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 39 (16 January 1981)
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 39 (16 January 1981).
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HOUSE OF COMMONS
Issue No. 39
Friday, January 16, 1981
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
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
The Honourable Jean Chrétien,
Minister of Justice and
Attorney General of Canada
(See back cover)
First Session of the
Thirty-second Parliament, 1980-81
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Joint Clerks of the Committee
Pursuant to S0. 65(4)(b) of the House of Commons
On Friday, January 16, 1981:
Mr. Gendron replaced Mr. Gimaiel;
Mr. Allmand replaced Mr. Peterson;
Mr. Robinson (Burnaby) replaced Mr. Manly.
Pursuant to an order of the Senate adopted November 5, 1980
On Friday. January 16, 1981:
Senator Rousseau replaced Senator Lamontagne.
MINUTES OF PROCEEDINGS
FRIDAY, JANUARY 16, 1981
The Special Joint Committee on the Constitution of Canada met this day at 9:42 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Belisle, Connolly, Hays, Lapointe, Lucier, Murray, Petten, Rousseau and Tremblay.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Corbin, Epp, Gendron, Hawkes, Irwin, Joyal, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Members present: Messrs. Munro (Esquimalt-Saanich) and Rose.
In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Appearing: The Honourable Jean Chretien, Minister of Justice and Attorney General of Canada.
Witnesses: From the Department of Justice: Mr. Roger Tassé. Q.C.. Deputy Minister and Dr. B. L. Strayer, Q.C.. Assistant Deputy Minister. Public Law.
The 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 11.01 o’clock a.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, January 16, 1981
The Joint Chairman (Senator Hays): On behalfof the Joint Chairman, Mr. Joyal and honourable members of this Committee, I think we could start by pointing out that this is the 70th meeting. I do not know what is significant, but it is the 70th.
On Section 1—Rights and Freedoms in Canada.
The Joint Chairman (Senator Hays): Mr. Munro was questioning the witness when we adjourned last night.
Mr. Munro: Thank you, Mr. Chairman. I would like to pick up the supplementary question about the political arrangements which were made between the Liberal Party and the New Democratic Party, in the course of an exchange of letters which were tabled or made public on October 21.
I would like to direct the Minister’s attention to this, aside from wondering in my own mind as to the desirability on a matter of constitutional and national importance, significant ideas of this sort which should, I would hope get beyond the partisan. we do see behind the curtains, so to speak, an arrangement between two parties.
I am wondering if, taking into account the various elements of the documents which are now part of our constitution—I could cite a number of them; one is Section 109 of the British North America Act, which covers the matter generally; and with respect, concentrating on British Columbia from which I come, those agreements at the time of the admission of British Columbia to the Confederation in 1871 where there was an element of the transfer of lands followed by an agreement in 1930 by the British North America Act, 1930, where it appears quite clear in the preamble to which places the new provinces in the same position as the original or Charter provinces, so to speak, with respect to natural resources.
I am wondering if the Minister would be prepared to indicate how that arrangement his Prime Minister made with the New Democratic Party would be in any way different from the terms of the documents that were recognized as being part of the constitution of Canada; how the suggestion that was put forward would differ from the situation as it is at this very moment.
Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): In my governments view, the ownership of the resources has never been in question.
The dispute that there was over the last 10 or 15 years on the issue has been the level of taxation of those resources and the transfer of the resources to the western provinces in 1930 was to make the resources of the western provinces on the same basis as those of the eastern provinces or central provinces.
The reason why we had this text was at the request of the western provinces.
This text that we have now was at the request of the provinces, because they felt that there was some doubt as to ownership. It is clarification, in my judgment, of what existed before.
We were not the ones who were asking for clarification, but the provinces, and that applies to all provinces.
In my view, the nature of the ownership of the resources in Canada is the same across Canada.
In 1979, this clarification—the first word starts with “confirm the jurisdiction of the provinces”; so it is a confirmation in order to make it clearer. It will not change anything that has been done in the past. It is merely a clarification and confirmation.
When the honourable member talks about a secret deal, I am surprised when he says so, because it was made public in both French and English and distributed to everybody.
There was discussion before, and of course there must be; before you agree to a text there is discussion. In other pieces of legislation, sometimes I talk with my critics in the opposition, your party and we discuss some aspects of a particular bill, There is nothing sinister about it. Whenever there is any unhappiness, the Minister of Justice—Mr. Robinson, for instance, speaks to me about some aspects of my administration, and Mr. Hnatyshyn talks to me in the corridors about aspects of the bill. So there is nothing sinister about it.
If we can come to an agreement it is in order to make the work of the Committee of the House of Commons easier.
So this is absolutely and completely public and it is a confirmation of the ownership of the resources in the provinces.
It has been sought after by the western provinces. We are obliging.
I am startled at the prospect of seeing one party using procedure to try and forbid this Committee from making that clarification for the good or benefit of the people who are seeking it, and it is not the eastern provinces, it is the western provinces.
Mr. Munro: Is the Minister suggesting that the leader of the New Democratic Party is speaking for the western provinces and that, by contrast, the Prime Minister would be speaking, presumably, for Canada, in working out an arrangement with a spokesman for the western provinces in the person of Mr. Broadbent?
I wonder whether the Minister has this in mind. Will the Minister indicate the broad outline of the agreement between the Minister and the Leader of the New Democratic Party, which was worked out either on October 2—I think this statement was made at that time. or on October 6, when there were interviews and the leaders of the two parties met with the Prime Minister to have revealed to them the terms of the proposal that were being brought forward.
Was it at that time that the Prime Minister worked out with the Leader of the New Democratic Party the broad outline of this confirmation, as the Minister is pleased to call it, which, again, with all due respect is an agreement between two parties?
I am also wondering whether the Minister would comment on why he did not bring forward himself, when he brought forward his own amendments earlier this week, why he did not then bring forward proposals to amend his proposals, attributing the origin, if he likes to the Leader of the New Democratic Party, saying that the wording has been worked out by the law officers of the Crown at the instance of the Minister of Justice who is the spokesman on this matter?
Mr. Chrétien: Mr. Chairman, this proposition here is not new. There is nothing new about it. It is something which was debated all summer and is a position that I, myself, put on the table in July to the provinces.
The text or the body of the resources amendment has been established clearly in front of the provinces during the summer. After that, of course. Mr. Broadbent, and just like Mr. Clark, Mr. Trudeau got them in his office and explained what he had in mind and during the course of the discussion-and I presume so, because I was not there—they covered all the ground. We decided to put it there, because it is a change in the balance of power, because we are transferring in that amendment some powers to the provinces.
We are giving the provinces a power that they never had before—the power of indirect taxation, and in that amendment we are giving another power, which is the interprovincial trade power for the provinces with federal parmountcy. So it is devolution of power from the federal government to the provinces in two important fields in relation to resources.
Now, you are asking me whether Mr. Trudeau and Mr. Broadbent changed their views on that, and eventually Mr. Broadbent presumably said, “It is very nice to have a charter but we would like to do something on resources.” Mr. Trudeau said “lfyou bring forward an amendment we would accept it”.
That is the nature of the agreement.
So, you are asking me why I have not introduced it. It is because the agreement we are having—and it is public and is in writing and was distributed on October 21; it was agreed that if the New Democratic Party was to bring forward or to bring about or present this amendment we have given a commitment that our party would support it.
That is why I have not introduced it, because we said to the NDP Party. “If you put it forward, we will accept it,” and there is agreement between the two parties on that in the two letters. It is as simple as that.
Mr. Munro: And this was the price of support by the Liberal Party for the NDP support in the full package of the proposals? is that correct?
Mr. Chrétien: That is a demand or request of Mr. Broadbent. We have acquiesced.
In a situation like that there are some members of my party and some members of the New Democratic Party who put pressure on us and some members here—yesterday, for instance, Senator Tremblay said on the clause on education that it might be good because the wording selected seemed to
create some confusion, and we should have new words. I said it makes sense if we can find the words.
This Committee is making suggestions. I had no intention of putting in the charter, to begin with, the right of trial by jury. It was not in the proposition. It was discussed in this Committee and I put it there.
Mr. Warren Allmand and others raised a lot of questions about the scope in relation to native rights being too narrow. I looked into that and improved the language substantially. Now, there is a new proposition. Now, is it the price I paid to have the vote of Warren Allmand or of anybody? No. it is simply that we are trying to get a better package. It is made here. It is a good illustration, because the argument that is going to be made in England—there they will vote yes or no: but they will not have that type of committee work as to the meaning of words. They will take what the Canadians are sending to them, that is to the Canadians, speaking through the House of Commons and the Senate.
Mr. Munro: Thank you, Mr. Chairman. I have another line of questioning which I do not think I could pursue in just one question. I would like to reserve my position, if I may.
The Joint Chairman (Senator Hays): Yes.
I now go to Mr. Nystrom, followed by Senator Connolly.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to ask the Minister a few questions about resources as well on a supplementary basis.
But I would like to preface my remarks by saying that I do not think that in this Committee we should start wondering who speaks for Quebec, or Ontario of the West. We all are trying in this Committee to speak for all of Canada. If any member comes from the West. then he or she is obviously speaking for the Western Region, but they are speaking first and foremost for Canada; Mr. Robinson and Mr. Rose speak for both Canada and Western Canada as I do as well.
We should not infer that any other member does anything other than that.
I would like to ask the Minister whether or not he can confirm categorically that he is now willing to accept an amendment from our party—an important new amendment to our constitution which would give an important new power to the provinces, namely the power of indirect taxation for resources to the provinces?
I asked that because it does not now exist under the present constitution of Canada, and in Saskatchewan, we have had the Supreme Court throw out some provincial legislation in the CIGOL case on the basis that the legislation went beyond the powers of the province in the area of indirect taxation.
Are you willing to accept an amendment in the area of indirect taxation which would give the provinces very important new powers?
Mr. Chrétien: Yes. we will accept an amendment giving the power to the provinces to levy indirect taxation on resources as mentioned in the exchange of letters and it is an offer we have made to the provinces in the summer. and it will be a new disposition in the constitution giving new powers which now do not exist to the provinces.
Mr. Nystrom: Given to the provinces, and in terms of concurrency and interprovincial trade, you have federal paramountcy where it goes beyond provincial boundaries.
Mr. Chrétien: Yes, we will accept an amendment which gives the provinces new power, the power to pass legislation on interprovincial trade, and of course, there is some national interest, and the federal government on that matter will keep paramountcy. It means to say that the provinces will be able to pass legislation affecting interprovincial trade and it would be absolutely legal. At the present time it would be illegal as was judged in the Supreme Court case of CIGOL and so on.
If the federal government keeps the paramountcy power, it means that if we were to find that what has been done in the field of interprovincial trade by the provinces is against the national interest. the national Parliament will be able to pass a piece of legislation which will nullify the legislation of the provinces on interprovincial trade in relation to resources.
Mr. Nystrom: Thank you very much.
That area of concurrency and the sharing of powers is important and allows the province to develop as it sees fit according to its own objectives, and with federal paramountcy the national interest remains paramount.
The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom.
Any supplementary, Mr. Rose?
Mr. Rose: I would like to add briefly that I welcome the opportunity as a western Canadian to participate in a constitutional deliberation for our country here in Canada. I find it very difficult to accept that the only people who speak for Western Canada are members of the loyal Opposition or the provincial premiers, and I, for one, feel we have been left out of these discussions as federal members of parliament for far too long, and, from that point of view, I appreciate that.
I would like to underline the fact that I do not see how anyone who purports to speak for provinces, even though he speaks also for Canada, can fail to recognize that there is a clarification and a devolution of powers in resources to the provinces: and I cannot see how anyone can be against that.
The Joint Chairman (Senator Hays): Thank you, Mr. Rose.
Mr. Chrétien: I think the text is very important. With the difficulty we have had in the field of resources in the last 15 years, I would attribute a lot of the so-callcd political ambiguity which existed in terms of who owns and who has the power to manage the resources within the border of the provinces.
Even if we had, legally, no doubt that it was satisfactory in the previous constitution, this clarification would certainly help to make the position of the national government and the provincial government easier to understand.
I think it is a good and important development. I am delighted that we have accepted that it be proposed by your party. I do not in any way feel embarrassed by that because I did the same thing all summer and proposed it to the provinces.
Of course, it is always the same when you go after perfection and ask for everything, because then you run the risk of having nothing. This is exactly what happened.
It was a good illustration, and in the summer, many, many weeks I had the impression that we had four, five or six deals or agreement on 12 items.
But it turned out at the First Ministers’ Conference that it was everything or nothing. and we had to agree to the whole package in order to get repatriation. And what has been the result? Zero! It was extremely frustrating to all my colleagues who had worked all summer and had made a lot of progress. But we had to agree to this new formula, to give that to Manitoba, and something else to British Columbia and so on, or nothing; so it was not possible; many topics were not mature enough; there was a great deal of division amongst the provinces on all issues.
So it turned out to be nothing. Of course, if we had said yes, we oblige, and do whatever you want and there is no more federal government, of course we would have an agreement.
It is easy to say yes all the time; it is sometimes much more difficult to say no, but sometimes when we say no we feel good about it and that is exactly what happened in Quebec. We said no and we feel pretty good about it.
The Joint Chairman (Senator Hays): You have a supplementary, Mr. Hawkes.
Mr. Hawkes: Yes, Mr. Chairman.
Just very briefly, Mr. Minister, the implication that you leave us with is that you are going to accept the amendment as proposed by the New Democratic Party with its wording.
Yesterday the issue was raised as to how this might be done, given the terms of reference to this Committee, but I want to move to another issue. Clearly this amendment will affect both provincial powers and federal powers, and could you tell us
what mechanism—can I wait until I have the Minister’s attention?
Could you tell us, or at least give us some idea, because this amendment will be so critical to the very nature ofa federated Canada, what mechanism you have in mind for provincial government consultation on the wording of this amendment, or do you intend to just proceed with a private agreement between the Prime Minister and the Leader of the New Democratic Party and the rest of the country be damned?
Mr. Chrétien: The text is here and it will be passed here, and there was months and months of discussion with the provinces on the meaning of those words. In fact, between the so called best efforts draft of February, 1979 and that, the only part that is out of it is international trade, the rest is exactly the same.
So there have been discussions on those words now for almost two years, two years next month, so there have been a lot of consultations, and we know exactly what that means and, the provinces know exactly what that means and the Liberal party knows what that means, the NDP Party knows what that means, and Mr. Nystrom put it in very simple terms so that it was very easy to understand because sometimes those lawyers like to have a lot of words.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Hawkes.
Senator Connolly: Thank you, Mr. Chairman, Just a small point to touch on and mainly for clarification. It arises, Mr. Minister, out of Section 46 of the proposed bill, Subsection (4), which deals with the referendum rules committee.
There were some questions asked yesterday about this, and whether or not those rules ultimately would have the force of law.
Now, Section 46(4) provides inter alia that Parliament may enact laws respecting the rules for the holding of a referendum under Section 42, and what I wonder about, and what I will seek some clarification for, is the procedure that is likely to be adopted.
As I visualize it, the referendum rules committee will advise on the content of the rules that should apply to the referendum; that is referred to Parliament. If Parliament does nothing within 60 days those rules may be confirmed by an Order in Council and that i take it would make them legal and effective, but Parliament may also change those rules and I wonder whether the procedure, and perhaps it is not important, I wonder whether the procedure would be to have a resolution in both of the House of Parliament confirming them or amending them in some way, or whether it is to be done by a statute to which the rules as amended would be appended as a schedule?
In other words, would there be the three readings in the three Houses for any changes in these rules that have been suggested by the Committee, commission, or would it simply be done by resolution confirming them? It is a very technical and perhaps a very narrow point.
Mr. Chrétien: No, I think that we have established that commission that will, after we have decided, after the procedure of a delay of one year and so on, and refusal of the provinces to accept the amendment, and if the amendment would have been voted on the year before by the House of Commons and the government decides that we want a referendum. we pass an Order in Council and we name that day the three members of the commission.
They have 60 days to prepare the rules, financing and voting and what not, publicity, and give it to the government who will table it, I presume, in the House.
Then Parliament has 60 days, if they are not satisfied with those rules, to change them and it is three readings, it is a normal bill . . .
Senator Connolly: It would be by legislation, not by resolution?
Mr. Chrétien: By legislation. So it is a very stringent rule because we have only 60 days to pass it.
Why I have recommended that is, it is a safeguard because for us, the Parliament of Canada, to give to an appointed body absolute control over the rules, it is a pretty dangerous thing and it is not very democratic in my judgment, because I presume that Parliament is sovereign in the matter but we say that it will have to be grossly defective so that the Parliament will be able to enact the bill in 60 days, and it is to make sure that in fact, and even in theory we could change it completely, it will have to be extremely grossly deficient for Parliament to intervene, and if after 60 days we have not passed the legislation the rules will become the law of the referendum.
Senator Connolly: Even if the bill has been proposed to Parliament . . .
Mr. Chrétien: And not disposed of.
Senator Connolly: And not disposed of, it if dies on the order paper, at the expiration of the 60 day period, then the original rules as proposed by the commission will apply; but the application would be subject to the issuance of an Order in Council, I take it, at that stage?
Mr. Chrétien: Yes, but if you read the Section, it is “shall forthwith be brought into force by Proclamation”. The government has no choice.
Senator Connolly: That is right.
Mr. Chrétien: We have to follow that technicality all the tlme for any legislation, we have to proclaim and we have no Choice. “Shall forthwith the brought into force by proclamation issued by the Governor General under the great seal of Canada”.
Senator Connolly: That is in Subsection (5)?
Mr. Chrétien: Yes.
Senator Connolly: Yes, thank you.
The Joint Chairman (Senator Hays): Mr. Robinson on a supplementary.
Mr. Robinson: Mr. Chairman, just a brief supplementary just to follow up Senator Connolly’s question. I assume although there is an implication at the end of 60 days if there has not been an agreement on the rule, that the rules recommended by the commission shall come into force, that the standing orders with respect to allocation of time which has been used by this government on several occasions could also be used in circumstances such as this to enact that law?
Mr. Chrétien: That is a law of Parliament. The rules of Parliament will remain the rules of Parliament.
Senator Connolly: That does not concern us in the Senate.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Robinson. Senator Lucier on a question.
Senator Lucier: Thank you, Mr. Chairman.
Mr. Minister, I think the one area of concern of the people from the Yukon that has not been dealt with in your amendment, proposed amendments is probably the section dealing with mobility rights and I know that you have had a problem with it but I would like to know why we could not go along with the recommendation that has been made by the government of the Yukon Territories by Mr. Pearson when he suggested that mobility rights for the Yukon could be protected on agreement from both the Yukon government and the Government of Canada.
It seems to me that to just suggest that mobility rights section could not be changed because it would destroy the whole package is not a good enough answer.
It seems to me that the proposal made by the government of the Yukon was a very good one and I would like to have the explanation as to why it was not accepted?
Mr. Chrétien: Because you cannot have mobility for one part of Canada and no mobility for the other parts of Canada. We say that there is some special problems and we have made provisions for affirmative action if need by in the Charter, and we could have employment practices that would still be legal despite the mobility section but it would have to be based on something other than the origin or the location ofthe person as a citizen of a province and something like that.
I know, for example. that there is a big concern over native employment in Northern Canada, so that this is an affirmative action that is possible but it is not based on region, it is based on social problems that have to be sometime resolved by affirmative action and it is covered there.
However, if we were to make a global exception of the Yukon in relation to mobility, it would be very difficult not to
do that for other provinces, and as explained yesterday in reply to Mr. Gimaiel from Lac-Saint-Jean who made a very important point that Canada has been built on the mobility of people, and as the whole thrust of this Charter is to make mobility even more possible in the future, especially by the fact that the francophones moving outside of Quebec will have their education in French and the anglophones who decide to go and work in Quebec will have the right to their education in English, I think that increasing the mobility is a desirable goal.
So my view is that most of the programs as developed in the legislation for the creation of the pipeline in the Northwest Territories and the Yukon, the Alaska Pipeline to Canada. most of the plans that we find in that legislation would still be more or less applicable in using the affirmative possibility that exists in the Charter.
The Joint Chairman (Senator Hays): I have you down later and I think Senator Connolly was dealing with Section 23 and I think Mr. Hawkes had a supplementary.
Mr. Hawkes: Yes.
I think I would like to check if I heard correctly, but did the Minister say in response to Senator Connolly that to turn over to an appointed body the absolute power to set the rules is a very dangerous thing? You were responding to the commission. is that a reasonably accurate quote?
Mr. Chrétien: I said that Parliament has to remain sovereign and it is a delegation of authority for legislation to an independent body, and as it is a delegation of authority to in fact pass legislation, we just wanted to have that safeguard that Parliament, if the rule were to become completely unacceptable to the members of Parliament, Parliament could change them.
It is just a possibility, in my view, Parliament of Canada in that matter has to remain sovereign but I made the system in such a way that it would be conducive for the commission to make sure that they have rules that are acceptable so that there will be no need for legislation by Parliament later on, and I do think that it is just short of giving them absolute power. I maintain that Parliament is sovereign.
The Joint Chairman (Senator Hays): Thank you. Mr. Hawkes.
Mr. Hawkes, I am terribly sorry, we have been going back and forth, you have taken up quite a bit of time this morning and I realize it is important.
Mr. Chrétien: I would like to make a statement, too. This commission will be formed of three persons. the Chief Electoral Officer, a federal delegate and a provincial delegate, and it might be that, not the federal Parliament or government will be unhappy, but it might be that some provinces will be very unhappy with the rules, so that will give us the possibility to correct it because I can see, for example, the Chief Electoral Officer siding with the federal delegate and the provinces say, aha, the provincial view has not been expressed adequately or listened to and so on, so that might develop as a political
problem and the national government will have to take its responsibility and go in the House of Commons and have it corrected.
Just the fact that we have that mechanism there will be conducive for the members of the commission not to take any chances and make sure that the rules are fair and equitable so that there will be no debate at all about those rules and they will pass without any legislation.
The Joint Chairman (Senator Hays): Thank you.
Mr. Robinson: Thank you, Mr. Chairman.
I have some further questions with respect to the proposed Charter of Rights, Mr. Minister.
A number of witnesses, and certainly I myself raised very serious concerns about the prospect that this Charter. the proposed Charter of Rights might be amended through the referendum process. It was pointed out . . .
Mr. Rose: May I raise a point of order? The Chair might not have seen it and neither did Mr. Robinson, but I think there was a supplementary on mobility rights and I just wanted to ask the question before we proceed: are we maintaining, Mr. Chairman, this topic?
The Joint Chairman (Senator Hays): No. Mr. Robinson is speaking on another question if he desires to do so.
When we were dealing with the supplementary questions I went to Mr. Nystrom and he wanted to ask a question rather than use his I0 minutes and I then noticed Senator Connolly who was next on my list, so I got kind of confused on this and now I am trying to straighten it out by going to Mr. Robinson followed by Senator Tremblay.
Mr. Robinson: Mr. Chairman. I am quite prepared to hold off my questioning to permit my colleague to follow up with a supplementary on Senator Lucier’s question if that is permissible.
The Joint Chairman (Senator Hays): No, you go ahead with your intervention. We have already exhausted the supplementary questions.
Mr. Robinson: Well, Mr. Chairman, I will start again, then, with respect. as I said, Mr. Minister. my question is with respect to the possibility of amending the Charter of Rights by referendum.
Since the purpose of a Charter of Rights as stated by the Prime Minister on a number of occasions, by yourself on several occasions, and certainly I think the clear understanding of the purpose of the Charter of Rights. one of the essential purposes is to protect minority rights from a simple majority removing those rights at any given time.
In the case of the Charter of Rights, if a referendum is permitted to take away those rights, or it can be argued there could be a referendum to add rights, indeed, although histori-
cally that has not been the case, does that not violate the principle that we are trying to protect minority rights here and in view of that, and I believe Mr. Mackasey also shared some concern about the possibility, and he can speak for himself, but the possibility that tt majority in the referendum process could take away minority rights at any given time.
Now, granted there is a requirement for regional majorities but we are not talking about regional interests here, we are talking about individual rights which transcend regional boundaries.
What I would like to ask you. Mr. Minister, is this: are you prepared to consider once again this question of the right of governments to initiate a referendum, the federal government to initiate a referendum which might take away minority rights which would permit a simple majority, 51 per cent, to remove the rights ofa minority in a referendum process?
I make two possible suggestions to you: either you remove that possibility and leave the amendment of the Charter of Rights to the normal amending process, which would require, as you know, the various regional consensus; or, on the other hand and as a minimum. that you increase the required majority in the case of an amendment to the Charter of Rights, that you increase that to a two thirds majority, that if there is that wide spread consensus throughout the country that these fundamental rights should be changed, fair enough, but to permit a simple majority, 51 per cent, to take away those rights would be a serious denial of the very principle of a Charter of Rights?
Mr. Chrétien: You are making a suggestion but I think one problem I see with that is that you have admitted to amend the constitution and it should apply across the board to all aspects of the constitution, otherwise it is part of the experience that we have had in the discussion about amending formula, when you start to exclude from the amending process a certain aspect of the constitution, every province or every group wants this excluded or that excluded and so on, and in fact you end up at the end with the impossibility of amending the constitution. not only in the Charter of Rights but in anything else.
When I look at that. the process that we have established to amend the constitution. even if there would be llexibility, it will not be a very easy process. Suppose that someone wanted to take a minority right away. take linguistic rights, for example. In theory it could happen but it will have to be approved by 51 per cent of the people of Quebec.
Mr. Robinson: We are not talking about regional . . .
Mr. Chrétien: No, but I just took this because it is an obvious one that is close to me and I have reflected on that one. It will have to be approved and it will come only after the provincial governments have rejected that we have a referendum. because we could amend it, we will have a referendum only when there is a disagreement between the federal government and the provinces.
We could not have a process of having a referendum and bypassing the provinces so the provincial government will first be involved and say yes or no to the amendment, and if they say no, it is only then that we go to a referendu, after the provinces have said no, we do not want you to take away the minority rights of any group in the Charter, the provinces will have said no, the federal Parliament will have had to say yes and after that we are going to the people and there will be a need for a majority in the four different areas of Canada.
So I think that if you want to exclude the Charter or a different regime for amendments of the Charter, you will have to look at all the requests of the same nature for other aspects of the constitution and I do think that it will be even more confusing than it is today and it will not be more efficient.
Mr. Robinson: Well, Mr. Minister, how do you deal with the concern that I am expressing, that this would permit a majority, 51 per cent majority of Canadians to take away rights?
Now, I agree that when we are talking about rights that have regional implications that is not very likely, but when we are talking about legal rights, for example, why should it be permitted to take away minority rights in the process of a referendum by a simple majority? Does that not negate the purpose, the effect of this Charter of Rights in a sense?
Mr. Chrétien: But Mr. Robinson, the referendum will come after the province disagrees, but the first stage of the process, those preoccupations you are having, the federal Parliament plus the seven legislatures would be in a position to take them away and in theory it is possible but this idea that seven legislatures will vote to take rights away plus Parliament, I do not know, the guys that will be proposing it will have to have a hell of a good case because in any society acquired rights are the last thing you want to take away.
Mr. Robinson: Mr. Minister, the only thing it would require is a federal government which was determined to remove some of those rights and if the provinces disagree, after a year the federal government could then propose a referendum to take away those rights.
Mr. Chrétien: You will have to overcome the objection of the provinces in the debate and in Parliament.
Mr. Robinson: Well, Mr. Minister, if you have a majority in Parliament that has not been a problem in the past.
I would like you to examine that question, Mr. Minister, perhaps a bit more closely and certainly it will be returned to in the course of amendments, but I would like now to turn to Section 15 of the proposed Charter of Rights, to return to Section 15 of the proposed Charter of Rights and to deal with anargument that has been made and a statement that you made in your statement on Monday night to this Committee.
You indicated that you have responded to some of the concerns of various groups and that rather than restricting the
proposed grounds of discrimination to those originally set out in the Charter of Rights, that you are leaving this open ended, that you are allowing for the possibility that the courts might interpret this to include additional grounds of discrimination.
Am I paraphrasing what you said accurately, Mr. Minister?
Mr. Chrétien: Yes, You are reading my text.
Mr. Robinson: No, I am not reading your text. If that is the case, are you then saying that immediately following the passage of this Charter, when it becomes law in Canada, not sometime in the future but immediately following that, that it is your intention and your understanding that a court might interpret this Charter in such a way as to include a prohibition of discrimination on the grounds of disability.
Mr. Chrétien: If it is an obvious case, yes.
Mr. Robinson: So you think that immediately following the passage, that that is a possibility?
Mr. Chrétien: No, Mr. Robinson, because there are three years after on that, on this section. We have said that on a nondiscrimination clause, we have agreed that there would be three years lapse between the passage of it here and approving it, being proclaimed after it had been passed in London there would be a lapse of three years, But yes, at the end of three years.
Mr. Robinson: But at that point it is your intention in making this proposal that at least the courts would have that opportunity to interpret this more broadly to include discrimination on the basis of disability?
Mr. Chrétien: Yes. I say it is broad. There are other types of discrimination. The courts then look . . .
Mr. Robinson: But specifically disability you say yes?
Mr. Chrétien: If it is discrimination because of disability, I would say yes.
The Joint Chairman (Senator Hays): Thank you, Mr. Robinson.
Mr. Robinson: Mr. Chairman, if I could just conclude this question, I was not quite finished. I just had a brief final question.
There are two other areas that I would also ask exactly the same question on. Immediately following the passage of the Charter would it also be your intention that the courts could interpret this Charter to exclude discrimination on the grounds of sexual orientation?
Mr. Chrétien: It might. That will be for the court to decide, it is open ended.
Mr. Robinson: But at the time of the passage of this Charter you would not preclude that as a possibility?
Mr. Chrétien: We say other types of discrimination and we do not define them. It will be for the court to define them.
The Joint Chairman (Senator Hays): Thank you, Mr. Robinson.
I have the honourable Mr. Mackasey on a supplementary. then Mr. McGrath. and then we go to Senator Tremblay.
Mr. Mackasey: Mr. Chairman. my supplementary naturally goes to Mr. Robinson’s statement and it is not meant to be argumentative. Mr. Minister.
My position on the referendum vis-à-vis the possibility of it being used to remove individual rights. I remember, recalling earlier in the session, arguing with Mr. Robinson that it was much more likely that if a referendum were to be used in this area at all. it could be to add to human rights.
I visualize as you do. because you have to go to some extremes. Mr. Minister. to presume that we go to a national referendum with all the laborious procedure of getting majorities in the legislatures and then 51 per cent of the people to offset something that is in the human rights.
I could see a different scenario. I suppose, if a province was flagrantly discriminatory despite our constitution and the bill of rights in its approach to citizens of its own province, say, for instance, aboriginal people of franco-Manitobans or English Quebeckers or whatever.
I cannot visualize that happening; but it would seem to me that if the referendum is to be used at all in its approach to that section. it would be to add. to strengthen, not to weaken the bill of rights. Am I right or wrong on that?
Finally, there is the possibility, Mr. Minister, of adding the category of disability, and can you be persuaded to reconsider and is there a possibility because of the work going on by the particular Committee of the Commons and the fact that there is international recognition of the problems of disabled people; you have mentioned some groups in particular, leaving the rest open—would you reconsider with your officials all the ramifications of adding to Section 15 some recognition of the particular problems that this category of Canadians has to face, a fact which the public are now only beginning to realize? it would fall into the category of—it could almost be classified as a fundamental freedom.
Mr. Chrétien: I am willing to review that and see if it can be added. But I cannot give you any answer.
Mr. Mackasey: But there is still a possibility? You are still open-minded on it?
Mr. Chrétien: Bryce, you know I am a very open-minded man.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.
Mr. McGrath: Thank you. Mr. Chairman. I have a supplementary question to the Minister, having to do with group rights with regard to the provisions of Section 15(1).
We have heard from the Roman Catholic School Trustees, the Bishops of Ontario, the Denominational Education Com-
mittees of Newfoundland, expressing concern about group rights. Indeed, one group felt that they should be given their right to discriminate, using the word “discriminate” in the traditional context and not in any racial sense as it has come to be used.
I would like to know if the Minister can tell the Committee what, in his view, would be the impact of Section 15 on, for example, the right of separate schools to hire teachers, particularly in the context of the provisions of Section 52 of the Charter.
Could Section 15, for example, be used to prevent separate or private schools from hiring teachers who had to conform to the teachings or moral standards set by that particular school or religious denomination?
Mr. Chrétien: Mr. McGrath, you must have been absent from this room yesterday when we had a long exchange on that very issue. I gave that guarantee. Mr. Tassé explained the process under our questioning by Mr. Irwin.
Mr. McGrath: If you have already dealt with the matter yesterday. then I will not take up the time of the Committee further.
Mr. Chrétien: We said that there was no problem. lt would be possible for any Catholic or other school board in Canada to keep hiring people of the same belief.
Mr. McGrath: It would be possible but will it be open to challenge?
Mr. Chrétien: It will not be open to challenge.
Mr. McGrath: Thank you.
The Joint Chairman (Senator Hays): Thank you, Mr. McGrath.
Senator Tremblay: Thank you, Mr. Chairman.
Mr. Minister, our brief discussion yesterday showed that a dialogue was possible between us but only on details and secondary issues. It is a beginning, but I can see that on questions of substance, a dialogue is much more difficult to establish. However, this is not a subject I want to deal with today. My question is rather general. It stems from a very serious question that I am asking myself and that a large number of people in Quebec are asking themselves. I think.
You often mention the referendum and Quebec’s “no” during that referendum. Yes, Quebec did say, “no” to the referendum and to sovereignty association.
However, I can see now that only a few months later Quebec is saying “no” to your project. Quebec says “no” through its legitimate government. Quebec says “no” through the voice of the leader of the official opposition in the National Assembly. Quebec says “no” through the leader of another opposition party in the National Assembly. Quebec even says “no” through several members of your own political party here in the House of Commons. Quebec says “no” in the polls that were recently taken and says so in a proportion far stronger
than it did during the referendum. Quebec says “no” through a great number of editorialists or commentators.
My question is as follows, Mr. Minister. and that question calls upon our consciences as members of this Parliament.
In all conscience, how can you reconcile those two nos?
Mr. Chrétien: If the objections were based on the substance and not on the form, I would be far more concerned.
When we discussed this inside our own party as well as elsewhere, we did notice that there were very few objections on the substance.
There are not many people in Canada opposed to the repatriation of the Constitution. There are not many people opposed to the entrenchment of a charter of Rights in the Constitution for Canadians. There are not many people opposed to the entrenchment in the Constitution of two official languages in Canada which will apply at the federal level not only by virtue of legislation. in the future, but by virtue of constitutional guarantees.
There are not many people objecting to the protection that we are giving substantively to the constitutional right to education in the minority language in Canada for the French outside of Quebec and for the English inside Quebec.
So all kinds of questions are being asked. I am not impressed by the question put by the Gallup Poll which is trying to find out if you want the English to amend the Canadian Constitution? Of course they would prefer it to be amended here but all this is as though the project we are setting up right now was being made in England. Why do we have this Committee here? Why are we debating each clause. each and every word, each and every iota? It is because we want to submit to Parliament a project which comes from the Parliament of Canada.
The major objection that I see is that it is being maintained it should not be done, formwise, without the agreement of the provinces.
Well, the agreement of the provinces is not legally necessary.
During the last 53 years we have tried to reach results with everyone’s agreement. Unfortunately, we have failed during 53 years which will become 54 quite soon.
So, looking at the Canadian constitution, and the legal situation in Canada, we feel that legally, the Canadian Parliament has every right to propose amendments to the Canadian constitution through the British Parliament. Again, the Canadian population approves of the amendments’ in substance that we have proposed. Objections are based on the form. For 54 years now, the tyranny of unanimity has prevented us from obtaining the results we are seeking now.
Therefore, since we have the legal power to do so, we are going ahead. Of course I am not surprised that people are
saying that they would have preferred that everyone agree. I have myself not only desired it, but all through the summer I have worked on the longest negotiations ever held on the constitutional bill.
Before the cameras, during the last First Ministers’ Conference, it was most obvious that we were the victims of this double tyranny, to use Mr. Trudeau’s expression, in that it was not only required to be unanimous in order to do something, but that the provinces were also unanimous in their requiring that each province be given something in order to obtain its accord.
Not only did we have to obtain their unanimity on a single item, but in addition, we also have had to face the tyranny of giving to each that which it desired.
Under the circumstances, as a responsible government, we decided to move ahead and accept the political consequences.
If legally, we are wrong, the courts will decide, and it is this legal aspect of our procedure which is presently before the tribunals. We have defended our legal position, as have the lawyers of the provinces. and now the tribunals must decide.
Senator Tremblay: Mr. Chairman, Mr. Minister, you are telling us in fact that for the tyranny of unanimity, you have through your bill substituted the tyranny of unilateralism. and you have gone on the basis that Quebeckers would prefer this tyranny of unilateralism to that of the tyranny of unanimity.
Now Quebeckers are saying no to your proposals, they prefer the inconvenience of un animity to the tyranny of unilateralism, that is how sentiments go, and there must be a basic reason for this.
in my view, if today they say no as they did through the referendum, it is perhaps because the type of federalism proposed in your resolution does not correspond to their own. in fact, Quebeckers have said no to sovereignty-association in their referendum, but today they are saying no to your concept of federalism.
If you accept that interpretation, I think the two nos are perfectly consistent.
Mr. Chrétien: I have explained our position, and it is your privilege to disagree. Well, I was elected in Quebec, I spent the Christmas holidays in my riding, and I spoke to many people. Of course, since my constituents know that I am leading this project through Parliament, they have spoken to me about it; other members report having had no reaction whatever.
Some people say that Quebeckers disagree with what we are doing, and it is true that they disagree with us on a few points, but they agree with many others. The issue is not black and white, because, as I was explaining earlier, when we polled Canadians last summer on the entrechment in the Charter of Rights of language rights and labour force mobility, everyone agreed.
You can maintain that we have no legitimacy as much as you want, but the fact remains that we discussed this question at length within our party and that after all we got 67 per cent of the vote in the last election!
Does what we are doing fall within our jurisdiction and our legal powers? If so, we are perfectly entitled to proceed with it. There is no doubt that my brand of federalism is different from yours. We have had lengthy discussions on this point.
We heard about the proposal for a community of communities, and we have always advocated a strong central government and strong provincial governments at a time when there was a very nationalistic, not nationalistic, but separatist government in Quebec. We federal MP’s have always been elected on a platform of a strong central government, and of course I do not claim to speak for all Quebeckers, but I can certainly speak as a Quebecker elected in Quebec in a party that has always received the most support of any political party in Quebec under any circumstances. This surely lends us some credibility.
It is true that one of the seventy-four MP’s from Quebec does not agree with our approach. He does not agree on one point because we are not going to impose something on Ontario. However, if we were to impose this on Ontario, he would agree with our approach. I am not very impressed by his arguments. because the whole procedure is much broader than the points contained in Section 133.
Some people say that they speak for Quebec. I speak for Quebec as much as any Quebecer and people choose their representatives in elections. If we have made a fundamental mistake, the voters will let me know. I have spoken whit a number of MP’s since the holidays, and I should tell you that there were very few who encountered difficulties when they went to do their shopping in Quebec over the holidays because the government was taking unilateral action. What people said to me was: “Look, Jean, we are fed up, get this thing settled, we have talked about it long enough.” My general impression is that people do not think that the Liberals, particularly the Quebec Liberals, are doing this to try to destroy Francophones in Canada. They are convinced that we feel very strongly about French Canada, and I think they trust us just as they did at election time.
I have also read what the editorial writers have to say and have taken it into account. However, we have to face up to our responsibilities and we are not proceeding on the sly. Our intentions have been public since the 9th of June when Mr. Trudeau said that we were giving ourselves three months to reach an agreement and that if there were no agreement, we would take the action we are taking now. This is all stated in the June 9 press conference following the meeting held at 24 Sussex Drive.
I am not surprised that some people disagree with what we are doing. I may be in hot water to some extent, but what can
you do? As I said a while back, that is to be expected in politics, and, in any case, as Chatterton said, I like being in hot water, it keeps me clean!
Senator Tremblay: I would like to make one last comment, if I may. I do not think that the ministers reply has really answered my question. My query was not to find out how votes would be distributed in an election, but is, rather, a very precise question concerning fundamental issues, particularly, the way Quebecers perceive their development within the federation.
Mr. Minister, and I will conclude on this point. I feel that this was perhaps not really a question, but an appeal, like the ones you have made to other groups and in other circumstances.
Mr. Minister, I feel that all the signs I havejust listed point quite clearly to the fact that the Quebec people are deeply affected and divided on your proposed resolution and I appeal to your sense of responsibility to be more sensitive to that whole issue. Analyze the situation, In my opinion, you should take that into account in a much more basic way than you have done in your amendments.
As long as the provisions of your proposed resolution substantially affect the federal system as such, the Canadian federative system, do you not seriously wonder whether you are going against the deep and age—old concept Quebecers have towards federalism?
That is my only appeal to you, sir. I have finished my questioning, Mr. Chairman.
Mr. Chrétien: I thank you for your remarks. In reply, I would like to say that this process, at least in our opinion, is not changing the balance of powers, except in the area of resources. As I explained earlier, powers over resources have been handed over from the federal government to the provinces through the right to indirect taxation and to make legislation governing interprovincial commercial transactions, while maintaining federal supremacy.
We are entrenching a Charter of Rights that will not change the balance of powers, that will impose restrictions at all levels of government, both in the Parliament of Canada and in the legislative assemblies, in support of rights which will be granted to every Canadian in this country. However, neither the federal government nor the provinces gain any powers from this charter, but the citizens of Canada do.
The criticisms we receive stem from the section relating to education. Bill 101 would be slightly changed but we have tried to respect it as much as possible.
As Mr. Trudeau, myself and many others have always maintained, we are in favour of complete freedom of choice. In my opinion, this is one of our rights. I am slightly disappointed by the fact that this right has not been given to Canadians through a Charter of Rights.
In an effort to adhere as closely as possible to Quebec legislation, we have fashioned our amendment to the sections
on education after Bill 101. However, we have required all the governments in other provinces to henceforth offer French-language education to French-speaking citizens.
We have not changed the form of federalism. Absolutely not. We are patriating the Constitution and, in so doing, since it is essentially the Victoria formula which prevails, we are giving Quebecers something which they do not have legally at the moment but which they have always claimed to have, and that is the right to veto constitutional amendments.
They will have a right of veto and if there should some day be a referendum to settle a constitutional deadlock, the citizens of Quebec will have a right of veto which they do not have today.
As a citizen of Quebec, by protecting French-language rights in education throughout Canada and by giving Quebec, if the Quebec government wants it, the same right of veto that Ontario has for constitutional amendments, I do not think I am letting down Quebecers’ expectations. That our way of proceeding is unpleasant, I am ready to agree. I would have much rather gone to London with 11 governments in a unanimous action. But it is obvious that it was not possible. We thought at the time that we would succeed but unfortunately the dynamics of the September conference was a disaster. What more can I say? The result was there and we are doing what we think we should be doing and the people will judge.
The Joint Chairman (Senator Hays): Thank you, Senator Tremblay. You have a supplementary question, Mr. Irwin?
Mr. Irwin: Thank you, Mr. Chairman.
Senator Tremblay has indicated what is almost half an argument and it should be carried further vis-a-vis Section 24, when he talks about the tyranny of the majority. I prefer to think of it as the will of the majority. “Tyranny of the majority” is usually a loser’s term.
But now, Mr. Minister, in Section 15 what is being imposed is a law called equality rights, and we are calling it non-discrimination rights, precluding discrimination on the basis of race, national or ethnic origin, colour, religion, sex or age which would be implemented by the tyranny or will of the majority as decribed by Senator Tremblay.
Now, there is some concern expressed by several groups as to how this would be implemented: the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Bar Association and several distinguished groups which came before us—at least a dozen.
You have changed that now in Section 24. I do not wish to speak about age or sex or things of that nature. Specifically I would like to talk about a specific incident, the Penetang incident, where a local school board precluded a group of French Canadians in Ontario from having their school in Penetang, and there was no law to protect them and it was
only by the goodwill of the Province of Ontario that they came through and provided the school: it was an order.
Now, as I understand the changes. any parent under Section 24, of any child, could now go to a court of competent jurisdiction in Ontario and the court will decide what would be appropriate in the circumstances.
The same thing would apply in Quebec; any English parent, in the minority. can go to a court competent jurisdiction and the court will decide if there are numbers.
Mr. Chrétien: What we are doing is this. The situation which applied before in Penetang, and the situation for angiophones in Shawinigan—there the people had to abide only by the decision of the government of the school boards.
But the idea is that from now on if they feel they are discriminated against, they will be able to go before the courts which would decide if the government has acted reasonably in the decision made. If they feel that they have not acted reasonably, they will be able to impose on the school boards a remedy.
I believe that if such a situation had existed before it would have very much simplified the problem; because when those crises erupt, a lot of local emotion is involved; and I do not blame local politicians for moving hesitantly and not drastically in those fields.
But now they are in a position to say that it is the Canadian constitution which requires that we do this or that. It would be much simpler and will not create the same emotion because the debate would he done in a completely different atmosphere. not in a political atmosphere. It will be done before the courts by competent lawyers who will argue and talk about precedent and cite examples of what is being done for, say, the francophones in Ontario, or in New Brunswick, or the angiophones in Quebec and so on and so forth and they would be able to compare the treatment of the minorities across the land and the judges will see what is reasonable or not.
Mr. Irwin: Mr. Minister, this process is open to any woman who may be discriminated against because she did not get a job, though she may be of equal calibre as a male and any person who may have been prejudiced. because he was a black or from another country—is that correct? Is the same process available?
Mr. Chrétien: If it is an act of the state; ifyou, yourself, in your house do not want to hire a person of a certain ethnic origin, colour or religion—that is another matter; it is when the state discriminates against the person, not individuals.
Mr. Irwin: Thank you, Mr. Minister.
The Joint Chairman (Senator Hays): Thank you very much.
Honourable members, on behalf of Mr. Joyal and all honourable members of the Committee, we would like to thank the Minister for being here all week—and his officials too. Thank you very much.
The meeting will now be adjourned until 8 o’clock on Monday night.
From the Department of Justice:
Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.