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 4 (13 November 1980)
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 4 (13 November 1980).
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HOUSE OF COMMONS
Issue No. 4
Thursday, November 13, 1980
Senator Harry Hays
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
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
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays
Serge Joyal. M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Thursday, November 13, 1980:
Miss Campbell (South West Nova) replaced Mr. Lapierre;
Mr. Robinson (Burnaby) replaced Mr. Manly;
Mr. Hawkes replaced Mr. Beatty;
Mr. Lapierre replaced Mr. Tobin;
Mr. Beatty replaced Mr. Epp;
Mr. Epp replaced Mr. Hawkes.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator McGrand replaced Senator Goldenberg;
Senator Bird replaced Senator Austin.
MINUTES OF PROCEEDINGS
THURSDAY, NOVEMBER 13, 1980
The Special Joint Committee on the Constitution of Canada met at 9:38 o’clock a.m., this day, the Joint Chairman, Honourable Senator Hays presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Goldenberg, Hays, Lamontagne, Lucier, Petten, Roblin and Tremblay.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Senators present: The Honourable Senators Flynn and Thompson.
Other Members present: Messrs. Allmand, Duclos, Gauthier and Lapierre.
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 Minister and the witnesses answered questions.
At 12:11 o’clock p.m., the Committee adjourned until 3:30 o’clock p.m. this day.
The Special Joint Committee on the Constitution of Canada met at 3:54 o’clock p.m., this day, the Joint Chairman, Honourable Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Goldenberg, Hays, Lamontagne, Lucier, Petten, Roblin and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom and Robinson (Burnaby).
Other Members present: Messrs. Allmand, Gauthier and La Salle.
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 Minister and the witnesses answered questions.
Mr. Lapierre moved,—That the Committee invite Mr. Gordon Fairweather to appear tonight as witness at 8:00 o’clock p.m., November 13, 1980.
After debate thereon, the question being put on the motion, it was negatived on the following division:
The Honourable Senators
Campbell (Miss) (South West Nova)
The Honourable Senators
At 6:35 o’clock p.m., the Committee adjourned until 8:00 o’clock pm. tonight.
The Special Joint Committee on the Constitution of Canada met at 8:10 o’clock p.m., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Bird, Connolly, Hays, Lamontagne, Lucier, McGrand, Petten, Roblin and Tremblay.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs.
Corbin, Crombie, Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom and Robinson (Burnaby).
Other Members present: Messrs. Duclos. Gauthier, Gimaiel, La Salle and Parent.
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 Minister and the witnesses answered questions,
At 10:03 o’clock p.m., the Committee adjourned until 9:30 o’clock a.m. November 14, 1980.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Thursday, November 13, 1980
The Joint Chairman (Senator Hays): Honourable Senators and Members of the House of Commons, we will continue with our order of reference resuming the consideration of the document entitled The Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada referred to the Committee from the Senate on June 3, 1980 and from the House of Commons on October 23, 1980. Appearing is the Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada, and I recognize Mr. Crombie.
Mr. McGrath: it might help us in preparing our line of questioning as we only have ten minutes, if when you recognize somebody you would indicate who the next questioner is to be. That would help considerably.
The Joint Chairman (Senator Hays): We would be glad to do that.
Mr. Flynn is the next one.
Mr. McGrath: On the Conservative side?
The Joint Chairman (Senator Hays): You mean on your side?
Mr. McGrath: No, no, it doesn’t make any difference on what side. After you recognize somebody, if you would identify two speakers.
The Joint Chairman (Senator Hays): Yes, we would be glad to do that.
Mr. Crombie followed by Mr. Allmand, if it is agreeable to the Committee. Mr. Crombie.
Mr. Crombie: Thank you very much, Mr. Chairman. Mr. Minister, through the Chairman to the Minister, I have some questions relating to the use of the referendum option in the amending formula. Some of these questions were raised generally last night by the Member from Vancouver South, but it recalls to mind a speech which was made on October 27, by the Premier of the Province of Saskatchewan, Mr. Blakeney. On Page 4 on the written distribution of his speech, he had this to say about the process of the amending formula in relation to using the referendum option, He says, that—and I want to ask the Minister his reaction to it . . .
the process permits a referendum where provincial legislatures fail to agree to a federal proposal for constitutional change, but does not provide for a referendum where Parliament fails to agree to a proposal for constitutional amendment passed by all the provincial legislatures. It is a way (and I think this is the burden of his argument)—it is a way to temper provincial intransigents, but not federal intransigents.
And I wanted to know from the Minister why he thinks it fair and equitable for the constitution to provide for a way in which to deal with provincial intransigents, but not to provide for federal intransigents.
Mr. Chrétien: You know, suppose that this question being raised this way that ten provinces want to have an amendment of the constitution and the federal government does not want to agree. And of course, because the legislation for a referendum has to be initiated by the national government, and the national government, using its right of veto, does not want to initiate, you know, referendum to put the question, the view of the provinces against the view of the national government.
In the case of the national government, if any national government were to be that intransigent, there is a recourse for the province, for the people and for the government in the next general election, And you know, I think that . . .
Mr. Crombie: Mr. Minister, I do not wish to be unmannerly, but that was the answer you gave last night, and what you are really saying is that you are willing to trust the use of the referendum on a deadlock, on federal initiative, trust the people by referendum?
Why would you not, if there was a deadlock agreed to by ten provincial provinces, not supported by the federal government—why would you not trust the people by referendum. There is not only a lack of logic, but surely there is a lack of fair play and equity.
Mr. Chrétien: You are putting the extreme case that if there was . . .
Mr. Crombie: I am sorry, sir, but you put the extreme case when you argue that if there is a deadlock between the federal government and the ten provinces, or the provinces, then we trust the people by referendum, you put that extreme case. When I put the same case in relation to a federal initiative, you say it is extreme.
Mr. Chrétien: You said that, you know there is one Parliament to cover the whole Canadian federal Parliament, and the national Parliament, and I do think that we have to have the initiative at one level of government because we are the only one who can initiate a referendum on the national scale.
Mr. Crombie: The provinces can.
Mr. Chrétien: No, the provinces cannot, because they cannot legislate for the referendum.
Mr. Crombie: All ten provinces can hold the same referendum, surely.
Mr. Chrétien: I just say that the power to legislate it is with the national government and of course the national government is free to do in that circumstances to pass the legislation or not. Are you telling me that we should be—that the initiative should be taken by the provinces for a national referendum?
Mr. Crombie: No, no, Do not turn it around. I will ask you one more time. I want to make sure it is clear in my head. The case where the federal government would like to change and the provinces do not agree, the federal government thinks that it is fair and equitable and this proposal thinks it is fair and equitable to use the referendum to break the deadlock. If, on the other hand, all ten provinces would like to change and the federal government disagrees, the federal government is unwilling to give them the same opportunity. And you think that is fair. Is that correct?
Mr. Chrétien: I just say that the legislative initiative has to be with the national government, so what you are telling me is that the provinces could force the Parliament of Canada to pass a piece of legislation to have a referendum?
Mr. Crombie: There is nothing to stop all ten provinces from having a referendum right now.
Mr. Chretien: I think that the national government, as it is a national referendum has to keep the initiative of the referendum. If the national government refuses to take the right policies and the ten provinces agree on something and the federal government refuses, the federal government can initiate a national referendum on the issue if they want. And if they do not and the provinces want to have a referendum, I think the point you are trying to get me to answer is that if the provinces want to have a referendum under the present provision, you know the federal government could refuse to have a referendum. That is the point you are making. And I say to you it is because the federal government is the one who has the legislative initiative in the matter, you cannot have . . .
Mr. Crombie: I gather you disagree with Premier Blakeney on that point.
Mr. Chrétien: Yes. I just say that it has to remain a federal initiative.
Mr. Crombie: The second point that Premier Blakeney raises, with respect to the fairness of the use of the referendum.
I might add if I could Mr. Chairman, through you to the Minister, he regards these as inequitable and unfair, unnecessarily loading of the dice with respect to the federal government. And the second point he makes in relation to it is that all of the rules and regulations regarding the holding of the referendum are to be done by one party to the referendum, and not by the other party. He says that all of the rules respecting the referendum are solely within federal control, with none of the safeguards which have been established over the years to ensure, for example, fair federal elections. This clearly requires some revision, not only to make the rules fairer in fact, but also that the rules will be seen to be fair by the Canadian public.
That is his second point. What is your reaction to that, Mr. Minister?
Mr. Chrétien: You know, it is only federal Parliament who can legislate in terms of a national dimensional problem. I think if you want to introduce some rules by which the provinces will indicate to the national Parliament what kind of legislation they should pass, you know, if we have a national government we can pass national legislation. In a democracy all the provinces who are represented here in Ottawa should have faith in the Parliament to pass reasonable legislation in the case of referendum, but I do not know what will be the input, I do not know in which way you would like the provinces to have input in the legislation that will have to go before the Canadian Parliament.
Mr. Crombie: There must be a number of forms that are available if you wish to make it equitable so that if there is a
contest on a question between the provinces and the federal government, one would think of a form that says: Why do both sides not appoint people so that rules regarding it can be fair?
I mean, it is not a fair contest if one party to the action organizes the rules. Surely; all Premier Blakeney is doing is asking for equity.
Mr. Chrétien: Yes, but I don’t know how you will achieve it. You know if you have some way that will permit Parliament of Canada to pass the legislation with the input of the provincial legislatures, I would like to see how you can achieve it. Or do you want the legislation to be passed by a third body that is not in existence at this moment? I do not know if you have some suggestion to make to go around that difficulty, if one level of Parliament can pass legislation for all the land, it is this Parliament. Of course, I presume that the government of that day—you know, if they were to present some resolution or a bill for a referendum that will be in your judgment, or the judgment of the provinces, unfair, it will become a major controversy. But I think that the last resort will be an act of Parliament, but if the members of this Committee have some suggestions to make to permit an input about those rules by the provinces, I would like to consider them.
But the problem is, the legislative authority will have to remain the national Parliament. There is no other way.
Mr. Crombie: If the authority of the National Parliament should be eroded, I am asking if you would consider a process whereby both parties to the action could have an opportunity to set the rules, That is all nothing more complicated than that.
Mr. Chrétien: I just said that Mr. Crombie, if the committee wants to give us some . . .
Mr. Crombie: I am not going to argue with you that the authority of the national parliament should be eroded. I am asking if you would consider a process whereby both parties to the action could have an opportunity to set the rules, nothing more complicated than that.
Mr. Chrétien: I just said that, Mr. Crombie. If the Committee wants to give us some . . .
Mr. Crombie: Say yes or no. I mean, just so I can understand it?
Mr. Chrétien: You need only a yes or a no, well I will just tell you that if you have some suggestions to make sure that the input of the provinces in the case of a referendum can be achieved, fine, but not at the expense of having the parliament of Canada pass legislation, that is the point I want to make. National legislation cannot be passed by provincial legislatures.
Mr. Crombie: Thank you. Mr. Chairman, I have a further line of questioning with respect to—and here I think the answers can be fairly brief because it was touched on before but I was not clear in my head in terms of the answers given.
Dealing with the Indian and native peoples, the first question I have: there are some people who feel that the action in the resolution will have the effect of entrenching the Indian Act, how do you feel about that, is it true or false in your
view? This will have the effect of entrenching the Indian Act in the Constitution?
Mr. Chrétien: It will not entrench the Indian Act, the Indian Act will remain the Indian Act.
Mr. Crombie: You do not think entrenches the Indian Act?
Mr. Chrétien: No.
Mr. Crombie: All right.
Mr. Chrétien: The Indian Act remains an Act of Parliament.
The Joint Chairman (Senator Hays): Mr. Crombie, your time is up.
Mr. Crombie: Really?
The Joint Chairman (Senator Hays): Yes.
Mr. Crombie: I just wanted to know if you had any consideration with respect to existing or future rights for Métis and non-status indians, or are they out?
Mr. Chrétien: We said that the question of the native rights in the Constitution is a special item to be debated among the provinces and the federal government and the natives . . .
Mr. Crombie: Non-status and Métis, not Indian?
Mr. Chrétien: The rights that the Métis have flowing from the Royal Proclamation will remain the same. This charter will not affect those rights.
Mr. Crombie: It will not increase them any.
Mr. Chrétien: It will not increase, it will not decrease, they will keep the same rights they had before.
Mr. Crombie: What are they?
Mr. Chrétien: Depending on the type of rights they have. If you are an Indian who is covered by a treaty, you have your treaty rights. If you are an Indian . . .
Mr. Crombie: Not covered by that.
Mr. Chrétien: . . . not covered by that, the Inuit, and so on, their rights are flowing from the Royal Proclamation of 1763. They remain the same.
The Joint Chairman (Senator Hays): Mr. Allmand?
Mr. Allmand: Mr. Chairman, Mr. Minister, I want to refer you to Section 23 on minority language educational rights. In order to exercise the minority language rights on education in Section 23, two conditions are necessary: First, you have to be a citizen of Canada; and second, your first language learned and still understood has to be either English or French, those two conditions are necessary.
Now, I put it to you that if we adopt that Section, we end up with two classes of citizens in Canada; those citizens whose first language was French or English, who will have certain rights; and those whose first language was not English or French but still citizens who will have lesser rights. This means, for example, that the Cree and Inuit of northern Quebec, our friends Charlie Watt and Billy Diamond for example, and the people that live with them, because their first language was Cree in the one case and Inuktituk in the second
case, they would never have the same rights as an immigrant from England who came here and became citizens. Those people who came from England or from France, when they became citizens, would have the right to choose from minority language education. The Cree and the Inuit, the Montagne, any group in Quebec who first learned a native language, even though they learned English or French at three, or five, would never have those rights.
It also means, that section means that if you came from Italy at three or four years of age, not only you would never be able to opt into the minority language education system, but your children would never be able to opt-if that person came to Montreal at three years of age from Italy, that person could never have his children, even though he went into the English speaking community in Montreal, go into the English schools because his or her first language was neither English or French.
Now, I put to you, that that section will entrench, as I say, unfairness between classes of Canadian citizens. I maintain that it is an unacceptable section and it is a retreat, Mr. Minister, it is a retreat from what you and Mr. Trudeau and I and the Liberal Party always put forward.
If I refer you to Bill C-60, Bill C-60 did not establish those two classes of citizenship. The Victoria Proposal never established those two classes of citizenship, we never had those with respect to the right of education in the minority language and I am just bringing this to your attention today and I am asking you to reconsider, I do not expect an answer from you today, but I want to bring you that anomaly so that it is very clearly put to you and ask you that you consider amendments to that section.
Mr. Chrétien: I think that it is one of the difficult sections of the charter because education is a matter of provincial jurisdiction, and under Bill l0l in Quebec, the freedom of choice has been taken away from all citizens of Quebec, not only the Inuit or the Metis and so on, the Eskimos, the Indians, but of all the francophones in Quebec who do not have the freedom of choice anymore, they are obligated to send their kids to French schools.
What we are trying to establish here is the minimum requirements, of course. I do think Bill 101 will be affected in relation to Canadian citizens who speak the English language, who are in Quebec. We have not wanted to intervene to the point that we will force complete freedom in Quebec. Personally I always have advocated that freedom of choice was my preferred course, but the legislative authority in terms of education in Quebec, they abuse it and they have taken away the freedom of choice for the francophone and I do not think that this government is willing to intervene that much in provincial jurisdiction.
Mr. Allmand: Mr. Minister, as far as I am concerned, and I will have to give further consideration . . .
Mr. Chrétien: But in terms of amendments I would like to complete my—you ask me to consider amendments. Of course, some members of this Committee will propose some amendments and we are working on some amendments at this time, but I have to tell you that it is not an easy problem.
Mr. Allmand: I do not have very much time, Let me tell you that I will have to consider this, but as far as I am concerned, it would be almost better not to have any section at all than to have that section because a charter of rights is supposed to protect the people of Canada from oppressive federal and provincial legislation. To put this section in the Constitution, you say it is a minimum, which will allow provinces to pass legislation to distinguish between kinds of Canadians, and in particular to give more rights to immigrants from English and French speaking countries, to give them more rights when they become citizens than the decendants of the aboriginal people; to me that is so unfair that it is just not acceptable.
Now, I would like to move on to the questions on native rights and I refer you to Section 24 of the proposals. You said yesterday, in answer to Mr. Manly, and to others, that Section 24 would protect any rights that the native peoples now have. I want to submit to you that is not the case.
Section 24 says that any rights that the natives might have would not be affected by anything in this piece of legislation, in this resolution, but it does not respect them from other legislation that might be passed by the federal parliament, or other legislation by the provinces, and you know that provincial governments have continually, through the last I00 years, whittled away at Indian rights under the fish and game laws, under housing legislation, expropriation acts, I could give you a whole list of provincial laws and federal laws.
For example, before you were Minister of Indian Affairs, the federal government expropriated the land of the Mohawk Reserve at Caughnawaga and took away their lands by a piece of federal legislation under the St. Lawrence Seaway Authority Act. This section here, 24, while it says:
shall not be construed as denying the existence of any other rights or freedoms… that pertain to the native peoples of Canada.
You are saying that this piece will not take away any rights or freedoms held by Indians or Inuit, but you are not saying that this section will protect the Indians and Inuit from any other laws that may be introduced, either at the federal or provincial level.
So, Mr. Minister, if you really want to protect Indian and Inuit rights, even though they are not fully known, you said we do not know what they are today, and you are right. We know some of them but we do not know others. You should change that Section to read, whatever, more or less whatever rights the Indians or Inuit might have, either declared or undeclared, they will be entrenched and protected against any legislation at the federal-provincial level, so that once these rights are identified through land claims negotiation, they will still exist and we will not have to rescind other provincial laws which might have by that time alienated their land, alienated their resources, and put them into the hands of private individuals. So I am again submitting to you very strongly that that Section 24 does nothing but protect Indians and Inuit and Métis from things that might be done in this particular resolution.
Mr. Chrétien: Earlier you just mentioned the same thing, this is about the fifth time I am replying to this question since I started in my testimony.
You just said there is a lot of native rights that are undefined, not clearly stated. What we wanted to do is make sure that this charter of rights does not affect the rights that exist under either the treaties or the Royal Proclamation. I do think that these are the two sources of rights that exist for the natives in Canada. These remain.
You say that the Parliament of Canada could decide some day that the Royal Proclamation will not affect Canada. I do not think that we could.
Mr. Allmand: But the Parliament of Canada and the Provinces could continue to pass oppressive legislation to Indians and Inuit other bills at the Federal and Provincial level and this section will not protect that at all.
Mr. Chrétien: I do not know if you are arguing that there is no possibility whatever for any government for example to expropriate any lands of the native people of Canada. If it is your view, you know, I do think that in the ease of Caughnawaga when they had to build this seaway, they have expropriated the land and they have compensated the natives of the reserve in relation to the damage that they have received.
If your view is that no laws could ever expropriate the land of any natives, I do not think that it is a proposition. I would like to study that because it is a very far reaching statement.
There is no circumstances under which some parts of Canada cannot be expropriated for the benefit of the totality of the nation.
Mr. Allmand: I must tell you that that is now the policy of the Government of Canada and has been the policy since you were the Minister for Indian Affairs and you were the one that started that policy.
Mr. Chrétien: I know.
Mr. Allmand: Excuse me, let me just finish this. The policy for the Department of Indian and Northern Affairs, since you were the Minister and has continued through four other Ministers has been that no Government of Canada can expropriate Indian land without the consent of the Indian band involved. So, no expropriation law has been able to apply to any reserve land or land that has been transferred to native peoples under an aboriginal settlement without the consent of those people.
That is now the policy and I am suggesting that should be entrenched in the Constitution because that land is much different than any other private property in Canada. That is just one of the rights.
Mr. Chrétien: I think that is a good policy and I am glad that you recognized that we have established that as a policy. But to make it an absurdedly impossible possibility for any government under any circumstances in the national interest to proceed, it might be the desirable policy that has been followed and we should be extremely careful.
If the Committee wants to enshrine in the Constitution such a thing, what I want to make to you is this point: does this very complex problem involve not only the Federal Government but involve the Provincial Government.
You know, the Crown land in the provinces now belong to the provinces. It is administered by the provinces and no more by the Federal Government and we have decided that because of the complexity of the problem, that should be a special item of discussion with the provinces under the title of Natives and The Constitution and we have given money to the Indians to get ready in order to make their position clarified and after that discussed with the Federal and Provincial authorities.
I do think that it is the rational way to do it, before those rights are clearly defined, to enshrine them in the Constitution before we can define them. I do not know if it would be possible later on to define them. That is perhaps the danger that we are facing.
So, I just wanted to make sure that this charter of rights was neutral in relation to the rights of the natives so that their position will not be changed at all because we are entrenching that Bill of Rights.
Yesterday I made one caveat to that. I do think that the way I am reading the non-discrimination clauses that it might be the Parliament of Canada or the Court would decide that under the problem of the woman who loses her Indian status through marriage that this will have to be changed, with or without the consent of the Indians.
The Joint Chairman (Senator Hays): Mr. Nystrom. you will be followed by Mr. Duclos, with the permission of the Committee.
Mr. Duclos: If you could give me some time.
The Joint Chairman (Senator. Hays): Mr. Nystrom?
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to take the Minister today to Part 4 of the Resolution. I think Part 4 is the part that we have not discussed yet before the Committee with the Minister here as a witness.
I want to follow up on a series of questions started last night by Mr. Epp where the Minister stated that in the amending procedure different provinces will have a different status and I do not think in many ways that that is right. But the Minister himself said that the provinces can bring a suggestion of a new amending formula to Canada and there might be a referendum between the provincial alternative and the federal alternative.
Now, if you look at Section 38(1), to begin with, 1 would ask Committee Members to take a look at Section 38(1). It says that the Governments or legislative assemblies of eight or more provinces that have, according to the latest census, combined populations of at least 80 per cent of the population may make a proposal.
Now, in effect what this does is either gives Ontario or Quebec a veto. I am right, Mr. Minister?
Mr. Chrétien: Yes, because they have more than 20 per cent of the population.
Mr. Nystrom: Okay. So, there will not be a provincial proposal if either Ontario or Quebec disagree. In other words, we have to have either Ontario or Quebec before there will be a provincial alternative to the federal proposal.
Now, the second thing is, is that if there isn’t any unanimous consent between the provinces and the Federal Government, then there will be a referendum because at times I think some people have been under the assumption that there might not be a referendum. What we see here in Section 38(3) that a referendum shall be held. It is very, very clear in the wording.
The other thing I wanted to point out here is that, and perhaps I can get confirmation from that from the Minister.
Mr. Chrétien: There will be a referendum and we are willing to discuss it.
Mr. Nystrom: There will be a referendum. I move on then to Section 38(3)(a).
Now, Section 38(3)(a) talks about the Federal option if there is a referendum. Do not forget we can have a provincial option if the things I have already met are agreed to you will have a provincial option but as a federal option, most people have said that the federal option will be the modified Victoria Formula. We talked about this last night.
I want to quote Section 38(3)(a), it says that paragraph 41(1)(b), which is the modified Victoria Formula:
. . . or any alternative thereto proposed by the government of Canada . . .
Can be the federal option in a referendum. So, what the government is saying to us here is that there may be a national referendum to choose our amending formula, at which time Canadians can choose between a provincial option and a federal option. But we may not have any idea whatsoever what that federal option may be. The federal government within the next two years can submit any proposal they wish.
I would like to ask the Minister how he can expect this Committee to pass a clause like this when they do not have any idea what the Government of Canada might be putting before the Canadian peole as an alternative, as an option in a referendum campaign. How can we buy a pig in a poke.
Mr. Chrétien: You know, we, the Parliament of Canada, will have to adopt the new amending formula. What we wanted to achieve there is, suppose that the Provinces in the next two years are proposing an amending formula. We realize after that, after they have come with the modification of the Victoria that, you know, to leave some room at that moment to even improve on the provincial amending formula that we do not know now what it will be. We do not know, They can come with an amending formula within two years that could lead us to feel that we should have a new one to offer the federal alternative to offer to the people that is different than the ones we are having today, after we have seen the one coming from the provinces.
It is just to make sure that there is more flexibility in order to find the best solution.
Mr. Nystrom: That gives the Federal Government more flexibility and I stress Government, not Parliament, but that does not give the provinces more flexibility. They cannot come back and make a counter offer to the Federal Parliament.
Mr. Chrétien: But they have two years to make up their minds. We have put Victoria on the table as our desirable proposition at this time. They will come with their own amending formula and after that we can adjust our formula, our federal formula because we are obliged to have a referendum at that time.
Mr. Nystrom: But again you are asking Parliament to pass a resolution to endorse the possibility of a national referendum on an amending formula when we do not even know what the possible federal option is going to be.
But if I go further on, Mr. Minister, and go on to Section 39 we see that if there is going to be a national referendum that that national referendum will be, and I will read here. It will be
“approved by a majority of the persons voting at the referendum.
A majority of Canadians will choose what our amending formula will be.
I know of many, many organizations and we have changed the Constitutions in most organizations, one needs more than a simple majority. Why are you going with the simple majority in this case?
Mr. Chrétien: It is because that day there will be two formulae and it will need amending formula. So, we have to choose one or the other because suppose that you say you are sure there will be a simple majority, if you put two thirds and one thirds, you can end up with no amending formula at all. That will be a pretty disastrous situation for Canada. It will be an absolute inflexibility, so that is why in that circumstance we have to make sure that there is a decision.
Mr. Nystrom: Later on, Mr. Minister, we get to Part 5, where you do not use the simple majority, you use the double majority, a national majority, plus a regional majority. I want to say to you though. as a Westerner, and say to you as someone who comes from a small province, that I think it is very dangerous when you confuse the amending formula by a simple majority.
Just look at some of the possible breakdowns. For example, Ontario is about 36 per cent of this country and if you had an 80 per cent “Yes” vote in Ontario and if you had a 35 per cent “Yes” vote in each of the other nine provinces, that amending formula would carry. It would carry on the basis of support of the people from one province with 65 per cent of Canadians in each and every other province voting “No”, and we would have an amending formula binding on the Canadian people for time immemorial. I ask you, how can you justify that?
Mr. Chrétien: At that moment there would be two formulas, one proposed by the province and one proposed by the national government. This will come after a period of two years where
the provinces will try to present and to agree on a provincial amending formula.
There would be after that a debate in the national parliament about the federal amending formula. After that, you have to have eventually in a constitution an amending formula, so we have to go with the majority of the people.
Of course suppose that 60% of all of the population in Canada were in one province, and 60% of the population of Canada should not have the right through the weight of the population, I am not afraid in a situation like that. It is one vote after a long debate where the provinces have had the chance to have their own formula with all the debate that will occur in every provincial legislature and after that there will be a debate for the federal proposition in the national Parliament and after that the people of Canada will have the chance to decide.
Mr. Nystrom: Then, later on, Mr. Minister, under Part 5 you are rejecting that whole theory. What you are saying is that a simple majority is not good enough.
Mr. Chrétien: The amending formula.
Mr. Nystrom: What you were saying later on, Mr. Minister, when it comes to a constitutional amendment, a simple majority is not good enough. We need regional majorities. I am saying, why not apply the same rule for the amending formula? It is a very basic thing, Mr. Minister. If we cannot come to more of a consensus than the one that you have described, then perhaps it is not the right amending formula.
We are in a situation now where one province could say overwhelmingly “Yes” to the amending formula; the other provinces can say overwhelmingly “No” and still we have an amending formula. I maintain that that is not right.
You could have all kinds of other splits. You could have the four Western provinces voting overwhelmingly “No”, Central Canada voting overwhelmingly “Yes”. You could have another conscription scenario where French Canada votes overwhelmingly “No” and English Canada votes overwhelmingly “Yes”. I say that is dangerous. How can you justify on one hand using a simple majority to choose the amending formula which has been the most contentious thing for many, many years, when later on we are using double majorities to select constitutional amendments.
Mr. Chrétien: But I explained to you that we need in the constitution an amending formula. If you do not have any amending formula you are jammed forever.
Mr. Nystrom: But should we not use a consensus, Mr. Minister, to find an amending formula? What good is that amending formula if 49 per cent of the Canadian people are saying: No, it is the wrong one, or conceivably, 49.9 per cent are saying “No”. Is that not a bad start to a new Canada?
Mr. Chrétien: It is democracy. If you are arguing that we should have a double majority I would like you to answer that problem. Suppose that 51 per cent of the population wants one amending formula, but on the double, the majority, there is
one section of Canada that do not want it, the vote is taken across the land, the majority of the people want Formula A, but it is blocked by one area.
The day after, you do not have any amending formula at all. You don’t have any amending formula and there is no way to get out of that situation. That is why we felt that on that one occasion a simple majority is absolutely necessary, but if you have a better solution than that, fine, but we cannot be in a position one day where we do not have any amending formula. It will be an impossible constitutional position for a country to be in.
Mr. Nystrom: You can always go back and try again, Mr. Minister, if only 51 per cent of the people are saying “No”.
The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom, your time is up, sorry.
Mr. Duclos, followed by Senator Flynn, with the consent of the Committee. Do I have the consent?
Mr. McGrath: It would be a pleasure. Make it good, Louis.
Mr. Duclos: Thank you, Mr. Chairman, for allowing me to question the Minister. I would like to go back to the question of language rights and, more particularly, to Section 23.
I know that a lot of members of Parliament and senators are trying to improve Section 23; an amendment might be moved by the member for Sainte-Marie, Mr. Malépart, which would result in reducing significantly the scope of this section and which would substitute a Canada clause to this so-called Quebec clause. In other words, this amendment would allow English-speaking Canadians to go to Quebec and send their children in English schools.
In spite of all these efforts to improve Section 23, I think that this section still imposes a very serious limitation to the constitutional powers of the provinces as far as the languages of instruction and education are concerned.
As to Bill 101 in Quebec, the question is not whether or not it is lacking in generosity towards the English-speaking minority in this province. I even think it would be important that the National Assembly in Quebec amend Bill 101 in order, for example, to allow English-speaking Canadians from outside Quebec to go to this province and send their children in French schools. By the same token, I would favour a measure allowing any English-speaking immigrant in Quebec to send his children to English school. I would even go further than Section 23, which provides that only citizens can do so, and we all know that it takes three years to become a Canadian citizen. In that case, I would favour, in the same way as it is favoured by the Livre Beige of the Quebec Liberal Party, a measure that would allow an English-speaking immigrant in Quebec to send his children to an English school, but this must be adopted by the National Assembly in Quebec.
At the present time, as it was said by the Minister of Justice, this concern is rather theoretical since more English-speaking Canadians leave Quebec than enter this province.
As far as entrenchment is concerned, my concern is that this word, “to entrench”, means to cast into cement, our future being determined forever, beyond remedy. It is obvious, Mr. Chairman, that, once this right is entrenched in the constitution, even if the situation is different in ten, 15 or 20 years, even if Quebec were to become in 1995 the next Alberta. A big oil discovery could always be made in the Gulf of St. Lawrence, for example, or the Abitibi gold mines might suddenly become very important. This might result in a wave of immigration to Quebec from English Canada and from Commonwealth countries and such immigrants could demand the right to have their children educated in English.
Mr. Chairman, it seems elementary to me to have such changes made through the legislation of the National Assembly of Quebec or other provincial legislatures rather than taking such irremediable action as is being proposed. It will be pointed out, of course, that there is an amending formula. I find it rather hard to imagine that Ontario, with its veto right, would allow, 15 or 20 years from now, an amendment to the constitution which would have the effect of restricting the English minority rights in Quebec.
It seems to me, Mr. Chairman, that the art of governing consists of taking measures beforehand and I think it would be a very serious mistake to entrench a given situation or to cast it in bronze, so to speak.
In any event, I would like to ask the Minister a few questions on this point. Since it appears that there is little hope that the government will change its position on this matter, though I personally see the only logical solution as being the removal of Clause 23, I would like to ask the Minister if the government would be willing to entrench provincial rights in the selection of immigrants, particularly in the case of Quebec.
This would be a stopgap measure or a last resort but it would nonetheless enable Quebec to protect itself. I am talking about the entrenchment in the draft resolution of Quebec’s rights to select immigrants.
I have another question for the Minister. Why did you not wait until after patriation?
Let us assume that patriation is successfully accomplished, even if it has to be done unilaterally, why did you not prefer to wait until the constitution was patriated and then make the changes in Canada so that the Canadian courts could make rulings. As it is now, we are literally hiding behind the skirts of the British Parliament since we know that no Canadian court, not even the Supreme Court of Canada, will contest a piece of legislation passed by the British Parliament.
I think that it is elementary for such changes to be agreed upon by Canadians rather than resorting to a pilgrimage to London.
For my third question, I would like to ask the Minister if the provision in Clause 23 is only for the setting up of French classes in English schools outside of Quebec or whether it also allows French speakers to have their own homogeneous school board, as is being demanded here in the Ottawa area. I think that this is an important distinction because when there are only some French classes in an English speaking environment, this may be quaint but the results are not very convincing, it is just another way of bringing about assimilation.
My last question, Mr. Chairman, is related to the use of French and English in the courts and the provincial legislatures.
In line with the same reasoning, that is the importance of entrenching rights so that provincial legislatures cannot tamper with them, and in keeping with the principle of equality between French and English speakers in Canada, I would like to know why the government did not follow up on its own proposal contained in the document made public on July 4, 1980.
Under this principle of equality, what is good for English speakers in Quebec should be good for French speakers outside of Quebec.
It therefore seems important to me not only to bind Quebec and Manitoba as a result of the Supreme Court’s decision of last December, but also to make Section 133 apply to Ontario and New Brunswick.
Mr. Minister, let me point out, in conclusion, that in this document of July 4, you go further when you say, in Section 11.2:
Any person is entitled to take part in the debates of the provincial legislatures in French or in English . . .
This right is extended to all Canadian provinces. I am not asking you to go as far as this, I congratulate you if you do, but I would like to know why the principle of equality remains theoretical and has no practical result in this case. Why is this not possible? I heard you say that you do not want to impose such an obligation on the provinces.
When it is Ontario, you do not want to impose the right to use French, you refuse to entrench in the Constitution the right of French Canadians and English Canadians to use French or English before the courts and in the provincial legislature of Ontario, but when it is Quebec which is in disagreement with the scope of Clause 23 which would require an amendment to Bill 101, then you have no qualms about making such an imposition.
I would like the Minister to shed some light on these matters. Thank you.
Mr. Chrétien: As far as Clause 23 goes, we have attempted to make the Quebec clause the Canada clause, through reference to the person’s mother tongue and we are also seeking to protect, once and for all, the education rights of francohones outside of Quebec.
The aim of this initiative is to provide francophones outside of Quebec with approximately the same rights as the anglophones in Quebec enjoy, or once enjoyed.
I think that the effect of Clause 23 will be much greater on the English provinces than on Quebec since this clause is an almost word-for-word reproduction of Mr. Lévesque’s proposal at the New Brunswick conference in 1977 and at the Quebec conference in 1978 when he made his suggestion for reciprocity.
We are simply including this proposal in the Constitution and it does not require much from Quebec. Quebecers boast about the good treatment given to the English minority and, the better the Constitution treats the English minority in Quebec, the better the situation will be for French speakers outside of Quebec who have no constitutional right at the present time, If we were to wait for patriation and then rely on the goodwill of the provincial governments, I think that the protection of French education outside of Quebec would be something (inaudible). It is easy to talk about this in theory but I was involved in practical discussions for three months and it was “strike one, strike two, strike three”. So it is certainly better to proceed in this way.
You mentioned immigration and the possibility for Quebec to choose its own immigrants. At the present time, immigration is an area of joint federal-provincial jurisdiction and, as a result, of an agreement between the federal and provincial governments, the provincial government now takes part in the selection of immigrants wanting to settle in Quebec. I think that this system is working quite well. I cannot see why you want to give total control over immigration to the provincial governments. This could have far-reaching consequences for the mobility of Canadians and Canadian citizenship. This matter was not discussed. This is the first time that I have been asked to hand over complete responsibility for immigration to the provincial governments, this is the first time I have heard such a suggestion.
Mr. Duclos: (inaudible).
Mr. Chrétien: That is what you said about entrenching the rights.
Mr. Duclos: I was talking about selection.
This is not the same thing as the admission of immigrants. All you have to do is take the present agreement and include it in the Constitution.
Mr. Chrétien: It actually amounts to handing over complete control of immigration to the province. I am not saying I am for or against this, just that this is the first time the matter has been raised. I am ready. However this will not settle the problem of Clause 23 as it is perceived in Quebec at the present time. You are saying that there should not be much intervention on our part but that in relation to school boards outside of Quebec, we should decide what type of school boards there should be or make a provision to require the setting up of French school boards under the constitution rather than under provincial legislation. This would mean massive federal interference with education in the English provinces and would probably entail the same type of interference with education in Quebec since we could hardly act one way in the rest of Canada without doing so in Quebec. As for Section 133—I am attempting to answer your four questions as quickly as possible—let me repeat that it was never our intention to impose Section 133. When we prepared the document for this summer, as I already informed the committee, we were under the impression that New Brunswick and Ontario were willing to go along with Section 133. The government always thought this was an opting in possibility for the provinces since we did not intend to impose the obligation. In Quebec and Manitoba, it is a matter of acquired rights and we want to go forward rather than backwards. New Brunswick is now willing to come under Section 133 and I congratulate it on its decision. I am disappointed in Ontario’s refusal, I worked very hard on this during the summer and at one point, I thought Ontario was about to opt in. We eventually prepared our document under the assumption that Ontario would do so since it had raised this possibility. At one time a five year timetable was even mentioned. I was disappointed to hear the refusal at the conference. But I did not want any massive federal intervention in an area of provincial jurisdiction, or at least this was the desire of the government which I represent. Mr. Nystrom said he was ready to make a motion.
If the committee goes along with this point of view, I will advise the government. However the federal government did not make any deal with Mr., Davis or anyone else. We simply suggested . . .
Some hon. Members: No, no.
Mr. Chrétien: No, we simply suggested, I am being quite frank with you, we simply mentioned our hope that all provinces would accept Section 133.
Only two provinces indicated their interest, New Brunswick and Ontario. There was absolutely no interest from the other provinces, perhaps with the exception of Saskatchewan. When the September conference came, Mr. Davis refused.
It was never our intention to impose this but throughout the summer we thought there was a possibility. New Brunswick is going to opt in.
Some hon. Members: (inaudible)
Mr. Chrétien: No, no. Under the constitutional amendment, a resolution of the House of Commons along with a resolution of the legislature of New Brunswick would bring Section 133 into effect in this province. The constitution will allow any future opting in by a province. This is now a possibility. New Brunswick is already availing itself of this opportunity and if Mr. Nystrom would like to persuade Mr. Blakeney to join New Brunswick, I would be very pleased.
Personally, I am not willing to impose my wishes on the provinces but if you have more courage than I, please go ahead.
The Joint Chairman (Senator Hays): Thank you very much Mr. Minister. We have Senator Flynn, with the consent of the Committee followed by Mr. Gauthier with consent of the Committee. Do I have your consent?
Mr. Nystrom: On a point of order, Mr. Chairman.
The Joint Chairman (Senator Hays): Yes.
Mr. Nystrom: The Minister referred to myself and to a possible amendment, and I do not think he tried to mislead the Committee intentionally, he referred to the fact that a deal was not made with Mr. Davis but I have here before me a copy of a leaflet distributed by the Conservative Party for a by-election here in Ottawa and it says, and I quote, in confirming a deal, it says that the Conservative Party has caused the federal government to back away from a blanket bilingual policy in favour of Ontario’s existing policy of providing french language services where numbers warrant.
In other words, confirmation of a deal by Mr. Davis that he has made with Mr. Trudeau. I do not think the Minister intentionally tried to mislead the Committee but I thought the Committee would appreciate knowing the facts.
Mr. Chrétien: I think that I would like to clarify that. This statement is untrue because it was never the intention of the national government to impose it, it was always the desire of the federal government that the province of Ontario would accept 133, and this gentleman says that Mr. Davis did not want to bind himself but not through a deal with us because we always left them the freedom of joining or not joining, This is the position I have taken.
I am disappointed that they have not decided to go along with what was a good idea.
The Joint Chairman (Senator Hays): Senator Flynn.
Senator Flynn: Mr. Chairman, I would like to thank you and the members of the committee for giving me this opportunity to ask the minister some questions.
Let me say, as an opening comment, that the minister is willing to impose on some provinces certain obligations which he does not want to impose on others. I would like to begin with a remark made by the minister in reply to Senator Connolly’s question yesterday about the Supreme Court deci-
sion on the proposed change of the Senate as contained in Bill C-60.
The minister said that the Supreme Court told him to go to London. I would like him to make quite clear that the Supreme Court did not tell him to go to London unilaterally.
Mr. Chrétien: The Supreme Court did not say that one, two, three, ten or eleven should go. The Supreme Court stated that 91.l did not allow the federal government alone to amend the constitution in Canada.
Senator Flynn: Exactly. In Canada.
Mr. Chrétien: If we wanted to change the Senate, it was necessary to obtain legislation from London rather than enacting our own. Obviously, if we want British legislation, we have to go to Britain.
Senator Flynn: You go on to say that any joint resolution from the Senate and the House of Commons presented to Westminster must be automatically approved. This was your reply on several occasions.
Mr. Chrétien: I have said that it is Britain’s tradition in its relations with Canada, to accept a resolution of the House of Commons and the Senate as it is presented. This tradition has been followed from the beginning. But I have always said that British parliamentarians are responsible for their legislation and they can decide whatever they want. They may decide not to follow the tradition if they want.
Senator Flynn: In any case. . .
Mr. Chrétien: It is not a rule of law for them, but a tradition.
Senator Flynn: I like to hear you admit that Westminster is not required to be just a rubber stamp.
Mr. Chrétien: Yes, Westminster can legally decide to refuse our requests, but our conversations with the British government and opposition parties have assured us that Westminster has no intention of doing anything other than accepting the Canadian Parliament’s resolution.
Senator Flynn: Mr. Minister, do you acknowledge that when the Westminster Treaty provided that Westminster would retain jurisdiction over changes to the Canadian constitution, this was done at the request of Canada and not at the request of the British Parliament?
Do you recognize this?
Mr. Chrétien: Yes.
Senator Flynn: Do you also realize that this responsibility was left with Westminster at the request of the provinces, particularly Quebec, Ontario. . .
Mr. Chrétien: At the request of Canada.
Senator Flynn: Yes, but because of Premiers Taschereau and Fergusson. It might not be mentioned in the text but, in any case, let us turn to the 1949 amendment which does provide for the possibility of the Canadian Parliament amending the constitution in all matters except those which are under provincial jurisdiction and which may be of interest to provin-
cial legislatures and governments. You do recognize that Westminster’s role is limited to concerns which might cause a confrontation between the federal and provincial governments. All this is to be found in the constitution and the words mean something.
Mr. Chrétien: Legally speaking, in order to amend the constitution in matters affecting both the provinces and the federal government, it is necessary to obtain London’s approval.
Senator Flynn: Yes, but . . .
Mr. Chrétien: This is what we are doing.
Senator Flynn: But in accepting this responsibility, London was to take into account that any decision which it might make involved matters affecting both levels of government.
Do you agree with that?
Mr. Chrétien: I do not quite understand what you are saying. I do know that the surest way of amending the Canadian constitution in case of doubt is to obtain the approval of the British parliament which has retained control over the amendment of our constitution.
Senator Flynn: Only in part. Only in areas which involve the provinces.
Mr. Chrétien: No, in areas involving both levels of government.
Senator Flynn: Both levels of government, if you will, as well as the provinces.
Mr. Chrétien: We thought that the Senate could be amended . . .
Senator Flynn: I am not talking about the Senate now.
Mr. Chrétien: No, but I am explaining what happened in the case of Bill C-60 which went before the courts.
The Canadian government was of the opinion that the Senate was a federal institution and that it could be amended by the federal government under Section 91.1.
Senator Flynn: Yes, but . . .
Mr. Chrétien: The Supreme Court decided that the federal government alone could not make such an amendment and that if we wanted to change the Senate, we would have to go to London.
Senator Flynn: Yes, I agree with that.
But what I am saying is that Westminster’s jurisdiction is now limited to matters involving both levels of government.
Mr. Chrétien: No.
Senator Flynn: Yes. They have . . .
Mr. Chrétien: We shall see.
Senator Flynn: Is this not the provision of subsection 1 of Section 91?
Mr. Chrétien: I think that the authority of the British Parliament to amend the Canadian constitution. . .
Senator Flynn: Is limited to what is provided for in Section 91.
Mr. Chrétien: However, there is the Canadian government or the Canadian Parliament, or the provincial governments, within this amending power in London, which obtained the power to amend their own internal constitution in Canada.
Senator Flynn: Who? The provinces? They have always had it.
Mr. Chrétien: They have always had it and they still do. It still isn’t federal.
Senator Flynn: It is not through an amendment to Section 91. But, in any event, Section 91 speaks for itself. Are you able to tell me of a single precedent since 1949 where Westminster amended the constitution without any provincial participation?
Mr. Chrétien: I could not say.
Senator Flynn: Well I can.
Mr. Chrétien: I could not say exactly. I will check the year but I know that there have been several amendments since the beginning that. . .
Senator Flynn: No, I mean from 1949 on.
Mr. Chrétien: I do not have the answer right now. I do not know whether these constitutional amendments allowing Newfoundland to become part of Canada were made before 1949 . . .
Senator Flynn: Yes, they were.
Mr. Chrétien: In that particular case, the Federal Government’s action was absolutely unilateral.
Senator Flynn: But it was before. Since 1949 there have been two amendments.
Mr. Chrétien: Since then there have been . . .
Senator Flynn: Old Age Pensions and the retirement age for judges, and in both cases all the legislatures indicated their approval.
Mr. Chrétien: So much the better!
Senator Flynn: Does this not make you realize that you could be mistaken once again? You made a mistake last year when you thought that you could change the Senate and there is nothing to prove that it will not happen again.
Mr. Chrétien: We went before the Supreme Court because of the interpretation of Section 91.1. We know full well that an amendment to the Canadian Constitution requires London’s approval and that it is completely within the British Parliament’s power to dispose of our resolution as it wishes. We recognize that it has the legal right to do what it wants.
We do know, however, that the British Parliament will accept a joint resolution of the Senate and the House of Commons and will pass the legislation. This is what we were told by Mrs. Thatcher’s government as well as by the Opposition Leader.
Senator Flynn: In that case, they are acting once again as arbiters or trustees for Canada and you are claiming that in such a position the British Parliament is above Canadian law in Canadian courts. That is your claim.
Mr. Chrétien: London is acting under the parliamentary authority conferred on it by the British North America Act which is British legislation.
Senator Flynn: Yes, but the 1949 amendment was requested by the Canadian Parliament. London was asked to keep this responsibility in trust. In accepting to do so, do you not think that the Parliament was putting itself under Canadian laws and Canadian courts?
Mr. Chrétien: I am saying that the authority to amend the Constitution was entrusted with the British Parliament and that we now intend to put an end to. . .
Senator Flynn: It was requested.
Mr. Chrétien: This anachronism by patriating our Constitution and providing for a Canadian amending formula.
Senator Flynn: The British Parliament was asked to keep this responsibility which was also a burden . . .
Mr. Chrétien: But it was up to us not to make such a request.
Senator Flynn: It was also up to them not to accept. . .
Mr. Chrétien: If they accepted, it was because they were asked. What do you expect? I was not around at the time. They were asked to do so and they accepted and we now find ourselves in a situation where we must go to London to amend the Canadian Constitution, We will be going there for the last time.
Senator Flynn: I maintain that London is not just a rubber stamp.
Mr. Chrétien: I agree. I have never said that.
Senator Flynn: Fine.
Mr. Chrétien: I have never said that. I have said that, from a legal point of view, the British Parliament could theoretically decide to completely revert the Canadian Constitution from A to Z. It could decide tomorrow to accept the theory of your leader to the effect that Canada is a community of communities and can do away with the Federal Government.
Senator Flynn: It is a good joke but it is not very serious.
Mr. Chrétien: It is quite serious since this was a platform in an election campaign and was rejected by the Canadian population.
Senator Asselin: Just like abolishing the monarchy!
Senator Flynn: You could have set up a military state, judging by what you were saying.
Mr. Chrétien: I realize that they have absolute authority and that is why we are going to London for the last time. We
will them be able to solve our own problems here in Canada with an amending formula.
The Joint Chairman (Senator Hays): Thank you.
Mr. Gauthier, followed by Mr. McGrath.
Mr. Gauthier: Thank you, Mr. Chairman.
I thank the members of the committee for allowing me to question the witness.
Mr. Minister, I would like to come back to Section 23. You are undoubtedly aware, Mr. Minister, that minority groups, particularly Francophones and beforehand native people, have also used the expression “collective rights”. You are aware of this expression which has become popular today and for which there is no jurisprudence. At least, I do not think there is. Your advisors may be able to find an exact definition for the term, and if so, I would appreciate it, but to date I have not found one.
Is a collective right one which, as stated by Pepin-Robarts, applies to someone belonging to a group, like a union with the right to strike? Does the right only apply to a person affiliated to a union or. for example, to the separate school system as provided under Section 93 of the constitution. That section states that the right to belong to a separate school system, Catholic or Protestant in the case of a province like Ontario, constitutes a collective right. Actually, history demonstrates that separate schools in Ontario were Protestant at the biginning.
In any case, Mr. Minister, Section 23 gives me the right to education in my language but circumstances that right in two ways. First, it modifies the number of children considered sufficient which, in my opinion, violates a collective right to a certain extent. However, I would like to examine that question with you. Secondly, I would like to deal with the question raised by Mr. Duclos earlier concerning education facilities or services provided for under Section 23 and the possibility of groups managing their own institution in the provinces where they are a minority.
Mr. Minister, does the phrase “in which the number of children of such citizens is sufficient” not weaken a fundamental right to education in one’s own language in Canada?
Mr. Chrétien: Under Section 23, we are trying to guarantee the individuals the right to be educated in their mother tongue: English in Quebec and French outside Quebec. The section gives individuals that right; now, the clause states “in which the number of children of such citizens is sufficient” because those were the terms used in the Montreal agreement and which were upheld by the courts in their application of the law.
I believe that under this section, what you refer to as collective rights, the right to a separate school board . . .
Mr. Gauthier: Or even the right to education, because if a minimum number is established to warrant the provision of
minority language education, then that becomes a right which I would not otherwise have as an individual.
Mr. Chrétien: We are stating here that there are certain limits as to the way in which public funds are spent. I cited the somewhat extreme example of a family in Saint-Mathieu-du-Lac-Bellemare or in Saint-Mathieu-du-Parc in my riding who would like to have an English School in the village. Of course, they would be told that it was unthinkable. In cases like that, the Quebec government would take the necessary steps to transport the children of that family to school.
So, it is in that spirit which we have retained the expression “in which the number of children of such citizens is sufficient” in order to justify the expenditure.
Mr. Gauthier: The determination of what constitutes a sufficient number is a political decision which would be made by provincial authorities and delegated to regional councils or to school boards, The region could then be redefined to increase or decrease the number of children involved and decisions of that type depend on the goodwill of regional authorities.
So, Mr. Minister, I say to you that you would thereby be infringing upon my right to education, a basic right, by making it a collective one and by modifying the number of children who want minority language educational facilities, You have spoken about people in Quebec. However, even if a group of 3 French-speaking families, Canadian citizens, in Almonte, Ontario, wanted a French school and had the sufficient number of pupils to justify one classroom and the English-speaking Canadian citizens in the village supported that school, they would be unable to support the request because they are not considered, as stated in your Section 23:
“Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority. . . ”
They could not, with all their goodwill, help the Francophones to obtain that school. It is going to be very difficult politically to apply that section.
Mr. Chrétien: If, as you say, the majority in the community is in agreement, French-speaking educational facilities could still not be provided?
Mr. Gauthier: No, the request could not be supported.
Mr. Chrétien: The English-speaking majority could not support the request? Yes, they could; nothing would stop them. Who would have the final say in that?
Mr. Gauthier: The local school board.
Think of Penetang, Mr. Minister.
Mr. Chrétien: In Penetang, the French-speaking minority had the right to education in French, but not to a building exclusively for them. That was the problem. That would be a problem in the case you cite as well. However, under Section 23, I say to you that the right to French language education would be a constitutional right and the criteria applied by regional school boards or by the provincial government would be monitored by the courts. If the provincial governments or
school boards refused to respect that right or used standards judged to be ridiculous by individuals, the people concerned could take the question to court which they would be unable to do at the moment.
You ask what criteria the courts would use in their decisions? They would use the same criteria which apply elsewhere in Canada. What would you expect? They will see what the situation is with minority language groups in Quebec as well as in New Brunswick.
Mr. Gauthier: You stated that yesterday and I understood you quite clearly then. My problem is the phrase “in which the number of children of such citizens is sufficient”. That is completely unacceptable to me at this time. Also, you restrict people to the primary and secondary school level, What happens when students reach the post-secondary or vocational level? Would I not have the right to receive vocational or post-secondary education in my own language?
Mr. Chrétien: We believe that including primary and secondary school instruction . . .
Mr. Gauthier: Why do you not remove that condition?
Mr. Chrétien: We are establishing a minimum here. Nothing stops the provincial governments from giving you more than that once you have reached the secondary or post-secondary level. In the case of Ontario, for example, over time universities have become more French speaking than they were beforehand. Nonetheless, there are still a few problems.
Mr. Gauthier: There is a striking example here in Ottawa where 9 students in a faculty do not warrant offering courses in French. The minimum number required is 10. Mr. Minister, that becomes a question of national interest and if the federal government has any say at all, it should at least support institutions attempting to offer courses . . .
Mr. Chrétien: You are asking for increased intervention on our part. I do not blame you for having asked. What Hatters me is that we have been accused of employing dictatorial methods in this area and now you and others are telling me that we have not gone far enough. At least, that has been the criticism recently in Canada.
Mr. Gauthier: No. Mr. Minister, you will agree that education is of national interest. I realize that the provinces have jurisdiction over it, but I do not agree with Mr. Duclos who states that it is the exclusive right of the provinces.
Mr. Chrétien: You understand that there are some provinces who are against our intervention while you insist that we intervene even more.
Mr. Gauthier: Yes. That is, I would like you to remove that phrase respecting primary and secondary instruction which leaves to the discretion of the provinces the choice of language of instruction at the post-secondary level.
Mr. Chrétien: Let the committee study the problem and make recommendations in that area and I will see what the government can do.
Mr. Gauthier: Also, I would request that you remove the stipulation requiring that a given number of children warrant the provision of minority language educational facilities because that, in combination with the provision relating to primary and secondary school instruction will mean that English-speaking people in Quebec will be prevented from going on to receive post-secondary instruction in their language. The fact that the levels of instruction are clearly stated in the constitution will serve as an argument in Ontario, or elsewhere in Canada. That situation is going to pose some difficulties. Once again, I maintain that the phrase “in which the number of children of such citizens is sufficient” in my opinion undermines the collective right to education in ones mother tongue throughout Canada.
Mr. Chrétien: Obviously, you are free to disagree. It was our intention to draft as uncontroversial a proposal as was possible and to this end, we used the terms of the reciprocity agreement proposed by Mr. Levesque in Montreal in 1978, which reads as follows:
Each child of French speaking minority is entitled to an education in his or her language in the primary and secondary schools in each province wherever numbers warrant.
Mr. Nystrom: Read the second part; read the second part.
Mr. Chrétien: Yes, I know. The second part, I just said it is exactly the same term. You know, they wanted to keep it . . .
Mr. Nystrom: Read it, read it.
Mr. Chrétien: Well, I will read it, there is no problem. You know, I will read it, but it is why, because nothing was being done on that that we decided to act federally and Mr. Gauthier and others say that we are not going far enough.
It is understood, due to excluded jurisdiction of provincial government in the field of education and due also to the wide geographical and demographic differences that the implementation of the foregoing principle will be as defined by each province.
In fact, you know, nothing was happening, so, that is why we had to move.
The Joint Chairman (Senator Hays): Mr. Gauthier?
Mr. Gauthier: So, in that case, Mr. Minister . . .
An hon. Member: Thank you very much.
Mr. Gauthier: Mr. Minister. . .
Sir, I would like to come back to Section 2 of the proposed resolution as it affects the Official Languages Act. You are certainly aware that for some years now I have been making amendments regularly through hills which I have table in the House to correct certain anomalies. For example, the Railway Act states that announcements must be made in French as well as in English in the Province of Quebec but only in English outside that province. That is a ludicrous provision, given the
present state of affairs and the general disposition of Canadians now to alter that kind of situation. The Bank Act, The Bankruptcy Act, the Railway Act and even the Official Languages Act, among others, all contain anomalies in some places.
Could you give us the assurance that all these laws will be corrected when this constitutional resolution has been passed? Will all these linguistic irregularities be removed so that Canadians…
Mr. Chrétien: Entrenching bilingualism in the constitution will force changes in these pieces of legislation.
Mr. Gauthier: You think so.
Mr. Chrétien: I do.
Mr. Gauthier: You are not sure.
Mr. Chrétien: I think so.
Mr. Gauthier: Will the Official Languages Act he entrenched in the constitution?
Mr. Chrétien: The Official Languages Act will remain as such, but . . .
Mr. Gauthier: I do not want it to remain a statute, I want it to be in the constitution.
Mr. Chrétien: I believe both official languages are being entrenched in the constitution through this charter.
Mr. Gauthier: You are assuring me of that.
Mr. Chrétien: Yes, I am.
Mr. Gauthier: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Gauthier. Mr. McGrath, followed by Mr. Goldenberg.
Mr. McGrath: Thank you very much, Mr. Chairman.
There is a small area in the Bill here that causes me some concern because I am just wondering why you found it necessary to put it in there and I refer to Schedule I of the Bill on page 18, Item 16. What you are doing in Item 16 of Schedule I is, you are asking for an amendment to the Statute of Westminster which would exclude Newfoundland as one of the designated dominions.
Now, of course, I realize we are no longer a dominion we are a province of Canada, but the input . . .
Mr. Fraser: We do not know where you are. We do not know where you are, what page?
Mr. McGrath: On page 18.
The input of my question, Mr. Minister, is this: that Newfoundland is basing its claim to jurisdiction of off-shore mineral resources on the fact that it entered into the union with Canada as a dominion with its sovereignty over the offshore intact.
Now, one can only come to one conclusion as to why you have taken the trouble to ask for an amendment to the Statute of Westminster to exclude Newfoundland and that is to virtually eliminate or to undermine Newfoundland’s claim. Otherwise, how can you explain why you would take the trouble
because it is just a historical fact that Newfoundland was one of the five dominions designated under the Statute of Westminster in 1931. You cannot change history, even by statute.
Mr. Chrétien: I would ask Mr. Strayer to explain to you why we have to do that.
Mr. McGrath: Page 18 of the Schedule.
Mr. Strayer: Mr. Chairman, the reason that that is done is simply to tidy up the Statute of Westminster. It does not have any effect on the law whatsoever. In fact, in the terms of Union of 1949 it was said that it was provided that the Statute of Westminster thereafter should apply to Newfoundland like it would apply to any other province of Canada, The problem simply was that in the Statute of Westminster, Newfoundland is referred to as a dominion because in 1931 it was a dominion. But the terms of Union of 1949 make it clear that Newfoundland is not a dominion, is not to be treated as a dominion under the Statute ‘of Westminster any more. The only purpose of this repeal is to remove the references which obviously are now irrelevant, the references in the Statute of Westminster to Newfoundland as a dominion.
The amendments can only have perspective affect. They cannot conceivably have any retrospective affect, therefore, if Newfoundland’s concern is about the possible affect this would have on their status at the time when they came into Confederation in 1949, legally, it cannot have any affect on that.
I should also mention that this precise amendment was also in the Victoria Charter in 1971 and I do not recall any problems having been raised about it at that time.
Mr. McGrath: Well, I am raising it now because I see no reason for it. You are merely trying to change the historical fact. For example, the Statute of Westminster still designates dominions, such as Ireland, the Union of South Africa.
It would seem to me that you must have a much stronger reason for doing this. I will not pursue it, Mr. Chairman, except that I want to make that point and I reserve the right to come back to it later on because perhaps Senator Goldenberg who was a distinguished Counsel for Newfoundland under a revision of the Terms of Union of 1958 and he may like to pick up on it when he takes the floor following me.
I would like to ask or get back, Mr. Chairman, again, to Section 42 and 47 and 41.
Is it your view that the Terms of Union, Mr., Minister, between Newfoundland and Canada are a contract that cannot be changed unilaterally by one party to the agreement?
Mr. Chrétien: Under the present formula we cannot change the aspects referred to like the borders in the denominal education system without the consent of the province.
Mr. McGrath: What is to stop you from using the provisions of the amending provisions from doing just that without the consent of the province?
Mr. Chrétien: Legally at this moment, as I said yesterday, we could go to England today with the joint resolution of the Senate and the House of Commons and ask them to change
the Term of the Union that will legally be changed if the British Parliament were to change it.
Mr. McGrath: Are you saying that you could do this legally, unilaterally?
Mr. Chrétien: We do consider that as a contract but we do not have any intention to do that, I just said that specifically legally we could do it.
Mr. McGrath: I know. There you come up with your intentions again. You see, I am not interested in your intentions because I believe they are honorable. I am interested in those who follow you. We should not concern ourselves with intention, we should concern ourselves with the law that you are asking us to draft.
Mr. Chrétien: I just say, you know, the system in which we are working today could be completely upturned by using, as we could today, as explained earlier, that we could legally ask the British Parliament to declare that there is no more Federal Parliament and no more provinces. It will not be possible politically, but legally it can be. In the future, legally, the same thing could happen, but it would be more difficult in the future than it is today because the process will involve the consent of the majority of the provinces and eventually a referendum.
Mr. McGrath: That is completely contrary, Mr. Chairman, to an assurance that Mr. St. Laurent gave Premier Smallwood in 1949 that the Federal Government could not act unilaterally to change the Terms of Union by an address to the Parliament of Westminster, unless provision were made for it and I have his exact words here. But I submit to you that that is precisely what you are doing, you are making provision to change the contractual Terms of Union between Newfoundland and Canada unilaterally by the amending provisions of this formula and, in so doing, you are making it very, very difficult for those of us who are trying to restrain the going tide of separatism, not only in Western Canada but in Newfoundland.
Mr. Tobin: For God’s sake.
Mr. Chrétien: When you read 47, we just wanted to make sure that as the like exists today, I cannot tell what the future is, the Canadian situation could be such that the system could be changed completely. As it is existing today, we are making sure that under this Act, it is protected. I cannot tell you that forever nothing can be changed. Just like I say, legally, it could be changed today too in going to Westminster. I am talking about the legal situation. You wanted to keep the situation as it is in this Act, but if you are asking me if legally is it possible in the future that something can be changed, I have to tell you that something could be changed today with the present system.
Mr. McGrath: You are saying it can be changed unilaterally by the Government of Canada by an address to Westminster?
Mr. Chrétien: If the British Parliament wanted to change the Canadian Constitution.
Mr. McGrath: Well, Mr. Chairman, I would like to get back to another line of questioning.
Again, with respect to the powers that you are assuming . . .
Mr. Chrétien: But, you know, I would like to be very clear because I say that legally it is the situation. What is politically possible is completely different. You are asking me about the legality of the situation and when I replied to the legality of the situation I just say that today we could pass a resolution of both Houses and send them to London and if you were to agree the terms could be changed, I do not think that politically it would be possible, but legally it will be possible and legally it will be still possible in the future but it would be more complicated than today.
Mr. McGrath: Without recourse to the Government of Newfoundland or the Legislature of Newfoundland you are saying that the Government of Canada unilaterally by an address could change the Terms of Union between Newfoundland and Canada of 1949?
Mr. Chrétien: I am informed that legally we could do that today.
Mr. Crombie: What, change that?
Mr. Chrétien: But I do not know if the British Parliament will be acting or not. They are the custodians of the Canadian Constitution. I am giving you the legal advice I have received.
Mr. McGrath: Well, what rights then does Newfoundland have or does any province have if this particular measure goes through?
Mr. Chrétien: Excuse me?
Mr. McGrath: What you are saying in effect is that, you know, provinces will have no rights. That is precisely what you are saying?
Mr. Chrétien: We say that under the new formula, if we want, say, to use the question of, no, the borders of the provinces cannot be changed unless the very provinces subscribe to it, that was the Constitutional Act of 1971. This Act protects the borders of any provinces including the Province of Newfoundland and in Newfoundland there is the same thing repeated in the Act of Union of Newfoundland to Canada.
I just say, if we want to change it legally today, there is the route to go to England, legally. The future, it would be more complicated because there are six. provinces would have to agree that their own border can be modified, that 1871 will be repealed.
Mr. McGrath: And 1941?
Mr. Chrétien: And you can say that it is always physically possible, but I do not think that Quebec will accept or Ontario will accept tomorrow in order to be able to move it in Newfoundland that they have no more protection in their borders and it will need, because Quebec and Ontario under the amending formula have a right of veto.
So, in order to achieve what you are afraid of, Quebec, Ontario, two Western Provinces and two Maritime or Atlantic
Provinces will have to accept that the protection they have in the Constitution through the Constitutional Act of 1871 be removed from there.
So that you can see that it is possible; but we are making it much more difficult with what we are proposing to do as compared with what now exists legally at the moment.
The Joint Chairman (Senator Hays): Thank you very much.
Senator Goldenberg, followed by Senator Tremblay.
Senator Goldenberg: Mr. Chairman, I would like to refer briefly to one or two points which have been raised particularly last night.
In the argument put foward by Mr. Epp as regards the equality or inequality of provinces because of the voting on the amending formula, he pointed to the requirement, in relation to two provinces, of 50 per cent in the Atlantic provinces, which the Minister agreed to change by making it two provinces without reference to population.
Mr. Epp asked, “Why then retain the requirement of 50 per cent for the four western provinces?”
In the case of the Atlantic provinces, I understood the Minister to say that he would agree to the proposed change because he has the approval of the other provinces, that is, of the provinces other than Prince Edward Island, and, in particular, he mentioned New Brunswick.
Mr. Chrétien: I believe Mr. Buchanan has made his views known on that and also Mr. MacLean; but, speaking in terms of Mr. Peckford, I cannot say exactly. But if we were to accept the amendment we would be going back to the Victoria formula as existed in 1871.
The point I made yesterday, and which I would like to repeat now, is that at one time in history, 11 heads of government had agreed on an amending formula. There is a historical significance to that proposition.
Senator Goldenberg: Well, the reason I am speaking is that I was an adviser at the Victoria conference, and I have a long experience in that: I acted for British Columbia for the 1950 to 1951 conferences, and for Newfoundland at the 1960 to 1961, 1964 to 1965 conferences; so I know something about the origin of these matters.
My point is this. I did not notice Mr. Fraser applauding Mr. Epp when he proposed that the 50 per cent requirement be changed for the four western provinces, as it may well be for the four eastern provinces.
Mr. Fraser: On a point of order, Mr. Chairman.
The Joint Chairman (Senator Hays): Yes.
Mr. Fraser: Mr. Chairman, not only do I approve of what Mr. Epp was saying last night, but I have also made my position clear and stated it in speeches which have been made over the last several weeks. So I do not see why it should be necessary or that there is any requirement for me to get up and personally applaud anything.
Senator Goldenberg: Thank you very much. Mr. Fraser. I am very much surprised that, in the light of the background, British Columbia would agree to subject itself and Alberta to being outvoted by Manitoba and Saskatchwan.
I was going to ask the Minister whether there has been anything in the way of discussion by the four western provinces favouring a change such as is now being suggested for the Atlantic provinces.
Mr. Chrétien: No, I have not received any communication.
You know, the point I would like to make on the wishes of the provinces is that there would be two years after patriation for them to come up with an amending formula.
The position we are taking at this time is that if there is no agreement within the next two years by the provinces we have decided to take the historical formula of Victoria, and we are proposing an amendment for the Atlantic provinces and are going back (probably to what we should have done in the first instance) to the strict historical formula of Victoria.
Of course, if the provinces want some modification they will have two years in which to debate it and come up with some position.
But in reply to your question, in terms of the 51 per cent as existed in 1871, there was no representation to that effect taken up by any provinces officially to me or to the Prime Minister, so far as I know; and I am not at all aware of any private conversation between the Prime Minister and any of the western premiers.
Senator Goldenberg: The point I wish to make is this. One of the problems—and this is not anything new; but one of the great problems that we face in evolving an amending formula is to make sure that it is not so easy that amendment could be made frequently; secondly. that it be sufficiently flexible to allow amendments when they are really desired.
I certainly know that British Columbia, formerly, would have insisted on the 51 per cent for two of the four western provinces.
Now, I would be interested if the provinces were to express a view on what Mr. Epp proposes.
But I just wanted to remark also upon the argument which, I believe, Mr. Fraser raised yesterday, with respect to Section 42, the referendum, I think I am right in saying it was Mr. Fraser who remarked that the provinces cannot call for a referendum. That is correct. I can see some merit in his argument.
But I do think we should take note of the fact that under Section 45 a single province will for the first time, be given the right to introduce procedures with a view to constitutional amendment. That right has not existed up to the present time.
Finally—and I am going to take far less than ten minutes, Mr. Chairman—Mr. McGrath referred to my former status as Counsel for the Government of Newfoundland with reference to the change proposed in schedule one. I have not given the matter careful study. but in my opinion this would not affect the Newfoundland case on off-shore resources, because I do not think that this can be interpreted retroactively in such a
way as to say that Newfoundland never was a Dominion. That is my opinion, and I think I am right on that, Mr. McGrath.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you.
Do you want to comment, Mr. McGrath?
Mr. McGrath: No, thank you.
The Joint Chairman (Senator Hays): Do you have anything to say, Mr. Chrétien?
Mr. Chrétien: No, thank you.
The Joint Chairman (Senator Hays): Senator Tremblay followed by Mr. Mackasey.
Senator Tremblay: Mr. Chairman, my intervention or questions today will be a follow-up to the answer which I received last night from the minister to one of my questions. I do not have the precise texts of the proceedings before me, so I must rely on my memory, and the minister, I am sure, will correct me if I err. To my question whether the premiers of the provinces had been warned that should there be a lack of agreement, the federal government would act unilaterally, the minister answered unequivocably, I believe, that they had been warned as early as the month of June.
Mr. Chrétien: I did not attend the meeting, Mr. Tremblay, but I believe the Prime Minister clearly indicated his intentions to proceed with constitutional changes in the briefest delay, and if I remember correctly, at least that is what I gather from the reports of that conversation, he clearly indicated that even at that time, that things might be done even more quickly than in fact happened, and it was decided to take three months for intensive consultations with the provinces but we had made a commitment during the referendum period, and immediately on May 21, 22 and 23, when l toured the provinces, I myself told the provincial governments which were kind enough to welcome me—only the province of Quebec refused to see me—that quite clearly we intended to proceed with constitutional changes in the briefest delay, and I must say that the response of the prime ministers, in the week following the referendum, was most positive. Things got a little more complicated during the summer, I guess.
Senator Tremblay: Given that, I will not discuss the interpretations given of that commitment taken during the referendum to renew the federation. The reactions in Quebec seem to indicate clearly, except perhaps for the minister himself, that what is now going on, is certainly not what the Quebeckers had concluded from the referendum.
However, I would like to remind the minister that the calendar for the work of the conferences to come, and published on June 9, concluded with the note that from September 8 to 12, there would be a conference of all the first ministers, since I have only the English text at hand, I shall read in English to avoid any translation error:
To reach a conclusion on the way and to put in train a further work programme.
On reading that, I have the impression, as would have anyone, that matters were not to end on the 12th of September, and I think really that we are not conforming to the announced version, when it is declared today that at the end of the conference there was a deadlock justifying the unilateral action which is currently being taken.
Could the Minister please clarify for me this lack of agreement between what was announced in the calendar of works, and what is now going on.
Mr. Chrétien: Well, as I mentioned last night, there were 12 items on the agenda, and at the suggestion of the premiers, in line with their objective to show their determination to finalize the agreements, the text was an amendment to read: to finalize agreements, in the plural, of the agenda. In the text Mr. Trudeau had proposed, that line said to reach conclusions, and they changed that to finalize agreements. I believe it was their intention to demonstrate their determination to finalize all 12 agenda items.
Of course, if I may explain further, there were many other items not included on the agenda and which need to be discussed. We are indeed discussing many now. For instance, there are the issues of the Indians, Eskimos and Metis included in the constitution. This issue was not on the agenda.
In February of 1979, the agenda was much longer than the one which was accepted in September, and even the agenda proposed to the provinces in November 1979 by Mr. Clark’s government, was longer. .
Because certain premiers wanted to be sure that discussions would not end there, it was foreseen that the 12 other items would eventually be discussed. We have every intention of discussing these other items, but we must first settle the question of national institutions, and then we can come back to the question of the sharing of powers. The Prime Minister has stated that as soon as this phase of the constitutional reform had been carried out, we would review those matters which had not been agreed upon during the month of September, and that must be settled some time, and the Prime Minister also said that as soon as this phase was completed, new constitutional conferences would be called on the distribution of powers, on the Indian issue, and on the constitution, on the national institutions, including the Supreme Court, the Senate, and many other items, which must be reviewed at the insistance of the provinces.
Senator Tremblay: Thank you, Mr. Minister, for leading up to a second question which I have concerning the specific moment when discussions on the renewal of the federation will be undertaken. If I look into the calendar included in the resolution, there are two possibilities in this respect, one optimistic, and the other pessimistic.
In the newspapers, it was mentioned that the effective date of repatriation could be the first of July, 1981, if it were possible.
From the first of July, 1981 to the first of July, 1983, the formula of unanimous consent would be in force. In view of all the rigidity of that formula, I would doubt the renewing of the federation will be moving ahead at an accelerated pace during that period.
On the other hand, I wonder if the question will even be asked during that period since the provinces will then be drafting their own amendment formula, which will be submitted to a referendum vote. In order to select through a referendum between the federal formula and the provincial formula, it is theoretically possible that the referendum would be held during the next two years, which would mean, if we follow the pessimistic assumption, that an amending formula to renew the federation would be available only on the first of July, 1985.
The fifth phase would come into effect in the six months following the results of a referendum, or the first of January 1986. Now that is the pessimistic side.
In the optimistic scenario, we might shorten the two year period expected for the referendum by a year and a half. So let us be optimistic. The referendum would then take place within six months, in which case, the earliest date for a renewal of the federation, the exercise to which you alluded, would only seriously begin on the first of July, 1984. To my mind, in view of the real need for a renewal in the country, it is only a way to put off indefinitely what is clearly set in the calendar, the content of the resolution on the renewal for the federation.
Mr. Chrétien: Are you saying that to couch it illegally in the constitution is one problem, and that to reach some form of agreement with the provinces is quite another problem?
Let us take the recognized problem which I worked on all summer, the transfer to the provincial governments of such jurisdiction with respect to family law. Only two provinces are against that transfer. According to the Victoria formula, then, we could have agreements which could be implemented the day the amendment formula comes into effect.
It does not mean that we have to stop all our work. Between the time that the agreement comes into effect legally, there could be some delay, it might be very wise for the governments to begin to work immediately on the agreements, so that as soon as the amendment formula is put into effect, these agreements could also come into effect. We have no intentions of waiting for the effective date of the amendment formula before beginning work on this matter, the delay would be too great. Perhaps the discussions we might have on specific items of the agenda, might help the provinces and the federal government to modify or to find an amendment formula closer to the reality, with respect to family law. We almost reached unanimity on the Supreme Court issue, and I am sure we could eventually come to a unanimous agreement. There are issues on which the rule of unanimity might be useful, and if there seems to be no disagreement two years after repatriation, we should have an amendment formula.
Senator Tremblay: But, Mr. Minister, earlier you said that unanimity would constitute an impass without issue. In any case. . .
You stressed it yourself. . .
Mr. Chrétien: I said I wanted something more concrete.
Senator Tremblay: It is not my problem.
Mr. Chrétien: Of course if we could all agree, it will be all to the better. There is no reason not to reach agreement, even if the formula is more flexible.
Senator Tremblay: In that case, can you justify section 32 wherein constitutional conferences foreseen within the third phase, would no longer hold once the fifth phase comes into effect.
In other words, as soon as we shall have an amendment formula, the constitutional conferences provided for under section 42 will no longer exist.
Mr. Chrétien: No, not at all. Those are two different things. Under section 32, we are trying to ensure that within the two years allowed, there will be constitutional conferences in order to find an amending formula acceptable to the provinces, and it deals strictly with the problem of constitutional amendment, We have never needed any specific constitutional statute in order to hold constitutional conferences or federal-provincial conferences, They are the product of an agreement between the premiers and the federal government which has no legal basis, We have never had and never shall have a legal basis, unless we want to institutionalize federal-provincial conferences. Section 32 is to ensure that our own and following governments might not capriciously object to discussion of an amendment formula proposed by the provinces.
Senator Tremblay: In that case, that period of time would be used to discuss amending formula, and not in renewing the terms of the federation, as you stated earlier?
Mr. Chrétien: I do not think, Mr. Tremblay, that it is an issue which would fill all the years, and all the federal-provincial conferences. During the federal-provincial conferences, we could touch upon any number of subjects, while in fact being under the obligation to discuss an amending formula for the constitution.
Senator Tremblay: Bear with me for not being optimistic. I should like to ask questions on the next round.
The Joint Chairman (Senator Hays): Mr. Mackasey, followed by Mr. Beatty.
Mr. Mackasey: Mr. Chairman, one of my weaknesses on this Committee is that I am easily persuaded by eloquent arguments, and last evening I was listening to Mr. Epp’s contribution on Section 41, which I would like to come back to for a moment.
That is the section, of course, that spells out the procedure for amending our constitution in the future, and very briefly it emphasizes the need to have at least six provinces support a constitutional amendment in a formula that we can call the Atlantic formula and the western formula. I might read one of them, it says that at least two of the western provinces that have, according to the then latest general census, combined population of at least 50 per cent of the population of all the western provinces, the same thing with the Atlantic provinces.
Last night through you, Mr. Chairman, and the Minister, Mr. Henderson, in what is probably known now in the Atlantic provinces as the Henderson formula, pointed out the anomaly of the position of Prince Edward Island because of its small population not its lack of importance, but its population, it is easily the smallest in this country, and under the proposed formula Prince Edward Island could not join with any province or virtually any combination of provinces, if you like, to fulfill that 50 per cent requirement of population. The Minister inferred that this could be amended to take into consideration Prince Edward Island’s problem. At that moment Mr. Epp made a very persuasive argument that what was fair for the Atlantic provinces—and I think I wrote that down, or Prince Edward Island—was fair to the west. We could not have two standards, two measurements, two criteria, and as an easterner who depends on many of the western members to supplement my knowledge of the west I pay particular attention to the argument of somebody of Mr. Epp’s stature, and so if he were to propose an amendment I would have to study very carefully his arguments to see if I would vote against it.
Now, as I understand what Mr. Epp said last evening, that the concession granted or would be proposed to Prince Edward Island should, in the name of fair play, be extended to any province in a similar situation in the west.
Now, this morning I asked our good researchers in the corner from the library to dig me out the population statistics, and sure enough, Mr. Minister, Manitoba, for instance, in combination with Saskatchewan could not meet the criteria of half the population. If you follow Mr. Epp’s logical arguments last night, it is a form of discrimination against Manitoba.
Following his argument further, Manitoba should be given the same rights as Prince Edward Island and I want to hear from the Minister, and I hope I am quoting Mr. Epp properly, I would not want to leave the impression that I am putting words in his mouth, I would not do that, but if Mr. Epp’s argument, Mr. Minister, was logical and persuasive, and this is what he said, he is saying in effect if you are going to grant Prince Edward Island the status of one province, that combined with any other province of the Atlantic provinces it could approve a proposed amendment, then logically we should do the same for, say Manitoba and Saskatchewan. Am I right in this, Mr., Epp, if I may?
Mr. Epp: Yes.
Mr. Mackasey: Now, this is a very persuasive argument to me. My concerns stemmed from Senator Goldenberg’s admonition that this would not meet with the approval of Premier Bennett because what you would be setting up here is a formula that would make it possible for the western provinces, Manitoba and Saskatchewan in combination, to go against the wishes of the province with the biggest population, British Columbia.
I wonder, Mr. Minister, if you would like to comment at this moment on that?
Mr. Chrétien: I just said earlier that in passing judgement we decided that the best way for us at this moment was to go with the historical formula that was adopted in 1971 and almost came into place. It was just by kind of an accident that Mr. Bourassa, for other reasons, decided to get out of the amendment, not to implement the formula that was accepted by everybody. So the position of the government was to—and now we are going straight with the Henderson amendments to the historical amendment of 1971.
Of course, if the Committee wants to change it, I will look into that but I do think that the amending formula, it is not a final solution that we are proposing at this time. There will be two years for the provinces to adapt the amending formula so that is why we decided to take the historical amendment.
Mr. Mackasey: No, I understand why you took it, I think you made that very clear, it is the Victoria Charter and that is the closest formula that all provinces agreed to, at one time did all agree and within weeks Quebec, I think, changed their mind on this particular situation.
I am coming back to Mr. Epp’s persuasive arguments of last evening that if you are going to grant Prince Edward Island some modification in the application of this Sub-section (2), based on the persuasive arguments of Mr. Henderson, I had trouble from thereon in with the argument of Mr. Epp that we must be very fair in this country, that this country is a sensitive country and at times our unity is fragile and we would not want to do anything that appeared to be discriminating against any province, particularly in the west, and my concern, Mr. Minister, have you had conversations—I gather you have had conversations, let me put it positively, with some of the Premiers of the Atlantic provinces who have said:
yes, we are quite prepared to accept the formula that would give Prince Edward Island and one other province, despite a population problem, the power to meet the definition, if you like, of Section 2.
Mr. Chrétien: As I said, i have talked with Premier Buchanan personally, and Mr. Hatfield made his views known, and of course I have talked with the Attorney General of P.E.I. about the problem. The three of them said that they would like to have the whole Victoria formula. I did not have any communi-
cation on the subject with Mr. Peckford or his attorney general.
Mr. Mackasey: Mr. Minister, having had similar discussions in recent years, in recent conferences in recent months with the western premiers, would Mr. Bennett, for instance, accept the proposals of Mr. Epp?
Mr. Chrétien: We discussed many amending formulas during the summer with the minister in charge of federal-provincial relations, or the attorneys general of the provinces, but since the constitutional conference of September on the amending formula I have not received any communication directly from any of the provincial governments of the west.
Mr. Mackasey: Well, Mr. Minister, without prejudice to you, what do you feel from your conversation with, say, British Columbia, what would be their reaction to the proposals of Mr. Epp last evening?
Mr. Chrétien: I do not know, I do not want to comment on that. I think at the time of Victoria, and it was re-stated this summer, that they like the, they insisted on having the population.
Mr. Mackasey: Who insisted on population?
Mr. Chrétien: B.C. Because the difference between the Atlantic region and the western region is this one: P.E.I. cannot combine with anybody to make a majority, not one of the three, they are too small. But in the case of Manitoba and Saskatchewan, who have relatively the same population. when they combine with Alberta or British Columbia . . .
Mr. Mackasey: No, if they combine with Alberta, I am sorry, they do not meet the criteria, Saskatchewan and Alberta. That would only make 2.9 million people and . . .
Mr. Chrétien: The two, Saskatchewan and Manitoba, excuse me, can combine with B.C., one of them, and have an amendment. They are not precluded completely from agreeing with another province that has the majority, but in the case of P.E.I. they could not go with any other province and have 50 per cent of the population.
Mr. Mackasey: Mr. Minister, I will not take up any more time other than to tell you that I want to reserve my judgement on this issue and listen to the persuasiveness of Mr. Epp when and if he proposes such an amendment. Perhaps vote with him for all I know.
Mr. Chrétien: Mr. Epp is making the formula more flexible than it is now.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. We have Mr. Beatty followed by Miss Campbell.
Mr. Beatty: Thank you very much, Mr. Chairman.
Mr. Chairman, I have a series of fairly technical questions relating to the wording of the sections dealing with Her Majesty and with the role of the Lieutenants Governor and the Governor General, Because they are technical and because I have not given the Minister any advance warning of them I wonder if it would be agreeable to the Minister that I might give him a copy of them in writing and perhaps at his leisure he might be able to respond to them.
Mr. Chrétien: I have my technicians with me who draft these things so I can ask them to give you technical answers. I would not mind letting them talk a little bit, I have been around for many hours. Perhaps I can just abstain for two minutes and they will reply.
Mr. Beatty: I am sorry.
Mr. Chrétien: Can I go out for two minutes and I will be back in . . .
Mr. Beatty: Well, I would like actually . . .
An hon. Member: He has to go.
Mr. Beatty: If there is something of importance calling you I would not want to hold you. Mr. Minister, if you could come back very briefly because I . . .
Mr. Chrétien: I will be back.
Mr. Beatty: All right. Why is the word “office” used in the English text of Clause 50(a) but “fonction” is used in the French text?
Mr. Tassé: Mr. Chairman, that is a question we are looking at again, It seems that, in effect, that the word “fonction” in French is not exactly the same, does not have the same meaning in English. That is something we are considering.
Mr. Beatty: Thank you. Why is the word “charge” as used in the French text of the present Section 92, (1), British North America Act as published in the Appendices to the revised statutes, for “office” of Lieutenant Governor not used?
Mr. Tassé: In French, you mean?
Mr. Beatty: That is right. Why is the word “charge” as used In the French text of the present Section 92, (1) British North America Act as published in the Appendices to the revised statutes for office of Lieutenant Governor not used?
Mr. Tassé: That is a possibility, Mr. Chairman, that we or the Minister propose that the word “fonction” be replaced by the word “charge”. Our immediate reaction to the word is that it is not a very eloquent word. “Charge” is not very elequent and we are looking for something that might be more eloquent than that.
Mr. Beatty: Will Clause 48, if enacted, and as limited by Clause 50(a), permit the enactment of provisions identical or similar to all or any of the following clauses in Bill C60: 30, 42, 43. 44, 45(1) and (2). 48(2), 49, 51, 52, 53(1), (2) and (3), 54 and 56? This is why, Mr. Chairman, I suggested it might be useful for me to give it to the Minister in writing and let the Minister reply at his convenience.
Mr. Tassé: Very good, we will look at your question.
Mr. Beatty: Is the government prepared to agree to change Clause 50(a) so that it would read: (a), the office, powers and functions of the Queen, the Governor General and the Lieutenant Governor of the Province? That deals with the responsibility of Her Majesty in Canada?
Mr. Tassé: Mr. Chairman, I think we would wish to look at the question that Mr. Beatty has asked before responding,
Mr. Beatty: Would the government he prepared to accept a revision to the proposal that would bring it into line somewhat with the Royal Powers Acts of Australia and New Zealand, such as: every power conferred on the Governor General by the Constitution Acts, 1867 to 1980, or any enactment is a Royal Power which is exercisable by him on behalf of Her Majesty the Queen, and may accordingly be exercised by Her Majesty personally or by the Governor General?
Mr. Tassé: Mr. Strayer will deal with that question.
Mr. Strayer: Mr. Chairman, the proposal does not deal with the functions or office of the Queen or the Governor General in any substantive way at all and that was the concept, that those issues would not be dealt with in this proposal. So I think that what Mr. Beatty is suggesting goes to defining the role of the Monarchy.
Just by way of background on that, you may recall Bill 060 did have a number of provisions that were the subject of some debate and the First Ministers agreed in February, 1979, that those issues be put aside and not dealt with in constitutional reform at that time. So there is nothing in this proposal dealing with the definition of the functions of the Monarchy or the Governor General or the Lieutenant Governors.
Mr. Beatty: Mr. Chairman, how much time have I left?
The Joint Chairman (Mr. Joyal): Five minutes.
Mr. Beatty: I wonder if, in view of the fact the Minister is still out, perhaps I could stand that five minutes and return to it, perhaps we could go to a government questioner and once the Minister returns I could have that five minutes. And if it is agreeable with the Committee, perhaps what I could do is ask, Mr. Chairman, that you circulate a copy of these notes to the Members of the Committee and also to the Minister.
The Joint Chairman (Mr. Joyal): Okay.
The Joint Chairman (Senator Hays): Miss Campbell.
Miss Campbell: Thank you, Mr. Chairman.
I think I could probably direct my questions to the officials who are here from the Department, and I go to the Section 2, under the fundamental freedoms, and in particular, freedom of association.
Does every province have the right at common law, or has it been abridged by legislation to freedom of association, in
terms of unions? And if it is a term of common law then we are not relly abridging them in this Act but I am just wondering if there is not some interpretation here.
For instance, in the maritime provinces, and I eliminate Newfoundland, fishermen cannot associate, cannot form an association, or at least they appear to be under that basic impression that they cannot form an association without legislation. I am glad if this is going to give them the right to associate or form a union, or am I looking at it too broadly or does this not imply collective bargaining being given to everybody across Canada, and in particular, let us say, the fishermen of the maritime provinces?
I will go further on that and just say perhaps you could tell me if the right to strike is a basic common law or would that have to be legislated? It seems to me that it can be abridged. Perhaps you would like to comment on that.
Mr. Tassé: Yes, Mr. Chairman. Pursuant to Section 1 it would be possible for Parliament or the Legislature to impose limits or restrictions on the right of association or freedom of association.
As I pointed out yesterday to the Committee, these rights that are spelled out in the Charter are not absolute rights and they are susceptible to restrictions and limitations.
For example, in 1962, the Supreme Court held that at the time where we had a similar freedom set out in the Canadian Bill of Rights, the Supreme Court held that dissolving the SIU would not violate the right of association since the union was engaged in illegal acts infringing the rights of others, so it held that in that case it was a legitimate exercise on the part of parliament to restrict the freedom of association that the SIU, the union in that case, had claimed should be recognized.
Miss Campbell: I agree that there were illegal activities in that particular case, but going to a broader area where you have a group of fishermen, let us say, asking for a province to pass legislation so that they can organize and have collective bargaining, and one would assume that they did not have it at common law, and that this particular section will give it to them unless a province would strictly abridge it. Take it away.
Mr. Tassé: I think in effect this charter would not go as far as to require that there be federal or provincial legislation that would allow for recognition of the right, but the legislation that exists would have to be legislation that would allow for the expression of that right to take form and take place Without undue limitation. So in effect if the objectives are of . . .
Miss Campbell: This would supercede any provincial legislation?
Mr. Tassé: Well, I am not sure that I am going that far. I think what I am saying, I think that provincial legislation and
federal legislation would have to be read as against this freedom that the charter would recognize of two individuals to organize themselves and associate for that purpose.
As long as the purpose of the association is a legal one, is a legitimate one, the legislature or the parliament could not intervene to restrict them.
Miss Campbell: It comes from the common law, the common law that we have established from Great Britain?
Mr. Tassé: Well, under the common law, I suppose in effect it would be possible for parliament or the legislature to restrict the rights in whatever way, shape or form, but that is the purpose of a charter. It is to in effect entrench and constrain the exercise of legislative authority of the parliament and the legislatures so that they could not be taken away or unreasonably tampered with.
Miss Campbell: How far does this right at common law go? Does it give them the right to strike and the right to lock-out until it is taken away? Now, I am not sure, I think the right to strike is usually given.
Mr. Chrétien: We can give you an answer on that.
Miss Campbell: Well, I am sure I can say that one more group of people at least in the east who would like to see this in order to have the right to go to freedom of association without having to ask to have legislation so that they can associate.
I mean. my understanding of the Maritime Fishermen’s Union is that they would like to have the right to form a union. Even though they say Maritime Fishermen’s Union, there is an element there of discrepancy.
But their provincial legislatures must given them the right. This gives them the right. If I take freedom of association, as given it common-law, the right to collective bargaining on the part of any group, they do not need to seek any further than this law, and then it would be up to the provincial governments to abridge that right.
Mr. Tassé: Well, I would doubt that they would be happy with just the possibility of their being in a position to exercise their common law right. I think we have seen that in almost all jurisdictions, there has been a need for the organization of relationships between the employers and the employees, so that, you know, there will be a framework within which these relationships will take place and this Charter here does not go that far as to provide for that, but it says that the right exists, but the implementation of it and the organization of relationship, for example, in the labour field is something that would be either the responsibility of Parliament or the Legislature, but they are the ones that will decide how these relationships could take place, and what happens if certain things happen. If there is a strike, for example, in the work condition, it could place that would be recognized as a legal act.
Miss Campbell: In other words, they would abridge it they will abridge the basic common law.
Mr. Tassé: Well, it would give a statutory constitutional basis for these rights, but it is not the full answer to all of the
questions that may arise in the context of employer and employee relationships.
Miss Campbell: Well, then you go back to the Seafarer’s case where it says the activities were illegal.
Mr. Tassé: And for that purpose, the Supreme Court in effect recognized that what Parliament had done in terms of restricting the rights of that association to exist was valid because of the purpose that the Union had set for itself, it was recognized as being in effect, unwarranted, if not illegal.
Miss Campbell: Yes.
The Joint Chairman (Senator Hays): Thank you very much. We are going back to Mr. Beatty, who has five minutes, followed by Mr. Corbin, and then probably Mr. Fraser. Did you want to yield to Mr. Fraser?
Mr. Beatty: No. All I am saying is that rather than alternating with a member of the Government, I am just completing the five minutes that I had.
The Joint Chairman (Senator Hays): Yes.
Mr. Beatty: And it would have gone, Beatty, Campbell, Fraser.
The Joint Chairman (Senator Hays): That is right.
Mr. Beatty: Okay, Mr. Minister, one of the things which has perplexed me to date with the Government’s timetable in this package has been the need to rush it through so quickly, particularly in view of the fact that a number of the provinces have indicated intend to take the Government to court to challenge the validity of its actions.
Now, as yet, the Government has refused to make available to Parliament or to the Committee any legal opinions which it has from the Department of Justice relating to the legality and the constitutionality of what the Government has been doing, but you have indicated, and the Prime Minister has indicated you have no doubts as to its propriety.
The only document that we have available to us which gives any indication as to the Department of Justice’s views is the infamous August 30th, 1980 Minister’s eyes—only document prepared’—According to the front papers, this paper has been prepared by officials involved in the constitutional negotiations under the direction of FPRO and your department, the Department of Justice.
Now, on Page 53, the document says as follows:
The attitude of the Supreme Court to the patriation package could be affected by its contents, and particularly by the degree to which those contents would affect provincial powers and institutions of importance to the provinces, such as the Senate and the Supreme Court itself. Patriation with nothing more might cause no problems. Patriation with an amending formula providing for unanimity for amendments might not either. Patriation with any other formula would be potentially more difficult and the concerns of the court could well increase with other additions, particularly in the field of distribution of powers.
In addition to that, on Page 52 the document argues as follows:
There would be strong strategic advantage in having the joint resolution passed and U. K. legislation enacted . . .
and this is the intriguing part here:
. . . before a Canadian court had occasion to pronounce on the validity of the measure and a procedure employed to achieve it, this would suggest the desireability of swift passage of the resolution and U. K. legislation.
Mr. Minister, why is the Government not prepared to have the Supreme Court of Canada rule on the legality and the constitutionality of the Government’s proposed changes to the constitution prior to those changes being made by Westminster because, as the document itself points out, as to the question of validity, it is the view of the Department of Justice that a law passed in the U. K. Parliament to patriate the constitution with an amendment formula and other changes could not be successfully attacked in the courts.
That is Page 50. Once Britain has changed the Canadian constitution even if, as this document recognizes, those changes could be unconstitutional, according to the Department of Justice argument in this, it would be beyond the reach of the Canadian courts.
Why is the Government dealing with the most fundamental law in the land not prepared to have the courts rule as to its legality and its constitutionality before having the British Parliament outside of the reach of the Canadian courts make fundamental changes to it.
Mr. Chrétien: First, with reference to the document you mentioned there, it is not an opinion of the Department of Justice. The legality of the activities that we are involved in is quite simple in my mind and the mind of my Department. The British North America Act, is a British piece of legislation and in that case we’re not asking in Canada, we are asking the British Parliament to act on the request of the House of Commons and the Senate of Joint Resolution, but legally, the legislation will be enacted by the British Parliament.
We, in the light of the decision on Bill C-60, the Supreme Court Justice said that, if we want to amend the constitution in those matters, we have to go to London, and we are going.
So, we recognize that legally the ultimate responsibility in terms of amending the Canadian constitution is vested with the British Parliament and we are going there right away.
Mr. Beatty: I accept that, but . . .
Mr. Chrétien: So, there is no legal problem there. It is being read by some people in terms of strategy, it is not the legal opinion of the Department of Justice.
Mr. Beatty: Well, the question remains, in view of the fact it says expressly in this document of which the front cover says it is being prepared under the direction of FPRO and the
Department of Justice, that is your officials in the Department of Justice, raises serious questions as to the constitutionality of these actions and counsels the government to rush it through Parliament and through Westminster prior to the Canadian courts being able to rule on it.
My question to you was not could the courts strike down an amendment made by Westminster because I think that this document certainly agrees with you that once you have escaped Canadian jurisdiction, once you have had the British Parliament to do for you what you cannot do in Canada, the Canadian courts have lost jurisdiction.
The question that I put to you is why you are not prepared. . .
Mr. Irwin: On a point of order. A resolution from the House, Thursday, October 23, 1980 directs us to do two things: to look at the special resolution and come back with a report by December 9 with such amendments as the Committee considers necessary and whether or not such an address should be made by both Houses.
I respectfully submit, Mr. Chairman, that the question on constitutionality is a matter before the courts and the questioning is out of order at this time.
Mr. Beatty: Mr. Chairman, on the subject of a point of order. I almost can’t beleive my ears. It is like we have fallen through the looking glass here.
You know, what the parliament secretary to the Minister of Justice has just said is that it is perfectly all right for us to deal with this whole resolution to go back before Parliament, for Parliament to debate it, for us to ask the British Parliament to amend it, but if we ask questions as to its legality, and whether or not we should in fact doing it, that is out of order!
Even for the parliamentary secretary, this is a new height of silliness.
Mr. Irwin: I suggest, Mr. Chairman, this is a matter that is before the courts and if it is opened up now it is quite permissible for every premier to come in here and discuss the same legality. Either the courts are going to decide it or we are going to stay within our terms of reference or we are going to go on the same fish hunt, the same hunt that we went on in the House of Commons.
Mr. Beatty: Mr. Chairman, the terms of reference specifically empower the Committee, as read by the Parliamentary Secretary. the Committee is charged with the responsibility of recommending whether it should go ahead and, obviously, one of the questions that I was putting to the Minister is this whole issue as to whether or not it should go ahead when there is a serious question raised by the Government’s own document as to the constitutionality of the measures that it is proposing.
So, if that is not in order—
Mr. Chrétien: The question of the legality, Mr. Chairman, I replied to that discussion. I said that the opening of the Department of Justice is that, you know, on the question of
validity, it is the view of the Department of Justice that the law passed by U. K. Parliament to patriate the constitution with an amending formula in other changes, you know, it is completely legal.
I have stated that from Day 1, Day 2 and I have still maintained that legal opinion. It is the advice received by the Department of Justice. This document that you are referring to. It is not the legal opinion of the Department of Justice and the legal opinion of the Department of Justice and the legal opinion of the Department of Justice has been expressed by me at this moment.
We just said that we are convinced that the British Parliament is considering the matter and we are going there for the last time. I do not like it at all to see that a country like Canada has to depend on a foreign country to amend its constitution and that is why we are now going to London.
Mr. Beatty: Is this on a Point of Order, Mr. Chairman?
Mr. Chrétien: If we want to enshrine a Charter of Rights and the Linguistic Rights we have to do it that way.
The Joint Chairman (Senator Hays): No, I have not received it as a Point of Order. I think that the question is receivable.
Mr. Beatty: Then, I want to return to my questioning them of the Minister.
Mr. Minister, two questions for you: Will you in fact table before the Committee the legal opinion which you have, or will you follow the script on Page 54 which says that:
Demands for copies of legal opinions will no doubt follow and while those would not in accordance with established practice be disclosed, it would be important that the Prime Minister or the Minister of Justice make a full statement on the subject at an appropriate time.
Can the Minister tell the House, tell the Committee whether he has said that the Department of Justice has given him a legal opinion that the Government is legally entitled to do what it is doing, but did the Department of Justice legal opinion raise any doubts as this document, drawn up under the direction in part, of this department, did it raise any doubts as to the constitutionality of what the Government is doing as opposed to the strict legality?
Mr. Chrétien: I just thought that the legality of—you know, you are asking me for the legal opinion of the Department of Justice and I gave it to the Committee, that it is absolutely legal to do what we are doing, there is no doubt about it.
Mr. Beatty: The Constitution?
Mr. Chrétien: In terms of the convention, you know, in constitutional law, the convention, is not a law, it is just a convention that can be changed by either the British Parliament in relation to their own convention and the federal Parliament in relation to their own convention. You are asking
me as Minister of Justice and Attorney General what is legal and I am telling you that what we are doing is absolutely legal.
Mr. Beatty: I am asking if it is constitutional.
Mr. Chrétien: On the convention. A convention is not a piece of legislation, it is a convention, it is not binding the court. It is a political convention and the political convention, you know, can vary in terms of the convention going to London and Canada, we always have a joint resolution and the British Parliament in their own British Convention accepted the resolution coming from the federal parliament. That means the Senate and the House of Commons.
I said earlier that this is a convention in Britain that they have always followed and they said they would always still follow it. If they were to change it, it is a convention, they can change it any time. It is not a piece of law.
The legality of the situation, it is a legislation that has to be passed by the British Parliament and the British Parliament, I said earlier, legally they can do anything they want. Of course, they do not, because of their convention, but legally they could.
The Joint Chairman (Senator Hays): May I draw to the attention of the Committee that it is now after 12 o’clock. That was our time today.
May I also ask the Committee’s help. The Minister has been here now for four sessions and nine hours and I am wondering if we may not relieve him of his responsibility, provided that we have a caveat that he will come back and that we go on to the examination of Mr. Fairweather. We are in the hands of the Committee.
Mr. Epp: Mr. Chairman, you will recall last night just before we adjourned I made the point that if we could conclude with the Minister this morning and then hold the caveat that he could come back at a later time, that would be acceptable, but I wanted to assess the mornings activities. I think in terms of Senator Goldenberg’s intervention, Mr. Mackasey’s intervention, there are a number of other questions and the view that the Minister is the Government’s chief witness, I think it would be important for the continuity of the Committee to continue with the Minister. I would ask him that he come back this afternoon.
The Joint Chairman (Senator Hays): What is the views of the Committee. Mr. Nystrom?
Mr. Nystrom: My preference is that he come back this afternoon as well. The Committee is very, very large. We each only have ten minutes and it is very difficult to develop a line of questioning in that amount of time. We have had many new issues raised this morning. Mr. Epp referred to a couple of members, I refer also to Mr. Allmand, Mr. Duclos and a number of others of us who have questions we wish to develop.
The Joint Chairman (Senator Hays): Any other comments? Yes, Mr. Robinson?
Mr. Robinson: Mr. Chairman, I just have a more general question concerning the timetable of the Committee which certainly will have some effect on this. That is to ask whether, in view of the fact that obviously this Committee is studying
this proposition, this proposal very seriously and in great detail and that there will be a number of witnesses, what is the Minister prepared to tell the Committee at this stage about the proposed December 9 deadline, which, certainly if we take our responsibilities seriously as a Committee and continue to do so, is obviously totally unrealistic.
The Joint Chairman (Senator Hays): Probably that is another question.
Mr. Robinson: Is the Minister prepared to . . .
The Joint Chairman (Senator Hays): Mr. Fraser?
Mr. Fraser: Just one point, Mr. Chairman. I think I am scheduled to be the questionner and I would like to be assured that I don’t lose my place over the adjournment.
Mr. Robinson: A point of order Mr. Chairman. With respect to my colleague from British Columbia, I believe that I was the next questionner and that the Joint Chairman did err in his statement of the following questioners.
The Joint Chairman (Senator Hays): Yes, I am sorry, Mr. Robinson, that was correct. I do not think that the NDP spoke this morning.
Mr. Nystrom: Yes, they spoke once.
The Joint Chairman (Senator Hays): Just once.
Mr. Nystrom: Yes, just once.
The Joint Chairman (Senator Hays): So, the order is Mr. Robinson and followed by Mr. Corbin and then Mr. Fraser.
You will be back, Mr. Minister at 3:30 pm.
Mr. Epp: Excuse me for raising Steering Committee scheduling at this time, but you had called the meeting for 1:15 p.m. We are having difficulty because of other engagements for 1:15 period. I would suggest that we meet in this room immediately after Question Period, prior to the start of the Committee meeting.
The Joint Chairman (Senator Hays): Is that agreed?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): Yes. So this meeting is adjourned until 3:30 pm.
The Joint Chairman (Senator Hays): This is the continuation of this morning’s proceedings.
Mr. Robinson, you are the first one on this afternoon.
I would like to say that we are sorry that we are a bit late, but we were holding a meeting of the steering committee; and if we have inconvenienced anyone we would like to apologize.
Mr. Robinson will be first, followed by Mr. Corbin.
Mr. Robinson: Thank you. Mr. Chairman, just before the clock starts, I would like to ask first a question of information more than anything else.
My understanding from previous Committees is that members of this Committee, should they so desire, are welcome to attend as observers the meetings of the steering committee. I would like to have that made clear, if I may, that members of the Committee are certainly welcome to attend as observers of the steering committee meetings. I would assume that to be the case.
The Joint Chairman (Senator Hays): I would think so, yes.
Mr. Robinson: Mr. Chairman, for clarification: As the Minister said, members of the Committee were locked out, but I think that was just an oversight.
Mr. Chairman, I have a couple of questions following up, in part, what I asked last day of the Minister. First of all, with respect to a very important section of the Charter of Rights, Section 15, as the Minister is aware, the original BNA Act essentially ignored the rights of the equality of the women in this country; women who are not even entitled to vote; they were not entitled to be Senators—and I will refrain from commenting on whether or not that is a desirable situation; but they were not permitted to be members of the House of Commons.
Of course, since 1867 there have been some advances. but not nearly enough.
The Minister is aware that many women’s groups in this country, including the Advisory Council on the Status of Women, the National Action Committee of the Status of Women, and many other women’s groups, are very concerned that the proposed wording in Section 15 of the Charter of Rights does not adequately guarantee equality in law for women.
Mr. Minister, I believe you are aware of some of these concerns, and I wonder if you could indicate whether you would be prepared to look seriously at possible amendments to improve the wording in order to make it very clear what we are attempting to achieve here is full equality in law for women in Canada?
Mr. Chrétien: Mr. Robinson. I would point out that on Tuesday my officials met with the officials of certain women’s groups to discuss this very problem. Of course, we are always open to any practical suggestions for a solution.
But, as a matter of clarification, I think it is a question of finding the appropriate wording, but at the same time, there is some legal limitation; we cannot guarantee as much as they would like sometimes in a charter of that sort.
But, as I have already said, we are open to suggestions, and if I may say so, there are already in progress discussions between my officials and women’s representatives in order to improve the text.
Now, if there is an acceptable text, I would certainly look into the proposition to see whether it is acceptable.
Mr. Robinson: Thank you, Mr. Minister. Certainly, we will be proposing a specific amendment to strengthen the wording of this particular section insofar as it affects the equality of women after consultations with many of the groups concerned and with whom, no doubt, you have been having discussions.
Mr. Chrétien: I have been informed that some Members of my party intend to do the same.
Mr. Robinson: Well, they may want to support my amendment as well, and we would be delighted to have their support.
Mr. Chrétien: But then, the amendment might be mine.
Mr. Robinson: I hope that is the case.
Mr. Minister, with respect to the question of a referendum being used, as I indicated earlier, possibly to take away rights in the Charter of Rights, this certainly would negate the purpose of a charter which is to protect minority rights from a majority at any given time; and to permit a referendum to take away these rights would deny the essence of a Charter of Rights.
In response to that, Mr. Minister, you indicated that while it was true that these rights form basically a minimum set of guarantees for Canadians, it might nevertheless be desirable to add to those rights.
Mr. Minister would you be prepared to entertain an amendment to make it very clear then, indeed, if there is to be a referendum affecting the Charter of Rights, then such a referendum could not take away from what you have described as this minimum package of rights, but that, in fact, if there was to be a referendum it could add to that package only.
Mr. Chrétien: Yes, but the question remains: that you might need some modification to the package of rights. After all, you do not know—I do not know—exactly in what way society will evolve insofar as future generations are concerned; and it may very well be that the rights as described in the charter today might evolve in such a way that there would be some change to the text in order to meet the social conditions of the day.
So, I cannot tell you—and who is to judge that there will be any deterioration of the rights. In my judgment, if you want to improve the charter, then it is possible to do so, and there might be some deletion, some improvement; and I cannot say what conditions will be like in say, 10, 15 or 20 years from now.
Mr. Robinson: Well. Mr. Minister, if this a minimum flora of acceptable rights in Canadian society. then one would certainly hope that in the future Canadian society would not take away any of those rights. But I would like to direct your mind to the specific question, and to say that we are not talking here about possibly amending certain existing rights in such a way as to make them weaker. We are talking, if you are prepared to entertain this amendment, about strengthening rights. In fact, a referendum is not the only means of amending this charter.
As you know, if it is decided in the future that the wording of the charter is unsatisfactory, the normal amending process between the provincial governments and the federal government can still be used.
I am suggesting, Mr. Minister, that to allow a simple majority of Canadians in a referendum to take away minority rights would be totally wrong and should not, therefore, be permitted.
Mr. Chrétien: I would like to clarify a matter. It would not be just a simple majority, but a majority affecting the areas of Canada. It will not be a simple majority.
Mr. Robinson: Yes, that is right. And the purpose of that is to protect regional rights. But we are talking here about human rights.
Mr. Chrétien: In terms of human rights it could be amended by means of the amending formula, but never by a referendum.
Mr. Robinson: That is correct.
Mr. Chrétien: I do not know what the consequences might be, but it might well take away a good deal of the flexibility that there should be if there is no possibility of an amendment. Suppose, for instance, we wanted to add another province or territory, and suppose, again, that Quebec or Ontario refuse for any reason, and that the government was refusing but the people were in agreement, then, if the referendum is not possible in the Charter of Rights, what will happen is that we would not be able to go to the people to seek their views on rights.
You would have have to accept the view of the the government.
I do not think it would strengthen the possibility of improving the Charter of Rights accepting your amendment, but if the committee wants to look into the problem and offer some suggestions, all well and good.
As was pointed out by Mr. Mackasey yesterday, there are two sides to a coin. It is more likely that the referendum would be used to add to rights, rather than to subtract from them.
But, if you want to be logical and accept the process as applying in both circumstances . . .
Mr. Robinson: Mr. Minister, if I may interrupt, I would like to turn to another area of the Charter of Rights, which is the so-called legal rights.
You have indicated that this is a minimum package of what constitutes the guarantees of safeguards and so on in the Canadian criminal justice process.
I would suggest to you, Mr. Minister, that there is a very serious omission in this particular section, namely, the omission of a guarantee that when Canadians are or a Canadian citizen is charged with a serious offence, that they would have the right to be tried by a jury of their peers. This is a fundamental right in the Canadian criminal justice system, and, indeed, was contained in the 1688 Charter of Rights and 18 an important element in the United States Bill of Rights; and I would hope that you would be prepared very seriously to look into the possibility of an amendment to include the right to trial by jury in the case of serious offences.
Mr. Chrétien: You are right in referring to the existence of the Bill of Rights in the United States. But the application of that has been somewhat restricted by interpretation in the courts and over the years the courts have limited the applica-
tion of these rights and have declared them to be somewhat limited.
Of course, I would like to point out to you that the United Nations Covenant on Civil and Political Rights does not mention a right to trial by jury. Personally, I think it is a well-established Canadian institution laid down in the Criminal Code. But the question arises: Is it necessary to add to it by including it in the Charter of Rights? As far as I am concerned, I have no personal objection.
However, I think the problem would be to find the proper test to decide what is a serious offence, and so on and so forth.
Perhaps it would be easier and much more satisfactory to leave it as it is in the Criminal Code.
If it is a major concern to the Committee, personally if we can find the appropriate words and try to convince the Cabinet of the wisdom of doing it, then, as I have said already, if there is some suggestion on the part of the Committee I am perfectly willing to look into the matter.
I would like to clarify the matter that it is covered by the Criminal Code today and it is not judged by my officials as being necessary for inclusion in the Bill of Rights.
But I will listen to the views of the Committee.
Mr. Robinson: Mr. Minister, as you know, of course, the Criminal Code is an ordinary statute in Canada which can be amended at any time. If the right to trial by jury is considered to be important and as part of the Canadian constitution, surely it should not be left to Parliament to wipe out that important institution of trial by jury by an ordinary statute. That is the effect of leaving it in the Criminal Code.
The Minister has said that he is personally sympathetic. I hope that the Committee will see fit as well to look at an addition of a right to trial by jury in the case of serious offences.
I have one final question, Mr. Chairman, if I may. The Minister has referred, as one of his guidelines, to the International Covenant on Civil and Political Rights. I would like to turn to Section I of the proposed Charter of Rights and go to a question that I asked earlier, which is, that as it stands now, Section I of the proposed Charter of Rights violates Canada’s obligations under the International Covenant on Civil and Political Rights.
The Minister will be aware that Walter Tarnopolsky, who is a distinguished Canadian civil libertarian and a member of the United Nations Human Rights Committee and of the Canadian Human Rights Commission has expressed serious concern about this wording; the Civil Liberties Association themselves; the Canadian Human Right Commission and others have expressed concern about the present wording of this, in that it violates the International Covenant on Civil and Political rights.
Mr. Minister, why should it be that the anti-discrimination rights, the rights to be protected from discrimination on the basis of religion, age, sex, and so on, which are protected as being fundamental in the International Covenant on Civil and
Political Rights, why should they be subject to what is generally acceptable in a free and democratic society; because if that were the test, then surely it would be possible to have the abuse that we have had of Canadians of Japanese origin during and after World War II who were interned and whose property was confiscated. Frankly, I believe the Prime Minister himself has indicated that this was a blot on the history of Canadian society.
Mr. Minister, that kind of thing would be permitted under Section l, because it would permit the violation of the International Covenant on Civil and Political Rights, and l would hope the Minister would be prepared to indicate today that you are open to an amendment which would at least bring this section into conformity with our obligations under the International Covenant on Civil and Political Rights which your Deputy Minister indicated yesterday should guide the courts in their interpretation of this section in an event?
Mr. Chrétien: You know, Mr. Robinson, that is a very difficult question, because we had a very long debate this summer with the provinces on the application of the Charter of Rights.
We did not come to any formal agreement with the provinces, but that was the main topic of discussion among officials and Ministers during the summer. And as the Administrator of the Criminal Code—the Attorney General and so on—we put that rider, if I may use that term, interpreting the charter. It was very much in the light of the discussions we had with the provinces, that this was more acceptable to them than just having a Charter of Rights of full application, using the term in the traditional way.
Speaking for myself, I can say that we are very strongly committed to having a Charter of Rights in Canada and we would like to have one which is as effective as possible; but at the same time, we had to take into consideration the views of the provinces and that is the reason why, eventually, we have accepted a reasonable limit which is generally accepted in a free and democratic society with a Parliamentary system of government. It was the general orientation and guidance given to the courts to interpret this charter, and it was acceptable to the participants of the summer conference in relation to a Charter of Rights, if adopted; and that is why it is there.
Now, if you are telling me that I should bypass the views of the Attorney General on that matter and just impose strictly and simply a Charter of Rights without any help to the courts as to interpretation, then you are asking me to take a hell of a big step.
Mr. Robinson: No.
Mr. Chrétien: I am telling you why it is there.
Mr. Robinson: You are already bound Mr. Minister, by the provisions of the Covenant on Civil and Political Rights, and that applies to the provinces as well as to the federal government.
Mr. Chrétien: But that was not the view as was expressed or understood during the summer. But I will look into the matter.
The problem is that I am telling you the background as to why Clause 1 is drafted that way. Again, it might well be, that I have been too flexible, I guess.
The Joint Chairman (Senator Hays): Mr. Corbin. followed by Mr. Fraser.
Mr. Corbin: Thank you, Mr. Chairman. I would like to ask the Minister to explain certain things. It will help me to better understand the debate and help me to question witnesses.
Section 20, on official languages in Canada, deals with decisions made by Parliament with respect to using the language of one’s choice where numbers warrant.
Under the Official Languages Act, Parliament and the federal government have not yet created bilingual districts in this country for the purposes of institutional bilingualism. If you want to entrench certain rights, I do not think it is enough to invoke another act of Parliament of which one of the provisions dealing with official languages has never been implemented. I think that this considerably weakens the scope of this section insofar as ensuring official bilingualism is concerned.
I do not know whether the Minister would like to comment; he seems to be busy consulting his officials.
Mr. Chrétien: I think that Proposed Section 20 perhaps follows the wording of the Official Languages Act a little too closely. If the honourable member thinks that the clause is not clear enough, it can be improved upon. I am prepared to consider some amendments. For example, we have not yet proceeded with the creation of bilingual districts as provided for in the Official Languages Act.
Mr. Corbin: We want to entrench these rights; we want to ensure that they will not be influenced by politics or politicians. I do not think that we should fall back on the Official Languages Act, which has not been implemented. This is no way to protect minority language rights. I think that the wording is weak and perpetuates a serious flaw in our legislation.
Mr. Chrétien: If you have a solution to this problem, Mr. Corbin, I am prepared to look at it and convince my colleagues to accept it.
Mr. Corbin: The amendments. . .
Mr. Chrétien: To avoid time-consuming debate, we have tried to stick to the wording used in other statutes.
Mr. Corbin: I intend to table amendments in due time. Like my colleague, Jean-Robert Gauthier, who raised the point this morning, I do not much like the fact that the expression “where numbers warrant” is being used to satisfy provincial premiers. And the phrase “that a substantial number of persons within the population use that language” is not very specific.
Mr. Chrétien: I think that we should try to ensure a certain amount of flexibility so that the situation will not be too rigid or complicated from an administrative point of view. For example, in certain small parishes in my electoral riding, the post master would have to be bilingual if he was to be allowed to sell stamps. This could cause problems, because in some parts of Canada people speak only French, whereas in other parts, people speak only English. The demand for bilingual services is limited. But there may be a demand for it in certain post offices in large cities where the majority is English speaking.
We do not require that everyone he bilingual, but we do require that someone in the building be able to provide services in both languages. In drafting legislation, we want to avoid creating a situation where it would be implemented in ways that the legislator never intended, making it next to impossible to administer public services.
Mr. Corbin: Fine, Mr. Minister.
I would now like to deal with Section 34. And I must say that I have spoken to provincial politicians and even to provincial opposition leaders.
Section 34 reads as follows:
Until part V comes into force, an amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and by the legislative assembly or government of each province to which the amendment applies.
The explanatory notes tell us that such an amendment could be made where authorized by both House of Parliament and the legislative assemblies of the provinces concerned. Explanatory notes do not mention the government. The official text clearly states that it may be done either by the legislative assembly or the government of the province to which the amendment applies.
An Opposition leader, from whatever party, would interpret this section as authorizing the government in power at the time to act without asking for the opinion or resolution of the legislative assembly. And, as has been stated several times, legislative assemblies are the true representatives of the people.
Why would you allow the government to act unilaterally and go over the heads of legislative assemblies, whereas this would not be tolerated at the federal level?
Mr. Chrétien: I believe, Mr. Corbin, that we have tried to follow the tradition which has prevailed with respect to condi-
tional amendments. In the past, the consent of the provinces has not always been expressed by a vote of the legislative assembly. Traditionally, the executive of a government can accept an amendment without consulting the legislative assembly. This has been the practice in Canada ever since Confederation. In certain circumstances, the province decided to seek the support of the legislative assembly; in other circumstances, an executive decision was deemed sufficient. In Clause 34, we have attempted to reflect Canadian constitutional practise.
What you are asking me to do is change Canadian constitutional practice and require that everything be ratified by the legislative assembly.
Mr. Corbin: This is the time to change traditions which might prove dangerous in the future. Either we recognize that legislative assemblies have a certain amount of credibility or we admit that they are simply there for decoration,
Mr. Chrétien: I believe that Section 34 will only apply during the transition period.
Mr. Corbin: Still . . .
Mr. Chrétien: That is what I have been told. When the amendment formula is chosen, Section 43 will require concerning.
amendment of provisions relating to some but not all of the provinces
That they be:
authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
Mr. Corbin: Even if it is transitional, do you not think that in a modern democracy, the provincial assemblies should be consulted? Traditions does not matter. Tradition goes back a long way. It even goes back to the colonial era.
Mr. Chrétien: Once the new formula is decided upon, Section 43 will require that legislative assemblies be consulted.
The people who drafted the legislation intended to give the provinces two years to ratify the amendment formula, so as to provide as much flexibility as possible. The deadline has been set at two years. It is not a major point. If it had been a permanent provision, I would have sympathized more, but it is temporary. In the minds of those who drafted the legislation, it gives the government more flexibility in that we will have two years to agree on an amending formula.
Mr. Corbin: This will be my last intervention, Mr. Chairman. I would refer you to Part 5, Section 41, which defines, for the first time to my knowledge, not only in the constitution
but in the legislation itself, two regions of Canada: the Atlantic provinces and the West.
Fears were expressed in various quarters and I became aware of them in the Atlantic provinces. People are afraid because, for the first time, the technocracy or bureaucracy has tried to legislate the concept of regions which supersede individual provinces. Well meaning people are wary of this.
In the future, provinces will be grouped together to facilitate the imposition or implantation of certain federal policies; they will be lumped together. In the East, you have the Atlantic group, and in the West, the western provinces.
Could you assuage these fears by assuring us that this is only being done for the purposes of the formula, that the government has no intention of sanctioning this type of terminology in future legislation, and that you will consider each and every province as a full partner in confederation?
Mr. Chrétien: Mr., Corbin, the government does not intend to use Section 41 to change the status of eastern and western provinces. They will still be provinces and we have no intention of treating them as a unit. The concept of regions is not new. It was recognized in the British North America Act in the form of representation in the Senate. Representation in the Senate is based on regional criteria: Quebec and Ontario have 25 senators, or rather 24, the Maritimes have 25, the West, 24 and the Territories, 22.
Mr. Corbin: You mean in the Atlantic region?
Mr. Chrétien: And six more . . . I get mixed up all the time. Did you say the Atlantic provinces or the Maritimes?
Mr. Corbin: It is never the same term . . .
Mr. Chrétien: Twenty-five for the three Maritime provinces and six more for the Province of Newfoundland.
Mr. Corbin: Thank you for the explanation.
The Joint Chairman (Senator Hays): Mr. Fraser followed by Senator Austin.
Mr. Fraser: Thank you, Mr. Chairman.
First of all Mr. Minister, I would like to refer back to something that you said last night when I was addressing the question of the imbalance, the unfairness of Section 42 because it only allows the federal government to use a referendum but does not allow the provinces to have the same machinery to put their views to the Canadian public.
You will remember that I said that you could have ten Provinces that agreed that it was in the interests of the country to make changes and ask that it be subjected to a referendum, and the federal government can say no, and there is no way to
initiate a referendum. And you responded to that by saying that, as I understand it, that this has never been considered or discussed.
Now, I want to refer to a document, the Canadian Constitution and Constitutional Amendment put out by the Government of Canada under the Honourable Mark Lalonde and the then Honourable Ron Basford, the Minister of Justice, in 1978. I want to refer to page 21 which deals with this exact problem.
Now, this is a discussion paper, admittedly, but I remind the Minister, who may have forgotten, that this is what is said there by way of suggestion:
(a) If a sufficient number of provincial legislatures approve a proposed amendment, so that all four regions are of one mind, and if Parliament takes the opposite view,
and for “Parliament” read the government with a majority:
a national referendum could be held if the provinces so requested to ascertain the wishes of the majority of Canadians.
and then following on, in reference to the referendum it said:
popular referenda works of itself neither in the direction of additional power for Parliament nor of additional power for provincial legislatures.
Now, my question is, Mr. Minister: What is unfair-I hope the Minister is listening—what is unfair about providing the same right to public appeal to a certain number of provinces that may wish that to be tested by public opinion, as it is to have it just solely the prerogative now of the federal government?
Now, the Minister said earlier, in answer to questions of some of my colleagues, he said: well, the national government must pass the law. The national government may very well pass the law. The national government may very well in accommodation with the provinces set the rules and the regime under which a referendum is to take place, but that can be established in law so it is not something that can only be done by the federal government and your own discussion paper shows that.
Now, it is patently unfair the way it is and I am asking the Minister whether he sees that unfairness and whether he would be ready to consider change?
Mr. Chrétien: I do think that the hypothetical case that you put to me, to the effect that all the provinces will want a change in the Constitution and the federal government will object to it and refuse to call a referendum, I do think, as I said yesterday, that the occasion the electorate has to express their views on that is at the consecutive election.
I do think that what you are proposing today is that there should be a mechanism by which the provinces should initiate a national referendum, and I do think, as I expressed the view earlier, that if there is going to be federal legislation to be passed, that the House of Commons, that is where people of all the provinces are represented, that that will be the area where the debate will be. And if the majority in the House refuse to
allow a referendum that the ten provinces wish to have, that would be a major political problem.
If you want to change that to something else, I can look into that. I do think in my judgment it was the simplest way to operate. If you want to say—I do not know what other kind of mechanism you would suggest, if you want to have eight provinces who represent 80 per cent of the population or something like that.
Mr. Fraser: Mr. Minister, just a minute.
Mr. Chrétien: But I think as it is the federal legislature that has the authority, that the debate will be here.
Mr. Fraser: Just a minute. You can say that it is the simplest way to operate, it certainly is if you want to shift the power permanently in favour of the federal government and that seems to be the motive here. My question remains: what is unfair about having a provision whereby both the provinces and/or the federal government can seek public opinion in the event that you want to break this so-called deadlock?
Now, that is my question and you have not answered it, you gave the same answer that you gave last night, but I would ask you to consider it.
Now, I would like to move on.
Mr. Chrétien: I do not say fair or unfair. if I use the word “unfair”, I just say that the national forum represents all parts of Canada through the Parliament of Canada and if you want to make some suggestions to change it, we will look into that. I am just explaining the rationale of our position as it is.
Mr. Fraser: I will make a suggestion so that you can make sure the House of Commons more truly reflects, in its final decisions on constitutional amendments, all the regions, and that is that I will ask you if you would consider where there is a constitutional amendment, that a certain percentage of the members of parliament from the region have to approve it, and it would not be just a simple majority of the House of Commons. I just give you that suggestion, You want to make the House of Commons work fairly and properly represent the imbalance that now exists so far as party representation is concerned, you can do it that way.
Mr. Chrétien: Mr. Fraser, I have to tell you that during the summer I discussed with the provinces, we spent a lot of time at those meetings with the provinces concerning the possibility of changing the Upper House in Canada in such a way that it would be a better representative of the regional interests in Canada. It was debated all summer and I do think, with due respect to the members from the Upper House in Canada, that there is, today there is a lot of discussion that has been going on, in fact we made a lot of progress in the summer in terms of changing the format that exists today in the Senate, to change the way of appointments, to change the powers of the Senate, to make sure that they do represent in a different fashion than today the regional interests. There was a lot of debate on that and it was, at one time, an area that we thought we had made a lot of progress, but unfortunately when it came to discussion in public we did not go very far.
Mr. Fraser: Mr. Minister, I have been told I have three minutes and would you just keep that in mind.
Mr. Chrétien: I just want to tell you that if we achieve this reform of the institution in Canada as it has been debated in the summer, that this regional representation that you are talking about in terms of voting power in the House of Commons might very well be reflected in a better way in a new Upper House in the bicameral system that we are planning to keep for Canada.
Mr. Fraser: Well, Mr. Minister, I will not make the mistake of asking you another question. I just want to make a point.
You just said that now you can protect the provinces and the regions by way of the Senate. Well, I do not know whether you have read Section 44, but Section 44 says that any amendment coming out of 41(1), if it is not passed by the Senate after 90 days, it goes back to the House of Commons and if it is passed then, it becomes Law.
Now, what you have done with Section 44, and everyone ought to understand this, the people here do not agree that we should have a Senate, but traditionally and historically the purpose of the Senate, the reason there has been discussions about reform of the Senate, was that it was to act as a guardian of the regions and the provinces. Section 44 eliminates the Senate with regard to that vital role. You do not say that that procedure follows any other bill that the Senate can consider, but on constitutional amendment, which can involve the question of the division of powers of the provinces and the federal government, you make a eunuch out of the Senate and it has no power and then you come along and tell me a minute ago that you are talking about reform.
Now, I want to move along to one other subject.
Mr. Chrétien: You made a point but perhaps you did not state the facts. It is a fact that 44 applies in the case of 41 and 43, but does not apply in the case of a referendum.
Mr. Fraser: Of course it does not, why would it?
Mr. Chrétien: But if we want the referendum, we need the approval of the Upper House and you are complaining about the fact that with the referendum we could bypass the Senate. We cannot bypass the Senate or the Upper House because 44 applies to 41 and 43, not 42, which is the clause related to the referendum.
Mr. Fraser: Well, with great respect, Mr. Minister, you are not getting the point or you do not want to get it.
Mr. Chrétien: It is you who does not want to read the Act.
Mr. Fraser: Well, I am reading it pretty carefully, I just hope everybody else reads it.
Now, the other thing I want to refer to, and this is my last question, Mr. Chairman, and this is a point that I am sorry I have to raise but I am going to raise it, but in the press on Thursday, November 6, there is an item that indicates that one of the members of this Committee, the member from Shefford,
Mr. Lapierre, in talking about the proposed changes in the amending formula, that this will make possible the abolition of the Monarchy and he goes on to say that two years from now Canada will break its ties with the British Monarchy.
Now, Mr. Minister, I want to ask you bluntly if there is any suggestion—just a minute.
The Joint Chairman (Senator Hays): On a point of order.
Mr. Chrétien: The answer is: no.
Mr. Jean Lapierre: These statement did not come up here and, until I am told differently, I would tend to go in this direction, but I have no authority to commit the government.
Mr. Fraser: Well, I accept the honourable Member’s representation but I just hope we are not going to inflame this debate by any more free-wheeling comments.
Mr. Chrétien: Starting with you, Mr. Fraser, It is not the intention of the government to touch that section at all, and it was agreed in 1979, at the constitutional conference in February, by all the provinces, including the province of Quebec, and Mr. Lévesque.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Senator Austin followed by Mr. Epp.
Senator Austin: Mr. Minister, I want to turn your attention to a part of the constitution that perhaps will not be hotly debated or discussed, but it has some interest. It is Section 132 of the British North America Act and, for the information of the Committee, I am referring to the Treaty Obligation section which I will read. It is quite short.
132. The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries arising under Treaties between the Empire and such Foreign Countries.
As I am sure members of the Committee are well aware, as a result of judicial interpretation, the previous power which the Government of Canada had, or believed it had, to enter into treaties with foreign countries and override the division of powers under Sections 91 and 92 of the British North America Act was found wanting in that the treaty making power required Canada act as part of the British Empire, which we no longer do.
I wonder, Minister, is there anything, or the question I would like to ask you, Minister, is there anything in the present Statute that would amend this lack of ability on the part of the Government of Canada to implement treaties which we may enter into with foreign countries. As you know the United States, for example, another federation, has the power to override States Rights in the event that the executive makes a treaty which is consented to by the Senate of the United States. I am not drawing any parallels here between the U.S. and Canadian senates, but I wonder whether any consideration was given to the treaty making function of the Government of Canada at any time and, thirdly, whether there
have been any discussions with the Provinces or is it the intention of the Government of Canada to leave this matter as it sits?
Mr. Chrétien: It is the intention of the Canadian Government to leave the matter as it sits today because we do feel if we were to move in that field it would be an intervention in the balance of powers between the federal government and the provincial government at this time and it is a matter for discussion at the next stage of the constitutional discussions.
Of course, we are aware of this type of problem and we do not have the same extent of the powers of the national government in terms of treaties that will in fact jeopardize the balance of powers between the federal government and the provincial government.
We have decided at this moment not to make any move there, it would be for future discussion. Now the situation will remain where it is.
Senator Austin: Thank you.
The Joint Chairman (Senator Hays): Mr. Epp followed by Mr. McGrath as no Liberal members have indicated they wish to speak at this time.
Mr. Epp: Thank you, Mr. Chairman. I intend to follow up on the questioning of last night to the Minister. I appreciate Senator Goldenberg’s intervention today, asking what would be the position of BC. and I intend to put the position of BC. forward today and, as well, that one principle, one underlying principle I want to keep in mind and that is the question of fairness. I think the Minister in retrospect of the statements he made yesterday might want to reconsider some of those statements, but the point that I am trying to make is that of fairness.
Now, the argument was made today both by Mr. Mackasey and Senator Goldenberg that this will now discriminate against British Columbia. The first principle, or that argument is based on the principle that you look at Canada on the basis of regions only. The Prime Minister has always spoken against a checkerboard Canada. I agree with that. But you cannot only look at a province and its position within a region. What you have to do is take a look at the position of a province in the totality, its relationship to the rest of Canada.
I would like to ask the Minister what projections of growth rate they have in the Department, first of all for the Province of British Columbia over the next 50, 60 years.
Mr. Chrétien: A growth rate. I do not have such information. I can find it out.
Mr. Epp: You do not have any information like that?
Mr. Chrétien: We are not making projects on the growth rate. In the amending formula we say that if a province has or had or would have in the future 25 per cent of the population, you know, then the constitution will apply.
Mr. Epp: Have you done any projections as to any province in Canada other than in Ontario and Quebec, any demographic projects since those projects are available in the Department of Employment and Immigration. Have you looked at the
projections as to when any other province in Canada might reach the 25 per cent threshhold.
Mr. Chrétien: I do not know, I have never seen such a projection in the near future but I can try to find that out.
Mr. Epp: It is not in the near future, I am just asking you if you have any.
Mr. Chrétien: I do not have any. Probably there is someone in the government who has worked on it and I can ask for it and if I find it I would be delighted to give it to you.
Mr. Epp: Fine. Let us take a look then at what Section 41 does to British Columbia.
Section 41, first of all, I want to make sure that I understand Section 41(b)(i) totally correctly. The way I read 41(b)(i) is that any province that has 25 per cent population now, its approval or veto is needed for all future amendments. Is that correct?
Mr. Chrétien: Would you repeat that, I am sorry.
Mr. Epp: Do I understand it correctly that any province that now has 25 per cent of the total Canadian population, its approval or rejection is needed for any future amendments to the Canadian constitution.
Mr. Chrétien: The answer is yes.
Mr. Epp: Thank you. What is the percentage of the Quebec population of the total Canadian population of 1980?
Mr. Chrétien: 1980 it is . . .
Mr. Epp: 26.4. What was it in 1971?
Mr. Chrétien: I do not have it with me. In 1971 I do not have it.
Mr. Epp: 27.9. Now, what was B.C.’s population over the total population of Canada in 1971?
Mr. Chrétien: We do not have the figure, but we can provide it to you.
Mr. Epp: 10.1. What about in 1980? 11.
Mr. Chrétien: 11.
Mr. Epp: All right. The argument, Mr. Minister, is this: if you take a look at the percentage, for example, in Quebec and you project that as demographers have done in Canada, you are suggesting for the Province of Quebec that over the next ten years, 1990, projections are, if the same growth patterns in Canada continue, that they will be below 25 per cent threshhold.
Mr. Chrétien: Could be, I do not know.
Mr. Epp: All right, it could be. Those are the projections which I am projecting, but those are the projections given by Stats Canada.
Now, let us look at the B.C. situation. British Columbia by a population increase, and if you take the census over the last 30 years for each ten years, you will find that British Columbia has increased on an average of a half a million population over every ten year period. That half a million population increase from 1971 to 1980 has given them a percentage increase of the
total Canadian population of roughly one per cent, just a little below, but just take it for our purposes of one per cent.
According to those projections, all other things being equal and I know demography is not an exact science but we need it because you are basing your whole amending formula on demography, but on the basis of those projections, it could take British Columbia up to 100 years before the 25 per cent figure would trigger; first of all.
Secondly, British Columbia, before they would even have that threshold they would have to have a population increase of approximately 7 million for a total population of between nine and a half million and ten million to get the 25 per cent.
You will recall yesterday I said to you that my whole amending formula concept was based on fairness, on equity. I am asking you, how can you accept an amending formula whereby a province with a population at the present time of 6.3 could in fact retain a veto or approval and yet another province with a growth pattern would have to go to a population of something like 4 million more before they would have the same rights.
Mr. Chrétien: No, I said earlier that, you know, it is not for me to pass all those judgements on the Victoria formula as accepted in 1971. When we look at the file we decided that the best course was to go back to the one formula that was at one day acceptable to all governments with all the pros and cons of it and it was acceptable to all governments including the B.C. Government in 1971. If Mr. Bourassa had not backed down from that position it would be the amending formula that would be with us today.
So, we said that if this had been implemented in 1971 it would be the amending formula with its advantages and disadvantages today. We decided that it was the safest way to go back in history and accept an amending formula, the number of times in the history of Canada where there was an agreement and when Mr. Bourassa backed down from that agreement, it was not based on some complaint he had about the amending formula, it was related to a problem of family alliances that eventually were resolved by administrative arrangement.
So, I just want to state again that in looking at all the possibilities we felt that for us as a national government to go back to the formula that at one time in history, at one moment in ’71 it was acceptable to the II governments and if it had been implemented that it would be the amending formula, it is our position that if the provinces do not like that proposition, there is a mechanism in that that provides the provinces to come back with the new amending formula. If we have to some day go to a referendum we, the Parliament of Canada, we can have another amending formula than this one to offer to the public too.
Mr. Epp: But Mr. Minister, you keep on talking about 1971.
Mr. Chretien: Yes.
Mr. Epp: You are correct in evaluating that the Quebec Government of that date objected to the Victoria agreements because of the power of social policy, but the point I am trying
to make to you, sir, is that we are not talking about the past, we want to develop a constitution for the future and I suggest to you that the principles of fairness, that the principle of equity is not inherent in your proposal and that in fact what you are doing, as by any projections, and you can go to any demographer, by any projections what you are doing is, you are saying to Canadians that there will be different standards for different provinces. That is the proposal that you make.
Mr. Chrétien: Yes, but there is a variation in population; Ontario has 36 and Quebec has 27 and they have exactly the same situation in the amending formula. I do think, in the situation in terms of population with the Maritimes or Atlantic provinces, vis-a-vis the western provinces, the population is not the same. In fact, in terms of constitutional amendment, P.E.I., in relation to the population they have, have much more muscle than I would say British Columbia have, say, in relation to their population.
Mr. Epp: Are you willing to accept an amending formula or propose an amending formula which will result and obligate a province to have a higher population before it has the same rights as another province?
Mr. Chrétien: You know, I just say that there is no perfect is ending formula. I just explained to you that Ontario can say that, how, with 36 per cent of the population we have exactly the same powers and the same advantages and restrictions than the Quebec Province where the population is much smaller. One can argue that Ontario, in relation to their population, there is about 8 million people there and in the Maritime provinces there is a couple of million people all around and they could block any deadlock in relation to Ontario.
So, either you go with the very strict amending formula based on population at that time to hell with it, if there is an amendment, or if you accept there is variation in Canada, you accept that fact.
Of course, the amending formula as it has been described and approved in 1971 was not perfect, but since that time there was many, many, many amending formulae that had been discussed: the Toronto sensus, the Alberta formula, the Vancouver sensus and what-not, and never have we been able to have an agreement of everybody.
Mr. Epp: But Mr. Minister, what I am trying to point out is that it has nothing to do with the so-called change that you accepted for Prince Edward Island yesterday. The principle I am trying to get to you is that what you are asking Canadians to do and the regions and the smaller population provinces, including a province like British Columbia, what you are asking them to do is, you are weighting population through three elements of any constitutional amendment formula. First of all, it is done in the House of Commons, you need a resolution in the House of Commons. To a great degree it is done in the Senate. Our Senate, though representation is based on area but we all know there is a strong population bias. Now you are saying, unlike any other federation, you are also saying that you are going to weigh it on the double majority on the basis of population, on the approval of the provinces again.
Now, I am not one to look at the American examples, but if you take a look there just on that last step, you need three quarters of all the states, regardless of their population, to receive an approval on an amendment, but what you are saying to us is that you are willing to use that double jeopardy instead of a double majority on all three steps of a future amending formula.
I suggest to you, and I believe you ought to be a fair man, that what you are doing is equating to the rest of us an amending formula for a long period of time which is biased against us even with population increases.
Mr. Chrétien: You know, I just want to repeat that it is not a perfect formula.
Mr. Epp: It sure is not.
Mr. Chrétien: I said that I would look at the historical decision that was made in 1971. I do not want to substitute. I think I have a lot of wisdom—but I think that the It first ministers at that time must have weighted . . .
Mr. Epp: But you do not have that today.
Mr. Chrétien: I just said that either you go in one way or you go in the other way. You cannot say that the fairest way would be to give veto rights to every province or you would have a strait jacket. So, when you move from that . . .
Mr. Epp: Mr. Minister, yesterday I made that point and I think you agreed, that I was not talking about unanimity. Let us not use that red herring. I am not using unanimity, nor should you.
Mr. Chrétien: If you have that marvellous formula that is so perfect, put it on the table and we will look at it.
Mr. Epp: Well, I will tell you, anything compared to what you have got . . .
Mr. Chrétien: You know, if you are so smart, that is great, I will enjoy it and I will accept it, but I am telling you that there is none so far.
In the last 53 years, all the individuals of Canada, all the provincial governments, every new government has tried to find a perfect recipe and there was none. The closest that we came to an agreement—and it was an agreement—it was in 1971.
So, I came to the conclusion that perhaps I should respect the collective judgement of those people who were there at that time. I do not remember the names, but there was a representative of the NDP government, Socred government, Liberal government and Tory government and I felt that collectively they have passed that judgement. So, I felt I was not smarter than that group, but if someone thinks that they have a better amending formula than that, and I am telling you it is not the final decision. They gave two more years to the provinces to decide. We might too change it if the provinces come with their new amending formula.
So, if you have a better one, the Committee is for that, put it on the table and we certainly would be very happy if you have
the perfect formula that all the 11 heads of government will accept. I would be so delighted with that, you know, I would praise you for a long time if you were to solve the problem.
Mr. Epp: It would be easy to improve on yours.
The Joint Chairman (Senator Hays): Mr. Mackasey followed by Mr. Crombie.
Mr. Mackasey: Mr. Chairman, if we accept the principle, the concept, and I think Mr. Epp would want to listen to this, that Canada is a community of communities, and this is not Mr. Epp’s theory, so, I hope he does not get into this, or a collection of nation states or a collection of groups mostly bound together and the logical formula—not one prescribed by Mr. Epp or anyone else here—would be, in each province, each community if you like, each nation’s state, would have the power of veto. I did not say that, I am saying if our concept of Canada is that we are only a collection of nation states or a community of communities and all the other sayings we hear, rather than the federation of a strong central government.
Now, this formula, imperfect as it may be, emphasizes over the rights of provinces or rights of people. We are talking about people, not provinces in this formula when you look at it. We are saying that, really, when you look at the bit that happens to be Quebec and Ontario at the moment, we are talking about provinces, not particular provinces, but these provinces where 25 per cent of the population reside. In other words, the emphasis on this whole proposed formula, the emphasis is placed on people, on population, not on provinces.
Last night when Mr. Henderson raised the problem of the province of Prince Edward Island that it would play no role at all in the proposed formula insofar as it relates to the Atlantic provinces, the Minister suggested that he would accept an amendment and for all intents and purposes weigh the 50 per cent of the population of the Atlantic provinces; in other words, as I understand it, what the Minister was agreeing to was that two or more provinces in the Atlantic provinces would be all you required, regardless of population.
It was at that point that Mr. Epp talked about fairness. Mr. Epp quite properly moved in and said, let us be fair to the west. You are making concession to the Atlantic provinces which I think should apply to the west. That appealed to me because I do think that the west is not always understood in eastern Canada and, again, I come back to the point that I listened attentatively to with respect for the representative of the west.
But coming back to the emphasis on people rather than on provinces, the formula makes sense.
Now, I did not for a moment suggest that we are trying to be unfair to British Columbia. On the contrary, both Senator Goldenberg and myself were making the point that we want to be fair to British Columbia, just the opposite. From the statistics that Mr. Epp read into the record, it is obvious that before British Columbia could qualify under the provinces with 25 per cent of the population, it would be a long time.
The latest statistics show that British Columbia probably has 12 percent or 13 percent of the population at the moment. Mr. Epp says demographers are very imperfect. Well, I can assure you that members of Parliament are even less perfect. I used 12 percent but I think you will agree it would be a long time before British Columbia reached 25 percent. It is quite logical that the Premier of British Columbia, recognizing this fact, would want to see a formula applying to the West to protect the province insofar as that it is the province with the greatest population in the West.
If we were to apply to the Western provinces the change that the Minister suggest as being appropriate for Prince Edward Island, and which Mr. Epp suggest should be applied to the West, then it would be introducing a change in the formula whereby the views of the most populous province in the West would not have to be taken into consideration if constitutional change were to appeal to the people of. say, Manitoba and Saskatchewan, which is not the case at the moment.
The present formula makes it imperative that, in reaching the 25 percent or 50 percent of the Western provinces, you include not only Alberta, but British Columbia.
If you were to take the proposal of Mr. Henderson last night and applied it to the West, you are then creating a situation—which I am not against—and as I have said, I would support Mr. Epp; but you are creating a situation where Saskatchewan and Manitoba joined together would be sufficient to express approval by the Western provinces as far as this formula is concerned.
I am sorry, but what was done last night in response to Mr. Henderson’s request, was in essence to waive the principle that two or more provinces should total 25 per cent. That is what we did last night. We said Prince Edward Island or any other province would be sufficient, and if you were to apply that to the West, you could say Saskatchewan or any other province; and that other province could be Manitoba.
So I wonder what Peter Lougheed would say about this tomorrow if he got them together to say that some constitutional amendment could suddenly affect the oil and gas of Alberta, proposed and had it agreed to in the West by Saskatchewan and Manitoba; despite the small population; despite the fact that collectively they do not comprise the 50 per cent of the Western provinces! That is why Premier Lougheed said, “Wait a minute; we may not have 25 per cent of the population of the country, but in the West we have the provinces where the greatest number of Canadians happen to reside.”
I am simply saying that this formula is logically acceptable to Mr. Lougheed, and desirable to Mr. Lougheed; it is also desirable to Mr. Bennett. If it is not desirable to Mr. Epp, as a westerner—and I, speaking for myself, find Mr. Epp more persuasive than Mr. Lougheed or Mr. Bennett; I would gladly be guided by Mr. Epp’s position.
But I must remind Mr. Epp, once again, that what he is suggesting is that Manitoba and Saskatchewan collectively—because we would be waiving the population; you come back to
Prince Edward Island and you say, “I am sorry” if Mr. Henderson’s proposal is accepted, il collaboration with any of the other three provinces, that would be sufficient even though their numbers do not amount to 25 per cent. If you extend the same right to Saskatchewan and Manitoba, then you can get the same combination of factors.
Mr. Epp: No.
Mr. Mackasey: Mr. Epp, you say no.
Mr. Epp: I do not wish to interrupt unduly, Mr. Chairman. But what you are doing is taking it for granted that I have accepted the rest of the formula. I have not.
Mr. Mackasey: No, no. You did not make that caveat last night. We could have avoided many, many months of discussion on that basis. You are not against that section, but you are against the whole section.
Mr. Epp: That is fair enough.
Mr. Mackasey: Why not let us zero in on this one. Let me put it another way. If your reservations about other sections can be resolved, would your views change on this one, or would you still be adamant.
Mr. Epp: As long as the principle of fairness and equity is not violated.
Mr. Mackasey: Well, fairness and equity, as defined by Mr. Lougheed and Mr. Bennett are different from how they are defined at the moment by Mr. Epp. That is the point I am making.
The Joint Chairman (Senator Hays): Mr. Crombie, followed by Mr. Allmand, with consent.
Mr. Crombie: Thank you, Mr. Chairman.
I have a question which deals, first of all, with the amending formula, and then there is one dealing with the charter of rights.
My question with respect to the amending formula really relates to the previous discussion you had with my friend to the left and fy friend to the right.
It really deals with the question of the complication of the various amending formula. One of the things that struck me, Mr. Chairman, (and through you, to the Minister) is that there is one formula which is not complicated and which does not require a consensus, nor indeed does it require that anyone should agree other than a majority of the House of Commons and the Senate. It does not require the consent of the legislatures of the provinces, nor does it require the consent of the people who live in those provinces, nor does it require a majority of the people of Canada.
Now that is one which you would not want to give to anyone else, but which you would want to accept for yourself.
I would like to read to you, again, from Mr. Blakeney’s Speech of October 27, where he makes the very point; and I would like to know your reaction to it. He puts it very neatly:
Mr. Trudeau is in the unusual position of asking the British Parliament to legislate even though his actions, not only violate the amending process which we have followed for 50 years, but also violates the amending process which will be in place if the British Parliament
legislates precisely as Mr. Trudeau is asking it to do. If these amendements precede successfully your resolution. it will be by use of a process which has never been used before for changes of this kind and scope and will never be used again.
I submit to you and I ask the Minister to comment: if the amending formula that you offer has the computations raised by Mr. Epp and by others, then why do you think that the only government in the history of this country or so far as the future of this country is concerned, your government, should not have to follow a process which Canadians in the past or the future have to follow?
Mr. Chrétien: You know, when we debated that in the spring in the House of Commons, it was clearly stated by Mr. Clark—and the quotation has been cited a couple of times since the beginning of the proceedings—that if the very extensive discussions of the summer did not produce any results, the Parliament of Canada would have to take up its responsibility. I think I should quote it again, because it would seem to me that nobody seems to remember it. This is taken from the Montreal Gazette of June 7, 1980, and Mr. Clark said:
The participatants in Monday’s conference speak for 11 governements, Parliament speaks for 23 million Canadians. If the First Ministers of the Federation cannot make marked progress toward changes which fit the Canada of the 19805 then the Parliament of the Federation may have to assert a stronger role.
So, that is exactly what we are doing.
The Joint Chairman (Senator Hays): Mr. Crombie.
Mr. Crombie: If all the formulae that you have offered for consideration are an attempt to protect the persons and regions and provinces of this country, then that is why they are fraught with some complexity. I still do not understand why it is your government, not any federal government, because future governments will not be able to get away with what you are doing, then, why is it your government does not have to go through the same process to protect the people, regions and provinces in this country?
Mr. Chrétien: You have just quoted from Mr. Blakeney to the effect that the only way we could amend the constitution today is to go to England. People seem to forget that what we are doing in this process is to attempt to bring the constitution back to Canada. From that day onwards there would be no possibility of any national government acting unilaterally as it is legally possible to do today.
The day we patriate the constitution, we will either have the Victoria formula or any other amending formula agreed upon by the provinces and the national government or voted upon by the people of Canada.
Mr. Crombie: Mr. Minister, we are not talking about bringing the constitution home only; you are changing the constitution, and that is the difference. And you are changing it fundamentally!
Mr. Chrétien: Where?
Mr. Crombie: For the very reason that you have to have those very safeguards for changing fundamentally the constitution in the future, surely they must be the same reasons why we have to have those same safeguards to change your changes to the constitution as well.
Mr. Chrétien: You know, we are entrenching a bill of rights for the protection of all Canadians. I think everyone would recognize that if we were not to do it in that way, then it is likely that it would probably never come about that there would be a charter of rights applying to all Canadians at the same time. It is a national responsibility. There is no great debate against the wisdom of having a charter of rights in the present discussion.
In fact, if I have any difficulty with the charter of rights today—and since the beginning of these hearings—it is that we are not going strongly enough with a charter of rights.
So I think we are taking on the national responsibility of a national government, as stated by Mr. Clark at page 3281 of Hansard where he said . . .
Mr. Crombie: A point of order, Mr. Chairman.
Mr. Chrétien: l was not allowed to finish the quotation, Mr. Chairman, He said:
But if it does, that must not be as the institution of one government, but as the forum of all Canada. Parliament, alone among institutions, reflects that country and can lift the discussion above the question of what governments need and focus on the question of what the nation needs.
I think the government at this time has come to the conclusion that the nation in Canada needs the protection of rights in the constitution; and if we were to leave it to the willingness of the provinces to bind themselves in a charter of rights, then there would be some rights which are protected for some Canadians and other rights which would not exist for other Canadians. As a Canadian who has a national responsibility, I feel very strongly that the rights of all Canadians should be protected in the constitution.
Mr. Crombie: Mr. Chairman. the Minister takes the question and does what he likes with it; but clearly he understands that he is asking for a power, and his government is demanding a power greater than any power which has been given to any other government in the past or any other government will be able to get in the future in changing other peoples rights.
And my second question is in relation to this charter of rights, in answer to Mr. Robinson, dealing with the question of the relationship of the referendum to the protection of that charter of rights—and the Minister knows I support the existence of a charter of rights—the answer was not given very well.
The question was: how is it the Minister can allow a referendum which takes the majority to override the rights of the minority when, indeed, the whole purpose, at least as he states it, the whole purpose of a charter of rights is to protect the minority from the majority.
The answer that the Minister gave to Mr. Robinson was, “well, we have to be flexible.” That is terrific! Surely there is a better answser.
Would you not accept the proposition that, an amending formula which relates to the charter of rights should not include the referendum so that the minority can continue to be protected from the majority which, after all, is the purpose of it all?
Mr. Chrétien: You know, the problem that we are facing with the amending formula is that it would be very complicated to achieve a reduction of rights.
Mr. Crombie: We have already established that.
Mr. Chrétien: No, no. I have just said it would be very complicated. And you are telling me that in no circumstances, after the charter had been entrenched, that it should be amended—negativeIy, if I may use that term.
You say it can be done by the provinces, but not to have a referendum; but, personally I am willing to look at all aspects of the matter, and I am not married to that.
I think if we do not permit a referendum to amend the bill of rights after it has been entrenched, then, if we want to add to it—and Mr. Robinson argued that we could, if there is a deadlock, add rights, that we can use a referendum.
In my judgment, it would be a kind of double standard to say that to add would be okay, but to subtract would not be.
There might be circumstances where rights would have to be changed. If there was no agreement between the federal and provincial governments, the people can decide.
But we are talking in the extreme. You are talking about taking away from the Canadian public. I tend to sympathize with the arguments of Mr. Robinson, that we should make it even more difficult. I do not know if it can be achieved. But I am willing to look into that matter.
But I do find it a bit odd that we will permit a referendum to add to the protection of rights, but not for any other unknown future reason to be able to change it—and there is a controversy in which the people could not express their view on it. But it will come after a considerably long process of public debate and not overnight like it is today.
Mr. Crombie: So you are willing to look at an amendment in that connection, Mr. Minister?
Mr. Chrétien: Well you know, if you have some amendment to that effect, I would look into that to see if it makes any sense.
Mr. Crombie: I have a final question on the charter of rights, Mr. Chairman. it is in relation to Section I which sets out the philosophy of the charter of rights as you and your government understand it, Mr. Minister.
I have always accepted the proposition that in Canada what we have done is to continue the parliamentary tradition as well as to entrench certain rights, particularly in the British North
America Act. I have had no difficulty in accepting both traditions as Canadian.
But it strikes me as odd that those who have great concern for the argument with respect to parliamentary sovereignty would like to protect that sense of parliamentary sovereignty and you would not include the word “affirm”, or, “re-assert the rights of Canadians”.
There seems to be the sense in Section I that rights flow from Section 1. That bothers me, because it seems to me that my rights come not only from the British North America Act, but even more importantly, from those ancient rights which we have had long before that.
I can remember a speech by Duplessis in 1950 when he said:
In the Province of Quebec we consider that the British North America Act does not create our rights, but only confirms and re-asserts the rights of our Province.
That is rather important, because it is exactly the same philosophy that you find in Dicey and other authorities who want us to understand that our rights flow from those traditions as well as from those entrenched rights.
Mr. Chairman, my question is: Mr. Minister, would you consider an amendment which allows in Section 1 or any other appropriate section the inclusion of wording such as “re-affirm” or “affirm” and/or “re-assert”, so that it allows us to understand the principle that our rights make constitutions; our constitutions do not make rights.
Our rights come from history. They do not come from governments. We are not dependent on you for our rights.
If we can use words in Section I which allow us to say that we are affirming and re-asserting our rights, you will go a long way to appeasing those who are concerned that a charter of rights knocks out our parliamentary system.
Mr. Chrétien: I would like to clarify it if possible but the advice I am receiving in that respect is that it was one of the problems that was faced in the Bill of Rights of Mr. Diefenbaker and the way that the court interprets the Bill of Rights in relation to the problems they were faced with. Perhaps I can ask my deputy minister to elaborate and give you a more specific explanation as to why we decided to use that drafting method.
Mr. Crombie: Before your assistant does that I would ask you, rather than dispose of the matter right now because I have only had a limited time and I want to more fully develop it, and I would be happy to do it with you privately, but I would like you to take it under consideration at this point because I think it is a fundamental point.
Mr. Chrétien: Fine, but if you want to discuss that with Mr. Tassé . . .
Mr. Crombie: And then you can bring it back and respond to . . .
Mr. Mackasey: Mr. Chairman, why not allow him more time because I would like to hear the explanation, but not on your time. Perhaps we could extend the gentleman’s time by a few minutes.
Mr. Crombie: Or another time.
The Joint Chairman (Senator Hays): I am in your hands. No, it has been refused. Sorry, Mr. Crombie.
Mr. Crombie: We will raise it again.
Mr. Robinson: Mr. Chairman, just a very brief point of order. I am sure that the Minister would not want to inadvertently mislead the Committee with respect to certain remarks which I made. The Minister indicated, and I think the record should be clarified, the Minister indicated that I stated I supported the referendum process if it were only used to add to the package of rights. I think that the record should be clarified. The Minister should confirm that, indeed yesterday and today I said very strongly that the Charter of Rights should not be permitted to be amended by referendum at all, but if the Minister insisted on this process going ahead, that as a maximum it should only be allowed to add to rights, but my position is certainly the referendum is not appropriate in dealing with the Charter of Rights.
Mr. Chrétien: I am sorry if I misstated the position, it was inadvertent.
The Joint Chairman (Senator Hays): Mr. Allmand followed by Mr. McGrath.
Mr. Allmand: Mr. Chairman, and Mr. Minister, this morning I had raised with you some what I consider to be inequities in Section 23 in that it would lead to two classes of Canadian citizens, those who would have the right to opt for minority language education and those who would not simply because their mother language was English and French rather than others. And you discussed with me the political difficulties of that. I did not have time this morning to suggest to you what I believe should be the counter-balance of that measure, where that measure, as you pointed out, may have some difficulty in Quebec because it would override certain provisions of Bill 101. By the way, I should point out that the educational rights of the Provinces are presently restricted by Section 93 of the Constitution; they are not absolute, they are restricted with respect to religious rights and other rights to intervene on behalf of those minorities which were the most important at the time of the Constitution in 1867.
Well, I accept your argument that it would be difficult but what I was going to suggest if I had had time this morning was that we should also include an amendment in the package of amendments to the proposal which would extend Section 133, the provisions of 133 to Ontario, New Brunswick and to provinces who had achieved at least 5 per cent of their population as a minority language group, which was about what Ontario has today. Ontario has about 7 per cent francophones. I would say that if any province achieved 5 per cent they would automatically opt into the provisions of 133.
Now, in Bill C-60, in Sections 14(2), 15(2) and 16(2) you have made provision, the government made provision, of which you were a member and I was a member at the time, for the extension of the provisions of 133 to these other provinces, especially to Ontario and New Brunswick, and while that may upset the present Government of Ontario I think that it is right in principle.
Mr. Minister, my interpretation of the referendum results in Quebec were that the people of Quebec, at least the majority, did not want to restrict themselves as francophones to the boundaries of Quebec; they wanted to feel at home throughout Canada, and a meaningful proposal to make them feel at home throughout Canada would be the extension of 133 to at least Ontario and New Brunswick, and Manitoba, since Manitoba has been included by the Supreme Court, but to any other province which might have in the future a 5 per cent minority group in the french language.
So, even if it incurs some political problems, and there are some political problems in Quebec with amending Section 23 to apply it equally to all citizens, and there would be political problems with Ontario, I suppose, if you extended 133 into that province. Nevertheless, these types of proposals are the ones that have been consistent with the policy of the Liberal Party over the years that l have been a member of Parliament. Those have been the proposals in C-60, those have been the proposals that other governments have made over the years and what I am suggesting to you is that your attempt to compromise on minority language education rights, and on general language rights in order to gain more support among, let us say, the more nationalistic group in Quebec, for example, you are not gaining that support. I maintain you could take off all your clothes and you would still not get Levesque and his supporters support, but you are losing the support of the ethnic groups in Quebec and the minorities in Quebec by watering down the minority language provisions.
So you are losing support and gaining nothing. If you are going to go unilaterally, I suggest do what is right and not compromise. Do what we have consistently stood for as the Liberal Party over the years: equal rights for French and English, extend it into Ontario, Quebec and New Brunswick at least and have all rights apply to citizens equally and not some for one group and some for another.
Mr. Chrétien: I would like to clarify the statement you made because on Bill C-60, the Charter of Rights as proposed in that Bill, it was not obligatory that 133 applied to Ontario and New Brunswick. It was for those provinces to have the possibility of opting in and you will find that in Clause 131 of Bill C-60.
So at no point were we forcing 133 on New Brunswick and Ontario, but we were providing to these two provinces the possibility of opting in to 133.
So we never had the intention of imposing Bill C-60 on the provincial governments of Ontario and New Brunswick. We always made it possible for them to opt in, so it was not an imposition in Bill C-60, it was an opting in formula for them to get involved.
In terms of your suggestion on what to do on the language education rights, you said that, basically what you are recommending is that we go with the freedom of choice.
Mr. Allmand: No. Just to clarify that, Mr. Minister, I am suggesting that you have provisions somewhat similar to what you had in C-60, where the right to opt for minority language education would be with the minority language group but not with the majority because the majority controls the political process in the province. In other words, if the francophones of Quebec wanted to give themselves the freedom to go to English schools, that is up to them, they control the legislature.
Now, my proposal is not full freedom of choice but it is to give the right to opt for the minority language education to all those who are really in the francophone or anglophone community. It could be Lebanese or Vietnamese in Ontario who, in many cases, French is their second language but not their first language. It could mean in Quebec some Italians, some Dutch, some Norwegians who have opted for the anglophone community but may have come here at an early age. And especially, as I mentioned this morning, your friends in northern Quebec, Charlie Watt, Billy Diamond and those people who, although their first language is Cree and Inuit, they have at an early age gone to English schools. That has been their tradition, and under this provision that can be taken away from them, Section 23, because their mother language is not English or French.
Mr. Chrétien: But the way it is drafted it is a minimum’ requirement. I think that the provincial government of Quebec would be well advised to let the Charlie Watts and the Billy Diamonds and all those people go to English schools. They have the right to let them do it, but the problem is, I am looking at some amendments to that Clause but I do think we wanted a minimum interference with the educational responsibility of the provincial administration and I am afraid that the formula that you are suggesting to us will give, say, the Italians or the Greeks or the Ukrainians who arrive in Montreal the freedom of choice, because they could say: I learned a little bit of english when I was in those countries and I want . . .
Mr. Allmand: Only when they became citizens. I am suggesting to you to look again at your proposal in C-60 and improve on that. And by the way, I do not have much time left, but it is true that in C-60 your measures to extend 133 to the provinces of Ontario and New Brunswick were optional, they had to opt into that and I agree with that, but at least it was a move in that direction which I thought was good.
However, at that stage, Mr. Minister, at that stage, you were trying to negotiate a consensus with the provinces. You have now taken the position that you are going to proceed unilaterally, although you do have the support of at least two provinces, Ontario and New Brunswick, and maybe Saskatchewan, it is hard for me to determine whether they are with you or against you, but I am suggesting if we are going to go unilaterally, we should do what is right, we should look ahead 100 years and not look at the next election. Be a statesman and not a politician.
An hon. Member: Hear, hear.
Mr. Chrétien: I am always amazed when people ask me to be even tougher than we have been because I listened to all those speeches in the last month and we were called all sorts of names, that we were going to impose a dictatorship in Canada and so on. I am told by a lot of members of this Committee that I should go further than that and slam it as a statesman.
I take it as a kind of a compliment because my reputation in the past has been that I was kind of a bulldozer and now you tell me that I am very soft.
Mr. Allmand: You were here, you were in parliament when we put through the Canadian flag, you remember the opposition that came from many parts of the country and, unfortunately, from the Official Opposition of the day. We persisted, we got that through, we rammed it through, one might say, finally with closure but today it is accepted.
Mr. Chrétien: Yes, but the problem is, we have tried in that scheme we have in front of Parliament at this time to not change the balance of power between the federal government and the provincial governments, and we have been very careful not to move too far. I am glad that it is kind of a reproach you are giving to me and you say: Chrétien, you should dare more. That is fine, I will accept that criticism and look at it but you heard the views of a member of our party this morning who said do not touch it at all.
Mr. Allmand: Could I suggest that you look again at some of the opting in provisions at least that you had in Bill-60?
Mr. Chrétien: I thank you for your recommendation. I will look into that and see if there is some improvement that can be made. Merci pour votre intervention.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand. Mr. McGrath followed by . . .
Mr. Chrétien: I am sorry, can I just finish the reply? They can opt in now, that is the minimum. If the provinces want to give more rights to the francophones or the anglophones, they are welcome.
Mr. Allmand: Oh, I know, but you permitted . . .
Mr. Chrétien: And Mr. Ryan intends to do so.
Mr. Allmand: I know, but you are writing in stone in Section 23 divisions between citizens.
The Joint Chairman (Senator Hays): Mr. McGrath followed by Mr. Nystrom. Mr. McGrath.
Mr. McGrath: Mr. Chairman, if I could I would gladly give some of my time to Mr. Allmand to continue that most interesting line of questioning. However, I would like to get back to the Charter of Rights, Mr. Chairman. I want to make this very clear, that I have very grave doubts about the principle of entrenchment of rights and freedoms. I have yet to be convinced that this is the way we should go and whether or not this is compatible and consistent with a parliamentary democracy. Certainly I find it reprehensible that we would ask the parliament of another country, the Parliament of Westminster to entrench in the Canadian Constitution Canadian rights and freedoms.
In any event, I believe that the charter as it is presently drafted is meaningless by virtue of the implications of Section 1. I think if you can examine what the Minister has said, both to Mr. Crombie today and to myself yesterday, that statement can be borne out.
My reservations about the principle of entrenchment notwithstanding, I would like to ask the Minister some specific questions because we do have this measure in front of us, and I would like to go to Section 11 of the charter on page five.
I would like to ask him with regard to legal rights, what are the implications of that particular section with regard to the Official Secrets Act? For example, it states that anyone charged with an offence has the right (a) to be informed promptly of the specific offence and tried within a reasonable time, to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
An hon. Member: Those are rights we already have.
Mr. Chrétien: Of course, this Bill of Rights will give rights to Canadian citizens . . .
Mr. Fraser: We have got those rights.
Mr. Crombie: I had those long before I heard of you.
Mr. Chrétien: What is all the fuss about?
Mr. Fraser: Those are rights we have always had.
Mr. Chrétien: But you do not want them in the Charter of Rights.
Mr. Fraser: I am just saying, I am pointing out the words you used. You are not giving us those rights, those are our rights.
The Joint Chairman (Senator Hays): Order, please. Would you let the Minister answer, please.
Mr. Chrétien: I shall answer in French so perhaps I will be better understood.
We want to entrench this Charter of Rights in the constitution so that those rights are confirmed, cannot be withdrawn at the whim of any level of government. In answer to the question put by the member for St-Jean, as to the implications of this Charter on the Official Secrets Act, obviously there will still be an Official Secrets Act in Canada that could of course be eventually amended. That legislation exists and will remain. It
will be up to the courts to determine whether the Charter of Rights will henceforth give to certain individuals now submitted to the Official Secrets Act certain rights that they do not have today and it will be up to the courts to determine how to implement the Charter of Rights without infringing on the Official Secrets Act. For example, there could have been certain incidents that have occurred. I am not very familiar with past incidents concerning the Official Secrets Act, but this Charter will give protection and the attorneys defending individuals accused under the provisions of the Official Secrets Act will then have a constitutional reference for the rights of those citizens brought before the courts under that Act.
Mr. McGrath: Does the same apply to the War Measures Act?
Mr. Chrétien: Exactly.
Mr. McGrath: That is not quite consistent with what you have been saying, Mr. Minister. What would be the rights of a person under this particular section of the Act if in fact the War Measures Act was invoked.
Mr. Chrétien: You will have recourse to the Charter of Rights. Suppose that they were to be detained and they were not allowed to have a lawyer. For example, (a) to be informed promptly of the specific offence. I am told at the time of the War Measures Act some accused were not told why they were detained. Under the Bill of Rights in the Constitution they would have their constitutional rights, and if it is denied them by the law enforcers of Canada there will be recourse because of the Charter of Rights of the citizens of Canada.
The Joint Chairman (Senator Hays): Mr. McGrath.
Mr. McGrath: Mr. Chairman, I would like to go . . .
Mr. Chrétien: Mr. McGrath, if you want me to ask Mr. Tassé to give you a longer explanation of the effect of Section 11 in relation to the War Measures Act and its application to Canadian citizens, perhaps . . .
Mr. McGrath: I think that would be very useful, Mr. Chairman.
Mr. Tassé: Well, perhaps I could just briefly comment that in effect the big change that will occur is that with a charter of rights like this, a citizen could challenge in court the application of federal and provincial legislation, and if in effect the Official Secrets Act were to impose too many restrictions on the right of citizens, and that in effect are contrary or restrict the rights that are spelled out in Section 11, for example that the trial should take place at a public hearing by an independent and impartial tribunal, and in effect he is complaining that everything is taking place in secret, in camera, then in effect he could challenge that in court. He could challenge the authority of Parliament for having made that restriction on his rights under Section 11.
Now Section 11 will come into play and what the court will have to establish is whether the restrictions or limitations that are imposed by parliament under the Official Secrets Act in that example are strictly reasonable in terms of the situation that the official Secrets Act is meant to deal with and they will have to make that balanced judgment, which is not the case now.
Now, the Parliament will just enact a law and the courts will have to apply it and what would be possible under this kind of charter is a challenge as to whether the limitations that are imposed by Parliament, by an Act of Parliament, on these rights are reasonable in terms of the situation that the Parliament wanted to deal with.
Mr. McGrath: They are the implications of such a challenge under the provisions of Section 1, Mr. Chairman.
Mr. Tassé: Well, the court will have to make an assessment as to whether the restrictions imposed by Parliament is a desirable one in terms. . .
Mr. Robinson: Not reasonable, generally accepted.
Mr. Tassé: Well, that is meant to be the incorporation of reasonable tests. The Section talks about reasonable limits.
Mr. Robinson: It does not mean reasonable limits, it says generally accepted.
Miss Campbell: Well, reasonable limits are generally accepted.
Mr. Robinson: And it goes on.
Mr. Tassé: Reasonable limits are. . .
The Joint Chairman (Senator Hays): Order, please.
Mr. Tassé: It is a double test.
Mr. Robinson: Yes, that is right.
Mr. McGrath: I have no objection at all, Mr. Chairman, to all of these learned interventions because I think they are really helpful.
I would like to go and ask why, in terms of rights, for example, in terms of legal rights in Section 7, and of course this would also apply to Section 2 as well, there is no reference to the rights to hold property. For eample, Section 7, everyone has a right to life, liberty and security. Why do not we have the right to property.
Mr. Chrétien: You know, when we discussed this question on property rights during the summer, you will remember the debate we had on TV, for example, about some restriction of the Province of P.E.I. on that question. We decided that because the consent of the Province was very real in that, then because of the problem of zoning, taxation, environmental protection, preservation of agricultural land, industrial development, development of highway systems and so on, so, the Province said . . .
Mr. McGrath: That is crazy.
Mr. Chrétien: But you tell that to the Province.
Mr. McGrath: But I am telling it to you. That is the only excuse you can give us because that just does not hold. What
about the Diefenbaker Bill of Rights, for example, which spelled out the right to hold property. That had no impact on the P.E.I. Property Act, or whatever you want to call it.
Mr. Chrétien: Yes, but it is applied to the federal level, this will apply strictly and directly to provincial jurisdiction.
Mr. McGrath: Are you telling us that you are withholding from the Bill of Rights the right to hold property because of a statute of the legislature of Prince Edward Island or any other legislature?
Mr. Chrétien: No, it was the consent of all of the Provinces because they administered all those legislation I referred to. They felt it was too massive an intervention and it was to make too complicated the operation of the provincial government in the matter.
So, we have accepted their representation in that matter and I have to tell you that your native province, Mr. McGrath, was very strong on that issue.
Mr. McGrath: What are the implications then of defining rights and excluding the specific right which everybody holds to be a fundamental right in a free society to hold property and continuing to expropriate and, you know, both the federal and provincial governments.
Mr. Chrétien: Yes, I just said that we were told by the provinces that it was to be too massive an intervention in their field of operation and we have acceeded to their request.
Mr. McGrath: In the context of a Bill of Rights?
Mr. Chrétien: Yes.
The Joint Chairman (Senator Hays): Mr. McGrath, that is your last question. Mr. Nystrom?
Mr. McGrath: May I have a reply, please.
Mr. Chrétien: But the Canadian Bill of Rights will continue to give the same kind of protection to the Canadian and Federal jurisdiction.
The Joint Chairman (Senator Hays): Mr. Nystrom followed by Senator Asselin.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to revert back to some questions I asked the Minister this morning about Part IV of the Resolution that is before us because some of the statements he made to me I found very Very frightening about some of the possible ramifications to our country if indeed they were to be true.
I go back to page I l in the Resolution and you find here the procedure that is going to determine what our amending formula is going to be.
First of all, the Minister is using all kinds of percentage tests and population tests. The first one is that if eight provinces that contain the population of 80 per cent of Canadians that come forth with an alternative, that alternative could be put before a referendum; that is 80 per cent.
Then, if we have to chose between the two alternatives it will be a 50 per cent plus 1, which is a different percentage test.
Once we have an amending formula, we are going to have a double majority which is 50 per cent across the country as a whole and 50 per cent in each of the four regions and all of a sudden we have a concept of regions which we have never had before in this country in our Constitution.
Now, I want to ask the Minister how he can justify when he knows very well the history of this country, determining something as sensitive as an amending formula on the basis of a simply majority. I will go back to 1941, the conscription of Quebec, where Quebecois and French Canadians voted overwhelmingly no, English Canadians voted yes; very divisive. What would happen, for example, if one region were to vote overwhelmingly no, such as the West, vote 90 per cent “no” to an amending formula and we still get the amending formula. What does that do to unity in our country?
I think the Minister knows the rumblings of Western separatism which all of us hope will never, ever develop. What is going to happen if the Federal Government has a referendum. As I said this morning, Ontario has 36 per cent of our people. Eighty per cent of Ontario could say yes while each of the other nine provinces could say no. They could say no by a vote of 65 to 35 and it would still carry with a 51 per cent vote.
In light of all of these possibilities, how can the Minister possibly justify that we as Canadians should choose our amending formula on the basis of a simple majority.
Mr. Chrétien: Because, as I explained to you earlier, after patriation there is two years with unanimity rule and after that we have to determine, if we have to have a referendum. an amending formula that would have to be approved. It will be a simple question: are you in favour of the federal amending formula or the provincial amending formula.
There is no room there. If we say it takes two-thirds and none of the two gets two-thirds, you end up with no amending formula whatsoever, unless you want to maintain the unanimity rule that it is much too rigid.
So, I just say that we owe, and I do think that if there is, in the period of two years we can develop up an amending formula that is acceptable to everybody that we will not have to have a referendum.
I do not see with great pleasure the possibility of having a referendum on the amending formula. Going for the Victoria formula, the other guy will go for the Vancouver concensus. that will make great ccmpaigning.
You know, I think at one time we have to decide in Canada that there will be an amending formula that will last forever and it is that one occasion. I hope that it will be avoided but I do think that . . .
Mr. Nystrom: I also hope, Mr. Minister, a referendum will be avoided but the way you have written, for example, Section
38(1) where eight governments with 80 per cent of the population can make a single proposal. Now, Ontario, of course, and the Premier of Ontario have already agreed with your proposition. So, perhaps we will never have that provincial proposition. Maybe that is why you have written it this way in the first place, I do not know.
Mr. Chrétien: No. In fact, the reason why we have written it this way is because we do not—in putting seven provinces we could have a region where the majority of the provinces would be opposed and having an amending formula, so, with eight, we are shorter. There are two from the Maritimes and two from Western Canada. So, you know, it will be because you could have a situation where if you have seven, all the other provinces in one part of Canada who disagree and you will have a new amending formula. If you want to. If you think it is not a good formula . . .
Mr. Nystrom: It is okay to have the population—it is okay to have the test in terms of eight governments but what about the population factor. We may never have that alternative.
But I want to get back and you still have not answered my question of whether or not you think a simple majority for deciding an amending formula is a good thing. I maintain it is potentially very, very, dangerous, it could set French Canada against English Canada, East against West, Ontario against the rest of the country. How can you justify that when after we do have an amending formula you are calling for the double majority. Now, I agree with you on the double majority, it is very important to have that double majority where you recognize that the regions are important, the provinces are important.
If they are so important, why are they important in selecting the most sensitive part of this Constitution which is the amending formula.
Mr. Chrétien: You know, the problem as I explained to you, how do you resolve the difficulty that I mentioned that after two years if the provinces agree on an amending formula and we agree on one and we go to the people and you ask for more than a simple majority, you will end up with no amending formula at all.
Mr. Nystrom: That is not necessarily the case, Mr. Minister.
Mr. Chrétien: If it is the government’s position that until there is an agreement a 2/3-1/3, we will have the unanimity rule until we have an agreement.
Mr. Nystrom: Nobody is saying that. It is you and your officials that have written this proposal as it is where you are putting two questions to people.
Mr. Chrétien: Yes.
Mr. Nystrom: Perhaps we should have a referendum where there is only one question, a yes or a no. Perhaps we should have a 60 per cent vote across the country. Perhaps there should be a situation where there is a double majority like there is in Part IV. I mean, it is you that has written these rules.
Mr. Chrétien: Who will ask the question. Should we just have our amending formula and go to the people and ask them yes or no and if they do not like this we go with another
formula two years later or six months later, We felt that if we were to offer the choice of the provincial amending formula and the federal amending formula, they will decide between the two.
Mr. Nystrom: Does it not show you. Mr. Minister, that this is another reason why this Committee needs more time. This is something that is very complex, it is something you can not answer, you have not satisfied the members of this Committee if you are satisfied with a simple majority. It is potentially very dangerous, I think once again we should be saying that we need more time to study the options and come before us with a few other alternatives.
Mr. Chrétien: But you have had this Resolution a month. If it is a problem today, it was a problem a month ago. What is you solution. I was explaining that the problems that we were faced with, that coming to Canada we will have the unanimity rule and at one time we need another amending formula because unanimity rule is too rigid and we say, well, we will offer the public to choose between the provincial agreement upon an amending formula and the federal . . .
M. Nystrom: But, Mr. Minister, nobody is arguing for unanimity rule but the first time we have ever seen an amending formula being chosen by 50 per cent of our people is when you presented this Resolution. No one has talked about that in the past. All of a sudden it is a brand new invention that just came out of the air and l maintain it is very, very dangerous. We do not even know what the options are going to be, for example.
You have here in Section 38(3)(a) the provisions that the modified Victoria Formula may indeed not be the federal proposition. It says here that the federal government may present any other alternative. I think that is a very, very dangerous thing. An other alternative. We do not know what that alternative is going to be. You are asking us to pass a pig in a poke.
We could have a referendum in this country that seriously divides Canada, not unite Canada. We should be doing concensus building and healing in this country. You have not justified why you are…
Mr. Chrétien: Well, I am telling you that there will be one time when we will need an amending formula to replace the one that is unanimity. We said there will be a federal and a provincial amending formula and the people will decide. Of course, You can always make the case that it will probably, it can be 50.5 against 49.5.
Mr. Nystrom: Yes.
Mr. Chrétien: But we do not know, But at one time it is just like elections.
Mr. Nystrom: One more question, Mr. Chairman.
Mr. Chrétien: My people will express their views and the majority view will prevail.
Mr. Nystrom: Well, Mr. Chairman, we are dealing with some things such as a Constitution and most organizations I know of change their constitution not through a simple majori-
ty vote but through a two-thirds vote or a 160 per cent vote or some other arrangement in their organization.
Can I at least ask you whether or not you will re-examine your proposal, re-examine Part IV, re-assess it, ask your officials to take another look at some other options we may study.
Mr. Chrétien: If you have a better solution that that, but you have not responded to the question I put to you. You know, come two years after patriation of the Constitution and there is a dead-lock between the two formulae, which one will the people pick up. I think that when you have that, you know, we need an amending formula so that they will pick one or the other. You are making the worst case that it will finish 49.9 against 50.1.
Mr. Nystrom: Mr. Minister, there are many other scenarios one could present. You could present the scenario where 90 per cent of the people in the West say no and the rest of the people say yes.
Mr. Chrétien: Yes.
Mr. Nystrom: But all I am asking you is whether or not you will re-examine this and re-assess this and you have not said yes. I assume that you are not going to.
Mr. Chrétien: I am here Mr. Nystrom and we have looked into that problem for months and it is not an easy one. I think if you have a better solution it is your responsibility to suggest that to us. We have looked into all the different alternatives there, it is not a lack of looking it is that we do not find a better solution than this one. If you have a better one, make it available to the Committee and we will look into that.
Mr. Nystrom: Section 41(1)(b)(i), a follow-up on the questions asked.
The Joint Chairman (Senator Hays): Your time is up, one more question.
Mr. Nystrom: If I may have one more question. We had questions earlier today about British Columbia. If you look at Section 41(b)(i) it says
(i) every province that at any time before the issue of the proclamation had, according to any previous general census, a population of at least twenty five per cent of the
Canadian population will in effect have a veto which now refers to Ontario and Quebec.
I am not presenting arguments now as to whether or not Ontario or Quebec should or should not have a veto regardless of what their population will be in the future. But I want to wask you very simply, would you consider the possibility of changing that where any province that may attain 25 per cent of the population in the future should have the same rights as any other population?
Mr. Chrétien: The case, the way I understand that . . .
Mr. Nystrom: No, no, that is not the case. I just read it, it Says that any province, according to any previous general census before the issue of the proclamation had a population of at least 25 per cent of the population of Canada. It is before the proclamation and any previous general census.
Mr. Chrétien: You know, you understand that when a province will attain 25 per cent of the population they will have the same rights that exists today for Ontario and Quebec. It is the intention of the drafters. If you want some clarification, I am told by my advisor that this text provides for that. If you are right, we will change it.
The Joint Chairman (Senator Hays): Senator Asselin.
Mr. Robinson: A point of order, Mr. Chairman. I am sorry, Mr. Chairman. I am sorry to raise another point of order, but I believe, again, it is important the record is inaccurate and I believe the Minister should correct a statement which he made earlier with respect to Section I, which is what I have called the “Escape Clause” in the Charter of Rights, referring to the reasonable limits as are generally accepted. I pointed out the weakness of that test. The Minister then came back and said, well, there is reasonable limits required.
Now, I want the Minister to confirm that in fact, at least in the French version of this, there is no such thing whatsoever in Section 1.
Mr. Chrétien: I would check that.
Mr. Robinson: The Deputy Minister has indeed confirmed that, Mr. Minister. I believe the Deputy will confirm that.
Mr. Tassé: Well, I can confirm that the word “reasonable” is not shown in French. I think this is one where we will need to have a second look at the consistency between the French and English text.
Mr. Robinson: Okay.
The Joint Chairman (Senator Hays): Senator Asselin.
Senator Asselin: Mr. Chairman, if anyone can get the floor back by making a point of order. I would advise my colleagues to do the same as what an NDP member has done a couple of times today: make a point of order and then do a declaration.
Mr. Chairman, yesterday, Mr. Minister, we discussed linguistic rights with reference to Section I33. Obviously, unfortunately, I noticed that some members sitting across, namely Mr. Gauthier, Mr. Corbin and Mr. Duclos, hesitated to make use of Section 133 as far as Ontario and New Brunswick are concerned.
However, you do not shy away from imposing to Quebec Section 23 without consulting the Government of Quebec by amending Law l0l on language in Quebec without consulting the Quebec government; I will not come back to this, but I see that you are rather reluctant to implement Section 133 in Ontario. In my mind, this resolution entrenches institutional bilingualism in Quebec and institutional unilingualism in Ontario and New Brunswick. Once again, Mr. Minister, Quebeckers will be paying the price and will realize that they have been taken for a ride on the language question.
There has been a sort of truth with respect to the implementation of provisions of Law 101 dealing with the language of education and there is a strong possibility that with Section 23 and the other sections you have included in the Charter of Rights, there will be more social upheaval due to French-and English-language education in Quebec.
In any case, Mr. Minister, that is not the main point I wanted to make. I would also like to remind you that a number of constitutional experts and lawyers are concerned about the legal implications of unilateral repatriation, I have the feeling, Mr. Minister, that the professor who taught you constitutional law, Mr. Louis-Philippe Pigeon, who also taught me constitutional law at Laval University and is a former Supreme Court Judge, would not be proud of the legal basis on which you intend to unilaterally repatriate the Canadian constitution, To support this, I would refer you to an article by Louis-Philippe Pigeon, which appeared in the Revue du Barreau de la Province de Quebec, in 1943. Mr. Pigeon, who was then a lawyer, described the contractual nature of federal-provincial relations. He also quoted a number of Privy Council decisions to the effect that the federal government could not act unilaterally, without the consent of the provinces, to repatriate or amend the Canadian constitution.
You, Mr., Minister, have chosen to ignore jurisprudence established by Privy Council and experts on constitutional law. I see that Mr. Lamontagne is shaking his head and I am anxious to hear what he has to say. We have not yet heard from him during this debate, but I hope that we will.
Senator Lamontagne: You will.
Senator Asselin: We will?
Senator Lamontagne: Yes.
Senator Asselin: You are also ignoring the Supreme Court decision with regard to the Senate to the effect that the federal government does not have the right to act unilaterally, that it must have the consent of the provinces.
I would first like to ask you’ on what legal basis it was recommended that the federal government be allowed to act unilaterally, while, as I have just said, . . .
Mr. Chrétien: You are talking about precedents. I do not know where you found Mr. Pigeon’s precedents because we have never repatriated the constitution, so there are no precedents.
Senator Asselin: It was a study . . .
Mr. Chrétien: There is no jurisprudence; we are in the process of making it. He referred . . .
Senator Asselin: It was a statement by Privy Council.
Mr. Chrétien: No.
You referred to precedents quoted by Mr. Pigeon. He could not have quoted precedents on repatriation, because it has never been done. The matter was raised in 1927 or 1931, when we tried to achieve a consensus to go to London and repatriate the constitution with the unanimous consent of the provinces. That was what the federal government and the provincial government wanted.
We have been trying for 53 years and we have not succeeded. From the strictly legal point of view, the Canadian constitution is a British law and we maintain that the power to decide the future of the Canadian constitution rests with the British Parliament and not with the Parliament of Canada.
Senator Asselin: Without the consent of the provinces.
Mr. Chrétien: Exactly. We have gone before the British Parliament many times, 23 I believe, to have the Canadian constitution amended. Sometimes we had the consent of the provinces and other times we did not: the British Parliament always acted on the advice of the House of Commons and the Senate.
Since the British Parliament has the legal authority to make the decision, we are legally bound to go to London. The British would be within their rights to decide not to act. We want to end this dependency on the British Parliament by repatriating the Canadian constitution once and for all and, through an amendment formula, give the provinces a legal power that they do not have at this time. They want to act unilaterally but they do not have the legal right to do so. The legal power rests solely with the British Parliament; repatriation will transfer the legal power to amend the constitution from the British Parliament to the Canadian Parliament and the provincial governments in accordance with an amending formula that will be included in the constitution.
Senator Asselin: This means . . .
Mr. Chrétien: You were talking about the legal aspect.
Senator Asselin: Yes.
Mr. Chrétien: I am talking about the strictly legal side of the question. Tradition is another thing. Tradition is not law.
Senator Asselin: I am talking about the contractual side of the law.
Mr. Chrétien: No.
Senator Asselin: Is the federation a contract between the provinces and the federal government or is is it not?
If it is a contractual relationship and if you . . .
Mr. Chrétien: It depends.
Senator Asselin: Your conscience is bothering you.
Mr. Chrétien: Historically, it depends on the province. In 1867, Quebec and Ontario were one country called Canada, which then joined the Provinces of Nova Scotia and New Brunswick. Other provinces joined. Some were created by the federal government. The Territories were extended by the federal government for the northern part of the provinces New Quebec, et cetera.
So historically it is not as clear as you would have us believe. In any case, when Nova Scotia wanted to withdraw from confederation in 1869, the British Parliament told them, although Joseph Howe had gotten the consent of the Legislative Assembly they would have to go to Ottawa for permission to withdraw and not to the British Parliament.
Senator Asselin: I must say, Mr. Minister, that many legal experts would not agree with you. If your legal conscience is not bothering you, why do you refuse to go to the Supreme Court for a legal opinion?
Mr. Chrétien: As I have said at least 20 times, the Court. . .
Senator Asselin: The fact that you were afraid to go to the Supreme Court must mean that your legal position is not strong enough.
Mr. Chrétien: We are not afraid. We are going directly to the British Parliament. When we went to them with Bill C-60 and Clause 91.1, they told us that the Canadian constitution could not be amended by the Canadian Parliament, and we would have to go to the British Parliament.
Senator Asselin: Mr. Minister.
Mr. Chrétien: It may be unpleasant but that is the legal situation that we are trying to put an end to.
Senator Asselin: In any case, Mr. Minister. I have the right not to agree with you and I do not.
Mr. Chrétien: I would have been very surprised if you had.
Senator Asselin: On the more practical side, Mr. Minister, you said this morning that your mandate was partly based on the results of the referendum in Quebec. The fact that Quebecers voted no on the referendum gave you a mandate to amend the constitution. Everyone in Quebec followed the referendum and at no time did Mr. Trudeau or other federal ministers tell Quebecers—and you will correct me if I am wrong—that if they voted no on the referendum, you would unilaterally repatriate the constitution with an amending formula and a charter of rights. You simply hinted that changes would be made in the constitution.
Mr. Chrétien: Mr. Asselin.
Senator Asselin: Let me finish, Mr. Minister. During the referendum . . .
Mr. Chrétien: What you are saying is simply not true. I made it clear in all speeches . . .
Senator Asselin: What did you say? Did you say that you were going to unilaterally repatriate the constitution?
Mr. Chrétien: I said that we were going to have a new Canadian constitution in which language… How do you know what I said? Not once did you come to hear me speak, so you cannot know.
Senator Asselin: Every night on the news, we heard . . .
Mr. Chrétien: Mr. Clark was with me twice when I clearly stated that we were going to repatriate the Canadian constitution and entrench language rights, that we were going to have a charter to protect the basic rights of Canadians, that their right to education for Francophones outside Quebec and Anglophones in Quebec would be protected in the constitution.
Senator Asselin: Unilaterally?
Mr. Chrétien: I said that we were going to do it.
Senator Asselin: Did you say that you would do it unilaterally?
Mr. Chrétien: We began by trying to get the agreement of the provinces but we did not get it. We clearly stated that we were going to do it and we agreed with what the Opposition Leader said on June 9 to the effect that, if the provinces were not willing to take on their responsibilities, the Parliament of Canada, which represents all Canadians, would take responsibility . . .
Senator Asselin: But not unilaterally.
Mr. Chrétien: That is what we are doing.
Senator Asselin: During the referendum campaign, you were accompanied by Mr. Claude Ryan, Leader of the Liberal Party in Quebec. Did you inform Mr. Ryan during the campaign that if agreement could not be reached or if there was a deadlock, the Parliament of Canada would unilaterally repatriate the constitution? Did you tell Mr. Ryan that?
Mr. Chrétien: We clearly indicated that we intended to amend the Canadian constitution and take steps to break the deadlock that prevented us from acting, but he does not agree with us. However, there is nothing in the charter that is before us or in the proposals we tabled in Parliament that has not been recommended in Mr. Ryan’s beige paper.
The difficulty between us and Mr. Ryan is that he wanted patriation to take place after an agreement and we did . . .
Senator Asselin: Did you discuss it with Mr. Ryan?
Mr. Chrétien: Sorry?
Senator Asselin: Did you discuss it with Mr. Ryan during the referendum campaign?
Mr. Chrétien: I was there when Mr. Trudeau made a very clear statement about it in Montreal. I do not know if you were there. One more time, you were not there when Mr. Trudeau stated very clearly that we were to take our responsibilities, and we did.
Mr. La Salle: Mr., Tremblay was there.
The Joint Chairman (Senator Hays): Well, it is 6:00.
Senator Austin: Mr. Chairman, before you call the adjournment, I would like with reference to the witnesses who are attending. to make the suggestion that we ask the Minister to come back on one or two days’ notice and proceed with our list.
We have a number of witnesses who are simply in a holding pattern. As many of the questions which have been addressed members of the Committee have had partial answers, perhaps we can hear some evidence from others as to the joint resolution and then bring the Minister back.
The Joint Chairman (Senator Hays): What is the feeling of the Committee?
Mr. McGrath: Mr. Chairman, I am authorized to speak also on behalf of Mr. Epp who has just gone outside, and to indicate to you that we consider the Minister to be the principle witness on this Bill,
It is perfectly obvious from the questioning this afternoon, that we have not completed our examination of Mr. Chrétien, and it would facilitate the work of the Committee and provide some continuity to our examination of this important measure if we were to have the Minister back tonight. All I am saying is that the Human Rights Commissioner and the Language Rights Commissioner are based in Ottawa, and it would not be too much for them if they were to wait an extra day.
Mr. Chrétien: Mr. Chairman, if I may intervene at this moment: I was here yesterday when the Committee said that I was to be a witness this morning and perhaps this afternoon. In accordance with that I made certain arrangements, because of some ministerial responsibilities, and I am going to beautiful British Columbia where I have some important engagements with learned judges in the Law Society and so on. I have to be there.
I have made my arrangements in the light of what I was given to understand was the position of the Committee, that other witnesses would be ready.
I feel I have obliged by being here reasonably well so far. I am prepared to come back with some notice.
But I made plans in accordance with Mr. Epp’s suggestion last night when he said, “The Minister would be called tomorrow morning or tomorrow afternoon”, so in the light of that I made arrangements to travel out West.
I did not make any plans to go outside of Ottawa until the Resolution was brought back to Parliament. But for tonight and tomorrow in the light of yesterday’s discussions I must tell you that I have a long-standing engagement and I have taken the view, following the remarks of Mr. Epp and I will be available when you want me back.
The Joint Chairman (Senator Hays): Senator Austin.
Senator Austin: Mr. Chairman, because of the timetable imposed by Parliament on this Committee, each one of us in this Committee has had to cancel long-standing engagements for that very reason.
We did not ask—I did not ask that this Bill had to be back in the House by December 9.
The government did.
Now that places a particular responsibility on the Minister to be here at our convenience, surely.
The Joint Chairman (Senator Hays): Senator Roblin.
Senator Roblin: Mr. Chairman: I do not know whether I can add anything of significance to what has been said, but it seems to me that, the view being taken that the Minister is the principle witness, it is the Constitution of Canada, there is an advantage in having some sort of continuity in our procedures, and with this time limit in front of us, it makes it incumbent upon him to be here tonight and perhaps tomorrow, should we want to talk to him tomorrow; because this is not a matter that can be dealt with in a piece—meal way. It is one which should be dealt with in a continuous and, I hope, consistent way.
Some of us here who have not had a chance to speak as often as some others, have points we would like to make and put to the Minister, we should be entitled to make them in the context of this general discussion and not in some haphazard, back-broken manner later on.
I am sorry that I appear to be inconveniencing the Minister, because he is one of my favourites so far as this government goes, and I am sorry to take such an adamant stand.
Mr. Chrétien: But I was here last night listening to Mr. Epp and the discussion, and it was quite clear. If you had asked me last night to be here tonight and Friday, I would have cancelled everything. But they said that they needed me today and this afternoon; but I am willing to come back next week or the week after.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, the Minister is certainly the principle, but not the only witness. We have to proceed to other witnesses. The Minister has agreed to come back.
But there is something which is fundamental here, that is, how we are going to proceed in this Committee.
It has been traditional that we proceed on the word of honourable gentlemen, Now if we want to become very legalistic and have a motion for everything and have everything
written down a la Constitution, of course we can do it; but yesterday it was understood that the Minister would be available for as long as it would be anticipated that he would be needed. Now this is simply a common courtesy extended to all Ministers; for instance, when you have to appear before a Committee, it is always understood that there are other priorities on the Minister’s time.
It seems to me Mr. Epp quite properly indicated that the Minister would be needed last night, Wednesday night incidentally Thursday and possibly this afternoon.
I think the Minister was acting in good faith in anticipating that he could be free to fulfill another long-standing engagement, and I am rather surprised that we are even debating a matter of this sort. I think it is a display of a lack of courtesy to the Minister. I think the Minister has indicated that he wants to come back.
The Joint Chairman (Senator Hays): Are there any other members who would wish to speak?
Mr. Hawkes: Mr. Chairman, I have been waiting three days on behalf of the people of Alberta to ask ten minutes’ worth of questions, and I would like to ask many more. But I have re-arranged my personal plans to be here this afternoon or tomorrow morning if necessary. I think it is essential that the Minister should stay and let us continue our questioning,
The Joint Chairman (Senator Hays): Mr. Epp.
Mr. Epp: Mr. Chairman, regarding the Minister’s position here, first of all we all understand that he is the principle witness. In terms of having a clear explanation as to how the government interprets the proposed resolution, it is important that that work be done first before we hear other witnesses. I think a lot of time can be saved if we all understand what the .government’s proposal in fact is, and how other witnesses will be reacting to the various sections and how they interpret them.
It is true that yesterday I placed a caveat and said I wanted the Minister here today and this afternoon. Mr. Mackasey said that he understood, and I accept that that was his understanding. But I think in fairness to Mr. Mackasey, I did not say I did not want him here tonight.
Mr. Mackasey: That is right.
Mr. Epp: That being so, I think we should take a look at the progress of the Committee and taking note of Mr. Hawkes’ position and that of Senator Roblin, to name only two, I think it is important that we get the Minister’s testimony first.
I think all of us would like to do some other things other than sitting in this room between now and December 9. But the fact remains that—and I believe I have heard from the Prime Minister that he places this on a rather high priority in the Parliamentary schedule; so I would think in that respect the Minister himself has placed it on the same priority as we have.
The Joint Chairman (Senator Hays): Miss Campbell.
Miss Campbell: Mr. Chairman, I do not accept Mr. Hawkes’ position. Some people in the opposition have spoken twice today; and perhaps Mr. Hawkes should have contacted
Mr. Epp over the fact that there was that, if I may use the term leading astray last night by the words used. I certainly took the same implication that he wanted the Minister this morning and part of this afternoon.
I am not saying that Mr. Hawkes does not have a right or anything like that, but, surely he could have said to some people on his side that he had this pressing engagement. I can name at least two people who have spoken twice here today, if not three times.
The Joint Chairman (Senator Hays): Mr. Corbin.
Mr. Corbin: Thank you, Mr. Chairman.
I think what is developing in terms of the Minister’s presence is a situation where he definitely does not know how long he will be required here. On the other hand, it is our understanding that he is at the reasonable disposals of the Committee and I think we have to be reasonable, even with a Minister.
He has commitments, obviously. Other members looking at me now were ministers for a while, some for a while longer, they know the name of the game. Let us not kid ourselves, the press knows the pressing duties the Ministers may have from time to time. It is not for me to say that the Minister was reasonable with the Committee. I think he is prepared to be even more reasonable and be at our disposal to an even greater extent if we so need him, and I think we will want him back here on all sides of the table, but he has underlined a problem.
It was Mr. Epp a few days ago who suggested, I do not know exactly the context, but that it was good for everyone to recollect their thoughts and think, a number of proposals have been made to the Minister and he has committed himself to examining proposals and it would not be a bad idea if he could retire for a day or two while we re-examine other witnesses who will be making valid points, whose testimony will help us in doing further re-examination of the Minister’s own statement.
It works both ways. It is a big highway, it is a four lane highway.
Mr. McGrath: And there is a big train.
Mr. Corbin: Pardon me? No, you cannot have it both ways all the time. Now, let us be fair.
The Joint Chairman (Senator Hays): Mr. Fraser?
Mr. Corbin: Let us be fair.
Mr. Fraser: Mr. Chairman and colleagues, I of course like to be cooperative but if the Minister only has to talk to some judges in British Columbia, to give him a chance to hold press conferences and make some speeches about the Constitution, then I would be very much against this committee releasing him to do something like that. The judges are important, but he can talk on the telephone.
Secondly, if the purpose of the Minister’s visit is to go west and campaign on behalf of the proposal that he has here, then I do not think that will be fair.
Mr. Chrétien: I can now, I could not before.
The Joint Chairman (Senator Hays): Mr. Bockstael.
Mr. Bockstael: Mr. Chairman, I want to point out that the Minister was available earlier than we called him and he himself offered to be here all day Monday if we wanted, but in deference to the members who said they had important obligations in their constituency on Monday we deferred and said on, we will not have the Minister on Monday. I think he is entitled to the same consideration that the individual members sought for themselves on Monday.
An hon. Member: Hear, hear.
The Joint Chairman (Senator Hays): Mr. Crombie.
Mr. Crombie: Thank you, Mr. Chairman.
On the point of order, I think at a personal level there is no one who does not sympathize with the responsibilities that the Minister has. He not only has this responsibility but he also is the Minister of Social Policy and there are a variety of other things he has to do. I do not think there is anyone who does not sympathize with his obligations and the heavy load he carries, and I mean that.
However, I think it has to be said that this is just not your average Bill, and there are a couple of things that need to be said, I think, about it.
First of all there was not an adequate time in the House, you may recall, at least to get to the Minister, and you may recall the Minister himself kept saying: Get it into Committee and we will have this discussion. We agreed with that. Finally.
The Minister is here and we would like to be able to do the work with the Minister first so we can understand his interpretation and justification of the parts of the Bill as he sees it, The suggestion that somehow we ought not to expect that he should be here unless we ask, if we had known that the asumption was that we should reserve his time then I think we should do that now; we would like to reserve him until December the ninth. I think in fact it was on our part, we said: look, the best we can do is to say we think it is tomorrow and the afternoon; we did not reserve a block of time.
I know that Ministers have to reserve time, and it is his bill that is before the Committee as well as it being the Constitution, and I think it is essential that the Minister be here.
On the question of whether or not other people have responsibilities, I can assure the Minister that we may not carry the same load as he is carrying but I can tell you as a personal comment I made eight cancellations in the month of November for speaking engagements in this country. A lot of people were very happy with that, actually, so I am not necessarily depriving the country, but I think it is important that we put aside that time and I think the Minister ought to do as well.
Now, we particularly did not have the opportunity in the House, we have a time frame which is imposed upon this Committee by the Prime Minister’s timetable, initially December the ninth, and for heavens sake at least allow us to have the Minister for a couple of days and I am serious, and I am
going to urge upon Mr. Epp. that if in order to have the Minister here we have to reserve his time, then we will.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, let us be specific for the moment as to what Mr. Epp said, and I come back to the point that we do not need what the spokesman for each party say in writing because then we will have really deteriorated from normal Committee procedure.
Mr. Epp said: I believe we all recognize the Minister is the chief government witness and this being the case, I would suggest we have the Minister here at least tomorrow morning, meaning this morning.
He further went on to say: I would be willing to assess it later on in the morning in terms of how we are proceeding, and also obviously then leave the caveat that we can always call the Minister back after that; but I want to hold the caveat that we might want to call the Minister tomorrow afternoon as well.
Now, that was his limitatin in your writing. The last words say: But let us start with tomorrow morning. I think Mr. Epp made that in good faith.
Now, I will not get into what I think of ex-Ministers saying to the Minister: You must remain here and you have no ministerial duties. I would make a suggestion, in light of Mr. Hawkes, the only member from Alberta who has been on the Committee in any forum, who absolutely must say what he has to say at this moment and not when the Minister comes back in a few days, that the Minister be requested to stay and all of us stay to hear both Mr. Hawkes and Mr. Roblin, who has always interested me. immediately and then we let the Minister go on to his other duties and then we will proceed with the next witness, who is I think Mr. Fairweather.
Well now, if you want to go right around the table all over again, that is a different story, but if the argument that is raised by Mr. Epp is a valid one, that we should proceed because Mr. Roblin would like to hear the Minister immediately, or Mr. Hawkes would like to hear the Minister immediately, then we should continue until 7 o’clock, because these are only 10-minute periods, that is another 20 minutes, and I am sure that members of the Committee would all want to hear the debate and discuss it. I do not know whether the Minister would agree to that. Would you agree to that, Mr. Minister?
Mr. Chrétien: For Mr. Hawkes and Senator Roblin, line.
Mr. Mackasey: I will make a formal motion that the Minister be . . .
The Joint Chairman (Senator Hays): Mr. Mackasey is about to make a motion.
Mr. Mackasey: I would make a motion that the Minister be requested, that is a polite word, not instructed, to remain until 7 o’clock and that the witnesses, Mr. Hawkes and Mr. Roblin specifically, have their usual 10 minutes, and the rest of us, the Members of the Liberal Party, remain quiet so that the Minister can both satisfy the Committee’s request and fulfill
an obligation that he felt in good faith, based on the contribution of Mr. Epp yesterday, should be carried out.
The Joint Chairman (Senator Hays): Can you get your motion up here in writing, Mr. Mackasey?
Mr. Mackasey: Well, I hope that is not necessary. I think the members understand. I hope that I do not even have to make the motion, I hope that you agree with it.
Mr. Epp: Mr. Chairman, there is a steering committee, all Committees have functioned that way in the past and I think Mr. Mackasey has enough experience that he knows what effect an action such as he proposed has on a Committee.
Also, I want to say to him, with all respect, that when he interprets my words I want Mr. Mr. Hawkes and Mr. La Salle, and that that was it, I used those as examples and I think if he checks that, he will accept that.
The point surely must be made that this Committee, which has been sitting from 9:30 this morning, took a break for the Question Period, and is now back until 6:30 and will sit again between 8:00 and 10:00, that surely the point is legitimately and logically made that the Committee should now rise for dinner and that the Minister then come back. It just will not be satisfactory to sit until 7 o’clock, and the Sub-Committee has agreed, we have agreed to the schedule of the Report of the Sub-Committee. That was done and I do not think in any way that this would help the case of the Committee and the work of the Committee because what Mr. Mackasey is suggesting we do, then, is not only by this kind of motion to over-ride the decision of the Sub-Committee, but also by this kind of motion use the Sub-Committee, but also by this kind of motion use the majority that he now enjoys in the Committee to over-ride the amount of time the Committee should have for witnesses, and this is the Chief Witness.
Mr. Mackasey: Mr. Chairman, I agree, and I am surprised at Mr. Epp’s argument, and I may be adamant on this. I think that you are acting in bad faith, Mr. Epp. Your words are very clearly spelled out, that you would need the Minister again this morning and possibly this afternoon. No inference beyond this afternoon.
Now, the Minister, like all of us, have sat here three times a day since the beginning of the week. He has been an extremely cooperative Minister, much more cooperative than most Ministers and Mr. McGrath agrees, much more cooperative than Ministers tend to be at Committee and that includes all the Ministers on that side.
I do not think we should leave the inference that the Minister is not cooperative. When the Minister is cooperative, when the Minister suggests to this Committee that he would like to be absent this afternoon and tomorrow, I think it is common courtesy that we recognize that, particularly since the Committee will not be wasting its time. We have Mr. Fairweather ready to fill in tonight and tomorrow.
Secondly, he is prepared by his own words, to go even further to accommodate Mr. Hawkes from Alberta and the
honourable Senator Roblin immediately. Now, I think that is the fairest propositin to make and I, Mr. Epp, do not want to make a motion. I do not like to use those tactics. I think there can be honest difference of opinion and I do think committees work much better when we trust each others word.
I do think, however, that the Minister has a right to presume by your statement that he would be free tonight and free tomorrow and you are the one that suggested that even if there was an honest mistake, we are not going to recognize it.
Finally, Mr. Chairman—I am sorry, Mr. Epp made some reference during Committee, I am not a member of that, so perhaps some member of the steering committee might tell me what did go on.
Senator Austin: I was advising Mr. Mackasey a moment ago that there has been nothing in the steering committee touching this particular subject of the continuity of e Minister, so I did not understand Mr. Epp’s reference to the steering committee.
Mr. Epp: What I meant was that the steering committee has set the hours of sitting of the Committee.
The Joint Chairman (Senator Hays): Mr. Lapierre.
Mr. Lapierre: Following my colleague, Mr. Mackasey’s remarks, in which he puts forth Mr. Epp’s bad faith in this debate, I am under the impression that in the interest of the other witnesses, since those who have cried the loudest we should hear as many witnesses as possible or those on the other side, I do hope they realize that by having the Minister of Justice here, the other witnesses are kept waiting and December 9 is still lurking in the background.
Thus, if we want to give as many Canadians as possible every chance to appear before this Committee, and if we wish to avoid in some cases repetition, since the Minister of Justice has offered to come back before the Committee, I think we should have a little consideration for the reasons he gave us.
Mr. Hawkes was saying a while ago that he has been here for three days, well, I have been here since the beginning, and I am not at all sure that in the three days he has asked to speak and I would certainly like now . . .
Mr. La Salle: Ah! That is what I thought. He did not ask to speak.
As for Mr. Fraser who fears that Mr. Chretien will go campaigning, I do believe this engagement was made some time ago. It is quite legitimate for the Minister to go around the country in certain circumstances.
Therefore, the present debate is sterile, and I would suggest officially that the Committee invite Mr. Fairweather to appear at 8 o’clock this evening.
The Joint Chairman (Senator Hays): Mr. Epp.
Mr. Epp: Mr. Chairman, I just want to go back to what Mr. Mackasey said. I have the blues in front of me as well, and I think if Mr. Mackasey looks at those blues, Page 326 on the blues, I said I would be willing to assess it later on in the morning in terms of how we are proceeding and also, obvious-
ly, then leave the caveat that we could always call the Minister back after that. I think that is a pretty clear statement.
Mr. Mackasey: Tomorrow afternoon.
Mr. Epp: May I finish? That statement in itself is quite clear. Then additionally: but I want to hold the caveat that we might want to call the Minister tomorrow afternoon as well. So there is no caveat in terms of that will be the end of the discussion. I think you would recognize that we just got into a number of topics re the amending formula. Right now it is hanging. Mr. Nystrom took up that case as well today. So that whole question of the amending formula, the question of interpretation of Section 50, the question of the interpretation of Section 42, as in a number of others, has not been done and I would suggest, with all respect, for the Minister and the Government Member’s own benefit that they would want to be able to make their case and have it on the record before witnesses appear. That is the way the Committees generally operate because what you are now proposing, Mr. Mackasey, is a system whereby witnesses can come here and put on the record interpretations of sections prior to the Government even having made its case.
The Joint Chairman (Senator Hays): I have a motion, a written motion, that the Committee invite Mr. Gordon Fairweather to appear tonight as a witness at 8 o’clock, p.m., November 13, 1980.
Mr. McGrath: Put the question, Mr. Chairman. We have had Closure twice, we can have it a third time. That is what it is.
The Joint Chairman (Senator Hays): Are you ready to vote? All right, call the vote.
Motion negatived: Yeas, 10; Nays, 11.
The Joint Chairman (Senator Hays): The motion is lost, 10 to 11. So we will see you at 8 o’clock, Mr. Minister.
This meeting is adjourned until 8 o’clock.
The Joint Chairman (Mr. Joyal): We will continue our proceedings with the hon. Minister of Justice; on my list of questioners I have the hon. Roch La Salle followed by the hon. Senator Tremblay. Mr. La Salle.
Mr. La Salle: Thank you, Mr. Chairman.
First, I would like to take a few minutes to try and remind the minister of the situation existing particularly in his province and mine. Given the situation, the concern of a population increasingly tormented by our deadlock and also given commitments made during the referendum and the hopes created about Quebec especially, I would remind you, for instance, that the chairman of the Non Committee made several statements and is trying, I believe, to convince the minister and the federal government of the difficulties faced by a political party
which the government knows very well in dealing with the question before us. Under the circumstances, given these difficulties and the concerns which I repeat are increasing, I would like to first ask the minister whether he would be prepared to receive an amendment asking the federal government to come back to the principle or rule of bilaterism in constitutional reform.
Mr. Chrétien: Bilaterism? What do you mean by that?
Mr. La Salle: The respect of both levels of government. In other words . . .
Mr. Chrétien: Are you referring to the unanimity rule, the concept of doing nothing until we have agreement amongst all eleven governments, amongst the ten provincial governments?
Mr. La Salle: I am asking the minister whether he is prepared to receive an amendment forcing him to respect both levels of government . . .
Mr. Chrétien: We respect them.
Mr. La Salle: In other words, to abolish this idea of unilateral patriation.
Mr. Chrétien: No.
Mr. La Salle: As my second question, Mr. Chairman, I wonder whether the minister would at least be prepared to receive an amendment leading the federal government to open a final round of negotiations with the provinces on the issues of basic rights and language rights.
Mr. Chrétien: No. This summer we spent three months with the provinces trying to resolve that problem; we made an effort never before equalled in Canada, and I think that we clearly established the government’s position which was also the position of the Opposition parties, which was that the time had come for Canada to act, We tried in good faith over the summer, and when we reached Friday morning, nothing had been agreed on; even Mr., Levesque was no longer asking Ontario to include Section 133 in the constitution.
So we did make an honest effort, and we are now following the legal method for amendment of the Canadian constitution. For the last time, we will go to England. Once the resolution has been passed, the provinces will have the right to veto the Victoria formula which we are proposing or some other formula which the provinces may propose; legally, however, the provinces will have a legal right to participate in constitutional affairs, and will no longer be restricted to addressing the British Parliament to settle Canadian problems. This will be the last time we do so.
Mr. La Salle: Mr. Chairman, would the minister be prepared to receive an amendment to the effect that the federal government should limit the scope of its project to patriation and amending formula according to the unanimity rule for the next two or three years, after which, given the lack of permanent amending formula, the intention will be to go to the people.
Mr. Chrétien: But in that case, what will become of the Charter of Rights? Do you want to enshrine it or not? The problem which the committee is now considering . . .
Mr. La Salle: No, I am not talking about the Charter. I am asking the minister whether he could limit the resolution to patriation and an amending formula.
Mr. Chrétien: We made our decision; the resolution went before the House of Commons and was accepted in principle, in its entirety, by a very large majority before being sent to committee. Two parties accepted the principle of patriation of the constitution, the inclusion in the constitution of an amending formula, the principle of enshrining in the constitution the basic rights of Canadians, the principle of enshrining once and for all a solution to the problem of education for French speakers outside of Quebec, the right of French speakers outside of Quebec to be educated in French, and the equivalent for English speakers in Quebec, the principle of equalization and sharing, and if we should eventually accept the NDP amendment, as it is our stated intention to do, we intend to recognize provincial ownership of resources and the provincial right to legislate on indirect taxation, resources, and also inter-provincial trade with the federal government playing a leading role. That was voted in the House of Commons, and the committee’s job now is to look at each element of the resolution, to propose and discuss amendments; that is why we are here right now.
Mr. La Salle: Would the Minister be prepared to receive an amendment recommending the elimination of Section 42, the referendum section.
Is the Minister in a position to tell us whether he is prepared to receive, to agree that the federal government should not commit itself to any definitive action until the Canadian courts have made a decision, in other words to wait for the decision of the courts before going to London.
Mr. Chrétien: Mr. Chairman, must I answer for the twentieth time the same question which has been addressed to me during the past 14 hours? We have repeatedly given the committee an answer on the question of. . .
Mr. La Salle: Is the Minister in a position to tell us whether he is prepared to receive, in fact to agree that the federal government commit itself to doing nothing definitive until the Canadian government has announced its decision, in other words to wait for that decision before going to London?
Mr. Chrétien: You are forcing me to answer for the twentieth time. We have said that we have repeatedly given the committee an answer on the question of going to London, while certain provinces can take their problems to court.
So I have given an answer on that.
Mr. La Salle: Your answer is no?
Mr. Chrétien: The honourable member can read my previous answers.
Mr. La Salle: I have some recommendations made by a great Canadian, made by Mr. Claude Ryan in his speech yesterday in Quebec City. He stated the recommendations which he considers vital, given the interest shown by Quebec in patriation and in the constitutional future of the country.
Given the circumstances, and this will be my last question, since I will probably get the same answers… Could the Minister follow the Prime Minister of Canada who claims to have the support of the people of Quebec in constitutional reform… When a large and important party in Quebec recognizes that the way in which the federal government is behaving is entirely unacceptable, and whose leader is the ex-chairman of the No Committee and who the Minister knows very well since he spent several months with him on another issue . . .
Mr. Chrétien: The only distinction between our point of view and Mr. Ryan’s is related to procedure. As for the substance of the issue, of everything which is before the committee at the present time, all of these recommendations were made by the Provincial Liberal Party and its leader in their beige paper: the question of the protection of minority rights, the question of enshrining a charter of rights in the constitution, the questions on the concept of sharing; we can find each of these items systematically in the beige paper. And if anyone wishes to criticize me on the resolution at the present time, the criticism would be that I have perhaps not been tough enough, I have not gone as far as the beige paper in what I impose on the provinces.
Mr. Ryan agrees on the substance, but he would have preferrd that we act after getting substantive agreement, I do not need to remind anyone that I worked very hard this summer to try and reach a strong, substantive agreement. And you could have seen yourselves on television that no agreement was possible, and that the shopping list presented by the Premier of Manitoba did not represent agreement amongst the provinces, and this to such an extent that today Mr. Levesque, in Quebec, is criticizing me for not forcing Ontario to accept Section 133. And when Mr. Morin had a document circulated on Wednesday, Thursday, and Friday of the Conference, when Mr. Lyons presented his shopping list, Mr. Levesque himself agreed to withdraw Section 133 from the shopping list.
So the situation was not particularly serious. As for us, as of June we had said that we would go ahead if no agreement were reached. In their statement made June 9, the premiers themselves repeated Mr. Trudeau’s statement saying that it was necessary to finalize the twelve items. And the finalization was that no agreement could be reached on the 12 items on the agenda.
Under the circumstances, we are doing what the member from Joliette’s leader proposed: if there is no agreement, the people who represent the 23 or 24 million Canadians across the country must accept their responsibilities. And that is what
the members of this committee have been called on to do at the present time.
Mr. La Salle: This afternoon the minister said without any hesitation that he mentioned this project during the Quebec referendum campaign. I do not think that at any time the premiers or the ministers dared to say that there might be unilateral action. The word was never used.
Mr. Chrétien: I do not claim . . .
Mr. La Salle: I will ask the Minister to confess this evening at least that he never spoke of a unilateral action, knowing quite well that after the federal-provincial conference the leader of the Liberal Party would call on the Canadian government to refrain from any unilateral action; Mr. Ryan’s conclusion on the methods used by the federal government was clear and precise, He is far from being in agreement with the federal government.
Mr. Chrétien: I recognize that Mr. Ryan agrees with us in substance and disagrees on our methods.
Mr. La Salle: And that is very important.
Mr. Chrétien: And if the member for Joliette had taken the trouble to go to Joliette when the No Committee met in Joliette and I made a speech, he would have realized that I stated that night, as I did in all of my speeches, that it was our intention to act with no delays in providing ourselves with a new constitution.
Mr. La Salle: Mr. Chairman, my question is the following, and I would like to get an answer. . .
Mr. Chrétien: I said “unilaterally” . . .
Mr. La Salle: Can the minister tell us whether in Joliette, in our province, he said that he definitely intended to act unilaterally, yes or no? The word is clear.
Mr. Chrétien: We said that we were going to go ahead, we told Quebeckers that we believed that with the opinions of the provincial prime ministers it would be possible to come to an agreement on a formula for the patriation of the constitution. We made an effort, and I believe a very honest effort over the summer, and I think that all Canadians agree that we should not wait another three or five years to try and get unanimity when we have already tried time and time again; we believed that after the referendum unanimity would be possible, given the statements made by heads of governments, including the Government of Quebec, a separatist government supported by the member for Joliette. . .
So, we believed at that time that the offers made by the government would make our job easier, and I think it is clear that when we reached September, we were even further behind than we had been in May. And under those circumstances, we did what had been recommended by the members of Parliament, which was to go ahead, to accept our responsibilities as Canadian parliamentarians if we could not reach an agreement with the provinces. As for the Charter of Rights, we firmly believe in the protection of minority language education; and if we were to rely on the good will of provincial governments, we believe that we would one day end up with a Charter of Rights which does not give Canadians their rights
and that is why we had to accept our responsibilities as a Federal Government.
Mr. La Salle: May I ask the minister to give a yes or no answer to the question? He has talked all around the issue to avoid answering the question. I claim, I presume, I am convinced that at no time during the referendum campaign did Mr. Ryan say that he would never have led the No Committee had he known that the Federal Government was going to act unilaterally. Did you, or did you not, promise the province of Quebec during the referendum that you would act unilaterally?
Mr. Chrétien: What do you mean?
Mr. La Salle: Yes or no? I want an honest answer,
Mr. Chrétien: We did not talk of unilateral action.
We said that we would settle the problem. And, Mr. Chairman, that has nothing to do with the resolution which is now before the committee. We are not here to discuss the referendum, because it was well known during the referendum that the member for Joliette hid.
Mr. La Salle: Because I felt the hypocrisy within the federal formula.
Mr. Chrétien: At the present time I am exercising my right as a witness to answer questions; since I have the floor, I am using it to exercise my right to answer questions. And I think that we would definitely have preferred to act with the unanimous agreement of all the provinces, but I think that is impossible, and we have accepted our responsibilities. At that time we promised change; we had to start somewhere, and we started with patriation, the amending formula, the enshrinement of the Charter of Rights in the Constitution, and the enshrinement of language educational rights.
I repeat, I am here as a witness; if you want to have me here listen to me. If you want me to remain here, you want me to testify? If you find that I am repeating answers, I can answer that I have heard that remark very frequently.
Mr. La Salle: Answer yes or no.
Mr. Chrétien: Who said that we were going to make changes; if we need everyone’s consent, we are going to end up waiting another 53 years and we are not prepared to do that.
The Joint Chairman (Mr. Joyal): Thank you Mr. Chrétien.
Senator Tremblay: Mr. Chairman, Mr. Minister, I hope that the question I am going to ask has not already been asked. Actually, it is a technical question which corresponds to something I had been wondering about and which the minister’s advisers can perhaps explain.
If I understand correctly, this will be a British act.
Mr. Chrétien: Yes.
Senator Tremblay: Section 57 states that this British act shall come into force on a day to be fixed by proclamation issued by the Governor General under the Great Seal of Canada. I imagine that is the Governor General of Canada under the Great Seal of Canada. What I would like to have explained is how a British act can come into force as a result
of action taken by the Governor General of a country other than Great Britain?
Mr. Tassé: I would like to say that the resolution contains a proposal addressed to the British Parliament for the passing of an act entitled “The Canada Act” which can be found on page 12. This is a very brief piece of legislation containing four sections and a schedule appended to the act and it is entitled The Constitution Act, 1980. Section 57 refers to the Constitution Act, 1980, coming into force. And it is simply by proclamation issued by the Governor General that that schedule, the Constitution Act, 1980, will come into force in Canada; The British act itself, the main act entitled “The Canada Act”, will come into force when it is passed in England.
Senator Tremblay: You are referring to the Act to amend the Constitution of Canada, is that not correct?
Mr. Tassé: It is the Canada Act, the act entitled “Canada Act” which will be voted on by the British Parliament.
Senator Tremblay: You mean the act mentioned in Section 4, whose complete title is “An Act to amend the Constitution of Canada”?
I thought that the Act to amend the Constitution of Canada responded to some extent to my question but actually it is Section 1 of the Constitution Act, 1980, set out in Schedule 3.
Will there be some sort of delegation of authority from the British Parliament to the Governor General of Canada?
Mr. Tassé: There is no legislative delegation. What the British Parliament says here is that the schedule, the Constitution Act, 1980, will come into force through proclamation.
Senator Tremblay: Does the fact that the Governor General will proclaim that act in Canada change its British status here in Canada?
Mr. Tassé: I do not think so, because the nature of the Governor General’s role is an executive rather than a legislative one.
Senator Tremblay: I asked that question for the following reason: If the Governor Genera1’s involvement had in some way made this a Canadian act, it might perhaps have been open for consideration by Canadian courts. That is a question which has been raised, but you have just answered that such will not be the case.
My second question refers to Section 51 which states “Clause 1 of Section 91 and Clause 1 of Section 92 . .. are repealed”.
For the time being, I will ignore Clause 1 of Section 92. What I am concerned with is Clause 1 of Section 91.
So 91(1) is repealed.
Now 91(1) contains certain very important provisions regarding the provinces.
These include the provision that Parliament has the power to amend the constitution of Canada from time to time except insofar as questions following under categories which the
present act attributes to the provinces or insofar as rights or privileges are concerned.
There are other exceptions: the rights of certain categories of people as regards schooling, etc.
As for what comes right after what I have just read, the charter of other provisions contained in the proposed resolution is included, but not necessarily literally. Was I reading incorrectly when I said that the protection of provincial jurisdictions contained in Section 91(1) is not repeated in the proposed resolution? And another question: is this not truly a substantial change in the powers of the provinces through the fact that protection of their jurisdictions is no longer included in the proposed resolution?
Mr. Chrétien: I think if we understand 91(1) correctly, we will see that it has been replaced in the resolution by sections 48, 49 and 50. The drafter did not want to change those powers.
Senator Tremblay: I do not find that in Sections 49 and 50. 1 do not see any section comparable to the exclusive protection of the rights and privileges of provinces.
Mr. Strayer: Mr. Chairman, the protections that are referred to in 91(1) do not appear in 48, 49 and 50 because the power given to Parliament in Section 48 is not as broad as the power that appeared to be given in Section 91(1). Section 91(1) gave the Parliament of Canada the power to amend the Constitution of Canada which was thought to be a very broad term covering potentially the whole of the Constitution and therefore there were five limitations listed in Section 91(1) to ensure that Parliament could not, under its power to amend the Constitution of Canada, deal with provincial matters.
Section 48 is worded much more narrowly.
Senator Tremblay: I understand that. I think I understand what you mean, that there is nothing in Sections 48 or 49, for the reason you have just mentioned, but there is Section 42 according to which the Parliament of Canada has much broader powers than it could have had under 91(1) and there is no protection for the rights of the provinces there.
Maybe I have not read the resolution correctly. I am just asking is there the equivalent of that 91(1) in respect to the rights of the provinces in the new resolution.
Mr. Strayer: Some of the protections that are in 91(1) are in the proposal, for example in Section 4 that deals with the life of Parliament, so that is carried forward; but apart from that the other protections in 91(1) are not there because the power itself is not as broad as the one that was given in 91(1).
The power given in 48 only relates to the executive government.
Senator Tremblay: I am speaking of Section 42, the powers of the Parliament are much broader there than they were previously in 91(1).
Mr. Strayer: But Section 42 is dealing with something quite different. It is not dealing with Parliament’s unilateral power to amend the Constitution.
Mr. Chrétien: It is dealing with the referendum.
Senator Tremblay: It is the power of the Parliament through a referendum to change much more.
Mr. Chrétien: After 41 and 40, yes, it is to amend the Constitution if there is a deadlock because we no longer have, starting that day. the recourse to go to London.
After the Constitution had been patriated to Canada we would have to have the mechanism to amend the Canadian Constitution. We have 41 and 42, but the powers remain the same.
Senator Tremblay: With due respect, Mr. Minister, I have not asked the question which deserves the answer you have given. You are repeating yourself. I have not repeated the question.
Mr. Chrétien: No, no, I am just saying what the powers of 41 and 42 are. It is not related there to the powers of 91 because 91, you find the text in 48 and 49 where it is very clear that subject to Section 50 Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government. Section 49 gives the same power to the provincial governments. It is the same thing as you will find in 91(1) in the first two lines.
Senator Tremblay: I think I got my answer through your official. In fact the powers granted by this resolution to the federal parliament are much broader than the ones which are in 91.
Mr. Chrétien: He never said that.
You can’t say that was said, it was not said.
Senator Tremblay: My question was to the effect that the protection of provincial rights which are in 91(1) are abolished. Is that right?
Mr. Chrétien: No.
Mr. Tassé: Section 91(1) of the present constitution outlines the powers to amend the constitution of Canada in very broad terms.
A series of exceptions are then listed in the same section.
The power that Parliament would have to amend the constitution of Canada and to restrict the provisions of the constitution relating to the federal executive power in the Senate and the House of Commons is described in Section 48.
Senator Tremblay: Section 42 provides that the distribution of powers can be amended by unilateral action by Parliament with a referendum.
Mr. Chrétien: At the present time, the powers can be changed by the British Parliament through legislation.
In order to change the distribution of powers as the constitution now stands, we must go to London. There must be a procedure for changing the distribution of powers once the constitution is returned to Canada. This procedure is provided for in Section 41 and 42.
Senator Tremblay: I am very pleased to hear you say what you have just said, because you have reminded us of the circumstances that existed when Section 91(1) was passed in 1949. This was done unilaterally, but precisely because provincial rights were protected in the text itself. That is exactly how Mr. St. Laurent justified that the action was to be or could be unilateral. This is a fine example of the fact that whenever there has been an amendment since 1931 affecting the powers of the provinces, the federal government has never proceeded unilaterally. It only proceeded unilaterally in the case of 91(1) because provincial rights were protected, as I mentioned. I believe I have had an answer on this point from the official on you left. The fact is that the resolution makes no provision for protecting provincial rights. Will you confirm this or at least not deny it? Show me where the protection is if you think it exists.
Mr. Chrétien: I said that 91(1) is changed in the resolution and the amendments to 91(1) appear in Section 48, 49 and 50.
Senator Tremblay: Everything is there except protection of provincial rights.
Mr. Chrétien: Imagine if we wanted to change the distribution of powers some day and give more powers to the provinces, if Parliament or Canadian society, which would be involved in the procedure, wanted to change the distribution of powers. This is the major concern of many people who would like us to transfer powers to the provinces. We have to have a way of going about it. We say that we have provided for this in the amending formula described in 41. And if there were no agreement, section 42 provides for a country-wide referendum that would need the support of 50 per cent of the population in the west, in Ontario, Quebec and the Atlantic provinces. Then we could change the distribution of powers. We had to have some way of changing the distribution of powers, because otherwise we would never achieve constitutional reform. Everyone wants us to change the distribution of powers. If we find ourself in a situation in which we cannot change the distribution of powers, we will be confined to the status quo forever. If that is what you want. . . I do not think that is what people want.
Senator Tremblay: You have just said that provincial rights are no longer protected. In the example you have just given, sections 41 and 42 could apply assuming powers were to be transferred from the federal government to the provinces. But section 42 will work the opposite way and will be unilateral with a referendum. You have only one purpose in mind. You have often said and I heard you say that there was no substantial change affecting provincial powers. But I maintain
that the elimination of 91(1) is a more than substantial change to provincial powers.
Mr. Chrétien: Listen, if you are saying that the distribution of powers cannot be changed under any circumstances without the unanimous agreement of the provinces, I say there is no such protection, because we can always go to London to have the constitution amended.
Senator Tremblay: We are well aware that there will no longer be unanimity under 41. Under 42 . . .
Mr. Chrétien: Just a minute, there is a new feature.
Senator Tremblay: Why do you not admit that there is substantial change?
Mr. Chrétien: In the past the population had no say, there was merely a debate between the provinces or the central government and the government in London. We are saying that if there is a deadlock, it will be up to the people to decide. There was no such provision in Mr. Saint-Laurent’s day, that is something new. Once we have patriated the constitution and broken the deadlock, and the main stumbling block in the present constitution is the English Parliament. Once the constitution is in Canada, if we encounter another deadlock, we will no longer have to turn to the English government, we will turn to the people of Canada. Of course that is a fundamental change. We will rely on the people of Canada rather than the English Parliament. I feel much more comfortable with this arrangement. If you prefer to go back to England, we will have to maintain the status quo.
Senator Tremblay: Mr. Minister, the resolution makes the substantial change affecting provincial privileges, yet you have often said, and I have heard you say that there has been no such change. I just wanted you to acknowledge the fact. You can try to justify it however you choose.
Mr. Chrétien: We are not changing the balance of power. We have said that rather than go to England and ask the British Parliament to act on our behalf and change the English act and the British North America Act, we will have a Canadian constitution that can be amended, not by the English Parliament, but rather by the procedure outlined in section 41. Earlier in my testimony I said that we intended to accept or propose an amendment to 41 and to ensure that deadlocks can be broken. If we want to break the locks, section 42 provides for the referendum procedure.
The Joint Chairman (Mr. Joyal): Excuse me . . .
Senator Tremblay: You are saying that except for the things you have changed, you are not changing anything . . .
Mr. Chrétien: I challenge you to say what powers the provinces have lost in this process,
Can you tell me from memory what powers the provinces have lost?
Tell me what legal powers the provinces have lost?
Mr. Crombie: The protection is in Section 91. That is what is changed.
Mr. Chrétien: No, it is still there.
Mr. Fraser: You have the power now to make changes but the provinces do not. That is what has changed.
Mr. Chrétien: We do not have the power to change at this time. The British Parliament has the power, but we want the Canadians to acquire that right.
Mr. Crombie: You want the federal government to acquire it.
Mr. Chrétien: The people of Canada.
The Joint Chairman (Mr. Joyal): Senator Tremblay . . .
All Committee members have noted that Senator Tremblay has had twice as much time as he was allocated.
I am quite willing to allow members to follow their questions through. I think you have benefited from this exchange in which you were able to ask all your questions.
Senator Tremblay: You are depriving the Minister of two good questions.
The Joint Chairman (Mr. Joyal): The next name I have on my list is the honourable Bryce Mackasey. As members know, I have no objection to coming back to you if your colleagues opposite allow you to use that time. We have tried to be as flexible as possible, particularly where the questioning could enlighten all Committee members.
If the members on your side agree, I think it is time to give Mr. Mackasey the floor and come back to you later for other questions.
Do the members agree with this procedure?
Some hon. Members: All right.
The Joint Chairman (Mr. Joyal): The next person to have the floor will be Mr. Hawkes.
Mr. Mackasey: I do not think I will be any more than three minutes because I do agree that the Opposition members ought to question the Minister at length but I would like through my intervention to permit possibly the Minister or his official to clarify the answer he began to give to Senator Tremblay about the powers in the old Constitution—the present Constitution and eventually the old Constitution—in 91(1) that Senator Tremblay had raised a question of somehow a new Bill would not have that same provision elsewhere in the Bill.
I think that the Section 48 indicates that it does but I would like perhaps the Deputy Minister or Assistant Deputy Minister to complete the testimony that he was about to give to Senator Tremblay, which I think created a certain honest difference of opinion between two learned experts on constitutional law.
I would ask the Minister if he could clarify for me 48 in the sense that the explanatory notes that this section, together with Section 50, would clarify and limit the existing power of Parliament pursuant to Section 91(1) of the BNA Act to amend the constitution, and that class would be repealed when part five comes into force. I think that Senator Tremblay quite properly raised the question: what is the substitution in the new bill for 91(1), and I would like now if the authority would explain it a little more clearly.
Mr. Strayer: Mr. Chairman, Section 91(1), as you recall, started off giving a very broad power to the Parliament of Canada to amend the constitution of Canada, and that phrase was thought, in 1949 at least, to be a very broad term which could embrace the whole of the constitution and therefore there were then five exceptions listed to that power.
Parliament, in exercising its power to amend the constitution of Canada could not deal with the powers of the provinces with privileges or rights of legislatures or governments of the provinces, they could not deal with school rights, with language rights, with the requirement that parliament meet at least once a year and that no parliament could last more than five years except in times of emergency.
Now, in the proposal the matter is treated somewhat differently but the elements are all there. Instead of having this very broad power given to parliament to amend the constitution of Canada, the power is specified in Section 48 that parliament may amend the constitution with respect to the executive government of Canada or with respect to the Senate or the House of Commons.
And then the sort of matters that were dealt with in the exceptions in 91 (1) are dealt with elsewhere in the proposal.
For example, the power to amend the jurisdiction or the powers of the provinces would fall under Sections 41 or 42. The power to deal with rights or privileges of the province would fall under 41 or 42. The power to deal with separate schools or denominational school rights would fall under Section 43, which deals with provisions affecting one or more but not all provinces.
The requirement for an annual session of parliament which was guaranteed in the exceptions in 91(1) is provided in Section 5 of the proposal that is in the charter, which requires the parliament to sit at least once a year.
The requirement that parliament shall not last for more than five years except in times of emergency is dealt with in Section 4 of the charter.
So that the various matters which were protected or subtracted from parliament’s power to amend, and which were therefore left in the hands of the Parliament of the United Kingdom, are now dealt with in this measure which tries to deal with, by patriating the constitution provides either guarantees of these rights or means of amending them in Canada.
Mr. Mackasey: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Have you any other questions, Mr. Mackasey?
Mr. Mackasey: No, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Hawkes, followed by Senator Roblin.
Mr. Hawkes: Thank you, Mr. Chairman.
Mr., Minister, I wish I had the talent to address you in your mother tongue. I will, I hope, within a year or two. I have gone far enough in my language lessons to understand that a capacity to speak is not sufficient in terms of understanding a culture and a region.
I am one of the Z00 hundred members plus of Parliament whose rights of debate were cut off by closure and I would like to begin with a brief opening statement. I beg your indulgence and I beg your attention, sir.
I come from the Province of Alberta. We have 79 members of our Legislative Assembly, 21 members in the House of Commons of Canada. One hundred elected people. Ninety-eight of those people, who have been elected to represent the wishes and desires of the people of my province, are opposed strongly, are opposed strongly to the package that we have before us and we are offended by the process. You have denied us our rights of full participation in the renewal of the Canadian federation and that is the way we feel about it and I hope you understand it.
It is the conviction of the people in my province that you intend to use the variable of party loyalty to force unwanted and bad legislation on the people of Canada.
You seek to separate Canadians from their common-law tradition, you seek to separate Canadians from the traditional form of government. There are many in my province who refer to you and to the Prime Minister, and those whose support them, as separatists. You are separating us from our right to participate in this process and we are justly proud, as Canadians who live in the province of Alberta, we are justly proud of our achievements in human rights, in education of minority groups and in the economic and mobility rights which the people of our province enjoy.
In my part of Canada, sir, we understand clearly that free men and women give rights to government but it does not work in reverse. The consent of the governed is important and when you ignore that principle, then it is my conviction, sir, that you imperil the will for the survival of this nation. When the process is not supported even by one provincial Premier and when the package is supported only by two, then I find it, sir, an embarrassment to be sitting and participating in such a process.
I would like to move on, because you force me to, to examine the package that you have put before us.
I come to Parliament out of an academic career in which I taught social policy in the school of social work. I am concerned about the rights of individuals and the willingness of those who are elected to represent them to act in the best interests of those people.
I look and I search in this package for positives and I want to test whether one of those positives exists.
One of the groups in our society that is not well represented is that group of people who approach retirement age. In many companies, in many parts of this land. there is a compulsary retirement age and many people are the victims of that compulsary retirement age. They are economic victims and in many cases their health, mental and physical, suffers through that provision in law.
As the Minister of Justice who is presenting a new Constitutional proposal to the people of Canada, are you convinced, are you persuaded that the Bill that sits before us will assist us, those of us who care, in getting rid of that onerous provision of compulsory retirement.
Mr. Chrétien: I will reply in French because the honourable member has expressed his desire to learn the language. First of all, with respect to the rights of Albertans. Albertans have rights like every other Canadian. They elect members of Parliament who can vote in Parliament and they have a number of Senators representing them as well.
So they have the same rights as other Canadians. We may have different points of view, but all Canadian members of Parliament have the right to express their opinions democratically in the assembly known as the Parliament of Canada.
From this point of view, Albertans’ rights are on exactly the same footing as those of all other Canadians. They may not be very well represented in the government, but that was the wish of the people of Alberta. What can you do? Quebec had the same problem in 1979-80.
So you are asking me to answer a question about the effect of the charter on compulsory retirement at age 65. I think we have to ask ourselves whether it is discrimination to force people to retire at 65? I do not know how compulsory retirement at age 65 will be interpreted in light of the provision in the charter for no discrimination because of age.
The courts could interpret that this is discrimination. I think the important thing right now is to make sure that there is no blatant discrimination. Of course, we would have to take into account conventional practices regarding retirement in Canada. Now, as to whether this is in direct conflict with the charter, I do not know what sort of effect the charter would have. In my own mind, I think that the courts could examine whether or not compulsory retirement is justifiable by looking at both the charter as a whole and section I in particular which states that the charter “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.”
So the test will be to determine whether this is truly discriminatory in the light of section I. The courts will decide.
Mr. Hawkes: Mr. Minister, just to check the translation, I think the basic message was: I don’t know. In social policy terms, sir, the definition of bad legislation as it affects people are those three words: I don’t know.
An hon. Member: Here, here.
Mr. Chrétien: I explained to the Committee that we wanted to make sure that there would be no discrimination on the basis of age. That is included in the charter of rights. However, in order to avoid an absolutely chaotic situation in Canada, and at the request of the provincial governments, we included the reference to reasonable, generally accepted limits. When it is clear to the courts that this is discrimination based on age, the courts will be able to say that the law providing for compulsory retirement is discriminatory. This is not possible at the present time under the Canadian constitution.
Mr. Hawkes: Can I remind you, sir, that school boards use age for school entry. We have juvenile courts, we have minimum wage laws that operate on the basis of age differential. Much of our social service delivery system works on the principle of universality and you, sir, are asking Canadians in this Bill to risk what we have spent decades working towards for the betterment of the people that live in this country.
Can I direct your attention, because I am nearing the end of my time, to the mobility rights, Section 6(3)(b). And in that Section, sir, you say that there is an exception, that people will not be entitled to public social services. You do not say “provincial social services”, which might provide protection for budgets at one level, but you simply ask us to accept that the poor, the disadvantaged in this country who choose to move to better their position will not have the same right of access to public social services that those that are wealthy would have. It is those kinds of principles that are sprinkled throughout this Bill, that cause me considerable concern. We should never, never, sir, have a Constitution that is built on the principle that I do not know or that I do not understand.
M. Chrétien: I know very well what it is, sir,
And I understand quite well, that is a provision that was put in the Bill of Rights at the request of provincial governments to ensure that the passage of people from one province to another does not create undue burden upon the government of the said province. It is at the request of provincial governments who are responsible for the administration of social programs in Canada that we have put in clause (b) to sub-clause 3 concerning the rights and freedom of circulation and settling in.
So it is to maintain the most reasonable administrative norm possible that we have allowed that to the provinces before being obliged to pay for social services out of public funds to make sure that there is a minimum period of residence inside a province. That is common practice and has been established in Canada for quite a while now and it is at the request of the provinces that we decided not to, through that mobility clause,
create confusion in the administration of social programs at the provincial level.
Mr. Hawkes: Surely to God, Mr. Chairman, there is a difference between the word “public” and the word “province”, and surely you put careful care and attention into this Bill before you used the loyalty of those members to foist it on the Canadian public. Surely you can understand that we are governed by words in law and the words that are in the Constitution are vitally important to that social contract?
Mr. Chrétien: I explained why we put those words in there. It was at the request of the provincial governments for the reasons I have just set out.
Mr. Hawkes: You do not need the word “public” to protect the province.
Mr. Chrétien: I do not know if you want me to take out a word, the intention remains exactly the same. I do not know what you mean to say but I am saying that the text you have there was put in at the request of the provincial government so that in all provincial social program you can ask for certain criteria concerning residency before a person can qualify. That is common practice and we put it in there at the request of the provinces so as not to change the social order in too radical a manner.
Mr. Hawkes: A point of order, Mr. Chairman. Could the Minister tell us, then, where in this section those limits are applied to provinces? If that is your intention, if that was the request, where are the words that do that, sir.
The Joint Chairman (Mr. Joyal): I would like the hon. member to note that this is not a point of order but rather a supplementary question and if his hon. colleagues following him on the list are ready to let him put that question I will ask the hon. member . . .
Mr. Chrétien: I can answer that question, with your permission, Mr. Chairman. In our country it is the provinces who have the administrative and legislative responsibility for giving social services to our citizens. It is not the central government. So that is why when we use the word “public” it means that it applies to . . .
Mr. Beatty: Family Allowances, Old Age Pension?
Mr. Chrétien: But insofar as the question of family allowances is concerned, there is no such thing as residency requirements in one or the other case, it applies generally to all Canadians. The question of residence is not a prerequisite concerning . . .
Mr. Beatty: Unemployment insurance?
Mr. Chrétien: It is the same thing. Federal programs apply to all Canadians.
Mr. Crombie: With differences from province to province. Two provinces on the family allowance . . .
Mr. Chrétien: Yes, yes.
The Joint Chairman (Mr. Joyal): Order, please. order, please. All members presently taking part in this debate are on my list and will be recognized later.
Mr. Crombie: He also said that.
The Joint Chairman (Mr. Joyal): What I say to the Honourable Members . . .
Mr. Crombie: I apologize.
The Joint Chairman (Mr. Joyal): . . . is that all those who question . . .
Mr. Chrétien: As for family allowances, that does apply generally because it is the same level of family allowances for all Canadians.
I believe that Mr. Crombie had a valid point when he said, concerning unemployment insurance, that there are situations which vary from one place to another in Canada depending upon the level of unemployment insurance. I recognize that point and Clause 6.3(b) would apply there.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. The next speaker is Senator Roblin followed by Mr. Crombie. Senator Roblin?
Senator Roblin: Thank you, Mr. Chairman.
I may risk taxing the Minister’s patience because I—well, I am pleased to hear that because I would like to go back again to the amending formula and its implications.
Mr. Chrétien: Will it he a new question? I would be quite surprised. I do think I have replied to a few questions on the amending formula but I hope it will be a new question.
Senator Roblin: Well, I will do my best to express a new attitude towards the question and perhaps even a new question if my honourable friend will be patient enough to hear me out.
Mr. Chrétien: Oh, yes. I just said that I have replied to many, many questions on the amending formula so I hope it will be a new one, or you could check the record because I believe I have given a lot of information on that.
Senator Roblin: If your answers were satisfactory I dare say I would not have to bring the matter up again.
Mr. Chrétien: You are not obliged to agree with me, sir. That is not the purpose. I gave a statement of policy and you can say: I do not agree with the policy. That is your privilege. However, if I thought that I was about to convince all of you in this room as a witness I would presume a bit on my qualities.
Senator Roblin: Well, Mr. Chairman, I am willing to grant the Minister many qualities and I hope the ability to listen to me is one of them.
I would say to him that I would like to try and explain to him how some of these amending procedures appear outside the centre of Canada, because the question of amendment, the question of the rights of the smaller provinces has been one of the classic problems of Canadian federalism. It occupied about half of the proceedings in Quebec in 1867, as my honourable
friend knows, so it is not surprising that it is going to occupy a lot of time before this Committee here today.
The problem is that the smaller provinces then, and I suggest now, are concerned lest the overwhelming population to be found in the two central provinces of Canada will be used in such a way as to interfere with what they consider to be their rights, and when you look at Section 41, which sets out the formula that the government chooses to recommend in respect of this matter, you can see what I mean. Because even though I think a careful effort has been made, and I appreciate that it stems from discussions some ten years ago, the defects of that formula are obvious. They are obvious and they have been pointed out to us by the Prince Edward Island formula that is before us, that has been suggested.
Now, while this does not go all the way in the direction which I would recommend, simply it is certainly a substantial departure from the principles set out in 41 as they stand now and the Minister should understand, I think, the position of people in Manitoba, for example, who see that the possibilities of their maintaining what they think to be their rights are not very great under the amending formula that we have now, and that they see the priority position, for whatever reason, that attaches to the provinces of Ontaio and Quebec as being an obstacle to their appreciation of the value of the work that we have before us now.
I suggest to the Minister that he ought to be looking at some other kinds of formulate with respect to these matters. I think he should follow the opening that PEI has created for us. Because they have enhanced the status of that province in respect to holding its own in the Confederation.
It is, I think, a fact (and it is certainly reported as a fact in the documents of the federal government) that in September of this year there was unanimous agreement among the provinces on another amending formula. It says so here.
I am quoting from page 27 of the Government’s document:
All the provinces agreed in principle that they would be willing to adopt the Alberta proposal for an amending formula . . .
There is a lot more to it.
But whether they have agreed to it or not, let us leave that question apart and consider the formula on its merits. What does that formula do? It provides that the Constitution of Canada is not rigid and does not require unanimous consent. It can be amended by two-thirds of the provinces representing 50 per cent of the population, with a proviso, and that is on certain sections—and they are quite reasonable ones: “provinces may exercise the liberty of opting out of an arrangement that is made”; they cannot opt out of everything: they cannot opt out of matters of universal applicability—and they are mentioned here; but they can opt out of powers which interfere with a provincial legislature’s powers to make laws or the rights and privileges granted or secured under the Constitution to a province or the assets or property of a province or the natural resources of a province.
Now I suggest to the Minister seriously that he ought to consider whether or not there is a place for this particular formula in the federal proposals? It would be objected by him that he does not like opting out. Well, I suppose, if we lived in a perfect world that would be fine.
Mr. Chrétien: Might I say that this formula was placed on the table in the summer and we worked on it. When the First Ministers met in Ottawa it was found not to be acceptable to the Ministers.
But we tried hard. It was a new approach. There were many more. But this was a new one, and we worked very hard during the summer. When the Ministers were together we said this might be the solution. We discussed it. It was all a referendum. We said to them that we did not know if we could sell it to our own Prime Minister. But the Prime Minister came to the Conference and said that if it is the only problem left on the table he would accept it, even though he did not find it acceptable.
But when he put the question to the First Ministers as to whether they were in support of the Alberta formula, which became eventually the Vancouver consensus, this was not acceptable to many premiers at the meeting which they had among themselves.
I was at the Conference and a lot of Ministers, in good faith, said, “Let us try it, that new avenue.”
But when they went back to their governments, and when the First Ministers arrived in Ottawa, there was certainly no agreement.
If there was a consensus in Vancouver, it was one to try and adopt this formula; but there many aspects of that formula, lots of ground in that formula which have never been resolved: what happens if some province was opting out and there was some cost attached to it. Some said every province would take their own chances and would have to absorb the cost; others said no, that they would need fiscal compensation. The question then arose from whom and from what? There was no agreement at all. I distinctly remember Senator Roblin was the co-chairman—and a very good one; and he kept saying all the time that he was willing to look into that; but he always said that he was not sure Mr. Blakeney would be happy with that formula.
The same thing applies to the Ministers from Ontario, and when, eventually, I arrived before the First Ministers, there was not an agreement.
But I would like to finish my intervention by saying that if the provinces find that it is the formula that they like, they have two years to agree among themselves, and to put it as a formula according to the proposition that we are having. If we, as the national government, find that we have reason to oppose it, then the people will decide.
The Prime Minister gave a reason why it was not acceptable; there was a danger that we could have a checker-board type of Constitution.
Senator Roblin: Well, let me ask the Minister if the federal government would accept the formula. I think it is quite clear from what the Minister has said that the federal government would only accept the formula if it had a number of conditions which satisfied his requirements on the matter.
Mr. Chrétien: I do not know. I do not know if we will or will not accept. I said the provinces will have two years. If they have a solution they can propose it to the federal government.
But I am telling you I was around the table, and, even if the Ministers were interested in that formula—it was a new approach and we decided to look at the so-called Toronto consensus; there was another formula before that which was discussed.
We looked at all the different alternatives in the summer, and this one was new and of interest because it was new. But the more we discussed it, the less certain we became.
I told the Ministers there that I did not think that the Prime Minister would ever accept it. To my great surprise he accepted it. He said that if it was the only problem we had to cope with, even if he did not like it that he might buy it, if it was, like the cherry on a Sunday, the last thing. But there was no agreement among his colleagues, the first Ministers. And there were some big flaws in it.
Senator Roblin: I think what the Minister is saying to me is that the federal government will now accept this formula. Is that correct?
Mr. Chrétien: No; I am not saying that. I said if the provinces come with that on a modified formula, we would look at it. If we are not happy with it—and you know we will have to have a federal formula as against the provincial one, and the people of Canada will be called upon to vote on it, and the one which is accepted will be the amending formula for the Canadian Constitution forever.
Senator Roblin: Well, I suggest that if the Minister would act in the way I have suggested, that he would find out whether or not this formula is now acceptable to the provinces of Canada. Because the formula that he now has would not be looked upon by the smaller provinces of this country as being very satisfactory, because it will not deliver them from what they perceive to be the tyranny of numbers.
Mr. Chrétien: You know, we have this formula and I have explained to you why we chose it, because it was one moment in history when all the governments agreed.
We felt with the wisdom of those II First Ministers. it might be as good as anything we might we devise today. It is not perfect, and no formula will ever be completely perfect.
Senator Roblin: It is perfectly clear that since 1971 this Victoria formula has not had the status the Minister accords to it. He should be looking at something else, and I suggest to
him that the Vancouver formula is a live possibility which he ought to explore.
Mr. Chrétien: We are willing to explore it again.
Senator Roblin: I am glad to hear it.
Mr. Chrétien: I think the provinces have a chance. Rather than having a definitive formula right away, we made provisions to have a temporary one for two years so that the problem could be discussed, analysed and resolved; and I hope it will be.
Senator Roblin: I see the Minister is sticking to his guns.
I am going to move on from Section 41 back to Sections 38 and 39, because I want to emphasize, once again, the dangers that the government runs if they were to persist in the formula as is set out there, particularly in respect to the impact of Section 39(6).
In the first section, Section 38, as I expressed it the other day—and it was also expressed by others here—we have the fact that the government may not submit the Victoria Formula to the public when the time comes for the referendum—and at least one lady in the audience thinks it is a good idea; it may be some other formula. How is that other formula to be arrived at by the Government of Canada?
Surely that should be the Parliament of Canada that arrives at another formula and not the Government of Canada. I think the Minister ought to look at that Section 39(3)(a), and take some account of the wording there. It says that the Government of Canada shall cause a referendum to be held in two years and that it be either the Victoria formula or any alternative thereto. Now, surely, if there is to be an alternative, it cannot be at the sole initiative of the Government of Canada, which may have no legitimacy whatsoever in connection with proposing the matter; it has to be the Parliament of Canada. And even when we get to that stage, if you agree with my reasoning there, when we come to Section 39, as was eloquently stated by Mr. Nystrom today, this majority business is a very questionable principle indeed.
Now the Minister says with great logic that if you have two propositions before you, one is going to have more votes than the other and you pick the one with the most votes.
But those are not the only two formulae in the world; and it seems to me that if you cannot get more than 51 per cent on an amending formula for the Government of Canada, then we have got the wrong formula. That should be a warning to us not to proceed, and that we should have some system of adjudicating this matter perhaps in terms of Section 41 or some other set of terms which gets away from the straight majority, because constitutions are not built by the edicts of a majority vote.
We have the situation in the Parliament of Canada where the government has the majority, but it is based upon a very narrow regional base, in my opinion; and to say that a 50 per cent majority will carry the thing, to my mind entirely ignores
the necessity of a consensus when you are building your constitution.
I think you should say to yourselves: if we cannot get a better majority than that, then you can propose some other majority by which it may be measured, we have the wrong formula by any standards, whether it is a provincial formula or the federal formula, and we ought to try again.
Mr. Chrétien: Suppose you take the test of two-thirds of the population, as long as there is no agreement we should remain with the rule of unanimity.
Senator Roblin: No. .
Mr. Chrétien: Well what will happen in the interim?
Senator Roblin: Well you sit down and work on something more sensible.
Mr. Chrétien: But while we are sitting down it will take a few days, so what will be the amending formula? Do you want to maintain unanimity until we have an amending formula that meets 60 per cent of the vote?
Senator Roblin: You have got the answer in your own Bill. You have given yourself two years to find yourself another formula when you use the unanimity rule!
Mr. Chrétien: What, you want another two years?
Senator Roblin: The Minister can argue from this ridiculous fashion if he likes. I am not suggesting that for one moment. What I am suggesting—and it cannot be beyond the powers of reasonable men to devise a system whereby we can act if the two formulae suggested do not appeal to the people of Canada in such a way that they avoid the danger of regional confrontantion, so eloquently expressed today and give us some kind of real consensus; because a constitution which is not built on a consensus will not last and will not be good for this country.
Mr. Chrétien: I am asking for a suggestion as to what do you do, if after two years we have the federal formula and we go to the people, and if you say you take 60 per cent of two thirds of the vote, or whatever is the test, and if none of the two meets that test, do we have to keep the unanimity for as long as we have an amending formula that meets two thirds of the population . . .
Senator Roblin: I do not suggest what the Minister is putting.
Mr. Chrétien: I am just putting the question to you.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. I am sorry, Senator Roblin, I have already granted you much more time than your turn allowed.
I will now give the floor to Mr. Nystrom, who will be followed by Mr. . . .
Senator Roblin: Thank you very much. I asked you to put me down because I am not through with the things I want to say.
The Joint Chairman (Mr. Joyal): Certainly, with pleasure.
Mr. Nystrom will now have the floor and he will be followed by Mr. Duclos, with the agreement of the honourable members.
Mr. Nystrom: Thank you very much, Mr. Chairman, I want to continue along the lines of the amending formula and move along to Section 46. That is something we have not yet discussed before this Committee. That Section at page 14 of the Resolution outlines the rules for the referendum and says that Parliament may make the laws respecting the rules applicable to the holding of a referendum. I feel I should repeat that: Parliament may make the laws respecting the rules applicable to the holding of a referendum.
Now, I have always believed that a federation is a partnership between a federal power and the provincial powers, and I believe when you have a referendum on a constitutional matter that is going to deal with the division of powers and which is going to affect the federal powers as well as the provincial powers, that the rules for that referendum, the regulations for that referendum, the conduct of that referendum should be something that is planned jointly between the federal powers and the provincial powers.
I would like to ask the Minister a few questions on what I think are very serious problems on one of the most vital parts of the resolution.
The first one is on timing. Why does the Minister think that the question of timing should rest solely with the federal powers when the federal government can use public opinion polls and decide when it is going to have a referendum, and it can delay the referendum for a year and a half, two years or three years, or it may, indeed, decide not to hold a referendum?
Mr. Chrétien: It requires a maximum time. You cannot do it in two, three, four, five years. It is a maximum. It has to be two years after. It is within the two years after the first two years.
Mr. Nystrom: Where does it say that? I do not see any reference to that. In part four, Section 38(3), when it comes to a referendum on the choosing of an amending formula, there is a time limit of two years; and I am now referring to Section 46, which is the referendum on a constitutional matter and there is no limitation.
Mr. Chrétien: We got mixed up in the questioning. You are talking about a further amendment, not the amending formula.
Mr. Nystrom: Yes, I am talking about the referendum under Section 42 and there is no time limitation, You said earlier, if we are going to have under Section 38 under Part IV of the Bill in a referendum to choose our amending formula,
there is a limitation of two years, it must be held within two years. Why do you not apply the same rule to Section 46 where a referendum on a Constitutional matter must be held within at least two years.
Mr. Chrétien: I said that in earlier testimony that I made that if the Committee wants to make some recommendation for the provincial input in 46 and if you want to put a limitation between the time when we can have a referendum, fine, I am flexible on that, but I would like to consider any acceptable proposition. I just said that we will have to have some referendum. You say that because there is no maximum time we could delay, delay and delay and wait until the public opinion is all right to get it.
You know, if you want to put a limit, personally, I would look into that. I have no personal objection, but I would like to see all the consequences of it.
Mr. Nystrom: Yes.
Mr. Chrétien: And anyway, this problem has been raised by some Premiers in the discussions that we have had them.
Mr. Nystrom: I would like to thank the Minister for that consideration and then move on to Expenses.
Again, if Parliament is going to make the rules and the regulations, I would like to ask him whether he thinks it is right that Parliament should determine how much money is going to spent, who the money is raised from, who can contribute to the campaigns, is that proper in the federation.
Mr. Chrétien: You know, there is a law that is applicable across Canada and it will have to be a law made by the national government. I explained that earlier. For me, I do trust the members of Parliament on that day. I do not think that many of us will still be there when that day will come because it leads to four or six years from now when probably those in the Senate are all right, but for us, the elected people, the turn-over is a bit bigger. We might not be around but I do think that it will be a subject of that legislation of a very important significance.
Perhaps at that time the Parliament of Canada will perhaps be tempted to establish a mechanism with a permanent input of the provinces. I do not think that it should be, that the law of the referendum should be prepared today.
Mr. Nystrom: What you are saying, Mr. Minister, is perhaps members in that day, perhaps they can look at it differently and so on, but there is no obligation for them to do so. You are dealing with different members in that day and if passed, the resolution as it is, as is enshrined in our Constitution, that the rules for the referendum may be written by Parliament in itself; no act of Parliament can supersede that, no Act of the Provinces can supersede that, Parliament will make all the rules concerning the expenses. How can you justify that. What are the limits, for example, what are the limits?
Mr. Chrétien: I think that we can try to find a mechanism to permit the input of the provinces when that time comes. I do not think we are at this time in a position to prepare and to legislate the law of the referendum. I think it is very premature because we will be using it for a hell of a long time.
Mr. Nystrom: Listen, you are asking this Committee to recommend to the House that we pass a resolution that will endorse a referendum procedure, but you are still saying it is very premature for us to write the rules of the referendum. Well, it is very difficult to ask us to endorse a referendum and you are leaving it to some future Parliament to write the rules for that referendum. I do not know how you can justify that. You know, I think you know as well as I do you have no limitation on expenses, who can spend the money, who the money is collected from and you can have a tremendous impact in the result of that referendum.
Mr. Chrétien: Yes, but you know, I said earlier if you want to say there shall be an input by the provinces and if we can define it in such a way, fine, but I do not think we are in a position today and we are not vested with the responsibility of drafting the law of the referendum that might or might not be used.
Mr. Nystrom: Would you accept, for example, Mr. Minister, an independent rules commission or independent referendum commission, rather, where the directors of that commission were selected or appointed, rather, by both the federal governement and provincial governments, where it is a joint federal/provincial body that determine the rules or determine the conduct of the referendum.
Mr. Chrétien: I do not know. If you have a precise suggestion to make I will look into that. I just say that we are not in a position, it would not be advisable at this time to try, in dealing with that resolution, to forecast all the problems of a future referendum and try to set the rules at this time.
I think the parliament of that day will have the responsibility of doing just that. If you want to make sure that it might be an input by the provinces, I am willing to consider that, but I do not think that we have the time and it is appropriate at this time to prepare a legislation on the referendum that might never be used.
Mr. Nystrom: Well, I think it is a crucial question. You say we do not have the time. You are saying that if parliament at a future date can do this. We are dealing with a very basic thing. It is the constitution of Canada and if we are being asked to pass a motion here, a resolution that is going to give us a
referendum, then surely to goodness you must know what the rules are for that referendum.
I will ask you another question: what about the wording of the question itself. You know, Mr. Minister, it is often how you ask a question that is more important than the question itself. You can often phrase a question to get the answer that you wish. Under Section 46, the wording of the question is left to the federal government; in essence left to the Prime Minister’s office. How can you justify that in a federation, how can you justify that in a federation.
Mr. Chrétien: I think the question is quite important. Mr. Lévesque tried that but because of having asked a question that was very crooked, he was to have his way and he did not manage to have it because it was a question that was separation for those who wanted to separate and a bargaining tool for those who did not want to separate and in spite of that he got solemnly defeated.
For example, when you ask all those questions and you talk about expenses, you know, we have some laws in Canada well accepted now that on expenditures for elections, we have established them. I will be very surprised that the government and the parliament of that day will want to apply to a referendum looser rules than the one we applied to the members of Parliament at the time of election.
Mr. Nystrom: Mr. Minister, you are not enshrining those laws, you are not enshrining the Canada Elections Act, that can be changed at any government at any time, and you are not always going to be the Minister. We are going to have different governments in the years ahead.
I wanted to ask you about advertising again. I think advertising is very important. We saw this summer a government advertising programme launched by the federal government where millions of dollars were spent. We saw your own government in the Quebec referendum campaign go around the rules established by that Province in terms of federal government advertising.
Is that fair, is that right in a federation. Should we not enshrine, if we are going to pass a referendum, should we not enshrine some rules pertaining to advertising?
Mr. Chrétien: I know. You talk about advertising, l have a big page that was sent from Newfoundland on the advertising they are having at this moment. Should I have or not have something to reply to that. I probably should.
Mr. Fraser: Who paid for that?
Mr. Chrétien: When we had during the summer our advertising it was very neutral, we were not advocating any position that we should change the constitution. Everybody agreed to it. I think it is very surprising now that you insist that we
entrench the Bill on the referendum. When we had one two years ago everyone said, this is not urgent, do not do it, perhaps we might never use it and now today you say, make it today for future, perhaps we might not use it in the future.
Mr. Nystrom: I am not insisting. I am not saying at all, Mr. Minister. . .
The Joint Chairman (Mr. Joyal): Answer the last question, Mr. Nystrom.
Mr. Nystrom: I am not saying at all, Mr. Minister, that I want you to entrench a referendum bill. What I am asking is that if you are insisting on entrenching a referendum bill, with your majority in this Parliament, then why are you not enshrining some rules where both the federal government and the provincial governments can fairly determine what the regulations are, determine what the conduct of that referendum is going to be.
If, for example, how can you justify in the federal system all of the mechanisms, all of the conduct of the referendum being determined by the federal government. Are there, for example, going to be umbrella groups, who can participate in the campaign. Cana you answer any of those questions?
Mr. Chrétien: I have probably answered that question more than 10 times. The same questions are always coming back . . . so I do not remember if I have just said it or if I said it the day before yesterday or four or five hours ago, but I do know that I have often said that if we could find the mechanism out of 46 which would allow the provinces to reach an agreement, I would consider that. I believe it is quite premature right now to try to write up a bill on referendums. It would make no sense because, after all, we are not writing up a bill on referendums right now, we are repatriating our constitution. It is being said that if ever there was disagreement on the constitution we could perhaps go the referendum route. Let us hope that the premiers and governments will then be more friendly one towards the other and that we will never need a referendum.
So I do not think we are quite ready to write that bill yet.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister.
Mr. Louis Duclos, followed by the Hon. Mr. Crombie.
Mr. Duclos: Thank you, Mr. Chairman.
I have an easy question for the minister. Could the minister tell the committee if, in his opinion, under the terms of procedure provided for in the draft resolution it would be possible for us to wind up with an amendment formula which would not grant a veto right to Quebec even though it were to go against the will of a majority of Quebeckers who would have pronounced themselves in a referendum. Would it be possible with that procedure?
Mr. Chrétien: With that procedure, when we have repatriated the constitution, for the first time, legally, Quebec will have a veto right in the formula I am suggesting unless. in the formula which comes from the provinces and which requires Quebec’s consent, the right of veto were taken away from Quebec; however, with the federal proposition, Quebec would have the right of veto just as Ontario would through its government and if ever we were to go to a referendum, you would need 51 per cent of Quebec’s population which means that it is a double veto: a government veto and, if we go to the population through a referendum, we are also giving the right of veto to the population of Quebec. That is something which does not exist right now. At this point, the only formula we have to amend the constitution is to go to London and ask Great Britain’s parliamentarians to amend our constitution.
So we are giving enormous power to the Province of Quebec through what we are doing. Were we very cynical, we could keep the amending formula which exists today and forevermore go to England and ask the English to amend our constitution. That would be much easier to do because it requires only a resolution of the two Houses.
Mr. Duclos: Mr. Minister, could we perhaps, together, build a little scenario. I say that we could find ourselves in a situation . . .
Let us pose the premise that eight provinces representing 80 per cent of the population, agree on a certain formula. That formula is then submitted to the population as against a federal formula which could either be the Victoria Formula which gave a veto right to Quebec or possibly the future 38.3 here or the possible replacement procedure suggested by the Government of Canada. There is no assurance. That formula could be one which would not include any right of veto for Quebec and if we are to suppose that there was a national referendum and that a majority of Canadians chose that new formula put forth by the federal government and that a majority of Quebeckers vote for a formula agreed upon by eight of the ten provinces. We would end up with an amending formula which would provide no right of veto to Quebec, against the will of the majority of Quebeckers, and so in the future, the distribution of the constitutional powers between the federal government and the provinces could be changed.
Mr. Chrétien: That sort of situation could occur even under the Victoria formula, should it be used, and that the provinces themselves came up with a formula which had no right of veto. In the formula proposed last summer, there was no right of veto. There was only the possibility of opting out. Some provinces were in favour of opting out without compensation.
Mr. Duclos: So you admit that there is a possibility that in the end we should have an amending formula which gives no right of veto to Quebec?
Mr. Chrétien: It would in fact have been an amending formula chosen by the Canadian people.
Mr. Duclos: Yes, it would be a repetition of the experience of the 1942 plebiscite under which a majority of Canadians favoured conscription, against the will of the majority of the population of Quebec. It would then be possible, would it not?
Mr. Chrétien: Yes, it would be possible. I am only saying that we have no idea what the provincial proposal will be, but we are aware of the first federal proposal. If you wish to entrench the Victoria formula in the constitution, I am quite prepared to do so . . .
Mr. Duclos: Mr. Minister, I believe we should drop. . .
Mr. Chrétien: . . . right away. However, there is the matter of keeping some flexibility in order to take into account a possible amendment by the provinces, and which might in fact, be contrary to the interests of the national government of the nation, in the view of the Canadian government.
Mr. Duclos: Because you would admit that a simple majority of Canadian citizens would suffice under Section 39?
Mr. Chrétien: Yes.
Mr. Duclos: In such a case, I would support Mr. Nystrom’s argument which he raised this morning, that it would be extremely unwise to approve any resolution wherein the federal government could propose eventually a procedure for the replacement of the amending formula without in any way defining that procedure. In my view, as parliamentarians, we cannot with any common sense, commit ourselves to such an adventure.
Mr. Chrétien: Well, let me explain. We have suggested that we use the Victoria amending formula, and the simplest way to settle this matter once and for all, is for the provinces to accept that formula. We would then have a definite amending formula. The provinces must shoulder the responsibility too, and if the provinces want even more assurance, let them pronounce themselves in favour of the Victoria formula. I am really surprised that everybody likes the Victoria formula so much, since up to now, very few people in this Committee from Quebec have insisted on the Victoria formula. Most have been rather silent on the matter.
Mr. Duclos: But Mr. Minister, that is not the point here. We are discussing here provisions of a resolution which would eventually be put before the Parliament of Canada, and it seems to me that this procedure has not been defined, it is described in no way, so that we know absolutely nothing, and it would seem extremely unwise for Parliamentarians to adopt such a procedure. It is extremely dangerous.
I have a question with respect to Section 16. For all practical purposes, Section 16 entrenches the basic principles contained in the Official Languages Act. Now, as you know, and this is a matter of enormous interest for the Co-Chairman
of the Committee, following the Marceau decision, which rejected the right of francophone employees of Air Canada under the Official Languages Act to work in French within federal institutions, Judge Marceau in effect decided that the Official Languages Act was not sufficiently explicit and that francophone employees of the federal government could not claim under the Act, the right to work in French in federal institutions.
Don’t you think that Section 16 should be amended to take into account not only the fact that French and English are the official languages of Canada, but that they are also the languages of work in the institutions of the government and the Parliament of Canada? How do you feel about that? It would avoid in the future a recurrence of that situation concerning the Francophone employees of Air Canada.
Mr. Chrétien: I believe that as drafted, Section 16 does provide the right in principle to use French or English in the federal institutions, subject to normal administrative limitations, I use the example that in certain circumstances we cannot expect the people of Quebec to be bilingual. Both the Post Office in Saint-Mathieu-du-Lac-Bellemare, within my riding, or a village in the northern part of British Columbia, would be subject to certain administrative limitations. Under Section 16, I have adapted the intention of the legislator to permit the utilization in federal institutions of the French language and the English language.
Mr. Duclos: If the very same terms of an ordinary law of Parliament are used integrally in another law which will form part of our constitution, our basic legislation does not permit irrevocably the right to work in either French or English, it could . . .
Mr. Chrétien: Sir, the difference between the Official Languages Act, and the charter is that the Official Languages Act was declarative, while the charter provides rights.
Mr. Duclos: So in fact, you are assuring us that the Francophone employees of the agencies or the departments of the federal government . . .
Mr. Chrétien: That would be the result.
Mr. Duclos: Well, that is what I wanted to know.
Mr. Chrétien: I am saying that Section 16 would now provide rights, while the official Languages Act was merely declarative. It was one of the points raised by Judge Marceau.
Mr. Duclos: So that Francophone employees can claim under the provisions of Section l6, the right to work in French in federal institutions.
Mr. Chrétien: Subject, of course, to the services they must provide.
Mr. Duclos: Of course. But in the cases of Air Canada employees, it was not subject to the services they were to provide. The judge categorically said that the Official Languages Act was not sufficiently explicit for them to use its authority.
Mr. Chrétien: That is why we feel that Section 16 will in fact make the Official Languages Act much more explicit.
Mr. Duclos: Thank you, I believe that.
The Joint Chairman (Mr. Joyal): The Honourable Senator Roblin now has the floor.
I would like to advert to the question of the Referendum and to say that I support what has been said about that already this evening, but I have another point to make and that bears on the right of provinces to initiate referenda themselves.
As the Bill stands only the federal government can do it, with one exception, that is in connection with the amending formula. The provinces may suggest an amending formula provided eight provinces representing 80 per cent of the population agree.
If we are going to have more than one opportunity to have a referendum than on other subjects apart from the amending formula, why cannot we allow provinces to use the same formula to propose questions of their own to the Canadian people. If we think it is such a good idea to consult them, why should this consultation be restricted to the federal authorities. I suggest that the Minister could take under consideration, and perhaps he will tell me, arriving at some formula that will enable provinces to initiate referenda and I suggest the one that is already included in Section 8 would be a good model.
Mr. Chrétien: lf the Committee would do its work and read the reports, I just say the reason why we do think it should be the federal legislature, it is traditionally what exists in other federations. ln Australia, the initiative for a referendum in the matter of constitutional change is vested with the common law government there and it has worked pretty well. I am told there was something like 32 amendments that have been proposed since 1909 and only five have been accepted by the population and the others have been obviously rejected.
So, I do think this law has to be the responsibility of the national government because we are the only one obligated to pass legislation in relation to all Canadians in one piece of legislation. We feel it is the best mechanism.
Senator Roblin: Well, I might be prepared to agree to a referendum on the amending formula under the conditions laid down here, but my hold-back position really is that I think there should only be the one opportunity for a referendum. After all, if that establishes the amending formula, we make a mockery out of the amending formula if we provide an end run around it any time the federal government declares it wants to have one.
Mr. Chrétien: The point that you are making is we should not have a deadlock breaking mechanism, that if we have a deadlock, we stick with the deadlock.
Senator Roblin: No, that is not my position at all.
Mr. Chrétien: Well, suppose you have a deadlock, how do you break it? Now we can have the British Parliament pass a law.
Senator Roblin: If we have a proper amending formula that should take care of us, and if we cannot operate within a proper amending formula, perhaps we should not act.
Mr. Chrétien: So you say that if there is a deadlock, we stick with the deadlock. We would not be able to act.
Senator Roblin: No, I do not agree with my honourable friend at all.
Mr. Chrétien: It is the consequences of your affirmation.
Senator Roblin: No, it is because deadlocks are unilateral declarations these days in Canada.
Mr. Chrétien: We have an amending formula. We have an amending formula at this moment and we want to do something, or a number of provinces want to do something and we have a deadlock, either the federal government does not want to agree but we are willing to have a referendum to have it broken. If there is no deadlock breaking mechanism the federal government could have the right of veto or a certain number of provinces, and the problem would never be resolved.
You can argue that that is all right, but you accept the fact that there will be a situation where the majority of Canadians might want to have a change in the national government and there would be no possibility of breaking the deadlock. We have lived with that deadlock for 53 years in Canada and it is got very comfortable. It has not killed anybody, I guess, but . . .
Senator Roblin: But the real purpose of having an amending formula along the lines suggested seems to me to protect minorities and you are certainly going to make sure that if the worst comes to worst, at the sole discretion of the federal government, these minorities can be ignored. However, the Minister makes his point clearly and I want to move on to something else.
I notice that the Province of Manitoba is expected to provide French in the Courts and French in the legislature and it certainly does provide French in the schools right now. And in that Province 5.4 per cent of the population are francophones.
Well, in looking over the statistics I find there are four other provinces in Canada who have more francophones among their population than Manitoba. There is Quebec. there is New Brunswick, there is Ontario and there is Prince Edward Island.
Now, I would like to ask the Minister by what exercise of logic he decides that these rights should be accorded to Manitoba francophones but not accorded to francophones in
other provinces which have more of that element in their population?
Mr. Chrétien: Those rights have not been given to the Manitoba francophones by this Parliament, it was given by the Fathers of Confederation in the same way that the rights of the anglophones in Quebec were given. It was inscribed in the constitution. What you are asking me is why is it there. It was decided by the Fathers of Confederation.
The point I make is I do not want to turn back the clock, I want more provinces to bind themselves. That is a good argument that you are using, that in New Brunswick there are many more francophones than in Manitoba in relation to the population and already Mr. Hatfield has said that he will use the mechanism provided in this constitution to bind the Province of New Brunswick in 133.
Of course in education, every province will be equal in education with the clause we have here.
In terms of institutional bi-lingualism, I do think that we wish that more provinces would want to bind themselves. As I explained so many times, Ontario was expected to accept it and we were quite delighted with it and eventually, at the end of this summer, they changed their mind and I am very sorry about it, but we never intended to impose it on them.
We want more provinces to accept that and I am a bit sorry that while there were seven provinces who were willing to have a big part of institutional bilingualism accepted in their provinces in 1971, we find ourselves down now to the two obligated by the old constitution and one who voluntarily wants to bind itself, New Brunswick.
I do not think that I want to turn back the clock, the acquired rights should be respected.
Senator Roblin: Well, when we are engaged in the bill of rights and we are engaged in writing a new constitution, the Minister’s reply seems to me to be a cop-out.
Mr. Chrétien: A cop-out? You want me to take away the rights that are protected in the constitution for the anglophones in Quebec and the francophones in Manitoba? Is it a cop-out to do that?
Senator Roblin: I do not think that is what I want at all.
Mr. Chrétien: Well, what do you want?
Senator Roblin: I think I want to see that francophones in other provinces have the same rights as they have in Manitoba.
Mr. Chrétien: So you want us to impose 133 on Ontario and all the other provinces, do you not?
Senator Roblin: You certainly have no hesitation about imposing other aspects of your new Constitution on provinces.
Mr. Chrétien: I am very glad that you are telling me that I am timid about it and you would like me to impose 133 on all the provinces.
Senator Roblin: I did not say that, I said provinces that have the same number of francophones as Manitoba should probably be having the same rules as Manitoba.
Mr. Chrétien: Fine. Probably or should have.
Senator Roblin: Should, in my opinion.
Mr. Chrétien: So there is a motion in front of this Committee, you vote accordingly.
Senator Roblin: Well, you can reply on it. I want to come now to another point in which I query the legitimacy of the government’s move and I now refer to Section 44 which has the effect of dispensing with the consent of the Senate in respect of the passage of certain laws. I am not here as a spokesman for the Senate because as some of my colleagues in the Senate know I would rather have a Senate that was elected than one that was appointed, so I am not making any special appeal for the Senate as it is.
However, I am saying to the Minister that this subject came up in Bill C-60 and we went to the Supreme Court over the head of the government, you might say, and we asked that court a number of questions, and question 2(f) that was asked of the Supreme Court at that time was whether the federal government had the power to provide that Bills approved by the House of Commons could be given assent and the force of law after the passage of a certain period of time, notwithstanding that the upper House had not approved of them.
Now, that is precisely the proposition that is contained in Section 44, and I say to the Minister that if the courts of Canada made it impossible for him to proceed directly by legislation of the Parliament of Canada to deal with this matter, where is the legitamacy in his going to the British Parliament to do indirectly what he could not do directly in Canada?
Mr. Chrétien: The Supreme Court told us that we could not do that in Canada, through legislation in the Parliament of Canada, and they told us that the only remedy to the situation was to go to London and that is exactly what we are doing, we are going to London. We do not like it very much but it is a decision of the Supreme Court of Canada that we have to go to London if we want that type of Constitutional amendment.
So we have followed that very closely and I have accepted the view of the Supreme Court and we are going to London.
The Joint Chairman (Mr. Joyal): Thank you.
I will now recognize your colleague, the Honourable David Crombie.
Mr. Crombie, you have the floor for a few minutes.
Mr. Crombie: Thank you very much, Mr. Chairman.
Through you to the Minister, Mr. Minister, in response to a question from Senator Roblin you indicated that Section 16 of the Resolution, you indicated that it gives rights. That, as you know, is a phrase that bothers me because I think that rights
come from other places, but it is not just an idle concern of an antiquarian.
I would like to refer you to Section I33 of the British North America Act and I would like to ask you what rights Section I6 of the Resolution gives to Anglophones and Francophones in this country that 133 does not? And then I would like to ask you one question in connection with the answer, I think.
Mr. Chrétien: Sixteen is in relation to the Institution of Parliament and the Government of Canada, it is not related to the Provincial institutions. Section 133, in the Constitution, is related to the provincial institutions and there is a difference. Sixteen is the confirmation of the two official languages in national institutions and I33 applies to the federal government but does not apply to all of the provinces but two: Manitoba and Quebec.
Mr. Crombie: The one change that I noted, Mr. Chairman . . .
The Joint Chairman (Mr. Joyal): Last question.
Mr. Crombie: Last question. The one change that I noted in Section 16, it refers to equal rights and privileges as to the use in all institutions of the Parliament and the Government of Canada. “All institutions” is a phrase that does not apear in Section 133. Section 133 refers only to the courts and to the legislatures and to the Parliament.
So I am asking you whether or not “all institutions” is given a broader interpretation than merely the Parliament and the courts, and if so would that involve those other corporate entities other than the Parliament and the courts that relate to the federal government?
Mr. Chrétien: The way I understand it is that it is related to the institutions related to the federal government.
Mr. Crombie: Is Air Canada an institution?
Mr. Chrétien: It is, yes.
Mr. Crombie: Did you say “aye”! That was a Scottish response.
Mr. Chrétien: Oui. Mr. Mackasey is an expert on that matter.
Mr. Crombie: With Mr. Mackasey it was personal ownership. I want to know if it was a federal institution.
Mr. Mackasey: You would not have me here to bug you.
Mr. Crombie: He put me in the back of the plane when I was there.
Mr. Mackasey: Now I am here to bug you.
Mr. Chrétien: Air Canada is a federal institution.
Mr. Crombie: So I can assume that those which would have the same status as Air Canada would he covered by the phrase “in all institutions”?
Mr. Chrétien: That refers to a federal institution like Air Canada.
Mr. Crombie: So that would be an expansion over that which exists in Section 133?
Mr. Chrétien: To that extent, yes.
Mr. Crombie: I have the question: would that involve PetroCan?
Mr. Chrétien: I do not know the legal status of PetroCan, I could check that. I consider that a federal institution.
Mr. Crombie: It may be of interest. Thank you.
The Joint Chairman (Mr. Joyal): Thank you Mr. Minister, thank you Mr. Crombie.
I notice that it is now time to adjourn but, before inviting the hon. members to our next meeting, I would like to recognize the hon. Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I gather there is a willingness to proceed with a new witness tomorrow in the person of Mr. Fairweather and I would ask Mr. Epp if he would like to elaborate on that.
The Joint Chairman (Mr. Joyal): Mr. Epp.
Mr. Epp: Mr. Chairman, I think many of us have heard in the House that there have been negotiations in the regular way. That is applicable to us, that Mr. Fairweather be the witness tomorrow and that, I believe this was also discussed, that the Committee has the right to ask the Minister to return as a witness to the Committee. We can discuss the time in the SubCommittee and make a recommendation to this Committee.
Mr. Mackasey: Mr. Chairman, when the Micks and the Mennonites get together they can resolve any problem.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.
Consequently, since the hon. members agree, tomorrow we will hear the chairman of the Canadian Human Rights Commission.
The committee is adjourned until tomorrow morning at 9.30.
From the Department of Justice:
Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.