And it has been voted by all you people, members of Parliament.

Mr. Beatty: Certainly not approved by our side. Thank you, Mr. Chairman.

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

[Translation]

I will now ask Mr. Gimael to address the witness.

Mr. Gimaiel.

Mr. Gimaiel: For the past few hours, I had the pleasure of sitting on this Committee. This is the first opportunity I have had to speak and I am pleased to be able to do so.

[Page 89]

One thing that has struck me throughout the debate is that some of my colleagues seem to be opposed to repatriation, where the government is asking that a charter of rights be included in the new constitution.

Some of my colleagues do not seem to be aware that we are involved in a process that will not only lead to the rewriting of the document we call the constitution, but will change the rules that govern our country. This could even mean rewriting the laws that govern us.

In this extent, Mr. Minister, I can assure you that as representative of the 80,000 constituents in my Lac-St-Jean riding, I am prepared, for a number of reasons which I will not go into here, to support the resolution which is before us. If the Canadian Constitution were patriated and delivered to the I 0 First Ministers and the Prime Minister of Canada who believe they are great Canadians, and if this new constitution rewrote the laws that govern us, these people might be tempted to grant themselves additional powers at the expense of Canadians. If the new constitution did not include a charter of rights before it was brought home to be amended, I would not support it.

In the past, a number of provincial governments which had enacted human rights legislation showed beyond a shadow of a doubt that their respect for individuals rights applied only to residents of their province. They do not consider residents of other provinces.

A number of provincial laws were passed that proved this. It began in 1970, when the Quebec Government through FEDCO, outlawed the importing of eggs from other provinces. Today, the province of Newfoundland wants to hire only Newfoundlanders to work on certain projects. The same thing is happening in other provinces. Construction workers from Quebec cannot work in Ontario and vice versa.

I would like to know, Mr. Minister, whether the minister and first ministers you met with this summer showed a willingness to eliminate regionalistic legislation which is designed to limit the movements and activities of Canadians. Did these people assure you that if they were able to rebuild the country and rewrite the constitution without including a charter of rights, they would eliminate these restrictions and take a broader view than that of the residents of their provinces, a view that would include the residents of other provinces as well?

[Page 90]

Mr. Chrétien: I must admit, Mr. Gimaiel, that our experiences in this area over the summer were not very positive. Our mobility proposal met with a great deal of resistance.

Canada is a country that is founded not only on openness to citizens of other provinces and other countries.

People from all parts of the world contribute to the building of Canada and I think that this is a very positive thing.

At this time, however, there is an unfortunate tendency to make short-term political gains by imposing restrictions that would have a negative impact on the future of the country. The weak always end up picking up the tab for disputes about discrimination.

Quebec may be stronger than Newfoundland and weaker than Ontario but I think that this is a very dangerous process, because when the time comes to retaliate, the strong always win. I personally believe the enshrinement of the right to education in French outside of Quebec and in English in Quebec will lead to higher mobility for Canadians. If the Fathers of Confederation or the legislators in 1905 had had the foresight to include the right to education in French throughout Canada in the constitution, our history might not have been the same, because labour force mobility has been incredibly limited b) the lack of educational facilities for Francophones in the rest of the country.

What can I say! We have all heard of Quebec families who went to live in English-speaking provinces in the West. After two or three generations, the Boisvert became Greenwood and the Chrétien became Christian because there were no French schools in the cities where they were living. Some may say that it is too late. I believe that it is never too late to do the right thing. To me, it means something to be a Canadian.

I got the impression from our discussions this summer that we were moving towards having ten different sets of citizenship papers within Canada and I do not like it. That is not the kind of country I want to live in.

Mr. Gimaiel: I am happy to hear you say that, Mr. Minister, because we are often asked why a charter of rights should be included in the constitution. I know that the Official Opposition is demanding that rights not be enshrined until a constitution is patriated. I would like to repeat what I said before, to the effect that if rights are not enshrined before the constitution is patriated, I will not be able to support the regulation resolution.

[Page 91]

To move on to another subject, you know that I come from Lac Saint-Jean, which includes the beautiful Saguenay-Lac Saint-Jean area, and I am proud of the fact that my region is the most francophone and possibly the proudest in Quebec. People are proud of themselves, of their language, of their region and of what they are.

Whenever language is discussed around this table, the debate revolves around the confusion of the situation and Section 133 of the Constitution. Mr. Nystrom has a certain advantage in coming here and saying that Section 133 should be forced on Ontario. It might also be advantageous for the 73 or 75 MPs from Quebec to say: This time, we can get Ontario. There are enough of us to impose Section 133.

What concerns me is that Ontarians themselves will be the most affected by this. Have we asked ourselves why Manitoba, which had Section 133 imposed ‘on it, is also the province where the rights of francophones have been the least respected’? Have we asked ourselves why Quebec, which also had Section 133 imposed on it, is also the province where a separatist government is in power?

Could these extremist tendencies not be the result of the past? Are we going to make the same mistakes again? It would be nice for me, in particular, to go back to Lac Saint-Jean tomorrow and say how pleased I am that I forced Section I 33 on Ontario. It might be pleasant for a francophone, but to what extent will franco-Ontarians and Englishspeaking Ontarians have to live with the consequences?

I know that over the summer, you talked to representatives of their government, both francophone and anglophone. I know that quite a few of the representatives of franco-Ontarians are c0nservative members of the legislative assembly and that their leader is opposed to having Section 133 imposed on the province. We tend to forget that the proposed resolution, while it does not impose Section 133 on Ontario, accomplishes many other things in the area of language.

I am going to ask you a question so that I will be able to pass on information to my constituents who are wondering about various statements that have been made. My question is very simple. We are living in a country which is called Canada, which has laws and a constitution and two main languages. We are working on a proposed resolution which will result in a charter of rights protecting the fundamental rights of Canadians.

My question is this: Once the Charter of Rights is included in the Constitution and it is brought back to Canada, how will the situation with respect to language rights differ from what it is today?

[Page 92]

Mr. Chrétien: That is a good question, because we tend to forget what has been done to date. If you look at the charter, you will see that in Section 16 to 20, important rights are being enshrined in the Canadian Constitution and that French and English are the official languages of Canada. This is not just an act of Parliament; it is now included in the Charter of Rights.

Both languages have equality of status and equal rights and privileges as to their use in all institutions of the parliament and the Government of Canada and this can never be taken away. The government in Ottawa could not revoke those acquired rights. If we accept the Victoria amending formula without the approval of the citizens or the Government of Quebec, even if the majority were against the clause, it remains in the Constitution. It is enshrined in the Constitution and cannot be revoked by the Parliament of Canada. It could only be revoked with the approval of the Province of Quebec, if that province accepts the Victoria formula or something similar which gives Quebec the veto. The same thing is true of Section 16 to 20. These sections guarantee the rights of Francophones in dealing with federal institutions and that is something that is completely forgotten.

We also forget that for the first time in Canada, Francophones outside of Quebec and Anglophones in Quebec will have the constitutional right to be aducated in French. Also, the courts will be able to determine that there has been discrimination, require that the problem be resolved and grant compensation to individuals if necessary. These are things we tend to forget. We are concentrating on something we would like to have but cannot, because it was decided in 1978 that this would not be imposed. I was very impressed by a remark made yesterday by Mr. Corbin, who is a Francophone from New Brunswick. He said that things looked very well in New Brunswick and that the government wants it to be done, but they do not want it to be imposed by Ottawa.

You have heard French-speaking members of the Legislature of Ontario saying that it should not be imposed, that it should be done by Ontario. Mr. Ryan said the same thing at the Empire Club in Toronto. He said that it has to be done by Ontario. Mr. Stewart Smith, the liberal leader in Ontario, said that he was for it, but it should not be imposed. It is a political problem that has to be dealt with in Ontario.

In the light of these remarks and of what I have just said, I think that considerable progress has been made. There is a tendency to want to go to extremes and the legislation that is proposed is never perfect. We sometimes have to put up with situations that are less than ideal. Personally, I am very impressed with the progress that has been made. What really impresses me is that the clause in French education in other

[Page 93]

provinces has not, I am happy to say, given rise to controversey anywhere in Canada.

If I think back to what it was like when I was first elected to Parliament in 1963, I did not think that we would ever reach that point. There are of course other issues but no one protested. No one came before this committee during the past three months, from any province in Canada, and said that the right to education in French should not be enshrined. No one said any such thing. Some people bitched about the process, but no one dared attack the substance of what we are doing. I am far more impressed by this than by comments that are made on the form. What I am interested in is the substance. I think we have made considerable progress and I am very proud of it.

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

I will now ask the honourable Jake Epp to take the floor .

[Text]

Mr. Epp: Thank you, Mr. Chairman.

Mr. Minister, I would like to return to the resources question for a minute. You and I discussed that this morning. You will recall that at that time I raised a very distinct possibility that a resources resolution could not be introduced. In view of the fact that we have a proposed resolution, I will leave that; but I know Committee members have had circulated to them at least the opinion of one member of the Table of the House of Commons.

What I would like to do, sir, is to discuss with you statements made by Mr. Blakeney. First of all, Mr. Minister, do you regard the support of Mr. Blakeney for the government’s proposals as critical to their success?

Mr. Chrétien: The support of anybody is important for us. Of course, the support of Mr. Blakeney would be more than welcome.

Mr. Epp: If that support is not forthcoming, as it now appears it might not be, would that force the federal government to reconsider?

Mr. Chrétien: No.

Mr. Epp: So that the position you took on Monday, and which the Prime Minister took somewhere in another part of this hemisphere, that you will not tolerate any additional amendments, that position stands tonight?

Mr. Chrétien: I do not know what you mean by additional amendments; because as you know, Senator Austin and Mr. Allmand said why not do this that and the other.

Mr. Epp: I will be more specific if you want to get into the specifics.

Mr. Chrétien: Tell me which ones. I am telling you that on resources, if you were to stay on resources, one thing is very clear: we will never agree to give to any province the control of international trade.

[Page 94]

Mr. Epp: That the position that you agreed to in 1979, and which has been known as “the best efforts draft” is not on the table and you will not agree to it?

Mr. Chrétien: It was not on the table in June; it was not on the table in July; it was not on the table in August or September, and it is not in January 1981.

Mr. Epp: If you will pay me the courtesy of letting me finish, I will extend to you the same courtesy.

Mr. Chrétien: You cannot complain about my patience, because I have had to repeat myself a few times.

Mr. Epp: I was talking about your courtesy, sir.

Mr. Chrétien: I like your humility, sir.

Mr. Epp: What I want to ask you, Mr. Minister, is this: in 1979 your government, the federal government was in agreement on what has become known popularly as “the best efforts draft” regarding the question of resources.

You have withdrawn your support, do I take it, from that agreement of 1979?

Mr. Chrétien: It was never agreed upon in I 979; and the federal government has never had to accept it because the first to reject it was the Government of Alberta.

Mr. Epp: So you do not accept the best efforts draft at all.

Mr. Chrétien: No; because it was not agreed. There was no call for agreement. We were discussing what would be the best solution, and Alberta rejected that. So it was dropped. We never had to say that we would take it or not, because there is always some work going on at the official or the ministerial level in order to find a solution. Therefore, there emerges sometimes so-called best efforts. But that does not mean to say it is accepted by the government.

Mr. Epp: That being the case, do you then accept fully the position put forward by the New Democratic Party on the exchange of letters between the leaders of the New Democractic Party and the Prime Minister, that you will accept any amendment to resources short of control of international trade?

Mr. Chrétien: You know, the electors speak for themselves. The agreement we have made with the Prime Minister of Canada and the Leader of the NDP is one which we intend to respect.

Mr. Epp: If they can get it before this Committee.

Mr. Chrétien: We made an agreement. We want it to be implemented. I am not the master of rules of this Committee. We have every intention to live up to all our commitments. I believe that this amendment cannot come on resources; any other amendment that might be proposed may not be accepted either, and probably a lot are coming from your corner.

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Mr. Epp: What I wanted to ask you about that is, if the Committee cannot accept amendment for the reason that we do not have a bill before us or a resolution, but we have a proposed resolution only and a very refined and confined reference, do you give the commitment of the government, as the Minister in charge, that you will allow for a House procedure to allow that amendment to come forward?

Mr. Chrétien: I do not intend to reply to that question, because my information is that it is possible to have such an amendment in front of this Committee, and when the Committee has decided, I will advise.

Mr. Epp: So you will not commit yourself in that sense, because what I find interesting, Mr. Minister …

Mr. Chrétien: I said, and I would like to repeat one thing, that is very clear in my mind: we respect our commitment.

Mr. Epp: Mr. Minister, I would like to finish my question if you will allow me to do so. I find it passing strange that if you had an agreement with the New Democratic Party on resources, that you are not willing to give a commitment that some mechanism, some house mechanism will be found to include a resource question, and yet you have found sufficient mechanisms and confined them to the position that you yourself can bring forward any amendment that you yourself have sought. That is my question to you.

How far does that commitment go?

Mr. Chrétien: We said it is an amendment which would be presented by the NDP and will be acceptable to our party. The Committee will have to dispose of that amendment one way or the other. We intend to respect our commitment.

Mr. Epp: Further to Mr. Blakeney’s statement on January 14, Mr. Minister, Mr. Blakeney, when he was before this Committee, gave what I think members of this Committee generally regarded as one of the best briefs we had an opportunity to listen to.

You took the liberty on Monday to quote Mr. Blakeney at length in your reply, giving the impression, obviously, that you were agreeing with Mr. Blakeney and Mr. Blakeney was agreeing with you.

Yet, in the statement of January 14, the impression is very seriously, very seriously eroded by Mr. Blakeney’s statement. He has a number of issues with respect to which he deeply disagrees with you, and he has gone on record—and I have the testimoney before me.

However, I would like to explore another area of disagreement between Mr. Blakeney and yourself, and that is the question of a referendum.

As you know, when he was here, he opposed what he referred to as “the instant referendum”.

But on January 14, despite the amendments that you are willing to make, namely the year’s delay and also the referendum rules commission, he still rejects a referendum procedure.

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Would you be willing, in view of the fact that you have quoted Mr. Blakeney and taken his support for granted, would you be willing now to make a commitment that in view of his continued objection, that you will remove, if we were to move an amendment, delete all references to referenda?

Mr. Chrétien: No, we have no such intention. You know, what I did in my speeches after Mr. Blakeney made a lot of suggestions. Some of them we found good and we referred to them in my statement and gave them the credit for some of those ideas.

But some were understood by us before. We tried to accommodate him as much as possible in the light of his statement that he made here. We said to him in June and July that international trade was not to be given. If he is asking for that he would not have it. And he knows it! But he said that he would see what is the end result of our work here before he makes up his mind.

Mr. Epp: Mr. Minister, I was on the referendum. I ‘as not back to CIGOL or international trade. I was on the referendum. I asked you a direct question.

But I would like to ask you another direct question relating to the statement of Mr. Blakeney, and that is the matter of reciprocity relating back to the referendum. Mr. Blakeney said—and I quote:

And there is no even minor move towards reciprocity, by which I mean the ability of a group of provinces to call for a referendum in the way that the Parliament of Canada can call for a referendum.

If this is a federation, and you believe in a federation, and you believe in two orders of government, and that is the best system for Canadians to function within their governmental orders, if that is your position, have you considered reciprocity, that is that a certain number of provinces—I would like to suggest four or five to you—if that were the case, would provinces have the same right to trigger a referendum as the right you have taken unto yourself unilaterally?

Mr. Chrétien: You know, we have considered that and have not accepted that possibility. We have taken the model of the federation of Australia where all the national referenda applying to the whole nation are initiated by the national government.

It is the same idea here; because we need a national authority in the land, and when we have a problem which covers the whole country. It is the national Parliament.

I think he had a good point; when he was preoccupied about two things: one, is that Sections 41 and 42 were not linked, and we have covered that point.

Secondly, he was preoccupied that it was dangerous to have an instant referendum, and I agreed with him; so we have developed a mechanism with regard to that.

He was preoccupied—not that he did not trust the Parliament here in Ottawa—that we should have an independent commission. I was very pleased with that, because in fact, I

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myself complained in my remarks in the referendum in Quebec that it was dictated, that in fact, the freedom of people was taken away, when we were all forced to go under one umbrella and some people were not comfortable under that one umbrella. But it was the only way we could act effectively in the referendum.

So I agree with Mr. Blakeney, and I am glad now that there will be a commission to set the rules, and it would not be set by the federal government, but by Parliament—Parliament will have the occasion to act if they are not happy.

Mr. Epp: I find it passing strange that you do not want to relate to the Canadian experience, but you seek the British experience, Australian experience, but not the Canadian experience. We want to deal with the Canadian experience. The point I am trying to make is that we want to deal with the Canadian experience. There is just another example—and this is the point: you did not address yourself to the triggering of the referendum. That is a point of great contention, not only with the premiers, but with Canadians whose deep sense of fairplay has been seriously violated by your unilateral action.

So I ask you, how do you determine deadlock? When does deadlock occur? Who determines it? How will it be announced, and how can the provinces respond?

Mr. Chrétien: You know, it is very simple, because the amendment to the Canadian constitution does not come out of the air. It is a problem which evolves in public debate. There is a realization that there is a need for some change. Presumably there will be some doubts.

At one time the Government of Canada would be obliged to come in front of the Parliament of Canada and propose an amendment to the Parliament of Canada; and it will be presumably accepted. On that day the provinces will have one year to accept or reject the proposition as already accepted and debated in the House of Commons and Senate.

If, after a year, it is not acceptable to the provinces, that will have triggered the referendum. The determination will come, the start of the process will come the day that Parliament will vote the project of amending the constitution. Of course, I suppose if it is not acceptable to the provinces, the government could drop it and there will be no referendum.

An hon. Member: Fat chance.

Mr. Chrétien: What I would call the active trigger for the referendum would be probably when we pass the Order in Council naming the federal representatives on the referendum commission or something like that because, if we do not name anybody—no, no, it is a fact because otherwise the commission will not have been created and if the provinces do not agree about a name, among the nominees of the provinces, the Chief Justice of Canada will select one.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. I have many supplementaries, I will recognize first Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman. I want to ask one supplementary of the Minister and to preface it by saying that two of the three things that he said about the referendum were quite accurate and I appreciate very much. The first one is that Section 41 and Section 42 now are linked and Section 41 of course is the amending formula, the Victoria amending formula. Section 42 of course is the referendum which means that you have to now go through the amending formula before we can have a referendum. I appreciate that, and I think that all of us on this Committee do.

The second thing that I appreciate is the second amendment that we had every intention to move before this Committee and that Mr. Blakeney complained about too, the fact that we could have an instant referendum and now of course according to your amendments we will not have that. We have that one year, and I appreciate that very much and I applaud that.

Mr. Chrétien: Let me give you another explanation, the need to trigger the referendum after a year has expired, a proclamation by Order in Council.

Mr. Nystrom: Yes, but the third point, just to clarify the record, Mr. Chairman, and I mentioned this on Monday evening when I was questioning you, is that on the referendum advisory committee you have said again that you have granted what Mr. Blakeney wished and I want to point out here that that is not the case. He called for a referendum rules commission and I have a copy by the way of the referendum rules committee, Saskatchewan draft, amendment that they would like to see in the constitution if indeed we go the referendum route; and it is a rules commission which consists of the chief electoral officer of the country and another person appointed basically by the federal Parliament and someone else appointed by the provinces; and that has all been done by the Minister here today.

But the difference between the Blakeney proposal is that it would have the force of Jaw while the Minister’s amendment …

Mr. Chrétien: I will recognize that point when you ask me questions on Monday.

Mr. Nystrom: I just want to make that clear, Mr. Minister, because this evening you have said again you listened to Mr. Blakeney on that point and you have the referendum rules commission as he suggested.

Mr. Chrétien: Not exactly, it is in that direction, quite close but not exactly.

Mr. Nystrom: I suppose the definition of the words “quite close” can be really stretched. I think there is a big difference between an advisory committee, and the committee that makes rules that are binding that have the force of Jaw as Mr. Blakeney suggested.

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Mr. Chrétien: We say that they make their recommendations and Parliament has 60 days to change them and if they do not change them they become law. It is delegation of authority by Parliament because we have to provide the funds for the running of a referendum and so on, that we leave the possibility for Parliament to intervene, if there is some problems, but knowing what Parliament is, to pass a piece of legislation in 60 days, it would absolutely be necessary that the government of the day and the parliamentarians see that there is something wrong with the recommendation.

Mr. Nystrom: The last question if I may, have you given any consideration, Mr. Minister, to the other two suggestions by the Premier, namely reciprocity on the referendum where there is a federal deadlock, the provinces then can initiate a referendum; and the second of course· suggestion by Mr. Blakeney was that before a referendum could be held nationally that it is not only the Parliament of Canada and the Senate of Canada who have to decide that there is going to be a referendum but there would have to be at least four provinces agreeing as well before it can conduct a referendum. I am just wondering, just to complete Mr. Epp’s series of questions, whether or not you could comment on those other two suggestions made by the Premier.

Mr. Chrétien: We have not accepted those two recommendations.

Mr. Nystrom: I know you have not but I just wonder if you can comment on whether or not you are of an open mind or would consider accepting them or some modification of them.

Mr. Chrétien: You know, I am always having a very open mind on anything but, you know, I do think it is an unnecessary step.

The Joint Chairman· (Mr. Joyal): Thank you very much, Mr. Nystrom. The honourable John Fraser.

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

Under Secton 41, if an amendment is to take place then the consent of the legislatures of the provinces is required, according to the formula set out in Section 41 and also of course the approval of the Parliament of Canada is required.

Yet under Section 44 if the Senate did not go along with the House of Commons, with an amendment proposal, then under the amended provision that you have brought to us an additional three months over the so many days that was in the original draft, in other words, if a certain period of time goes by without the Senate approving then the Senate no longer has any function; and the matter can go back to the House of Commons and, if passed, then the Senate’s objections can be ignored.

Mr. Chrétien: That is the proposition.

Mr. Fraser: That is the proposition.

Mr. Chrétien: That is what we call a veto suspension.

Mr. Fraser: Well, whatever you call it, I call it the emasculation of the Senate. You can shrug. I invite the Minister to tell me what it is if it is not that, and the fact is that as the Minister well knows there have been discussions for a long

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time now about making the Senate more effective as a protector of the regions and the provinces. Yet despite that the government is still proceeding with the proposition which eliminates completely that original purpose of the Senate. I have to ask the Minister what is the use of talking about Senate reform after this goes through if on a matter as vital to the provinces as the Senate’s capacity to reject a proposition of the government of the day, the Senate no longer has that power. Why are you doing this?

Mr. Chrétien: I would say that in amending the constitution and in order to have it amended we need the consent of the national government in whatever is the amending formula. We need the requirement of the provinces or, if there is a deadlock, a referendum; and we do think that we do not want in those matters to frustrate the wishes of the provinces and the House of Commons in the Senate.

Of course in the discussion we have had during the summer, and it was one of the items that was most discussed during the summer, how to devise a more effective Upper House in Canada, in the discussions that we have had with the provinces and the British Columbia government has the problem as a main preoccupation of their constitutional preoccupation, if you read their representation they always refer in the report to an Upper House that will be the representative original preoccupation being reflected there but not in a sense to block the activities of the elected parliamentary, and in Ottawa, in federal jurisdiction.

Mr. Fraser: Mr. Minister, what you have said is at least a very forthright answer, but what I think the public ought to realize is that what you are doing is you are eliminating the role of the Senate as a guardian of the provinces. That is what you are doing.

Now, I want to turn to another point.

Mr. Chrétien: Mr. Fraser, you are quite a gentle person but yesterday you made some very awkward remarks talking about gutless and all that type of expression, you put a lot, perhaps too much colour in some of your presentation, I guess.

An hon. Member: You are a great one to talk.

Mr. Chrétien: I do think that I replied to the question, and we said that in the matter of constitution amendments and the wishes of the province have been expressed by the legislature, and that has been agreeable to the House of Commons, we do not think that the unappointed body should have the right to frustrate what the provinces have agreed, and the House of Commons has agreed. We do not say that the Senate is not there as a House of reflection to debate and argue and so on but when the wishes of the elected people have been clearly expressed by the provincial legislatures in the House of Commons we do think, and most of the Senators have recognized that very clearly in the past, because they have never used the power they have to frustrate the efforts of the elected people of Canada.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser. I note that …

Mr. Fraser: I have not completed my questions.

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The Joint Chairman (Mr. Joyal): The Chair has a problem presently because we are on the supplementary round and I have listened very carefully to the honourable Jake Epp and he was more on the referendum issue and the way the referendum should be called in the future, if that provision of the motion will be adopted. I understand that you are concerned with the role of the Senate and the reform of the Senate and the Chair recognizes that it is a fair question to be asked and debated and discussed with the Minister. So what I would suggest to you that I would keep your name down on my list and I would go then to the honourable Bryce Mackasey on his line of questioning and then come back to you after I have recognized honourable Senator Lowell Murray.

Mr. Fraser: Mr. Chairman, I think that is very fair and I do want to continue this line of questioning which will lead into some further questions with respect to Section 42. Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you very much for your co-operation, Mr. Fraser. I invite now the honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I hope that my questions are related to the …

An hon. Member: So do we, Bryce, we all do.

Mr. Mackasey: Whether it is or is not, Mr. Chairman, they will learn by listening. This is the important point.

Mr. Minister, through you, Mr. Chairman, listening to Mr. Epp, and he is not here, but I have nothing bad to say about him or anyone else, so it does not matter whether he is here or not, I think you made it very clear that there is no deal with the Province of Saskatchewan for their support.

Mr. Chrétien: No deal, and we are not seeking a deal either.

Mr. Mackasey: Therefore the combination that you have made to Mr. Blakeney, based on its logic and on its persuasiveness and on common sense …

Mr. Chrétien: On the validity of the argumentation, that is all.

Mr. Mackasey: And hopefully you will have Mr. Blakeney’s support but it is possible in a democratic that you may not.

Mr. Chrétien: It is possible.

Mr. Mackasey: But you are not trading certain prerogative of the federal government, if you like, to the provinces and particularly Saskatchewan just to achieve his support.

Mr. Chrétien: No, because when we prepared our package, Mr. Mackasey, you know we prepared the package when we made the announcement and it is only after that we waited to see how many provinces agreed or supported it. We have tried to work a deal on the whole package of 12 items following the meeting of June 9 at 24 Sussex but come September there was no agreement and we proceeded with our resolution and after that we have waited for further reaction of the provinces.

Mr. Mackasey: Mr. Minister, I too recognize the persuasiveness of Mr. Blakeney’s argument and I must say that he

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persuades me every time I listen to him especially when he talks about the need for a stronger central government because he makes the case that if you are going to have stronger regions you need a stronger central government.

We have talked about the shifting balance of power and division of powers. Am I right in saying that you have gone a long way to concede, resulting from Mr. Blakeney’s argument, the field of indirect taxation to the provinces.

Mr. Chrétien: The field of indirect taxation for the provinces is very important for Saskatchewan because that was one of the problems that they have had to cope with in the potash case, the CIGOL case and they made a lot of representation, in fact it was a decision of the Supreme Court, what they have done. The national government had no objection. They have not even consulted with the national government but the courts ruled against them in that and in the CIGOL case and accepting the amendment of the NDP, something I had offered in the summer myself in solving the problem for Saskatchewan, and other provinces, too.

Mr. Mackasey: I do not want to take advantage of this new wrinkle of supplementary questions which I think is very useful, Mr. Chairman, but Mr. Minister what you are saying, and I want to get this very clear, is that you will respect the commitment given by the Prime Minister in an exchange of letters with the leader of the NDP Party, whether you do or do not have the support of the provinces.

Mr. Chrétien: Definitely. We had an exchange of letters between Mr. Trudeau and Mr. Broadbent and we intend to respect that whatever happens to the decision of Mr. Blakeney. Mr. Mackasey: Reflecting provincial needs.

Mr. Chrétien: Yes.

Mr. Mackasey: Finally, Mr. Chairman, I must say I am very concerned and I will not raise it when Mr. Epp is not present but I have been listening to Mr. Epp’s persuasiveness too and eloquence, and I hope I am wrong but it seemed to me that he almost threatened the Committee or you or the resolutions—he is coming now—when he said if we get it before the Committee, it being the proposed commitment or amendment to reflect your view, not necessarily Mr. Blakeney’s view or Mr. Nystrom’s, the commitment in that letter, it seemed to me that what Mr. Epp was saying, maybe I am wrong, you can correct me, when he said if we can get it before the Committee. Perhaps it was the tone of voice which was unusual because he is usually a very easy-going gentleman, and he left the inference that you will never get it before the Committee, if you do not get it before the Committee then you are not going to be able to meet your commitments; if you do not meet your commitment you are not going to get Mr. Blakeney’s support. Surely Mr. Minister if all the members of this Committee are willing to do what is best for the Province of Saskatchewan, the views of Saskatchewan and the Premier of Saskatchewan, it should pose no procedural hassle for us if we all agree to help that province.

An hon. Member: Agreed, Mr. Chairman.

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Mr. Mackasey: I cannot presume that Mr. Epp does not agree but it seems to me that the proposal that Mr. Blakeney has suggested, that Mr. Broadbent has suggested and which the Prime Minister agreed to and which we presume is for the best interests of the provinces in this federal system, that nobody around this table is going to try to set up any means of impeding the implementation or the adoption of such a positive gesture.

Can you visualize that, Mr. Minister?

Mr. Chrétien: No, I think that the members of this Committee will be responsible enough to make sure …

Mr. Mackasey: If it is unanimous.

Mr. Chrétien: Especially when they make a lot of their policies to defend the interests of the provinces, that in that proposition is a transfer, and it is one of the only places where there is a change in the balance of power and what it is, is the dilution of federal power to the provinces in giving them the right to indirect taxation and in giving them the right to enter provincial trade with federal paramountcy. So, it will be quite funny that that effort will be frustrated by a party in this House.

Mr. Mackasey: Would you elaborate on the international trade with federal paramountcy that your earlier answer may have left off and your position seemed to be very categorical. You just mentioned international trade with federal paramountcy.

Mr. Chrétien: I mentioned interprovincial trade.

Mr. Mackasey: Interprovincial trade, sorry.

Mr. Chrétien: With federal paramountcy. And we have agreed to give that power to the provinces, but not the international trade, for obvious reasons.

Mr. Mackasey: Mr. Blakeney did state that you did not reach an agreement in 1979, I think his exact words were, “In February, 1979 we reached near agreement”. You mentioned that near agreement could have been full agreement if Alberta had agreed, and I am curious about what role Alberta played as another western province in that near agreement?

Mr. Chrétien: I was not there but what I know of the situation is there was no happines in the federal delegation about the so-called separate draft and the information I have is not, I think, to say yes or no was a big relief to the federal delegation because it was blocked and rejected right off the bat, if I can use that expression, by Alberta.

So never Mr. Trudeau, as Prime Minister and the head of the delegation, had to cross that bridge. So nobody can conclude what Mr. Trudeau would have done because it was in the context of a large discussion where there were many problems and sometimes when there is only one left over you go the extra mile, but we do not know because they never crossed that bridge.

Mr. Mackasey: Because Alberta blew the bridge up.

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Mr. Chrétien: Of course. So it was in February and the Prime Minister did not want to swim.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Bryce Mackasey.

I would like to recognize the honourable Jake Epp on a supplementary question.

Mr. Epp: Thank you, Mr. Chairman.

I found the comment of the Minister interesting that the Prime Minister did not want to swim. I find that rather passing strange that he then launched his canoe on very troubled and stormy waters.

Mr. Chrétien: But he is in the canoe, not in the water.

An hon. Member: On skis.

Mr. Epp: But without a paddle, possibly.

Mr. Chrétien: But it is warm water.

Mr. Epp: I want to get back to what Mr. Mackasey said and, Mr. Chairman, the question I am going to put, I obviously want to give Mr. Mackasey every assurance of co-operation, but I am sure he would agree with me as well that we both want to observe the rules of the House, and that being the case, I know he is a great parliamentarian, he has a great reputation established that way and he would not want to jeopardize that reputation in saying that he either wanted to bend or break the rules.

An hon. Member: However.

Mr. Epp: That being the case, Mr. Chairman, as Mr. Mackasey has now agreed, if that were to be the case, and I say this to Mr. Mackasey as well, if that were to be the case that we should be able to open the proposed resolution on resources, if that is the unanimous agreement because the rules will not permit it, then I have to serve notice on behalf of my party if we open the whole British North ·America Act, if we are not at all any more confined to the proposed resolution, then I have many amendments, then I would like to discuss, Mr. Chairman, the very fundamental question that should be before this Committee and that is how do our institutions, how do we change our institutions in such a manner that they will better serve the Canadian public? That opens up that whole debate, then, and I am sure Mr. Mackasey, because of certain restrictions he might have from caucus, that he would not want to see that debate opened to that extent and I just leave that caveat.

Mr. Mackasey: Mr. Chairman, I want to thank Mr. Epp for reminding the Committee that I am a law abiding member of Parliament. I know a little bit about the rules but I have never seen the rules supersede common sense, and one of the nice things about the rules, if you read them . . .

An hon. Member: Closure?

Mr. Mackasey: I come back to my point, and I am very impressed and concerned that Mr. Epp of all members would leave the inference that he would deny the Province of Saskatchewan what they consider very fundamental in that province, Mr. Minister, because the wealth of Saskatchewan depends very much on their natural resources, unlike other

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provinces where secondary industry can be the source of much of the wealth, and it is important to Saskatchewan that they win as many concessions as they can. It is inconceivable to me that Mr. Epp would hide behind the rules or infer once again if we open the doors we are going to discuss everything from the reform of the Cabinet to the sex life of the tsetse fly, if you like, in order to prolong these hearings.

I only make the suggestion to the Minister because Mr. Epp opened the door when he said: if we can get it before the Committee; we can get it before the Committee, Mr. Epp, as long as all of us around this table agree to put the best interests of the country before our own petty little differences.

An hon. Member: Hear, hear.

Mr. Epp: Mr. Chairman, on that same point, on a point of order, Mr. Mackasey likes to infer certain things and the implication need not necessarily be there and I say to Mr. Mackasey that he can say what he wishes, but if we are going to discuss the constitution then we will discuss the constitution and there are many other aspects and the constitution is not confined to only those aspects of the constitutional discussion which the government has chosen to put forward before this Committee, and that point I will make to Mr. Mackasey, nor do I apologize for any manner that this party has been defending the provinces. What we have been defending and will continue to defend is the Canadian federal system.

An hon. Member: Hear, hear.

The Joint Chairman (Mr. Joyal): I think the point as made by the two honourable gentlemen is well received by the Chair and it is a reminder to the Chair that we have the responsibility to advise the honourable members so far as they have an involvement in the debate on the content of the amendments that they want to put forward, and I would like to thank them at this point for the advice that they have given us.

I wold like to invite now the honourable Mr. Mark Rose on a supplementary question.

Mr. Rose: Thank you, Mr. Chairman.

I must appologize to everyone present since I do not have a sign. Oh, here it is.

I want to make it very clear that I am not Mr. Robinson this evening.

Anyway, I would like to suggest in a very non frivolous manner, in a very serious and maybe even gentle manner, perhaps even genteel, that I feel in the matter of resources the government has gone some distance, and I do not think that anyone can disagree with that. Well, there might be some disagreement. I was not heaping great praise on the government at this point. I am in a rather difficult spot in that whole matter.

Mr. Fraser: You have now gone some distance, Mark.

Mr. Rose: Pardon?

Mr. Fraser: You have now gone some distance; what is the point?

Mr. Rose: Well, Mr. Fraser is an old friend, I did not heckle you and I was tempted to on a number of occasion, but I would

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like to ask a question, really, of the Minister having to do with the Blakeney position on the resource package.

I would like to ask, since on page 35 of Mr. Blakeney’s submission to this particular Committee, on Item B, the development, conservation and management of nonrenewable natural resources and forestry resources in the province including the laws in relation to the rate of primary production therefrom, has resulted in the fact that that province was burned. It went to the Supreme Court, we know that, and it meant that they had to redefine their own provincial legislation and I do not think it is proposed frivolously at all.

I know there are some problems for the government in terms of what is going to happen down the road. It could be argued, I suppose, that this is acceptance of the Saskatchewan proposal, could be a vehicle for a number of federal-provincial pensions in the years to come. I think that is a possibility.

However, really what they say on that same page, on point three, nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matter referred to in that subsection and where such a law of Parliament and law of the province conflict, the law of Parliament prevails to the extent of the conflict.

I do not know what the Parliament of Canada is really giving up in this. It is not giving up federal supremacy or paramountcy here at all, so I would like to ask a question of the Minister, whether the Minister and his officials are opposed to the provincial government having a say in this sort of thing, in resource matters, as they apply to interprovincial or international trade, or are you, Mr. Minister, merely opposed to its enshrinement in the constitution knowing well that the sort of administrative arrangement is not acceptable to that province and maybe not to other provinces?

Mr. Chrétien: Yes, but you say international trade is a federal responsibility, and we have made two major concessions. We have given them indirect taxation, to the provinces, in the matter of resources and interprovincial trade with federal paramountcy.

We do not want to give international trade because it could create too many problems and one can argue: yes, but you will have paramountcy; but the consequences are that there are ten provinces and if you gave it to all the 10 provinces and suddenly they start to pass legislation in international trade and that we, the Parliament of Canada, we have to pass law after law to stop that development, you have been around here for a long time …

Mr. Rose: You do not have to underline that.

Mr. Chrétien: And you are still doing quite well but I have been here longer than you.

Mr. Rose: And you are still doing fairly well, but not as well as you might do.

Mr. Chrétien: Yes. And it is difficult to get legislation through. Look, we are in session since October 6, how many bills have been passed in the last four months? Very few. I do

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not know the numbers but very few. But when you are in a provincial legislature, of course I do not expect that from Mr. Blakeney who will act in good faith, but suppose that there is a flooding of legislation in that field? By the time we would be in a position to pass legislation telling them that this is against the national interest, it might be that the damage will have been done to the national interest.

Secondly, you know how it is, how it will be nice for the parliamentarians in international trade in our traditional jurisdiction, to come and pass legislation here and there all the time and say the provinces are wrong in doing that.

It is difficult enough so that r do not want to be caught in a situation that every two or three months or six months we have to pass legislation to over-ride the legislation of the provinces. Better to make it very clear that international trade has to remain a federal responsibility, and if there is an international problem in relation to the development of the resources, we have the Parliament of Canada to resolve it. Parliament can act, there are representatives from all the provinces here.

Mr. Rose: Mr. Minister, I would like …

The Joint Chairman (Mr. Joyal): That will be your last question, Mr. Rose. Never forget you are on a supplementary round. Thank you very much.

Mr. Rose: I wish he would elaborate on how …

The Joint Chairman (Mr. Joyal): I will keep your name on the list. I recognize the importance of the subject.

I would like to invite now the honourable Senator Lowell Murray, who has been very patient waiting to be recognized by the Chair since early this afternoon.

The Honourable Senator Murray.

Senator Murray: Thank you, Mr. Chairman.

I jsut had a couple of questions about minority language educational rights to follow up on the matters raised today by Mr. Corbin and others.

I would like to know, Mr. Minister, what you had in mind in the original draft of Section 23 when you related the right to instruction in the minority language to the provinsion of minority language educational facilities.

Why did you mention educational facilities in the first place? You will be aware, I am sure, it is argued by some that you original draft guarantees the right not only to instruction in the minority language, but to instruction in distinct physical facilities, perhaps even to distinct or separate school commissions, and that the new version of Section 23 that we have before us would take that right away.

Mr. Chrétien: On the contrary, Mr. Senator, why we have changed the words is because Mr. Yalden argued that “facilities” was too restrictive and the word we have selected in the new draft includes the facilities and something else. There is other technology that can be developed, and before it was argued that it was too restrictive and the new words we have

[Page 108]

put in the new version, the intention is to make it broader, not only on installation and structure but other means.

It was to meet some of the complaints that have been raised in front of us and my drafter tells me that the new wording, rather than restrict, gave what was before and something else. I suppose because it might be today with the new technology you can have all sorts of technique to receive some special lessons if you want without having to have only the facility, and I think it is Mr. Yalden that said some person could receive in some isolated place their complete education by videotape and what not, and the intention in the draft, you can quarrel with my drafters but I am telling you the intention of the government in presenting this amendment is to give even more scope to the article than before and not restrict it, and the intention is to include the facility plus other means.

Senator Murray: Distinct physical facilities?

Mr. Chrétien: It is included.

Senator Murray: That is your intent. What about the distinct or separate school commissions that were mentioned tcday by Mr. Corbin, is that included?

Mr. Chrétien: We did not go that far in the sense that education remains the responsibility of the province and the setting up of school boards should not be the responsibility of the national government. The establishment of the school boards, because education remains a provincial responsibility, would be left with the provincial governments, and the citizen will have acquired some rights, not the federal government, and of course if in the setting up of school boards, or the court finds some discrimination because some had argued before that they could cut a French community in four different school boards and then they will no more have the numbers to justify anything; with the new article that we have introduced that offered the possibility for the court to remedy obvious discrimination and impose some solution, I think that we have expanded the scope very much in order to make sure that the facilities that you are referring to will be made available, per court orders.

I do think that if we had had that possibility in the past many of the political problems we are faced in some of the provinces would have been avoided because the government would say these rights are in the constitution and we have no choice and the courts will have stated their views on it.

Senator Murray: Would you give me your opinion, Mr. Minister as to whether a province could create some kind of administrative tribunal. Mr. Corbin was asking today what you meant by the Tribunaux Competents. Could a province create some kind of an administrative tribunal to decide on the provision of these rights and declare that the decisions of that tribunal could not be appealed?

Mr. Chrétien: No. If you set up some administrative tribunals, these tribunals or bodies will still be subject to the charter of rights. They cannot create a tribunal that will not be subject to the bill of rights because the bill of rights

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entrenched in the constitution would give rights to Canadians and it would not be possible to build the system that will isolate citizens from the rights that are enscribed in the constitution.

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

Mr. Chrétien: No province will be able, neither the federal government or the provincial legislatures will be able to frustrate the application of the rights of citizens.

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

[Translation]

The honourable Senator Tremblay has a comment on a point of interpretation of Section 23.

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

If we assume that the intention of the amendment to Section 23(2) in which the word “facilities” is replaced by the “provision”, is to broaden the scope of the section, I am wondering whether the Minister has actually achieved his objective. This is why. If the intent were to broaden the section, I think that the words “and other means of education” should have been added to the word “facilities”. I believe that the general word “provision” suggests that education can be provided by any means whatever. The meaning is being broadened, but when we compel the provinces to provide education by any means whatever, the problem is that they can comply with the Jaw by providing the minimum. The example may not apply so well to younger classes, but the secondary level, since secondary education is mentioned as well, I would like to ask the Minister or his officials whether a school board that provided only correspondence courses (for this method is included in the general word “provision”) would be complying with this requirement?

In my opinion, if such courses were adequate from a level point of view, they would not be adequate from the pedagogical point of view. Once we open the door to any pedagogical method whatsoever, I do not think you are achieving your original objective.

Mr. Chrétien: This is a problem that I raised myself before agreeing to this wording. Of course, we always try to have as concise a wording as possible that meets our goals. The opinion I was given, was that in such cases the courts would be well aware that the provincial government or the school board in question was using a devious procedure to get around the objective of the section. As you said, they would be doing the base minimum. So, I imagine that the citizen or citizens involved could argue that a correspondence course, for example, would dispense with the obligation of having a facility, a structure, a building as such and that the courts would interpret, according to my understanding, that a roundabout way had been used to shirk the obligation.

[Page 110]

Personally, I wonder what would happen. Before you asked that question, I had said in reply to Senator Murray that since the general contained the particular, perhaps it would be wise to list the particular aspects as well. However, I do not know what the consequences of such a change would be. I am ready to consider an amendment of that kind because I share your concern on that issue. Also, Mr. Proulx interpretation of the wording which appeared in the editorial in Le Devoir deeply disappointed me as my intention was, as I have already stated, to extend the application as Mr. Yalden had requested.

I am assured that the present wording is the right one, but appearances may require that the terms used in the original text be kept with a few additions. We shall consider that possibility. It is an amendment of a technical nature. I have already stated quite clearly the government’s policy on that issue. If the wording is inadequate, we shall see whether it cannot be improved. As the general contains the particular, there would probably be no objection to having the particular included as well.

I will consider that change.

Senator Tremblay: Mr. Minister, if I may, I would merely suggest that you consider a wording along the following lines: Educational facilities and any other adequate means something of that kind would …

Mr. Chrétien: There is that alternative or, the original term could be kept followed by an example, as in the old text.

Senator Tremblay: That is another possibility. Regardless, I feel that if you want to attain your objective, the expression “the provision out of public funds of minority language instruction” is broad enough to allow a school board or a province to meet the legal requirements through rather makeshift means.

Mr. Chrétien: My legal advice has led me to understand that the courts would see discrimination quite clearly in that case and would order that more adequate means be employed.

Senator Tremblay: Perhaps.

Mr. Chrétien: There is no harm in adding a word if it can be done. I think that is perhaps what should be done in this case. We will examine the situation and report back to the committee.

The Joint Chairman (Mr. Joyal): Thank you very much for your contribution, Senator Tremblay.

Mr. Corbin, you also had a supplementary question on this matter.

Mr. Corbin: One supplementary question, Mr. Chairman.

I listened to Senator Murray’s remarks and I think that he has mistakenly attributed to me remarks concerning the administration of schools. I believe my memory serves me correctly when I state that I made no reference this morning to the actual administration of schools. You are perhaps confus-

[Page 111]

ing my comments with the editorial in Le Devoir mentioned by Mr. Chrétien.

Senator Murray: No. You referred to the situation in New Brunswick where there are separate school boards.

Mr. Corbin: Yes, but that is a situation particular to New Brunswick. It is an excellent system, by the way, and l had mentioned it as an example to the rest of Canada.

Now, I am not saying that it is perfect, but it is considerably better than the systems in a good many of the provinces.

Mr. Minister, I also read the editorial in Le Devoir and I have it here with ne now. I think that the government has been ascribed intentions it never had. I believe that you clarified the situation a moment ago and I would really like to hear it repeated that we never have and never will have the intention of intervening in issues related to the administration in school districts.

We have recognized that area as the exclusive jurisdiction of the provinces. I believe the editorial in Le Devoir may have misled some people when it stated that we were taking away a right, which was not there in the first place, by removing the expression “educational facilities”.

Mr. Chrétien: Yes and that is really a shame. Last evening, I was on a public affairs program with Radio-Canada. Those who followed me picked up on Mr. Proulx’s remarks and took them as gospel. They stated that we were restricting, eliminating rights, that we were intervening, and so forth, whereas we were really attempting to increase the rights of francophone or anglophone minorities to instruction in their language without meddling in the administration of education which is and which should remain the responsibility of the provincial government.

Mr. Corbin: Also, the Catholic bishops of Ontario and Archbishop Aurele Plourde of Ottawa, among others, appeared before the committee and recognized, de facto, that the question of homogeneous schools, school boards and the right to administer educational institutions are matters of provincial jurisdiction.

Mr. Chrétien: It is the same in Quebec. There are two systems. There are Protestants and Catholics and English speaking Catholics may encounter the same type of problem as the francophones in Ontario. The Protestants have an entirely autonomous system guaranteed to them by the Constitution.

The constitution recognizes that all aspects relating to education are provincial jurisdiction. In Quebec’s case, the Constitution guarantees a denominational Roman Catholic and Protestant school system in perpetuity. That is contained in the Constitution and applies to other provinces as well. So, fo say that the Constitution would grant provincial governments free reign over all matters relating to education is false.

There are constitional restrictions placed on provincial jurisdiction over education, like the one I just gave you.

Mr. Corbin: Thank you, Mr. Minister. Thank you, Mr. Chairman.

[Page 112]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin. [Text] I would like now to invite the honourable Mr. Munro with the consent of all honourable members of this Committee.

Mr. Munro.

Mr. Munro: II would like to deal with some of the questions raised by Mr. Epp, particularly with reference to the referendum.

We note the alterations that were made in at least two places, in Section 40(2) and Section 46, instituting the referendum rules commission in response to suggestions made here before this Committee by Premier Blakeney, not entirely in the form that Mr. Blakeney would have liked. but still a concession, and, I suppose, open to improvement even from the form in which they were placed.

I was wondering whether the Minister would like to comment in the very few minutes we have on what he understands to be the rules under which a referendum would take place?

What, in short, the commission would be expected to do? How far could it go? Would it be writing the terms of the referendum’? Is that part of the rules?

Mr. Chrétien: You know, the constitutional amendment, as proposed by the national government, will have to be adopted first by the House of Commons and the Senate. There will be a year. In t:1at year, supposing six or seven provinces do not agree, that will create the possibility of holding a referendum.

There will be an Order in Council of the national government triggering the mechanism of a referendum. There will be a commission created comprising three persons, one of whom will be the Chief Electoral Officer. They will, within a certain number of days, establish the rules—financing, advertising and what not.

The question will be known to Canadians for a year; do you or do you not want to amend, say, Section 7 of the constitution?

Mr. Munro: With all due respect, Mr. Minister, the question is known; the base amendment is known; but the manner in which the question is put in a referendum is not necessarily known. I think the Minister knows that perfectly well.

A form of distortion in the formation of a question is quite easily organized by a government to get the sort of answer that they want out of a question.

Therefore, what I am interested in learning is, is it the government of the day that will draw up the question which will be placed before the people of Canada in a referendum? that, I would imagine is clear, is it?

Mr. Chrétien: You know, it will not be the very clear question of almost two pages that we had last spring in Quebec! The question is a very simple one.

The federal Parliament will have approved an amendment to the Canadian constitution. They will presume that there will not be enough provinces to accept it. So the question will be very simple. It cannot be anything else, but to say: “Do you approve or disapprove of this amendment to the Canadian

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constitution?”, and the answer is yes or no. Do you approve changing the constitution? The answer is yes or no.

Mr. Munro: You mentioned finances. What exactly did you mean? Would you elaborate a little bit on that? The limit …

Mr. Chrétien: We will establish the rules about how much …

Mr. Munro: May I finish my question, Mr. Minister?

Mr. Chrétien: I wanted to be helpful, that is all.

Mr. Munro: You are all together too helpful. You like to interrupt before you have heard the question, and it has occurred on more than one occasion this evening.

I would like to know whether this financial aspect of it involves the limitations placed upon the various parties, or is it a global expenditure? Will it be derived from government funds, provincial funds, federal funds, or is it to be raised?

Are these the rules that you would expect the commission to draw up?

[Translation]

Mr. Chrétien: The answer is yes.

[Text]

The Joint Chairman (Mr. Joyal): Mr. Munro, as you know, tomorrow morning we have a session at 9:30, and we would be glad to invite you to continue your line of questioning.

Honourable members of the Committee will have heard the bell, and honourable members of the House of Commons have to run to the House, and we would request the agreement of honourable Senators to adjourn at this point.

The meeting is adjourned to 9:30 tomorrow morning, when we will resume our work with the honourable the Minister of Justice.

[Translation]

The meeting is adjourned.


WITNESSES

From the Department of Justice:

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


Other Issues:

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

*On Order — Available Soon


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