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 40 (19 January 1981)

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Date: 1981-01-19
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 40 (19 January 1981).
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Issue No. 40

Monday, January 19, 1981

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

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

Constitution of Canada


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 Robert P. Kaplan,
Acting Minister of Justice

Mr. Ron Irwin, M.P.,
Parliamentary Secretary to the
Minister of Justice


(See back cover)

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


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

Representing the Senate:



Representing the House of Commons:


Campbell (Miss)(South West Nova)
Munro (Esquimalt-Saanich)
Robinson (Burnaby)—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Monday, January 19, 1981:

Miss Campbell (South West Nova) replaced Mr. Gendron;

Mr. Gimaïel replaced Mr. Allmand;

Mr. Munro (Esquimalt-Saanich) replaced Mr. Epp;

Mr. Crombie replaced Mr. Beatty;

Mr. Gauthier replaced Mr. Tobin.

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

On Monday, January 19, 1981:

Senator Asselin replaced Senator Murray;

Senator Roblin replaced Senator Bélisle;

Senator Lapointe replaced Senator Goldenberg.


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The Special Joint Committee on the Constitution of Canada met this day at 8: 17 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Hays, Lapointe, Lucier, Petten, Roblin, Rousseau and Tremblay.

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

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

Appearing:The Honourable Robert P. Kaplan, Acting Minister of Justice and Mr. Ron Irwin, Parliamentary Secretary to the Minister of Justice.

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. I.)

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

At 10:00 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle
Joint Clerks of the Committee

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( Recorded by Electronic Apparatus )
Monday, January 19, 1981

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

As honourable members of this Committee may know, the witness and guests we had the opportunity to hear last week, the Honourable the Minister of Justice, Mr. Jean Chretien, is now in hospital and has been there over the last day.

It seems that there would not now be an opportunity to have him back for a couple of days. I think members around the table, honourable Senators and honourable members of Parliament, will agree when I say that on behalf of all honourable members of this Committee, including the honourable Senator Hays and myself, as Joint Chairmen of this Committee, would like to extend best wishes to the Minister and hope that he will be back with us as soon as possible to continue our work and discussion on the very fundamental issue of the constitution of Canada.

If there is no other observation, I will take it upon myself as Joint Chairman of this Committee to get in touch in the coming hours with the honourable the Minister to ensure that he does receive the best wishes and hopes of honourable members of this Committee in expressing their views that they hope that he will recover as soon as possible.

The Honourable James McGrath.

Mr. McGrath: Mr. Joint Chairman, we would like to be associated with your remarks and to wish the Minister a speedy recovery. We hope-indeed we understand-that it is not a serious matter, but serious enough to keep him hospitalized at the present time.

We realize, of course, that he has been carrying a tremendous load and he has been carrying it well. We admire his spirit.

When you convey our good wishes tonight, you can tell him that if it will facilitate his recovery and the work of this Committee, we will be prepared to reconvene a special meeting in his hospital room.

The Joint Chairman (Mr. Joyal): He might agree but I think there are some people among the personnel of the hospital, who would have some objections.

Mr. Nystrom.
Mr. Nystrom: In fact, Mr. Chairman, it might have the adverse effect on Jean.

I would like to associate ourselves with Mr. McGrath’s and your statements. We wish Jean Chretien a very speedy recovery. I know everybody around this table has admired him for the tremendous work that he has put into this issue.

We have differed from time to time on a number of aspects of the constitution, but there is one thing we all can say about Jean Chretien and it is that he has been a very hard worker, very dedicated to his task and to his country; I certainly wish him a very speedy recovery.

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The Joint Chairman (Mr. Joyal): The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, it goes without saying that we are all very regretful at the fact that the Minister has been hospitalized. I think that Mr. McGrath and Mr. Nystrom have emphasized the fact that this young man has put in an awful lot of time on the Committee, but it has been an on-going process for him beginning pre-referendum, through the referendum and then the day after when he went across the country trying to convince the provincial premiers or their delegates of the wisdom of amending the constitution and all the rest of it.

I think we are all very upset; as a colleague, on the other hand, I would not like the press to be left with the impression that there is anything serious other than exhaustion, which is serious enough in itself!

But, Mr. Chairman, that has led me to take advantage of the occasion to address to you the question of the procedure that we are rapidly approaching.

The Minister would normally have been here this evening. He would have been back at the request of the Committee sometime in the future as often as needed; but sooner or later, I think it was meant to be this evening, we would then move into a more detailed examination of the resolution.

I am wondering whether you have given any thought to this, Mr. Chairman, and whether you can advise the Committee at this moment what procedure you propose, hopefully, to follow from here on in order that we may make progress for the particular date we have in mind, because our mandate from the House is very specific in so far as the timeframe is concerned.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.
It is a very important issue, and I would now like to invite the honourable Senator Tremblay.


Senator Tremblay: Thank you, Mr. Chairman. Before we proceed to our business, as suggested by Mr. Mackasey, I wish to associate myself to all of you who preceded me. We all wish that Jean Chretien will be back among us as soon as possible.


Of course, we are not always in agreement on matters of substance, but on the human level, it is very important for us to maintain the dialogue with Mr. Chretien.


As the discussion and the dialogue become harder, there is a certain mutual respect that arises between adversaries. It is the kind of respect I have acquired for Mr. Chretien and I wish to see him back as soon as possible in order to continue this hard discussion between people that I would call gentlemen, and there is no doubt that he is one.


Thank you, Mr. Chairman.

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

I know that your words will be very comforting for him.


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At this point I would like to bring to the attention of honourable members our session this evening. I would like to point out that the Action Minister of Justice, the honourable Bob Kaplan, was supposed to be with us tonight, but he will be delayed for, I think, some minutes. He should be here at a quarter to nine.

On Clause I-Rights and Freedoms in Canada.

The Joint Chairman (Mr. Joyal): Perhaps honourable members would like to have an opportunity to open the discussion with the officers of the Department of Justice who are with us, or to address themselves generally, as was suggested by the honourable Bryce Mackasey, to other aspects of our proceedings.

I am open to suggestions on that matter from honourable members.

The honourable James McGrath.
Mr. McGrath: Mr. Chairman, the circumstances giving rise to this discussion are unusual and unfortunate.

But the fact remains that we are in Clause I of the clause-by-clause stage of the bill, which is traditionally the clause which deals with the bill in a global context, and, consequently, addresses policy matters of the bill and the joint resolution.

I can foresee that there may be times when we could proceed without the Minister, when we get into the actual clause-by-clause and the technical aspects of the draft bill; but, certainly, in terms of the traditional procedure in Parliament, it is normal that we deal with the first clause as a policy clause, and questions generally whilst they are allowed to cover the entire content of the package before us, generally speaking they are of a policy-political nature. And, consequently, we are prepared to proceed to that only on the understanding that the Acting Minister of Justice will be here before too long.

Having said that, Mr. Joint Chairman, I would like to say on behalf of my colleagues that we would have preferred to have had a meeting of the steering committee today. We feel a meeting was warranted under the circumstances. At that time we would have made the case, for example, that there are other Ministers we would like to hear; for example, the Minister of National Health and Welfare, or the Minister of Indian and Northern Affairs, or, perhaps, the Secretary of State for External Affairs, being called, and thus utilizing the time at our disposal tonight by the unfortunate absence of the Minister of Justice.

However, that is not the way we are able to proceed, because of the fact that there was not a meeting of the steering committee; although I do admit that there were informal consultations.

We had to proceed with a Minister who has not been a party to these discussions in the Committee level. I presume that he can deal with policy-oriented questions, and on that basis we are prepared to proceed. The Parliamentary Secretary is here; and it is normal if we get into political questions that he would be expected to handle these questions.

[Page 7]

Perhaps it might facilitate our work in terms of maintaining the precedents and practices, if the Parliamentary Secretary were to seat himself with the two Assistant Deputy Ministers. That is not an unusual practice. It is often followed in committees on bills, and I think it maintains the practice; and I do think it is important that we do that.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Mr. McGrath. I think it is a very useful suggestion. I am quite sure that the Parliamentary Secretary would not have any objection in principle; and I say that, having been myself a witness on many occasions on standing committees of the House where the Parliamentary Secretary was there assisting, even with the Minister at the same table, with the officers of the department when there was a specific study of an issue involved in a bill. That, I think, is a very useful suggestion.

In relation to the point which you have raised concerning the Acting Minister of Justice being here, it is my understanding that he should have been here by 8:15 p.m., and be was in fact delayed for very technical reasons having nothing whatever to do with anything involved in this debate tonight.

I think there was a question having to do with the schedule of an airplane, which was the only thing that kept him away from our proceedings at this time.

So, I would now like to invite Mr. Ron Irwin to take his seat with the Deputy Minister of Justice and the Assistant Deputy Minister of Justice, so that we could proceed in the usual way.
The honourable John Fraser.

Mr. Fraser: Mr. Chairman and colleagues, I certainly join in the other expressions that have been given tonight about our concern for the health of our colleague, the Minister, and join with others in wishing him a very speedy recovery.

I think there are times in political life when, no matter how much we may disagree, sentiments of compassion and human concern for each other have to cross party lines and I am very conscious that that was extended to me last week at the death of my mother and I am moved by the comments that have been made with respect to the Minister and I am one who has received very recently your own condolences, and I say this to both Joint Chairmen and to my colleagues, and I think this is a very civilized aspect of our parliamentary procedure.

Having said that, I suppose I have to return to battle.

I would like to commence, if I could, by addressing the whole question of what has been referred to for weeks, if not months now, as the so-called deadlock in the amending formula, and I am not at all sure whether either of our very distinguished senior public servants in the Department of Justice really ought to have to answer this.

They no doubt can assist, but I think I have to start off by saying this, that in Clause 41 there is a formula for amending the constitution, and that formula requires that a certain number of the legislatures of a certain number of the provinces depending on where they are, with a certain population, approve of the proposed change in the constitution of Canada, and that, if I can put it simply, is the main amending section

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outside of the referendum, which of course we do not agree with at all, but this Clause 41 is the main amending section.

The argument we have listened to is that if the federal government fails to get its way and loses under Clause 4 I, if in effect the majority of the provincial legislatures reject a proposed change, then it ought to fail, but that is not the position of the government. The government’s position is if it fails, then the government can go to Clause 42 and go over the heads of the provinces and go to the people because there is a “deadlock”.

Now, the thing that is concerning me about this is that Clause 41 as an amending formula must have been put in because the government, in its wisdom, thought that it was a fair means of asking the provinces to join with them in changing the constitution, and the federal government must have thought that the formula by itself was fair and reasonable, but the effect of having a referendum there in reserve is to say that if the federal government loses in the position that it puts to the provinces, that there is a deadlock, in other words if the federal government does not have to accept the decision of Clause 41 and the process thereunder, which the federal government must believe is fair and reasonable or it would not be presenting that particular provision to us.

However, now the federal government comes along and says: well, when we lose we have got another way to play the game, and the other way we play the game is to change the rules. What you in effect have done is ordered the defence off the ice, the defence is the provincial legislatures, and you have widened the goalposts because you are prepared to resort to a recruitment of other helpers on the fields, that is the general public, and you do that by the manipulation of public opinion in a national referendum.

Now, in the world of sport that would be called anything from fair play to cheating, but in the world of politics, apparently, the federal government says that is really getting your own way.

Now, what this comes down to in substance is this, that if clause 41 is a fair and reasonable way of having the legislatures and the federal government decide yes or no as to whether an amendment is appropriate, why, if the federal government loses under that rule, which is the invention of the federal government, why is that a deadlock? I mean, is it a deadlock just because the federal government does not get its way, and why is the federal government bringing in this complete change system, widening the goal posts, getting the defence off the ice, planning the rules without any opposition, and using the public to do an end run around the very system that the federal government asks us to accept as being fair and reasonable?

Now, that is a question that is being asked across the country and it is a question that is certainly being asked in western Canada and I would invite Mr. Irwin, who is my good friend and with whom I serve on other committees to address himself to that, and I would ask either of his senior officials, if they can, although I think this gets into policy, but there is something very incongruous about this and it is not enough for me to be told just because the federal government cannot get a

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change under the amending formula which it itself is introducing here, which is it asking us to support, then if it cannot win that way it can win under a changed set of rules, which, I underline, are not available to the provinces.

The provinces cannot come back and say: well, we lost under Clause 41, now we would like to go to the people; and it is very, very difficult for us to comprehend what is really meant by a deadlock and why you have really got two sets of rules, one when you think you are going to win and the other that you bring in when you have lost? And there seems to be something extraordinarily unfair about that and, if I can say so, to a lot of us it is something very dangerous.

Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice): Thank you, Mr. Fraser.

The main experience that we have is Australia. Now, in Australia the referendum is initiated by the federal government and it has not been that easy; in the 64 years that they have had it, they have tried 24 times and they have only had four successes, so it is not that easy to implement a referendum and win it because it is an appeal directly to people and in our case it is a weighted appeal.

Now, I can break the question down into two parts: first, there should be no deadlock provision, and I do not think you are saying that, I think you are saying that there should be a deadlock provision; and secondly, that if there is a deadlock provision, it should also be available to the provinces.

Now, we feel the federal government represents all the people of Canada, as evidenced by its members, and the provinces by their make-up represent regional bodies, and my experience primarily before I came here was as mayor, and when I was a mayor my interest was my municipality, and we really feel that the interest of the province is that province, and the interest of the members of the Parliament is the country as a whole, and consequently it is the House of Commons and the Government of Canada that should decide whether or not there should be a referendum.

Mr. Fraser: Well, Mr. Chairman, I do not want to be overly long on this but I have had to wait many weeks to bear down on this because we have been on other very important subjects, all of which I think are of great interest to the Canadian public, but Mr. Irwin has not really answered the question because, in his answer he leaves me with the impression that it is for the federal government to determine when there is a deadlock.

Now, just let me illustrate the position: again, if the federal government wants a change in the constitution, it is obliged under this particular constitution package to go by way of Clause 41 first, and that is to seek the consent of an appropriate number of provincial legislatures.

If the federal government is going to say that any time it loses there is a deadlock, that is an extraordinarily peculiar way to work things, and I have got great respect for our follow

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Commonwealth country of Australia, but I really do not think that that is the issue. We can point to constitutions all around the world that have much merit but they are not necessarily relevant to our own needs. I do not think you can look to Australia or New Zealand or Russia or any other country to find the answer to our Canadian difficulties.

What I have to come back to, my good friend, Mr. Irwin, is to say what you are telling us is that a federal government could go into constitutional change arrangements under Clause 41 and what are they going to do if they do lose. Are they going to accept that as legitimate or are they going to accept that as illegitimate and go to the public and say there is a deadlock. There is something incongruous about this. There is something that does not make any sense.

I do not know why you need the referendum. You can only need the referendum if the federal government has taken the position that if it cannot win in its first set of rules that it sets out, then it is going to win by some other method. So I ask you, if that is the approach, there is not any sense in having clause 41. You may as well do everything by referendum or by fiat or something else.

Mr. Irwin: May I answer this?

Mr. Fraser: Yes, you may. What really bothers me about this is that it does not ring with any logical clarity and it seems so completely and utterly stacked to a federal decision as to what is an impact or a deadlock. It seems to me it is a deadlock when the federal government cannot get its way, and yet by Clause 41 it must be considered that sometimes the federal government would not get its way. What happens when it does not get its way? Does it revert to the referendum?

It is not enough to just say that in Australia referendums do not always pass.

Mr. Irwin: Mr. Fraser, first of all, I do not see this as a game where we are getting our way or not getting our way.

I think my interest is as deep as yours as to what is happening in different parts of the country. My interest personally is to make sure that there is some balance between the federal government and the provincial government.

You are going back to the first part. You do not seem to think that there should be a deadlock at all. There has to be a deadlock because for 53 years we have been in this vaccum. To bring back the constitution without some mechanism to break a deadlock is a waste of time and we may as well leave it in England.

I do not have the lack of faith that you do in the referendum process. In Quebec, the same thing could have happened. They tried to stack the question and there was an uproar in the Assernbly that weakened the effect of that particular question. That is where Parliament can come in.

Secondly, having stated the question, being in control, they still laughed and they laughed because the public was opposed to it.

I agree in this particular case, maybe because I was on the winning side, that the public made the right choice. I cannot think of a fairer system than going to the public in the end

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result. Is not that democracy? Is not that what we want, public participation? I see that as a good provision.

Mr. Fraser: This is my last question, Mr. Chairman.

First of all, in the Quebec referendum there was no other way to have that question answered except perhaps in a general election and that was not available. It is not relevant.

Secondly, with great respect, Mr. Irwin, you have not answered my essential question. That is that if the provinces did not get their way under Clause 41, could they call that a deadlock and ask to go to a referendum and ask to be able to do an end run around the federal government and go by way of the public.

I am not saying that in every case or at any time a referendum might not be appropriate. I think they are very dangerous. I do not think they are consistent with our system and I do not like them, but what I am saying is that under this situation, if the federal government is defeated in the very formula that they have put in front of us, then they call a deadlock and they go to another formula.

There is one thing I do have to say as I close, Mr. Chairman, and I thank you for your patience, I thank my colleagues, is that there is a lot of talk around this Committee and it has been going on for weeks about how the federal government has been wrestling for 53 years without getting a solution to this problem. I have to say and I know that nobody can argue with me on the facts or can put up any intellectual argument against this, the fact is that the proposition that is in front of us has not been considered for 53 years.

The proposition in front of us goes beyond anything that has been discussed except very recently, and then only as a consequence of the resolution that was introduced on October 2 or October 3. We have not been arguing about referendums for 53 years. In fact, I challenge anybody to tell me when it was last seriously considered at any meeting of the provinces and the federal government over the last 53 years.

Premier Blakeney came here and made that point with some clarity. It is not true that everything in this package has been up for grabs for 53 years and certainly the concept of Clause 41, backed up at the federal level with a referendum, if they do not win, has not been a subject of discussions for 53 years and I am sure my friend does not intentionally mislead anybody in that regard.

Mr. Irwin: I never said that we talked referendum every day for the last 53 years, and no one here has. It is clear that it has been discussed periodically over the last 50 years. I believe the Prime Minister said on average every four years. We have discussed the Bill of Rights extensively for 12 years. We have discussed the patriation for at least 53 years. We have gone through six prime ministers and it has not been all-consuming but it has been there. I do not know any country in the world that has spent that long to come up with nothing. If this was Runnymede in the 13th Century, I am sure that two or three of the people would say, “Let us get this thing signed and go

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back to work.” We have been at it here three and a half months and another month and a half to go. You just remember who won at Runnymede.

Mr. Fraser: I do not think there are any winners at Runnymede and I do not think there are going to be any losers here, just winners in another month and a half.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser.


I would now like to recognize the Honourable Senator Tremblay on a supplementary question.

Senator Tremblay: Just on supplementary question, Mr. Chairman. Thank you for having given me the opportunity to speak.

On this same question of deadlock, Mr. Irwin made several references to the fifty-three years which he repeated a minute ago. If I may, in an effort to fully understand the thinking which underlies your party’s discussions, I would like to ask how you were convinced by this argument of fifty-three years.

I would like to begin my analysis with a process which did not begin in 1927, but, rather, in 1980, in an effort to reconstruct the half century during which there has been a whole series of deadlocks.

How did the conference in September 1980 finish? In a deadlock, according to Mr. Trudeau. Meanwhile, the spokesman for the provincial premiers says that, no, progress was made and that the effort should continue. In 1971, there is supposedly another deadlock. The conference in Victoria ended in failure because one province, Quebec, was in disagreement.

So, I would like to ask a first question before questioning the events which date further back. Could you give me a plausible explanation of the dichotomy in the behaviour of Mr. Trudeau on these two occasions? In 1980, Mr. Trudeau decides that there has been deadlock and that, therefore, he needs a mechanism to get him out of it. Hence, section 42.

In 1972, that is not the way he solved the situation where one province was in disagreement, supposedly, at least according to what you have told us several times now. Are you able to reconcile the two approaches of one prime minister faced with, to use your terminology, a deadlock in one situation and, disagreement in another. In 1972, he respected the agreement of the provinces while in 1980, he decides not to.

What intellectual, political, strategic, tactical, sociological or other kind of development could possibly explain the change in the Prime Minister’s behaviour? And who can explain this dichotomy with the same conviction as you have? That is my first question. Others will follow.


Mr. Irwin: It is not just this Prime Minister. If you go back to Louis St. Laurent, he said, “we will not be masters of our own home until we have our own constitution”. This goes back 30 or 40 years. It is not just this present Prime Minister.

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Premier Bourassa walked away from a conference; Premier Lesage walked away from a conference. It is not just the opposition that walked away from conferences, but Saskatchewan has had their share. On two occasions Saskatchewan has walked away from conferences. There is a history here that has been established, where we have not reached a consensus.

All we are saying is that if we are to be a mature country and not Sierra Leone, we should bring back our constitution to Canada. It is not just this Prime Minister. It is six Prime Ministers who have tried.

Senator Tremblay: We cannot stop with that Prime Minister; he is still living. I will not discuss Mr. St. Laurent in the sam way; he is no longer here.

But Mr. Trudeau is still here and he was here in 1971.

My question is to the effect, how do you reconcile the change in the same Prime Minister before two situations, which, if I use his own interpretation and your own, are quite similar. There are two deadlocks in those two situations, 1971, 1980.

My question is to ask you how do you reconcile the change in the approach. On one side in 1971 he has respected the traditional role that when even one of the provinces did not agree, he would not proceed. And in 1980, even if there are six provinces again, he is proceeding!

Mr. Irwin: If you think that the provinces have agreed at any time in the last 53 years to this, then you are the only person in Canada who does.

Now, if the Prime Minister of Canada, at two different dates reached two different conclusions, I think we all reached the same conclusion that we have not agreed. If there had been agreement of the provinces, then we would not have to be here. We would not have to be here! Even if there had been a formula that they had come close to. Now, the one that they came closest to was the very one that we are voting on-the 1971 Victoria formula; that is what you have before you; and that is what we are voting on.

Senator Tremblay: But you have not explained the change. On one side you pretend that it is because of the concensus of Victoria that the Province of Quebec has just not agreed–on the Charter of Victoria; and then, in 1980, despite the fact that they do not agree, you proceed. I just do not understand the logic of the matter!

Mr. Irwin: Well, I will be only repeating myself, Senator: if there were an agreement there would be no need for this Committee. It is as simple as that. If there had been an agreement-and there has not been an agreement.

Senator Tremblay: I thank you for the supplementary, but I would like to have gone back to the past to show you that it is not as simple as you are putting forward, your 53-year argument. It is not as simple as you would like to pretend it is.

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


Thank you very much, Honourable Senator Tremblay.
I notice that the Honourable Bob Kaplan is now able to join us. I invite him to take the chair of the guest witness. I am sure that the Honourable Kaplan has had the opportunity to refresh his memory on the principles of constitutional law and will share with us what he has learned from his various discussions.

Honourable Senator Asselin, you will have the opportunity to test these compliments I am paying the Honourable Kaplan.

I will now invite Mr. Robinson to take the floor with a supplementary.

Mr. Robinson.


Hon. Bob Kaplan (Solicitor General): Mr. Chairman, if I may just interrupt for one moment, I would like to say that since it is a supplementary to a question that Mr. Irwin addressed, I think he should have the benefit of replying to it.

Mr. Robinson: I am sure that Mr. Kaplan will have no problems with it, Mr. Chairman.

My supplementary question is on a subject which I have raised on a number of occasions and which has also been raised by a number of witnesses appearing for the Committee.

It arises out of questioning by Mr. Fraser on the subject of the referendum, and the fact that the whole concept of a referendum is very new in talking about an amending formula. It has not been around for 53 years; nor has it been around for 53 months; I guess we are getting on to 53 days.

But certainly it is a novel concept in talking about an amending formula.

One of the areas which has certainly given me a great deal of concern in this context and which has also been raised by some witnesses, is the use of a referendum mechanism in connection with a charter of rights.

If we were to accept, as the Minister of Justice, who is responsible, has indicated, that the Charter of Rights is essentially a minimum statement of those fundamental rights and freedoms which are accepted in Canadian society, my question- and I would direct it either to the Acting Minister of Justice, or to Mr. Irwin, as a supplementary; certainly I would be pleased to hear from both if they would like to answer-is this: because the Charter of Rights is supposed to protect · minority rights, how can you reconcile that concept with the ability, through the referendum mechanism, with 51 per cent of the population in Canada, admittedly requiring regional majorities, though we are not talking about regional questions, but about questions of human rights and civil liberties-how can you justify the use of a referendum mechanism to take away rights through a simple majority?

Now, it has been suggested that perhaps there might be certain rights added in the future. That argument can, perhaps, be made.

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But I wonder how you would respond to a suggestion that there shoul be some limitation in this Charter, this statement of values, this statement of fundamental rights and freedoms, some limitation contained in the proposed Charter to ensure that the minimum rights which are contained at this time cannot be taken away by 51 per cent of Canadians, these rights which are supposed to protect minorities, and that there should be one of two things; either that the referendum process should not apply to the Charter of Rights, or, possibly, that there should be a greater majority-a simple majority of 51 per cent of Canadians across the land; a two thirds majority, for example, to protect the minority rights which are supposed to be protected by a charter of rights?

How can you reconcile the use of a referendum under these circumstances with a charter of rights?

Mr. Kaplan: Well, I am told that this question has been addressed by you and some of our colleagues to the Minister before. I cannot do better than refer to his earlier answers about it, that the referendum is a way of providing for action in the event of deadlock amongst legislatures, on the one hand, and the federal government acting through the federal Parliament, on the other.

A line has to be drawn between the desirable amount of flexibility which permits a country to have a national voice and eventually to respond to the national will, and to have the kind of rigidity which would provide absolute guarantees to minority groups on the other hand.

The balance which the Minister has brought forward with the support of the government attempts to find, as I say, the balancing points between those two interests.

I know that is the answer that the Minister has given in the past when the question has been asked, and since it is the same question which was put to him, I am giving the same reply with which I also agree.

Mr. Robinson: Mr. Chairman, if I might just clarify the matter and then conclude, I would like to say that it was not the same question.

The question was somewhat different. Perhaps Mr. Tassé or Mr. Strayer would agree that the question is different in the sense that what I am suggesting is that because the Minister expressed some concern about the rigidity of this if there was a deadlock and there was a desire to add rights, what I am suggesting is that partly dealing with a statement that Mr. Mackasey made earlier-and I can certainly refer to the minutes on that-that we are not talking about rights which might be taken away, but I am making a specific suggestion, Mr. Minister, that to protect what has been called the minimum floor of rights, and only in that very narrow circumstance, to protect the rights which presently exist in the charter, that there might be some greater procedural requirement- perhaps a two thirds majority requirement in a referendum when dealing with that particular aspect of the matter.

This is a question which, I believe, has not been dealt with specifically by the Minister, and perhaps you might at least give some consideration to that, in the light of the fact that

[Page 16]

these are rights which are supposed to protect minorities and are stated to be the minimum floor rights.

Mr. Kaplan: Bearing in mind that it is not the simple majority across the country that is called for, but a majority in each of the regions of the country, that is more of s safeguard than a simple majority which might be obtained predominantly in one or two regions of the country.

So, to characterize it as a simple majority is a little inaccurate.

But I suppose the answer to it and the reason why this proposal is not acceptable to the government is that it assumes too much for a constition, really.

I think you cannot guarantee absolutely the protection of minorities into the future. It would be unrealistic to pretend to do so.

There are safeguards contained; the 51 per cent majority in each of the regions is a safeguard of sorts; the will of the legislatures, the House of Commons, are present as factors providing an element of safeguard.

But, ultimately, in a democracy a majority will have its way. I think the Committee and the Canadian people should be realistic in recognizing that fact.

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


Thank you very much, Mr. Robinson.

I would now like to recognize Mr. Lorne Nystrom. Mr. Nystrom, you are not in for a supplementary but, as a spokesman for your party, I would now invite you to turn to our host tonight.

Mr. Nystrom.


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

I wanted to put questions in about four areas very briefly, and I welcome the Acting Minister before us.

My question is in an area that he has just attempted to answer when he talks about 51 per cent of the people, if there is a referendum held in this country.

If you look at Section 42 of the referendum rules, as I read them, you have to have a majority of people voting in Ontario; a majority of people voting in the Province of Quebec; but you only have to have two of the four provinces in the Atlantic area. For example, you could have people in Prince Edward Island voting yes, and in New Brunswick voting yes; while, on the other hand, you could have Newfoundland and Nova Scotia voting overwhelmingly no.

In other words, you could conceivably have two thirds of the people in the Atlantic Region voting no, and one third voting yes and still it carries. Is that not the case?

Mr. Kaplan: I am sorry; but I felt Mr. Robinson had over simplified the impact of a referendum in characterizing it as a simple majority.

I accept the clarification that you have given but the point I made about Mr. Robsinson’s criticism is still valid.

[Page 17]

Mr. Nystrom: My first question then is: why do you apply different rules in central Canada than you do in eastern and western Canada?

You have to have a majority in Ontario; you have to have a majority in Quebec; but in the Atlantic region, a referendum could carry with a minority of people supporting it, and in western Canada a referendum could carry with a minority of people supporting it.

Why the double standard? Is there a double standard in Atlantic Canada, in that a minority of people can vote for a referendum and it can still carry? And I will come to Wes tern Canada as well!

If you look very carefuly at the amending formula, you will find that in Western Canada it talks about two or more of the western provinces having in the aggregate, according to the latest general census at least 50 per cent of the population of all the western provinces.

So you could there quite conceivably have a very narrow majority of people in Manitoba and British Columbia saying yes, and those two provinces together representing over 50 per cent of the western region; but you could have an overwhelming majority in Saskatchewan and Alberta saying no.

Therefore, you could have more people saying no than yes; and, in the western region, despite the fact that the majority of the people vote no, the “yes” still wins. In the Atlantic Region, the majority of people vote no, and the “yes” still wins; but, in Central Canada, the majority of the people vote “yes” and the “yes” wins.

I would like to ask you: why the double standard?

Mr. Kaplan: Well, it is an attempt by the government in the proposal which is made to balance the principle of regional representation and of the weight of population. That is the reason why regions which are larger with a very much greater population than others have been given a treatment which recognizes their much greater population. Whereas, the western regions and the Maritimes regions with smaller populations have been given a way of participating in the process and have the power to contribute to a veto in a way which recognizes their smaller population.

Mr. Nystrom: That hardly strikes me as being democratic.

Mr. Kaplan: Well, representation by population is the principle of democracy, and regional representation is a principle of federalism. It is an attempt to balance those two Canadian and democratic ways of recognizing opinion.

Mr. Nystrom: Mr. Minister, in the House of Commons to which we are elected, there are many constituencies with 40,000 to 60,000 voters; but there are ridings in the north of this country-and Prince Edward Island-with only a few thousand voters and yet the majority elect a member of Parliament.

I am saying if you have a constitution where you have four regions of this country, and in each region there can be a veto under the amending formula; in other words, you treat each regional equally under the amending formula itself, my ques-

[Page 18]

tion is when you come to a referendum, how can you justify, on the basis of any logic at all, why people in the Atlantic and western regions should not be treated equally with the people in central Canada?

For example, you could have Prince Edward Island and New Brunswick, provinces with the smallest population, saying yes, and you could have the two largest provinces saying no. You could have twice as many people saying no as yes, and yet the “yes” vote wins.

I do not know how you could justify that.

Mr. Kaplan: Well, Mr. Nystrom, you could turn that around say that the weight of a voice of an Atlantic Canadian is much greater in this formulation than the voice of an Ontarian; the voice of a westerner is much greater than the voice of a Quebecker; because although they are less numerous, they have a capacity, although much smaller in the aggregate, to prevent a referendum from carrying.

You can take l million people from Ontario who vote a certain way, who register their vote in Atlantic Canada and it would not make any difference.

In other words, it definitely is a balance of strengths, extra strength to regions and of representation by population.

Mr. Nystrom: Do you know of any other referendum in the world where people can vote no to a question and the question still carries?

Is there a precedence for this in any other country? I have never heard of it before!

In any event, there would have to be a national majority, so you will not have a situation where the majority would not carry. There has to be a national majority-a majority in Quebec, a majority in Ontario, but you could have people in the western region saying no and still it carries; there are people in the Atlantic Region saying no, and it still carries; and I am not sure where the north fits into this-the Yukon and the Northwest Territories!

Mr. Kaplan: The dilemma is to propose a formula for a national referendum in a country where some regions are very heavily populated and others very lightly populated.

Mr. Nystrom: Does the north count? Does the north count in anything but the over-all majority?

Mr. Kaplan: We are checking on that.

Mr. Nystrom: I wonder if, while the Minister is checking that. Mr. Chairman, I can ask him a little bit about his view of federalism.

Well, I gather that the Minister is seeking counsel.

Mr. Kaplan: Please go ahead, Mr. Nystrom.

Mr. Nystrom: I noticed in Clause 46, Mr. Minister1 and I wanted to ask you this question to get a better idea of your philosophy of federalism. In Clause 46 you establish a referendum rules committee, and that committee will be an advisory committee on rules.

Now, what advice it gives, is, of course, not mandatory, and Parliament may or may not accept any recommendation it makes.

[Page 19]

I wanted to ask you the question, because we could have a referendum on a division of powers; we could have a referendum which affects solely the provincial powers; and in a federation we have a partnership between the provincial governments and the federal government.

If we are to have a referendum, it would seem to me that the rules of the referendum, the wording of the question, the conduct of the referendum, should be administered by a player who is neutral; in other words, a referee who is neutral, that is appointed by both the federal and the provincial governments.

Under your amendment we are going to have a commission of three: the Chief Electoral Officer, the chairman of the commission; one commissioner appointed by the federal government, and one by the provinces.

Now, I ask you why it is only going to be advisory? Why do you not accept the advice of Premier Blakeney and others and change the advisory aspect of that referendum rules commission to a commission that may set the rules, that may make the Jaws, where the regulations will be mandatory so that you have the assurance in a referendum that the rules are not going to be set by one of the players but the rules indeed will be set by both the players, where the referee will be neutral?

Mr. Kaplan: Well, Mr. Chretien’s thinking on this was that giving the three the delegated authority to make rules and not have them subject to being settled or finally settled by Parliament, would be giving a very large delegation to appointed people and the consideration was that if parliament chose to change the decision or the recommendation made by that Committee, it should have the right to do so.

Mr. Nystrom: Do I have more time?

The Joint Chairman (Mr. Joyal): Yes. Your final question, Mr. Nystrom. You have another question.

Mr. Nystrom: Well, if it is my final question I would like to ask the Minister whether or not he can respond to my first questions about the double standard when it comes to the referendum rules, and I remind him that we are writing a constitution here that is supposed to last a Jong, Jong time, and that the population now of Western Canada is roughly equal to that of Quebec and in the future the population of Western Canada may be greater than that of Quebec or greater than that of Ontario, so I ask him why we are carving in stone a constitution where we are going to have a double standard, where you have to have a yes vote in central Canada, in Quebec, a yes vote in Ontario but you could have no votes to a constitutional question in the atlantic region and in the west and it would still carry in those areas. Could you now respond to that question and respond to what happens to people in Northern Canada?

Mr. Kaplan: Well, have you the answer about Northern Canada?

Mr. Roger Tassé (Q.C., Deputy Minister, Department of Justice): With respect to Northern Canada and the territories, in effect both territories, they would not be involved in the

[Page 20]

amending procedure that is referred to in clause 41. Clause 41 involves the agreement of the Senate and House of Commons as well as the agreement of a number of legislative assemblies, and the territories not having the status of a province would not be involved under that section.

So, since in effect Clause 41 comes into play and is a call to the people to decide whether an amending formula should carry but on the same basis as if the legislative assemblys themselves have agreed, this would not provide that the electorate in the territories would be involved, mainly because in effect territories do not have the status of provinces.

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

I am quite sure that all the members want to ask supplementary questions on the same issue. I would like to invite now the honourable Bryce Mackasey on a supplementary question. Mr. Nystrom: I believe the Minister was being briefed. Mr. Kaplan: I wanted to answer the other half of Mr. Nystrom’s question.

I defended the proposal that has been made already the first time I answered your question, but I ought perhaps also to have added that the provinces have the opportunity to propose another referendum formula, as you know, in the period following the passage of this joint address and its delivery and legislation by Westminster, so that if the provinces are prepared and interested, and if consensus can be reached on an alternative which would overcome the problem that you have identified, that would be acceptable to the Government of Canada.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I would then invite the honourable Bryce Mackasey on a supplementary question.

Mr. Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Mr. Minister, you can appreciate the whole concept of a referendum is rather complicated and many of us are taking advantage of the clause-by-clause to clarify many of our concerns.

Mr. Nystrom’s concern about the referendum and the apparent inequality of the formula, I want to ask you, through you Mr. Tassé, if you like, there is a link between Clause 41 and Clause 42; am I not correct?

Mr. Tassé: Right.

Mr. Mackasey: In other words, the referendum can be requested by a resolution of the Commons and Senate, and the particular provinces in the various regions; if you like?

Mr. Tassé: Yes.

Mr. Mackasey: Now, when the referendum 1 takes place, in order for it to carry it must not only have a majority of Canadians but in essence it must then conform to the pattern established in Clause 41; am I right on that, sir?

Mr. Tassé: That is correct, Mr. Mackasey.

Mr. Mackasey: Now, when we altered, at the request of this Committee, the Atlantic formula, taking the 50 per cent out

[Page 21]

there, did we not unintentionally create the dilemma that is bothering Mr. Nystrom?

Mr. Tassé: That is correct. I think that is a proper analysis because in effect we are saying in Clause 41 as amended, as a result of a suggestion made in this Committee it would be possible under Clause 41 that the elected representative, provincial representatives of two provinces that may not necessarily represent, in terms of population, 50 per cent in that region, would accept for the region an amendment that had been proposed by Parliament.

Mr. Mackasey: The point I am getting at, Mr. Tassé, when we amend one clause we unintentionally upset the other, it is a natural link, and I am not arguing with Mr. Nystrom, I know he did not intend to, but I want to make it very clear to the Committee that somehow we are not discriminating in this concept on behalf of, shall we say, the central provinces at the expense of the other regions; this anomaly stems from the fact that in order to accomodate Prince Edward Island legitimately, we amend Clause 41 and drop the 50 per cent without perhaps analyzing the impact it has on Clause 42 as it applies to the referendum.

Would it not, Mr. Minister, be appropriate for the officials, and Mr. Chretien and yourself, to perhaps restore the 50 percent in Clause 42, reword Clause 42 in such a way that it would restore Clause 41 in so far as the 50 per cent is concerned?

What would be the impact, let me ask you it that way?

Mr. Kaplan: Would that not remove the effect of Prince Edward Island’s participation?

Mr. Mackasey: No, you can leave the 50 per cent out of Clause 41, which is the Victoria Charter in essence, but restore it for referendum purposes.

Mr. Nystrom: I think what Bryce is saying, if I can interrupt, is inserting an amendment for regional majorities in Atlantic Canada and Western Canada.

Mr. Mackasey: Yes, or we could, and I hope what the Minister stated, Mr. Minister, on Friday in response to a question, he said that if the four Western Premiers were to recommend or request that the 50 per cent be dropped in the West, that he had no objections; what he said in effect is it is up to the Western Premiers to agree amongst themselves whether or not they want two provinces and 50 per cent of the population in the West. In other words, the Minister stated that he would be quite pleased to drop the 50 per cent requirement in the West as he has done in the Atlantic provinces.

Now, what flows from that amendment, if he were to do it, is that Clause 42 would no longer require-you could have the anomaly, as Mr. Nystrom stated, in 1 the Western and Atlantic provinces, but you cannot have the best of both worlds, Lorne, or can you? I do not know.

Mr. Nystrom: I think in this case you can, all you have to do is insert a clause that you have to have a national majority plus a regional majority and that way you treat all regions the same.

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Mr. Mackasey: Would you care to comment on that, Mr. Minister?

Mr. Kaplan: I was not here, I am told that the Minister indicated the other day that he would be prepared to accept that alternative for Western Canada if the Western Premiers were prepared to accept that for Clause 41.

Mr. Mackasey: Because I am on a supplementary that deals with Mr. Nystrom, Mr. Chairman, you must have a little more patience because the purpose of a supplementary is to get something clear here.

Now, presuming that the formula was changed for the West, the Western Premiers requested the abolition of the 50 per cent factor, just any two provinces, let me start all over, what impact, Mr. Tassé, through you, Mr. Minister, would that have on Clause 42?

Mr. Tassé: Well, on the face of it, Mr. Mackasey, I think that we would be faced with the same kind of situation …

Mr. Mackasey: Which is what? Would you mind stating it again?

Mr. Tassé: If this was done in the Western provinces, as we are now with respect to the Atlantic provinces.

In effect what Clause 41 says, as a result of the amendment that has been made, is that as long as two Atlantic provinces, irrespective of their population, accept the amendment, the amendment insofar as that region of Canada is concerned would be approved.

Now, in effect it means that it is easier for an amendment to be made insofar as that particular part of the country is concerned.


Mr. Mackasey: Are you talking about 41?

Mr. Tassé: Yes, 41.

Mr. Mackasey: I was talking about 42.

Mr. Tassé: As far as 42 is concerned, in the wording we have before us, Mr. Mackasey, it would only require for the Atlantic Provinces, and I am looking at 42.(2)(a), that in two of the Atlantic Provinces a majority of voters accept the amendment.


Mr. Mackasey: In conclusion, Mr. Chairman, what I am saying then, Mr. Minister, if we accomodate the West in Clause 41 to remove the 50 per cent factor as we did for the Atlantic provinces; but if we want majority in the four regions, then we are going to have to reword Clause 42 and divorce it, in essence, from Clause 41.

Now, I do not pretend to know the pros and cons of whether you need 50 per cent of the population in the four regions; if so, Clause 42 as it is presently written will not do it because, as Mr. Nystrom has pointed out, it no longer has aplication to the Atlantic provinces. I just want to stress to Mr. Nystrom, however, that this is unintentional and certainly it was not done by the government to put the Atlantic provinces in any inferior position.

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Mr. Nystrom: Mr. Chairman, I hate to interrupt but just on a point of order, I wanted to say to Mr. Mackasey that this same situation existed before as well and it has nothing to do with the 50 per cent rule. All you have to do is look at the statistics with the 50 per cent rule in the Atlantic provinces, you can still have two of the provinces representing 50 per cent of the population saying yes very, very narrowly and the other two provinces saying no very, very heavily and you get the same results, and with the 50 per cent rule in the West the same thing happens. You can have a very narrow yes vote on something in British Columbia and Manitoba and a heavy no vote in Alberta and Saskatchewan and more people could vote no but still a yes would carry even with the 50 per cent rule.

So it does not really have anything to do with the 50 per cent rule, it is just the anomaly where in the West a no can mean yes and in the Atlantic provinces a no can mean yes, but in Quebec and Ontario a yes is a yes.

Mr. Mackasey: Well, if, Mr. Minister, we want 50 per cent in the Atlantic provinces then it may take three provinces. We just have to look at regions as one province and ask for 50 per cent or more and the same thing for the West and the same thing for Quebec.

Thank you, Mr. Minister.


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


Mr. Kaplan: An effort was made to recognize a region apart from its population, the fact that its population is much smaller than the population of another region.

Mr. Nystrom: Except the. West’s population is roughly the same as Quebec.

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

I would like to invite now Mr. Hawkes on a supplementary question, too, on this subject.

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman.

I am pleased to follow Mr. Mackasey in what he has just said.

I asked for a supplementary question at the point at which Mr. Kaplan talked about regional representation as a principle of federalism, and I come from the Province of Alberta and I am a new member of Parliament, a relatively new member of Parliament, and one of the things I have discovered, I think, about the frequency with which regionalism is a viable kind of concept in the Province of Ontario, the concept of regionalism is a great deal more popular in the Province of Ontario than it is in the Province of Alberta.

Well, I mentioned it to Mr. Chretien in a question last week that separatists in the Province of Alberta, and I think throughout Western Canada, were taking Clause 41, the way

[Page 24]

it was written, and using it, distributing it to crowds and using it as an argument to encourage people to be persuaded to separate from Canada. And their ability to do that, I think, is based on the fact that you have, in the so-called Victoria amending formula, repeated in Clause 42, the referendum formula, the concept of regions for the atlantic provinces and the concept of regions for the four western provinces, but that regions and provinces have synonymous definitions for Ontario and Quebec and that if you think about a constitution, Mr. Minister, in its broadest sense, I think a constitution, a good constitution would deal with the rights of the people; a Canadian constitution would deal with the rights of the provinces; and the third topic would be the rights of the Parliament, the House of Commons and the Senate.

Therefore, when you are talking about amending that constitution, you are dealing with the rights of the provinces, the rights of the federal government, the federal Parliament, and the rights of people.

In an attempt to deal with that we all of a sudden come to Clauses 41 and Clauses 42 that introduces in a very strong way the concept of regionalism, except for two provinces of Canada, and a formula which said something like: eight of the provinces, having a majority of the population of Canada, in some sense endures over the long term and makes a statement to Canadians that all provinces are equal. The formulas which you present to us clearly say we have first class provinces, second class provinces, third class provinces, fourth class provinces and even fifth class provinces. It creates a great deal of intellectual and emotional anger amongst many, many people, and when you say to us that those are the formulas that you are going to have to live with, whether you like it or not because we are prepared to move unilaterally, then the emotion around that intensifies and it increases.

Mr. Kaplan: This was basically the formula that was approved at Victoria and I know your party is not asking for unanimity, but the point that you seem to be driving at is to favour unanimity; is that what you are saying?

Mr. Hawkes: I am talking, and maybe we passed each other by in terms of our anger and in terms of understanding, but let us go back to your assertion about Victoria.

At Victoria the First Ministers met and they reached an agreement to go back and see whether or not that amending formula would be agreeable to their legislatures, and very quickly thereafter two of those premiers came forward and said no, it would not be agreeable. There was never a conclusion that it would be agreeable to others.

However, I am not talking about 1971 in Victoria, I am talking about what is now 1981 and the stresses that are on Confederation, and I am saying to you that we have a system, whether it is the best system in the world or not, it is a system that is based’ on provinces and the federal government and that anything which you propose and unilaterally ram through that does not acknowledge in some fundamental sense the equality of provinces, the capacity of provinces to protect their area of jurisdiction is cause for deadlock from the provincial side of it and as a citizen of Canada and a resident of one of those provinces I am glad it is that way, because my provincial

[Page 25]

government passes laws within its jurisdiction and I think it is inappropriate and unwise for those to be overturned by a federal Parliament which, on the principle of population, represents in large measure two provinces of Canada who coincidentally, in Clause 41 and Clause 42, also are provinces that are synonymous with regions.

You just pile one power on top of another to the point where the dominance of those two provinces is a threat to the freedoms and to the rights of the provinces in other parts of the country.

Mr. Kaplan: The two central regions, Ontario and Quebec, could not carry an amendment on their own. They have to also have support under the formula in the West and in the East. It is not a ramroding type of a amending formula.

What I am asking you is sure to be unanimity. What is an alternative, and if the provinces can come up with an alternative that is provided for as well. I do not think we can characterize this as ramming this particular formulation down their throats.

Mr. Hawkes: I ask you to contrast, Mr. Minister. What our party proposed in the House of Commons was the Vancouver amending formula. It deals with 50 per cent of the population; it deals with two thirds of the provinces; it provides protection in areas of provincial jurisdiction for those provinces who do not concur with the amendment.

I suggest to you that while it may not be perfect, it addresses itself to that kind of issue which acknowledges the quality of provinces and yet provides protection for people who live in a particular province in this country who feel they need protectio around some of the things that are important to them.

Mr. Kaplan: I understand that Premier Blakeney has indicated that the Victoria formula would suit him. If the Vancouver formula is the one that some provinces would prefer or that all the provinces would prefer after reflection when this measure is enacted, they would certainly be able to put that forward. It could be the subject of a referendum.

Again, I do not think this could be characterized as ramroding the federal government. There is a provision in this process for the substitution of the Vancouver formula for this one, if that is what the provinces choose to put forward.

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

I would like to invite the honourable Senator Jack Austin on a main question.

Senator Austin: Thank you, Mr. Chairman.

Mr. Robinson: I do have a supplementary question, Mr. Chairman.

The Joint Chairman (Mr. Joyal): With great respect, Mr. Robinson, I am in a position to refuse that supplementary question because the first question was put through by your own party, as you know, by Mr. Nystrom. I think that you had

[Page 26]

plenty of opportunity to discuss with Mr. Nystrom on other related aspects of the question.

You will understand that if we go through too many supplementary questions on all issues, in a two hour session we will have only one main speaker from each party. We, of course, allow supplementary questions but not in a way that we basically change the balance between all the parties around the table. In order to arrive at such a conclusion, during the weekend I asked our clerk and assistant to calculate the use of time around the table since the beginning and I am quite sure that if any honourable members want to look at that after our adjournment tonight, at 10 o’clock, they will realize that if there has been imbalance, it has been in their favour.

I would request your co-operation in concurring with that statement that I made.

Mr. Robinson: Mr. Chairman, I certainly understand the point you are making. I was attempting to follow the precedent of Senator Tremblay in following Mr. Fraser’s questioning in the same party, but I will refrain from doing that following your excellent advice.

I did, though, want for the record just to correct an erroneous statement which the Minister had made, if I may.

The Minister had indicated that in dealing with the questions asked by my colleague that the western provinces had a smaller population, and this is an attempt to deal with the regional balance, a smaller population in the provinces of Ontario and Quebec, for the record, the combined population of the four western provinces is apparently some 6.7 million whereas the population of the Province of Quebec is about 6.3 million. Under the proposed amending formula some 60 per cent of the four western provinces together, the population of the four western provinces could reject a proposed amendment and it could still carry.

I do hope that you will look at this I think it may have been an oversight. I think it should be considered in the formula.

Mr. Kaplan: I have done that calculation myself and I can certainly agree with you about the population of the West. One has to also, in considering the voice of the West, take into account the fact that there are four governments there, four different provinces, whereas in the case of Ontario and Quebec, there is only one province in each case. The formula that is proposed, the Victoria formula, takes account of the fact that in this region of our country there are four governments.

The Joint Chairman (Mr. Joyal): Thank you very much. The honourable members will have opportunities, with great respect, Mr. Minister, to address questions to you in the forthcoming hours and’ days about that very issue that we realize is an important issue.

I invite the honourable Senator Austin to put more questions forward. I keep the subject as being one that needs more debate and more information.

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

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I would like to begin by expressing my own personal regrets that the Minister of Justice is suffering a temporary illness and is therefore away this evening and to also express my appreciation for the appearance of the Acting Minister of Justice.

I would like to ask him some questions which I think his portfolio as Solicitor General might also focus on. These relate, Mr. Minister, to the questions of public emergency that I believe necessarily must be encompassed within a working constitution. We have in Clause I now proposed by the government a phrase that says:

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

I am concerned to know from you, sir, whether the Government of Canada has, in your opinion, retained the necessary powers and authorities to act as a responsible government must do under circumstances where there may be the possibility or or in fact the reality of insurrection or violence in our society.

I am wondering how the general idea which is presented and the general idea which I support will, in terms of the Charter of Rights, also take into account the very important requirement in our society that the government be allowed to act upon its responsibility where imminent danger to society may require it so that the community itself is protected. It is one thing to protect individuals and we must do so to the extent that we are not destroying the vialibity of our democratic society by the protection of individual rights.

I wonder if you could tell the Committee, Mr. Minister, where that balance is and how the government might find that balance.

Mr. Kaplan: Senator, I appreciate your recognition of the fact that even a democratic society might need to have a special power or regulation to enact legislation to deal with emergencies which might be caused by a domestic situation or by an international situation. I understand, for example, that the War Measures Act would still be a valid statute and not subject to being challenged on the basis of this legislation, but this legislation might very well, and in fact, is intended to constrain the implementation of regulations of the War Measures Act so that the state would be constrained to put forward legislation and regulations that are reasonable under what might be very troubled circumstances.

If, for example, Canada was under attack by a foreign power, the War Measures Act might enable the enactment of censorship regulations. Those censorship regulations could be reasonable or they could be unreasonable. They could be reasonable if they were used to prevent a newspaper from publishing strategic information that they had obtained in one way or another from the armed forces where forces are deployed, internal problems of the armed forces. The regulations that would censor that type of publication in time of war could be perfectly reasonable. Without this legislation, there is

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no doubt that that type of regulation would have been valid and I submit would continue to be valid.

Suppose that regulations were put forward which were used to prevent letters to the editor criticizing the government during the crisis or criticizing the armed forces during the crisis, that type of regulation, even in a time of war, might be seen to go too far by the court. It might be held to be an unreasonable exercise of the War Measures Act. This would be something new, because as I understand it, under present legislation, without the Charter of Rights, without that safeguard, there might be no constraint on the type of censorship regulations which the government of the day could put forward, given an emergency.

There is a balance. The balance is the test of reasonableness and this is the test that would be applied under the Charter of Rights to, on the one hand, permit a government to take the necessary measures to safeguard the state, but on the other hand to reduce to a minimum the infringement of privacy and rights of the individuals in the society.

Senator Austin: Is there a distinction to be made, Mr. Minister, between the statute that may be enacted or is already enacted such as the War Measures Act, and action that might be taken under existing or future legislation? Could the War Measures Act be challenged today without any action concurrent by the Government of Canada on the ground that the powers offered to the Government of Canada are not reasonable powers in a free and democratic society?

Mr. Kaplan: Yes, they certainly could be challenged as a statute on the books of Canada now, but any regulations, for example, could not be challenged before they came into existence. I also understand that the War Measures Act would be supported, the opinions that the Government has, from the law officers of the Crown, are that the War Measures Act would survive judicial scrutiny in terms of the presently proposed Charter of Rights and Freedoms.

Senator Austin: Suppose the War Measures Act provided the Governor-in-Council to suspend habeas corpus or to suspend jury trial, which I believe it does, where the Governor-in Council finds circumstances requiring it to act under that legislation.

Mr. Kaplan: Yes, that type of infringement on normal rights and freedoms might be justified, given the nature of the insurrection or the invasion that the state was called on to deal with at the time.

Senator Austin: The answer really is that it is the exercise of the power rather than the existence of an enabling legislation that is designed to be tested in the circumstances?

Mr. Kaplan: In the circumstances, that is right. Certainly in present circumstances, there would be no challenge.

Senator Austin: The steps would be that action would be taken and then those who saw themselves injured would come forward and argue the tests that are in Clause l, that it was not a public emergency or that the public emergency did not require the action that the government took, that it was not either reasonable or justified in the circumstances?

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Mr. Kaplan: That is correct.

Senator Austin: Would those litigants have the onus of proof; would the government have the benefit that the question of reasonability and the question of justification would have to be carried on a balance or on a preponderance of evidence by those who are seeking to set aside the government’s action?

Mr. Kaplan: As I understand Clause I, the onus is clearly put on the government because it calls for a demonstrable justification to be made of the regulations or of the law. Therefore, the onus would be on the government of the day to defend, for example, in the case that I gave, the censorship regulations that were being proposed in a time of war, or the exercise of them. In the event of exercise of a regulation in an unreasonable way, the government could be called on by the court to justify that particular exercise of a power given under a regulation.

Senator Austin: What do you do, Mr. Minister, when the information on which the government acts would be information which would be highly dangerous in the public interest for the government to disclose in a court?

Mr. Kaplan: A court could establish a special procedure that would permit the reasonable grounds that the government has for the exercise to be demonstrated.

Senator Austin: Or it could act in camera, I presume, on the application of the government?

Mr. Kaplan: Yes.

Senator Austin: Thank you, Mr. Chairman.

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


Mr. Robinson, on a supplementary.


Mr. Robinson: Thank you, Mr. Chairman. I do have a supplementary question arising from what consider to be very surprising and frankly, rather disturbing responses of the Minister with respect to Senator Austin’s questions on the War Measures Act.

My understanding and certainly my hope as a result of the tabling of the amendments to the proposed Charter was that very clearly, certain statutes could be challenged in that they gave powers which were excessive, that you did not have to wait for a regulation to be enacted.

I think perhaps you might want to clarify your answer on that.

Mr. Kaplan: No, I do not want to clarify my answer. I just want to agree with you that if a statute is demonstrably excessive, then it would not survive the test of the Charter of Rights and Freedoms.

Mr. Robinson: That is precisely my concern, Mr. Minister. I wonder if you could answer this question. You have indicated that as far as you are concerned that the War Measures Act in its present terms granting sweeping powers to enact retroactive criminal law, granting sweeping powers to permit arbitrary and unreasonable search and seizure, unquestionably those powers are contained in the en-

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abling powers of the act granting it sweeping powers permitting arbitrary detention and imprisonment. That is in the enabling act.

Are you saying, Mr. Minister, that you received an opinion from the law officers of the Crown that the War Measures Act in its present terms would be upheld and that none of the enabling powers in that act would be subject to challenge under the proposed Charter of Rights, because if that is what you are saying, if you are saying that we have to wait until regulations are enacted and that these sweeping enabling powers are not challengable under the terms of the proposed Charter, then certainly I think we, as members of this Committee, are going to have to go back and have a very careful look at the drafting of Clause I, because it has not achieved what is a very fundamental objective, and that is to reduce the power of the government and to enact these kinds of regulations.

Mr. Kaplan: Nobody’s rights and freedoms can be challenged under the War Measures Act. They can only be challenged under regulations or an exercise of proclamation under the War Measures Act.

Mr. Robinson: If you read the Charter, the law is supposed to become inoperative in so far as it violates the Charter.

Mr. Kaplan: It is not a law of daily application.

Mr. Robinson: It is a law, Mr. Minister, and that is supposed to become inoperative to the extent that it conflicts with the Charter.

Mr. Kaplan: It is a law that is not operative until regulations are proclaimed.

Mr. Robinson: Of course, it is operative. It is in force today, Mr. Minister.

Mr. Kaplan:It is in force today, but today it does not take any of the rights and freedoms of any individual.

Mr. Robinson: But it permits that.

Mr. Kaplan: Any regulations that were proclaimed under it would have to be reasonable based on the circumstances that the government put forward as justifying their exercise.

Mr. Robinson: Are you prepared to table the opinion that you referred to of the law officers of the Crown which says that the sweeping enabling powers granted under the War Measures Act are not a conflict of the provisions of this Charter which would state that certain of those sections of that act which is in force today, Mr. Minister, that act is in force today …

Mr. Kaplan: I am not saying that it is not in force today. I am saying that in its present form it does not infringe the rights arid freedoms of anybody because it has not been triggered into operation by a proclamation.

It is in force in the sense that it is a valid law of Canada, but it is not infringing the rights and freedoms of Canadians in any way or constraining them in any way today.

Mr. Robinson: Will you table that opinion that you are relying upon, Mr. Minister?

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Mr. Kaplan: I would like to consider that. I do not know if it is the practice to table the opinions that have been obtained or to table all of the opinions.

I will consider that and consult with the Minister about it.

Mr. Robinson: Thank you, Mr. Chairman.

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


I see that Miss Campbell also has a supplementary for the honourable Mr. Kaplan.


Miss Campbell: It is a quick supplementary while Senator Austin was discussing the proposed Clause 1. If it can be demonstrably justified that the law oversteps itself, does the new proposed Clause 24 for enforcement take away the right of the Crown to stand that you cannot sue the Crown if it is wrong because now you will be able to sue the Crown.

This clause is now going to give us the right of enforcement against somebody if a law or statute has taken the rights-it would have to apply against the Crown so you would now have a pecuniary right of damages against the Crown.

Mr. Kaplan: Under Clause 24 or some other remedy as the court considers appropriate in the circumstances.

Miss Campbell: Most people do not have that right today.

Mr. Kaplan: In the last 15 years, for example, the Crown has become much more subject to prosecution than it was and this takes it that much further in relation to the rights and freedoms that are created and accorded by this Charter.

Miss Campbell: If the act gave that remedy. But normally there is a general statement of principle that you cannot sue the Crown.

Mr. Kaplan: That principle has been derogated a lot over the last 15 years.

Miss Campbell: But this would sort of end it.

Mr. Kaplan: The Crown Liability Act, for example, created the largest inroad into the former immunity of the Crown. But Clause 24 does make it clear, if there was any doubt about it, that the rights and freedoms which are created by this Charter are, if violated, infringed or denied, that there is a right to compensation or other appropriate remedy.

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

I would now like to invite the honourable James McGrath on the main question.

Mr. McGrath: Mr. Chairman, my intervention really was a point of order, and I would not interrupt the proceedings now; my colleague, Mr. Crombie, would like to get on with the matter.

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

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The Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman. I know you are cutting us off at 10 o’clock.

The Joint Chairman (Mr. Joyal): Yes; as we have previously agreed, we should adjourn at 10 o’clock.

Mr. Crombie: Thank you, Mr. Chairman.

In the five minutes I have left, there are a couple of questions I would like to ask the Minister. They deal with the Charter of Rights and Freedoms and relate particularly to understanding some of the principles which are related to and underlie the Charter of Rights and Freedoms, particularly in relation to the principles that underlie the Canadian Charter of Rights brought forward by Mr. Diefenbaker in 1959 or 1960-the so-called Diefenbaker Bill of Rights. The words I would like to direct your attention to are right at the start:

The Parliament of Canada, affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity of the human person and the position of the family …

However flawed, it is clear that the government paid some attention to the dignity and worth of the human person in relation to the Charter of Rights and Freedoms; but did not see fit to include the position of the family that was included in Mr. Diefenbaker’s bill of rights.

I would like to ask the Minister why the government chose not to include the family as Mr. Diefenbaker’s bill had done?

Mr. Kaplan: I like the preamble, frankly, in the Diefenbaker Bill of Rights; and, for my part, I would have been happy if a preamble could have been devised which would have added to the acceptance of this proposal as a whole.

But the preamble formulations which were floating around were very controversial, and in the end no preamble has been proposed.

I think it adds a lot to the Charter to have a preamble. It does not add much to the rights accorded in the bill, and little is added to the actual rights and freedoms of individuals in the Diefenbaker bill of rights by this preambular language.

I agree with you that it is a good moral statement, and I regret that no consensus was found for a similar, not identical, but a similar, meaningful statement of approval of values of the sort which are recognized in this statute.

I can assure you that there is no attempt to derogate from our appreciation of the family.

Mr. Crombie: I want to make sure that I do understand that, Mr. Chairman.

There was a school of thought which suggested that the government had simply forgotten it.

Are you indicating that there is no consensus and, therefore, the idea of including it was rejected. Is that what you are saying?

Mr. Kaplan: That is correct.

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Mr. Crombie: When the time came for the Minister, Mr. Chretien, to bring forward further amendments-two questions: it was not included in the new package which revised the Charter substantially. Was it rejected a second time? And my second question in that connection is: would the government be looking forward to having an amendment come forward from this Committee to consider?

Mr. Kaplan: My colleague did answer that question, and I would try to retrieve the answer. Mr. Irwin, could you repeat what Mr. Chretien said when he gave an answer to the question?

Mr. Irwin: He indicated that there would be an amendment coming forward on the Senate, an amendment on natural resources, and he would be prepared to listen to any further discussion that we have and to any suggestions we have which could improve the Charter.

Mr. Crombie: I take that as a possible “maybe”, Mr. Chairman.

I have a number of other questions, so that perhaps you would like me to start tomorrow morning?

The Joint Chairman (Mr. Joyal): I will keep the name of the honourable David Crombie who will be our first speaker tomorrow morning.

Mr. Crombie: Thank you.

The Joint Chairman (Mr. Joyal): The meeting is adjourned to 9:30 a.m. tomorrow morning with the honourable Bob Kaplan, Acting Minister of Justice.


The meeting is adjourned.

Other Issues:


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