Document Information

Date: 1981-01-20
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 41 (20 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 41

Tuesday, January 20, 1981

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

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

Constitution of Canada

RESPECTING:

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

APPEARING:

The Honourable Robert P. Kaplan,
Acting Minister of Justice

WITNESSES:

(See back cover)

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

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

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

Representing the Senate:

Senators:

Asselin
Austin
Goldenberg
Lucier
Petten
Roblin
Rousseau
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Bockstael
Campbell (Miss)(South West Nova)
Corbin
Crombie
Epp
Fraser
Gimaiel
Irwin
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Nystrom
Robinson (Burnaby)—15

(Quorum 12)

Richard Pregent
Paul Belisle

Joint Clerks of the Committee

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

On Tuesday, January 20, 1981:

Mr. Lapierre replaced Mr. Gimalel;
Mr. Epp replaced Mr. Hawkes;
Mr. Gimalel replaced Mr. Gauthier.

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

On Tuesday, January 20, 1981:

Senator Neiman replaced Senator Connolly;
Senator Goldenberg replaced Senator Lapointe;
Senator Wood replaced Senator Neiman.

[Page 3]

MINUTES OF PROCEEDINGS

TUESDAY, JANUARY 20, 1981
(72)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:41 o’clock a.m., the Joint Chairman, Senator Hays, 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, Epp, Fraser, Gauthier, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Munro (Esquimalt-Saanich), Nystrom and Robin- son (Burnaby).

Other Members present: Messrs. Kushner and Rose. In attendance: From the Research Branch of Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Robert P. Kaplan, Acting Min- ister 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 Reso- lution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

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

At 12:09 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(73)

The Special Joint Committee on the Constitution of Canada met this day at 3:45 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Hays, Lapointe, Lucier, Neiman, Petten, Roblin and Rousseau.

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Crombie, Epp, Fraser, Gimaiel, Irwin, Joyal, Lapierre, Mackasey, McGrath, Munro (Esquima/t-Saanich), Nystrom and Robinson (Burnaby). Other Member present: Mr. Hawkes.

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

[Page 4]

Appearing: The Honourable Robert P. Kaplan, Acting 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. 1.)

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

At 6:12 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING
(74)

The Special Joint Committee on the Constitution of Canada met this day at 8:13 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Goldenberg, Hays, Lucier, Roblin, Rousseau, Tremblay and Wood.

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

Other Members present: Messrs. Beatty, Gauthier, Hawkes and Tobin.

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

Appearing: The Honourable Robert P. Kaplan, Acting 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. 1.)

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

On motion of Mr. McGrath, it was ordered that the document entitled “Summary of proposed amendments to Joint Resolution on the Constitution presented to the Special Joint Committee by the Honourable Jake Epp”, be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-13”)

[Page 5]

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

Richard Pregent
Paul Belisle

Joint Clerks of the Committee

[Page 6]

EVIDENCE

(Recorded by Electronic Apparatus)
Tuesday, January 20, 1981

[Text]

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

Honourable members, we are privileged this morning to have Mr. Kaplan, the Solicitor General and Acting Minister of Justice here this morning. We will be continuing from our meeting yesterday and I believe the first gentleman I am to call upon is the honourable Mr. David Crombie.

On Clause 1—Rights and Freedoms in Canada.

Hon. Robert Kaplan (Solicitor General and Acting Minister of Justice): I wonder Mr. Chairman if I may have an opportunity to follow up on a matter that I undertook to consider last night.

That is the question of whether the legal opinion to which I referred in connection with the applicability of the War Measures Act should be tabled with the Committee.

I learned overnight that more of the legal opinions that are given to the government are, in normal circumstances, tabled. That general policy would apply to this particular opinion. But the way in which the opinion has been put to the government is that if an individual were to seek redress, for example, from the Warm Measures Act in its present form, an act, but incipient, that the opinion we have is that he would be unable to demonstrate that any of his rights or freedoms were affected by it because they would not be. Therefore, until some proclamation took place of regulations under the act, so that an applicant seeking to assert that the War Measures Act was an unreasonable exercise of the legislative power by Parliament wold be up against that problem. That is the reason that I think that the government believes that the War Measures Act would survive the Charter of Rights and Freedoms in its present form, although as I indicated, any particular proclamation of regulations under that act and any executive action under a regulation or purportedly under a regulation would be affected by the Charter.

That is the great progress affecting rights and freedoms that this Charter of Rights would have on the War Measures Act situation.

Thank you, Mr. Chairman.

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

Yes, on a point of order, Mr. Robinson.

Mr. Robinson: Mr. Chairman, just on a brief point of order, if I may, in response to the Minister since I raised this matter yesterday with the Minister, I do understand that the normal practice is that when a legal opinion is requested from the Department of Justice for a particular client department or agency, that under normal circumstances that is not divulged without the consent of the particular client department. I think that is the important qualification.

In this particular case, as I understand it, Mr. Minister, this legal opinion was sought, I assume, by the government in response to a particular concern about the effect of the pro-

[Page 7]

posed constitutional package. It is clearly within the authority of the government to waive this privilege, since the government itself is the client, to permit the Department of Justice to release this opinion to all members of the Committee.

The Joint Chairman (Senator Hays): Order, please. Mr. Robinson, I appreciate your very important point. As Chairman, I would hope that maybe you would pursue that at the time that you may question the Minister further on this particular point.

I would like to recognize Mr. Crombie at this point, if you do not mind.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Minister, you may recall at the closing minutes of the meeting last night I was asking to consider the principles which emanated from the Diefenbaker Bill of Rights in 1959- 1960 and asking you whether or not those same principles are the basis for the government’s Charter of Rights and Freedoms or whether there are other principles that they may have in mind.

I, in particular, asked you, if, on reading the first paragraph of the preamble to the Diefenbaker Bill of Rights in calling for the Parliament of Canada affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the ability and worth of the human person and the position of the family in a society of free men and free institutions.

You indicated that there had been some consideration of those principles but there had been no agreement on them and therefore, there were no principles that you put out in the preamble.

Before I go on to my second question, I would like to ask you a further question that relates to the one I asked last night. Are those the principles on which the government’s Charter today is based or are there other principles you have in mind?

Mr. Kaplan: I am not certain I understand the question. You are asking me if somewhere inside the bowels of the government there exists one or two versions and the preamble?

Mr. Crombie: My interest was since the principles that are established here are pretty clear, it says that the Canadian nation is founded on principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family; that is quite clear, what the constitutional amendment or the legislation in 1960, the Diefenbaker Bill of Rights, is founded on. I want to know whether those are the principles that your bill is founded on?

Mr. Kaplan: Those are a fine statement of principles which certainly are behind the spirit of the rights and freedoms that are enunciated, for example, in the Charter. But that preamble would not survive this Committee today, the Bill of Rights. There is no reference to Indians; there is no reference to multiculturalism; there is no reference to the founding English and French positions in Canada and in considering the difficulties that would be created by a debate on the substance of this proposal, compounding that by having the consideration of a preamble, however desirable it is, the government thought

[Page 8]

that as a minimum step the substantive measures should be put forward. They have been put forward and the hope is, certainly my hope is, as I indicated last night, that there will be a preamble, that the composition of that preamble will be given all the time that it needs by the Canadian people in the next two years or longer, if necessary. There will be a preamble to this bill.

What decided the government against putting a preamble forward was the anticipation of a very prolonged debate about the meaning of Canadian identity, about the values that ought to be reflected here. While there is a great deal of consensus about almost all of them, I would say, among the Canadian people, the relative priorities are in issue, how much weight ought to be given the factors that I mentioned here in relation to other factors. So not because it is not important, but because it is very difficult and because the measures before this Committee now are not intended as a definitive Canadian charter but only as a first step, as a way of breaking a 53 year log jam by having some progress, that is the reason that a preamble is omitted.

I would anticipate, as I said, that if Mr. Diefenbaker’s preamble were put to this Committee, it would be torn apart.

Mr. Crombie: Mr. Minister, I was only asking you why you excluded acknowledging a supremacy of God and the position of the family. I did not ask you to put a preamble. I wondered why that was excluded.

Mr. Kaplan: Why a preamble was excluded?

Mr. Crombie: No. Every constitution is rooted in some principles. Clearly that must be so.

I understand that the suggestions and recommendations which have been made with respect to multiculturalism and a host of other matters that we have in the Charter have been acceptable in general principles to everyone here. What was in the Diefenbaker bill but which is not in this one, my particular concern was with the position of the family and I wondered why you excluded that.

Mr. Kaplan: I do not want to give a mystical answer, but the principles that are in the package that has been put forward, the rights and freedoms that are put forward are animated hopefully by a commonly held set of values among the Canadian people.

Mr. Crombie: I just hope we could have had one of those rather commonly held set of values.

Mr. Kaplan: Yes, I would have liked that as well. I think that when it is achieved, it will be a major Canadian achievement and it will add a great deal to this Charter.

Mr. Crombie: Maybe you should hire a couple of poets.

Mr. Kaplan: Maybe we did.

Mr. Crombie: Mr. Minister, a second question dealing with Part I of the Diefenbaker Bill of Rights says.

[Page 9]

It is hereby recognized and declared that in Canada there have existed and shall continue to exist …

and it goes on and lists certain rights. The purpose of that, as I read my literature of 1959 and 1960 was to make sure that people understood that rights did not come from government, that the rights that Canadians enjoy do not come from the government; that they are rights that Canadians have and it is the government’s right to protect them.

I gather one of the difficulties with that is that the way it is written the courts interpret it as freezing rights in time and therefore, they had difficulty with the phrase. I can find nothing in the Charter that your government proposes which acknowledges the fact that our rights come from time and history. There is the basic assumption, it seems to me in your statement of the Charter, that the rights come from government and the time-honoured assumption that rights come from history and tradition is not acknowledged in your Charter. I wondered why you did not use similar wording.

Mr. Kaplan: The difficulty with the approach of Diefenbaker is that it did not add any rights that existed on the day that it was put forward. In other words, no legislation was invalidated …

Mr. Crombie: No, I do not want to get on that track, if you would not mind.

Mr. Kaplan: No, but that is the problem in taking that approach.

Mr. Crombie: I recognize that the courts interpreted the phrase as freezing rights in time. I admit that. But what it did do …

Mr. Kaplan: That is the problem with that approach, Mr. Crombie. That is why the approach of the government in effect is to provide the individual with a sword, if you like, that he can go and establish rights, invalidate encroachment on rights that have been inflicted by governments, by legislatures and by the Parliament over the years.

Mr. Crombie: Would it not have been useful at least to put in the word “affirm”? I use the word “affirm” because it was used in the 1627 Bill of Rights and in the 1688 Petition of Rights, as well as in 177 4 in the Quebec Act, and in 1841, and throughout our literature-the word “affirm” has a use, a purpose.

The purpose is to make sure that people understand that our rights are not dependent upon government and that they are our own.

So, although that is a deficiency in the specific wording of the Diefenbaker Bill of Rights, it still conveys the very powerful principle which is not in the government’s Charter as proposed, that our rights do not depend upon government but upon our history and traditions.

Is there not some wording, using the word “affirm” which you could have found useful which would at least meet that principle or consider that principle ought to continue?

[Page 10]

Mr. Kaplan: It is all very well to say that, but following that concept, it has nevertheless been our tradition to subtract rights through legislative enactment.

I might say that those legislative enactments are upheld and derogate from what you would call natural rights of an individual in a democracy.

So that concept has not helped; nor has it prevented legislatures from reducing the rights of the individual. I would assert that the concept used and expressed in Clause I and Clause 2 of Part I in the Charter of Rights and Freedoms is, perhaps, a more effective way of assuring rights. It says that they are guaranteed-in Clause I; and in Clause 2 it stated that:

2. Everyone has the following fundamental freedoms:

So I discern that as not only a recognition that these rights and freedoms are not conferred by government, but that they exist, and have existed; but it also is handing the citizen a device for enlarging rights.

Mr. Crombie: Is it your statement, then, that governments give rights? I keep hearing you and others who represent your government, say that “we are expanding rights; we are giving rights.” Do you really think governments give rights?

Mr. Kaplan: Well, I know that legislatures can take rights away by legislation.

Mr. Crombie: I want to know if you really believe that government’s role is to give rights, or whether it is to affirm and protect them?

Mr. Kaplan: I think Parliament can give rights to citizens; but in our tradition, in a ‘democratic tradition, there is a recognition-how legally enforceable it is, is a question-but a recognition that a citizen in a democratic society has inherent rights.

Now, although that is recognized, it is also recognized that legislatures and Parliament can take rights away, virtually any right.

That is the point of having a Charter of Rights. So that in talking about giving rights, I think that is one way of characterizing it. But what one is really doing is giving back rights, if you want to insist on the concept you are developing. I do not argue with that.

What rights does the citizen have in a facist dictatorship? Does he have less rights than, you would say, a citizen in a democratic society?

Mr. Crombie: Usually that type of government is taking away and diminishing them-those rights which are inherent in the individual.

Now, “affirm” has been used throughout Canadian constitutional literature to make the point that our rights come from time and tradition and that they do not come from governments.

I am going to propose an amendment to that.

My final question, if I may, Mr. Chairman, is on the same lines with respect to Clause I of the Diefenbaker Bill. Mr. Minister, you will note in Clause 1 (a) of the Diefenbaker bill,

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it talks about fundamental freedoms and lists the right of the individual to life, liberty, security of person and enjoyment of property. Your government’s Charter of Rights and Freedoms does not include the enjoyment of property as did the Diefenbaker bill.

I wonder why you have chosen not to include the right to the enjoyment of property.

Mr. Kaplan: This question has been raised before and the Minister has already answered it.

Property rights are essentially a provincial matter.

Mr. Crombie: Do you think civil rights are a provincial matter as well?

Mr. Kaplan: No.

Mr. Crombie: Have you ever read Section 92?

Mr. Kaplan: I know that rights are mentioned in both clauses. I think it has a larger meaning in the way I understand it, than the meaning within Section 92.

Mr. Crombie: Mr. Minister, the reason why I went through the preamble in Section 1 of the Diefenbaker Bill of Rights, is that the preamble in that bill provides the basic core of constitutional understanding in this country up until now. It carefully used wording that we find …

Mr. Kaplan: I am sorry, but could you please repeat that? I thought I heard you to say that the Diefenbaker bill gave rights.

Mr. Crombie: No. I said it provided the basic constitutional understanding of this country; in particular, it tried to use the ideas, and where possible, the words which have been used throughout the Canadian constitutional literature.

Now those words include “an acknowledgement of the supremacy of God”.

“The sanctity of the individual”, “the position of the family”, “free institutions”, the concept that rights make constitutions and constitutions do not make rights; that is to say, our rights come from history and tradition and are not given by governments and they always include the right to the enjoyment of property which was considered to be a fundamental vehicle by which the individual was protected from oppressive governments.

Almost all of those principles have not been included in your own bill.

Now the question is: why?

Mr. Kaplan: Well, I hope that a statement of principles will develop.

Mr. Crombie: You are saying it is not based upon principles.

Mr. Kaplan: I did not say it was not based upon principles. I said that I believe the Charter is based on commonly held principles within the Canadian society, but to develop a meaningful statement of them is a very difficult exercise and definitely part of a process of constitutional development.

If this were the whole of Canada’s constitution, then there ought to be a preamble, but we make no claim that this is the

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whole of it. This is an attempt to see real progress develop in negotiation and in the resolution of constitutional questions.

I do not think that there is any difficulty with the concepts contained in the Diefenbaker Bill of Rights.

The Diefenbaker Bill of Rights is an excellent start. There are many in the last 20 years which have been added. What priority they have been given, or what type of, as you have suggested, poetic statement of them should be added is a very good and important question.

If an attempt were made in these circumstances where we are really acting to introduce the minimum in the way a patriated Canadian constitution, it would definitely slow the process down, as it ought to; because it is a very important statement to develop.

But this is not, in our view, the time for it. It ought to be done in an atmosphere of having the time necessary for the consultation necessary to do a statement which would endure. That is the reason it is not here.

In so far as property rights are concerned, property rights should be developed in the Charter of Rights but there are questions of the encroachment on provincial legislation, on zoning, on so many aspects of provincial government responsibilities that it was felt desirable to see a meaningful statement of property rights developed on the part of the provinces and we would certainly welcome a good statement by the provinces of the kind of guarantee that is desirable and that ought to be in the constitution on that subject.

So this is by no means a closed list on the constitution. It is just an attempt to get the ball rolling again.

Mr. Crombie: Thank you, Mr. Minister.

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

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I have some questions, Mr. Minister, with respect to some of the provisions of the proposed Charter of Rights, some of which have been at least initially canvassed with the Minister of Justice, others which have not.

My first question follows up on my questioning yesterday with respect to the War Measures Act and the effect of this proposed Charter of Rights on the War Measures Act itself as it stands now, as opposed to any regulations which may be proclaimed pursuant to the War Measures Act.

Now, I do hope, Mr. Minister, that you will in fact reconsider your decision, at least tentative decision not to table the legal opinion. I would hope that you would recognize that that kind of opinion being for the government could be very useful to this Committee in assessing the impact of various sections of the proposed Charter.

[Page 13]

Mr. Kaplan: Mr. Robinson, I will do better than that. I have seated on either side of me the members of the Department of Justice who gave that advice.

Now, more than having a statement that was given some time ago, they are in a position right now to answer all of the questions that you might have on that matter. I think by making them available and by giving you the benefit of being able to question them directly, I am doing a great deal more than would be achieved by coming up with a piece of paper and tabling it with the Committee.

So if you have any points that you would want to make about the legal opinion, about its weight, about its breadth, now is the time to ask about them because …

Mr. Robinson: I think in view of that, Mr. Minister, that you would have no objection to the tabling of the document itself?

Mr. Kaplan: I am not prepared to table those documents because that is not the tradition and it is considered advice to the government that is not tabled.

I certainly acknowledge it could be tabled, that the government could do it, you made that point and I would not have argued with that but I think by making available to this Committee the lawyers who gave the opinions to the government I am being even more forthcoming than coming up with the piece of paper and tabling it.

Mr. Robinson: Well, Mr. Minister, rather than pursuing this question at this point, the question of the War Measures Act and whether an enabling statute can be challenged before regulations are actually passed under it, let me turn to another question which has been raised in some briefs and that is with respect to the very sweeping powers which are granted pursuant to what are known as writs of assistance. You are familiar with writs of assistance, some of your officers possess these documents, they have been certainly questioned seriously in the Federal Court of Canada as you know. The former Minister of Justice, Mr. Basford, certainly raised some concerns about them.

What would be your understanding of the effect of this proposed Charter of Rights on the existence of writs of assistance in Canada today?

Mr. Kaplan: A writ of assistance is an extreme measure that gives a peace officer to whom one has been given search authority which could certainly be unreasonably exercised by him. Whether every writ of assistance in every circumstance would fail in front of the Charter, I do not know. It would be interesting to ask the law officers of the Crown who are here now about that.

However, I think the fact that they are used in drug investigations, and that the drug problem, I know for example in your region of the country is a very serious problem indeed, whose solution I think could be facilitated and is facilitated through the use of these writs, might in the opinion of a court make them a justifiable writ.

Mr. Robinson: Would you agree that in any event …

Mr. Kaplan: I think the drug problem is very serious.

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Mr. Robinson: Well, Mr. Minister, no one questions the seriousness of the drug problem; what has been questioned by many …

Mr. Kaplan: In your own riding.

Mr. Robinson: . . . Draconian writs of assistance and the powers which are granted persuant to these writs, I am disappointed to hear you defending the sweeping powers that exist.

Would you agree, Mr. Minister, that this legislation, and certainly if you wish to consult with the Deputy Minister of Justice he may assist you on this point, that this legislation, the legislation which permits writs of assistance to be granted for an indefinite period of time to the holder of that writ, would you agree that that legislation could indeed be challenged? Perhaps successfully, perhaps unsuccessfully, but that that legislation could be challenged?

Mr. Kaplan: I would think so, and that a court could well be a forum for determining whether a writ of assistance is an unreasonable exercise of executive authority, but what I would like to do, I cannot recall now if I have tabled the document that I have or not, I would be prepared to table it, which shows how productive writs of assistance have been in their use over the past five or 10 years, showing how many charges have resulted from the use of writs of assistance and how many convictions have be obtained agains drug pushers and dealers and importers, using writs of assitance.

Mr. Robinson: Mr. Minister, I do hope you will table that document. As I say, I can only express my disappointment that your view on the subject of writs of assistance seems somewhat at variance with that of at least some of your predecessors. I would like to turn to …

Mr. Kaplan: Well, let me indicate, though, that I have respected the moratorium which was introduced by the government several years ago and no new writs of assistance have been authorized nor will any be without some more public discussion of the matter.

Mr. Robinson: I would like to turn to the question of Clause 15, what are now called the equality rights, I believe, Mr. Minister.

Would you agree with the statement that was made by your colleague, the Minister of Justice, that the provisions contained in the International Covenant on Civil and Political Rights should be reflected either in Canadian legislation or in the proposed Charter of Rights?

Mr. Kaplan: I think they are.

Mr. Robinson: Presumably you would agree with that.

Mr. Kaplan: I am not the only one who has some difficulty understanding what you are getting at.

Mr. Robinson: Well, what I asked was I thought a fairly straight forward question.

We undertook certain obligations persuant to the International Covenant on Civil and Political Rights, Mr. Minister. Presumably they should be reflected either in the statutes of this country or in the Charter of Rights?

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Mr. Kaplan: No, they should-we have an obligation to implement them in Canada but they could be implemented in the Charter, they could be implemented in the federal or provincial legislation, or they could be implemented by other regulation or by direction, or by practice.

In other words, our obligation is not to include the provisions of an international agreement in our constitution. That is one possibility but that is not the only possibility.

Mr. Robinson: Well, I will let you take your pick of all of those, Mr. Minister, with respect to one particular obligation under the Covenant. You can choose any one you like, and that is the obligation to protect persons in Canada from discrimination on the basis of political belief.

Where is that obligation going to be reflected either in the Charter, in legislation, in directions, in regulations or m orders?

Mr. Kaplan: It is not in the Charter, I agree with that. What I think I could ask is where it is being violated?

Mr. Robinson: Well, Mr. Minister, with respect, I am asking you a specific question. Where is this obligation that you have agreed should be reflected somewhere in Canadian society, where is that reflected in Canadian society today?

Mr. Kaplan: It is reflected in the practice of the Government of Canada.

Mr. Robinson: In the practice?

Mr. Kaplan: Of the Government of Canada.

Mr. Robinson: And you believe that that is effectively maintaining our obligations under the Charter of Rights?

Mr. Kaplan: Yes. I would be interested in a challenge that would be made in the normal way to the effect that the federal government in some of its operations is not respecting that obligation.

Mr. Robinson: My final question, Mr. Chairman, if I may, relates to the proposal in Clause 7 that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

What is there, Mr. Minister, in Clause 7 contained within the rubric of principles of fundamental justice that is not contained in the remaining legal rights section?

What does that section mean, what specifically does it mean, and for example what is the meaning of the right to be deprived of your right to life as long as that is done in compliance with the principles of fundamental justice?

Mr. Kaplan: Well, that type of statement in a constitution has its meaning developed over years of use, and over years of reference.

Mr. Robinson: What does it mean now, Mr. Minister? What is it intended to mean now?

Mr. Kaplan: Well, I think generally, the generally recognized rights affecting life, liberty and security are specifically referred to in the provisions that follow, and the reason for a

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general introductory statement like that is to permit the evolution and expansion of rights of life, liberty and security over time.

For example, rights of security at the moment may be just at the dawn of their evolution. What is a right of security? The following provisions, search and seizure, give some reference to rights of security but an evolving democratic society could well develop new ideas of rights of security, and the purpose of that provision is not a kind of flim flam, as you might suggest; the purpose is to open the door…

Mr. Robinson: Those are your words, Mr. Minister.

Mr. Kaplan: Yes, but that is what you were getting at. It is to open the door for the possibility of rights of security that are not conceived of now, generally recognized now.

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

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Mr. Mackasey on a supplementary and then I go to Senator Connolly.

Mr. Mackasey: Thank you, Mr. Chairman.

Mr. Minister, earlier Mr. Robinson had been pursuing the War Measures Act or more particularly the regulations based on the War Measures Act in certain circumstances on Canadians and its apparent contradiction with the Charter of Human Rights, and he had asked you to table certain legal opinions which had not been traditional for obvious reasons. If you want an all out honest legal opinion, I think you would want to do it with the usual caveats, but nevertheless you had volunteered or had suggested that your officials were prepared to expand on the subject and I thought that was a very generous offer, particularly since whatever they say this morning will be available to all of us, in fact to all Canadians in printed form; in other words even better than the document.

I wonder, then, through you, Mr. Minister, if we could pursue that, if your officials could explain to us the built-in protection that we have under the Charter of Human Rights even when, heaven forbid, some time in the future regulations based on the War Measures Act would have to be reimposed?

What would be the limitations, in other words, on those regulations and what would be your legal opinion as to recourse to courts by aggrieved people?

Mr. Kaplan: Mr. Tassé

Mr. Roger Tassé (Q. C., Deputy Minister, Department of Justice): Mr. Chairman, I think perhaps I should first, in answering Mr. Mackasey’s invitation, refer to the War Measures Act itself and just make a comment or two as to how it is structured and how it operates and when it comes into operation and what the effects are when it does.

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In effect the Act provides that on the issuance of a proclamation that, to the effect that a war, invasion, insurrection exists, real or apprehended as the text says, that is conclusive evidence that it does.

Our view in the Department of Justice is that in the future, with the coming in force of the Charter of the kind that is before the Committee, that it would be possible for a court of law of law to look behind the proclamation that is made to see whether in effect it is validly based and there is justification for the proclamation which we believe is not possible now.

Now, what is the effect of a proclamation of the type I have just referred to? Clause 3, Clause 4 and Clause 5 go on to say that in effect on the proclamation then the governor in council is enabled to make from time to time such orders and regulations that it deems necessary to deal with the particular situation that has triggered the proclamation, and it goes on to say that in effect the authority of the governor in council will extend to all matters coming within classes of subjects, which would include censorship, arrests, but it does not spell out the kind of powers that it would specifically extend to provincial or other authorities to deal with the matter at issue, the emergency.

The government, the governor in council would have to do that by way of enacting regulations that would specifically provide, and that is where we believe in the Department of Justice that the exercise of these powers under the umbrella of the War Measures Act could be challenged in court because, under a charter of the type that is before the Committee, it would be necessary for the government to act only to the extent that is reasonable and necessary to deal with the situation and the exercise of specific powers that would be perceived or would in effect restrict the liberties or the freedoms that are spelled out, could be challengeable in court, which is not possible again under the regime that we have because the provisions of the War Measures Act exclude the Diefenbaker Bill or Rights of 1960 from being applicable to the War Measures Act.

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

Senator Connolly: Mr. Chairman, thank you.

Mr. Minister, I have some questions arising out of Clause 15 and related, of course to the introductory statement made by the Minister of Justice when he was with us. And I think these questions are primarily directed to your officials. Perhaps you can take a little rest when I get into them.

Mr. Chairman, Clause 15 is under the new heading of equality rights and, as I read it, the attempt has I been to make a more positive thrust through this clause than was done in the original Clause 15 of the package. As I understand it, the concept of a closed list of grounds for discrimination was felt by many of the witnesses who came before us to be an exhaustive list and, therefore, should not prevail and that it should be altered to express the concept of a nonexhaustive list

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or an open list of the grounds for discrimination, like race, national or ethnic origin, colour, religion, age or sex.

I think you have tried to do that, both in Clause 15(1) and (2), but when I look at it I wonder whether in fact a court would feel that Clause 15(1) does give you an open ended list. In order words, does Clause 15(1) provide simply examples of the grounds upon which discrimination cannot be practiced?

The magic word seems to be “in particular” and I wondered whether the old hackneyed phrase, “without limiting the generality of the foregoing”, which is very familiar to the lawyers and to the bench, at least my generation of lawyers and judges, whether you may have the effect of that phrase and the use of the words “in particular”. I wonder whether there is something about the words “in particular” that create the open ended list that is contemplated.

Mr. Kaplan: I would like to have the lawyers answer that question, although I just want to make the introductory observation that the expression “without limiting the generality of the foregoing” has not had a very happy history of judicial interpretation in Canada and may not be a good phrase. But the advise we are given from the lawyers, and I will ask them to enlarge upon it, is exactly that, that using this expression “in particular” means that other forms of discrimination and discrimination based on other characteristics of the individual would be covered by the general introductory words.

Mr. Tassé: Do you want to enlarge on that?

Senator Connolly: What I am really looking for is the authority for the use of the word and it may be in a decision that I do not know about.

Mr. Tassé: I do not think there is any decision of the courts that deal with this particular point, Mr. Chairman. We are confident in the department that what the clause says here would entail, in effect as we have being saying, an open ended clause or open-ended list of possible grounds for discrimination but underlying, in effect, to the courts that they would have to accept that there are some grounds on the basis of which discrimination is not acceptable. It would have to be open to them to decide whether there are additional grounds, and in addition I would just add that I think that the French version of Clause 15, if there is any doubt in the minds of some as to the meaning of Clause 15 in that regard, might cast perhaps even more clearly the intention here that …

Senator Connolly: The word “notamment” particularly.

Mr. Tassé: Yes, “notamment”, but I would also say “independemment de toutes discriminations, notamment des discriminations fondees sur Ia race”, et cetera, argues that if you read the two sections together that the intention becomes even clearer.

Senator Connolly: There is a little help, I think, in Clause 15(2), where it says Clause 15( 1) does not preclude any law, program, et cetera, that has as its object the amelioration of conditions of disadvantage to individuals or groups including those that are disadvantaged because of, and then the list is given

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That seems to be a little clearer and a little closer to the objective that you set out to achieve in Clause 1, and perhaps I could observe as I talk about Clause 15(2) that with the differences in the language between Clause 15 (1) and (2), and I ask you to think about this, I do not need an answer now, the courts perhaps would say, ‘Well, the language is different and perhaps Clause 15 (1) does not, without looking at the French version, go as far as Clause 15(2)’ and perhaps it could be looked at.

I raise the point only for the purpose of raising it because it gave me a little concern.

Could I go on to another point. As a result of what is done and purported to be done by Clause 15, certainly the courts are going to be given a larger role in the determination of rights. So too are the legislatures, I suppose, because through the legislatures, whether it is Parliament or the provincial legislatures, rights can be enlarged and can be declared and can be acknowledged, to use Mr. Crombie’s word, in addition to the rights that are mentioned in the Charter. I think, however, we should remind ourselves that any such legislative action does not put those rights into the Charter and for such new declaration of rights to go into the Charter, then I take it that we would be subject to the amending formula for the constitution in the normal way, am I right?

Mr. Kaplan: That is correct.

Senator Connolly: When you come to the courts, and this is the point that gives me some concern, the courts are being given a wider discretion to interpret a good many of clauses in the proposed bill, and it has said that the courts will, in effect, be legislators and this has been criticised.

Let us say for the sake of argument that the courts do declare a certain right or do forbid a certain type of discrimination not specifically mentioned in the Charter saying that under the provisions of the open ended part of Clause 15 they can do this. What is the effect of that court decision in respect of the Charter?

I take it that you would say to me if the court is the court of final resort, that the rule of stare decisis would apply and while the right declared would not be entrenched, it would still be part, perhaps I could even use the words, of the supreme law of the land, that it would be just as permanently there as an established right as anything that is in the Charter, is that so?

Mr. Kaplan: Stare decisis is a self-imposed restraint on courts. There is no principle in the Charter, for example, making stare decisis effective.

Senator Connolly: It is a well known legal rule.

Mr. Kaplan: It is, but lit is also a rule that courts could change and the way I would view a judicial interpretation, it would be a gloss on the Charter in the sense that it would certainly restrain legislative action by a legislature or Parliament that might violate it. I do not think a government would bring legislation with the legal opinion from its advisors that that legislation was contrary to a provision of Charter as

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[Text]

interpreted by the courts. So that it would restrain a legislature and the only way, I suppose, that a legislature could get around it, if I could use that somewhat inappropriate expression, would be by a constitutional amendment, but a court could reinterpret the question. I know that happens in the United States.

Senator Connolly: In other words, change its mind.

Mr. Kaplan: Yes, that does happen in the United States.

Senator Connolly: That has happened.

Mr. Kaplan: Yes.

Senator Connolly: That has happened, and there is an evolution in the courts.

Mr. Kaplan: Yes. I am just being given a very interesting point by Mr. Tassé that court interpretations of the meaning of statutes is normal and it is taken account of by legislatures and by the public.

Senator Connolly: But if the effect is even analogous to the way I described it whereby a decision of the court would be a definitive statement acknowledging a right, then what you are doing I suppose is adding to the constitution of this country through the declarations of the court.

Could I ask this simplistic question: if that is the case, is there any sense in saying that the schedule to the proposed act here should contain also references to the various court decisions on constitutional cases since 1867?

Mr. Kaplan: I would argue that they certainly are implied. Our constitutional history is full of important judicial decisions that affect the interpretation of the BNA Act and other statutes and that are taken account of by the public operating under those statutes and by legislatures. It could be a useful addition to have …

Senator Connolly: Even though it might not necessarily form part of the schedule?

Mr. Kaplan: No, that is correct.

Senator Connolly: I have one other question and it is a very simple one. I have lots of others on this, but perhaps I will have an opportunity later.

I will just ask this to Mr. Tassé, perhaps. Under the civil law, the rule of stare decisis does not apply and what about the situation in the courts, in the civil courts of Quebec where there is a possibility of a variation of decision between judges in the superior court when they are not bound to follow the decisions that have been previously handed down by the Supreme Court of Canada?

Is the answer to that that, ultimately, stare decisis does apply because aggrieved litigants can always go to the Supreme Court and get the same result that was previously given?

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Mr. Tassé: Yes. In effect, even though strictly speaking the rules do not apply, the judges of lower courts have to be aware and take into account the fact that the Supreme Court may have made a pronouncement, and the Court of Appeal may have done so. If in fact the matter is brought before them, their decision will be reversed.

Senator Connolly: So that stare decisis applies?

Mr. Tassé: In fact they are bound by decisions made by upper courts.

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

Mr. Kaplan: I would like to add something to complete my remarks. Critics of a charter of rights approach like to make the argument that this gives courts an important new role. That is not completely accurate, because having a BNA Act and having questions as to the jurisdiction of Parliament and of the legislatures on the other hand being limited by that stature, our history is full of judicial interpretations which constrain a legislature or a Parliament.

Looking at the British, for example, where Parliament, I suppose, can pass any law and say that by introducing the Charter we are moving away from that type of approach is to ignore the whole of that history of judicial interpretation which has constrained legislatures in Canada, and is very much part of our tradition.

So this is really not a new departure to give a court the authority to determine the limits of legislative action. It is just taking it into this very important new area of rights and freedoms of the individual.

The Joint Chairman (Senator Hays): Thank you very much, Senator Connolly. I am sorry, but you have used up 14 minutes of your 10.

We are having a bit of a problem- Mr. Joyal and I, Chairing the Committee. We have five or six speakers who would like to be heard this morning and we also have two supplementary questions to Senator Connolly’s questions. I go now to Mr. Robinson. I would hope he would confine it to a question rather than, possibly, a speech. I know they are all good; and then I would like to go to Miss Campbell for a very short question.

Mr. Robinson: Mr. Chairman, I will attempt to ask a question rather than make a speech.

My question arises out of what I felt were very important questions asked by Senator Connolly with respect to the wording of Clause 15, particularly clause 15(1). This is an area which has given me great cause for concern-the use of the words “in particular”. I am very pleased to see that Senator Connolly has highlighted that.

My question is this: in view of the fact that, to the best of my knowledge, having checked Maxwell on Statutory interpretation and case law, these words, “in particular”, have not been judicially interpreted in effect; and in view of the fact

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that the Minister has indicated that your intention is very clearly to leave open to the courts the possibility of expanding the prohibited grounds of discrimination, I would hope-and I would ask the question of Mr. Minister, or perhaps through you, to your officials, that you would be prepared to accept wording in an amendment which would clarify that intention, for example, wording similar to that used in Clause 15(1 )- and Senator Connolly referred to the use of the word “including”, and we welcome the amendment and I would ask if your intention is that, indeed, it would be “including” in essence or perhaps “on grounds such as”, or at least to use the word “including”?

Secondly, is it your intention or that of the drafters of the Charter that it would be open to a court to proscribe discrimination on the grounds of marital status, political belief, sexual orientation and disability.

Could you deal with each of those in turn?

Mr. Kaplan: I would deal with each of them all together and say it would be open indeed to a court to do that. I do not see any particular advantage of the expression that you have proposed over the one which is proposed in the bill.

Listening to Senator Connolly, I thought that the position might be argued the other way, that because in Clause 15(2) the word “including” has been used but the framework is the same, the items of discrimination cited are the same, that the litigant might get the benefit of both of those expressions.

One could argue that Clause 15(1) and Clause 15(2) should be read together and, therefore, “in particular” is to be read in the sense of “in particular” meaning “including”; and I think that in Clause 15(2), I think the word “including” would receive interpretation more in line with what I have suggested, because the words “in particular” appear in Clause 15(1).

Mr. Robinson: Mr. Chairman, I would ask at this point, if the law officers would care to go back and perhaps review the wording of this particular clause.

Mr. Kaplan: I think a plain reading of the wording indicates that the particulars of discrimination are intended as exemples or as particular items of discrimination, but not the total grounds of discrimination that the general words that begin the subclause are intended to convey.

I do not see that “in particular” or “including” are either more effective than the other, and that perhaps having them both increases the direction of this bill that general grounds of discrimination can be defined.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you. Miss Campbell, a supplementary-one question.

Miss Campbell: Thank you, Mr. Chairman.

I, too, have had a lot of problems with the phrase “in particular, without discrimination”, particularly in view of the

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fact that the word “particular” is used with such general display every day.

My main concern was with regard to Clause 15. I prefer the Human Rights Commissioner’s general proposal, that you make a general statement and do not enumerate.

Once you have enumerated, you have limited; even though you have used the phrase “in particular” you have automatically confused whoever is going to interpret those clauses as to how far or how limited you are going.

Looking at the Universal Declaration of Human Rights, it is stated “without distinction of any kind such as”. If you have to enumerate, why not go as far as Mr. Fairweather has suggested before us in Committee, where you have at least one group of existing laws that we could call upon.

My question boils down to this. Did you look at that in the preamble of Article II of the Universal Declaration of Human Rights. There it says that everyone is entitled to all rights and freedoms set forth in the Declaration “without distinction of any kind”.

Mr. Kaplan: I am bound to confess I did not. Perhaps I could ask the draftsman if he could tell me.

Miss Campbell: My question is probably political. But was it considered just to do an equal rights clause and not break it down? I can get on to some of the other things such as age. What is discrimination on the basis of age? Is it a question of being one year old or 80 years old or even 100 years old?

Mr. Kaplan: I think there might be found a consensus among Canadians that these grounds which are enumerated are those which have the highest degree of recognition in Canadian society as being rights which ought to be recognized and the general statement gives the possibility down the road not only of those on Mr. Robinson’s list being recognized, but of others which may not have occurred to him of being included in the future as being unacceptable grounds of discrimination.

Miss Campbell: You have not given me the answer. You are still looking for this answer to “without distinction”.

Mr. Kaplan: I want to ask Mr. Tassé why “in particular” and “including” are better than “without distinction”, or whether he does not see very much difference between them.

Mr. Tassé: We think that to use the expression “in particular” would have the effect of emphasizing, underlining that there are some grounds which are more invidious than other grounds. They are the ones which are specifically mentioned in the clause.

We also think that, in effect, the way in which the clause is structured, it would be open to the court to add to the list if they were placed before a situation where, in effect, there were any grounds other than those which are specifically mentioned, and they would come to a conclusion that this is an unreason-

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able distinction, that that should not be condoned and it would be open to them to declare that there is discrimination that is not acceptable.

But perhaps the test which would apply there would have to be a higher one than the test which may be applied in the case of those grounds which the clause does underline.

Miss Campbell: You are underlining certain elements. But the Universal Declaration of Human Rights says “without distinction of any kind such as”. They are not limiting it.

The phrase “such as” is sort of explanatory; whereas “in particular” or “including” means that you have to look at specific matters.

Mr. Tassé: If you are saying the text underlines better than the United Nations Covenant, fine.

Miss Campbell: No. I think the United Nation’s is broader and better.

Mr. Kaplan: Well, it is obviously a debatable point. I have indicated what the intention is. Lawyers are telling us that the formulation in the Declaration is no clearer from the point of view of its strict legal meaning than the one being put forward. So I feel reasonably comfortable with “in particular” and “including”.

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

Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman.

I would like to change the line of questioning, Minister, from the Charter of Rights, important as it is, to a matter which, I would submit, is of even greater importance having to do with the amending formula which is incorporated in the material which is before us.

I am concerned about it because there are two new constitutional doctrines being introduced in the amending formula one which is brand new, and the other has been in the public domain for a little while, but certainly cannot be included in that 53-year category to which you are so fond of referring. The two doctrines are first, the doctrine of referendum; secondly, there is the doctrine of regional decision making.

I do not know if I will have sufficient time to explore both of these; because I want to develop with you your concepts of the implications that these two novel ideas have for our federal system and the relationship between the provinces and the federal government.

I will start with the referendum in the first place, and the concept of a referendum as a tie breaker.

At first hearing that sounds like a reasonable proposition; but the more you examine it, it seems to me the more questionable it ‘becomes, because it assumes that it is necessary to secure a final decision on matters on which two parties do not agree.

But the essence of our federal system, I would suggest, is that we should not proceed to such extremes. That view has been supported by one of the witnesses who has appeared before us, namely, Professor Maxwell Cohen, when he advised

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us to drop the referendum idea from the amending formula which is proposed in this bill.

I think Professor Cohen put it in language which appealed to me at any rate, when he said that the section which allows the federal government to break a deadlock with the provinces by unilaterally calling a referendum to amend the constitution should be omitted.

And he is quoted as saying that if you have rules for amending the constitution and sometimes fail to get an agreement, that is the nature of the game.

Now, why is it inconceivable that we should not recognize the fact that there may be circumstances, provided we have a reasonable amending formula otherwise-either one as that suggested in this bill or some other; that we have to proceed to the ultimate arbitration of a referendum when it is not only foreign to our past experience in a matter of this kind, but contains within it the absolutist idea that somebody has to be right, when in matters of constitutional discussion it may be that both parties are right and to proceed to a referendum might not be a good idea.

Mr. Kaplan: Well. I can give you an answer-the government’s answer; I do not know if it would be satisfactory to you.

But it is that there is a higher authority in these matters than either level of government. That higher authority is the people of Canada. There may well be deadlocks which should be broken by resort to the people of Canada. It does not seem to me to be any violation of the democratic tradition to provide for that.

For example, we have the situation that we face today; and there is a fair degree of consensus that there should be a patriated constitution.

We are using a device now of action by the Parliament of Canada which will no longer be available once this constitutional package is brought back in more or less its present form.

So that this method of assuring constitutional progress will not be available; a substitute for it, and perhaps a better recourse, although it is a much more time consuming one, but one which is totally consistent with democratic principles, is to consult the people of Canada and that is what is behind the concept of referendum.

Senator Roblin: Well, that in effect discloses the gulf between you and I.

Mr. Kaplan: I know.

Senator Roblin: Because I feel that it is not a democratic procedure when one party to the argument can run the rules of the game, and that is what you have provided here.

Mr. Kaplan: There is a very important difference between calling a referendum and winning one.

Senator Roblin: Very true.

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Mr. Kaplan: Anyone can call a referendum but that does not mean that you are necessarily going to win it.

Senator Roblin: Well, that is perfectly true but I think the rules should be equal to both parties in the deal, and furthermore, as you know very well, the whole constitutional propriety of your present activity is before the courts.

Mr. Kaplan: Yes, I am aware of that.

Senator Roblin: And they may very well say that you are rigging the game, and I believe that to be the case, but I want to move on because there are a number of points to be made …

Mr. Kaplan: Would you change your mind if the courts disagree with you?

Senator Roblin: Well, I will certainly have to give it some thought, would I not?

Mr. Kaplan: I do not know.

Senator Roblin: I asked you if you would change your mind if the courts disagree with you? In fact, I ask you: will you postpone your activity until the courts have decided, then we would be in a better situation?

Mr. Kaplan: There is very good precedent for proceeding with constitutional changes while they are being explored by the courts, and I do not even have to take the time of the Committee, I am sure the Minister has done so, to lay them before you.

Senator Roblin: Well, we can get into that argument. I think you would be unwise to do so, however I want to go on to my other points.

Mr. Kaplan: Perhaps I should. I can take 10 minutes and outline …

Senator Roblin: Well, not on my time, if you do not mind. Do it on your own.

Mr. Gordon Robertson was a very important and valuable and valued advisor to the federal government on constitutional matters. He, for 12 years, I believe, was active in all these proceedings and I was much interested to read of his statement the other day about the question of referendums, and he raises some points which I think are worth considering.

He has five of them here, and I do not know whether I will get into all five of them or not with my time but I will see what we can do.

He makes the interesting point that has already been developed in this Committee, that the game is not equal, that for 113 years we have had consultation on constitutional changes betwee,n the two levels and that here we have a referendum situation which the provinces are not allowed to participate in with the sole exception of naming a person to the rules committee, which rules can be ignored by the federal Parliament.

Now, he says this upsets the balance of Confederation, if both parties to the deal do not have the same rights; even if

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you do not like a referendum at all, and that is my position, if you do have one then both parties to the deal ought to have the same rights.

Why do you not allow that?

Mr. Kaplan: Well, again, it is a matter of repeating an answer to a question that has been made before, that the ultimate authority in a democratic society should be the Canadian people and provision is made under this formulation in the event of, and it has been clarified by an amendment brought forward by the government that the referendum is only to be resorted to in the event of a deadlock, and I repeat again to say that the federal government can rig the deck because they can call a referendum is to take a great deal for granted. It is to take for granted that calling a referendum is the same as winning one. There is a very big difference.

Senator Roblin: It takes a great deal for granted to maintain, as I think you are doing, that the provinces are being fairly treated under this bill. It is not so. If the federal government has the right to call a referendum, why does the other party not have the right to call the referendum? If the people are the arbiters, why cannot the provinces appeal to the people? Why is it only the federal government that can do so?

Mr. Kaplan: You know that this proposal that is put forward for amendment of the constitution is subject to being changed in two ways, or three ways. It can be changed by the results of successful negotiations and consultations during the next two years; it can be changed by a proposal put forward by the provinces and the method provided in the current legislative proposals; and it can be changed by the federal government putting forward an alternative for the consideration of the Canadian people.

So I am not saying that this amending procedure is perfect. If we thought it was perfect we would be putting it forward without alternatives. Alternatives or opportunity for alternatives are provided because you may be right. Your proposals may be better, and if they appeal to the Canadian people and the confidence that you have shown in them is justified, then I have no doubt that that could well be the final permanent amending solution for the Canadian people.

If Canadians want the possibility of a deadlock without a way of breaking it, that can be put forward.

Senator Roblin: Mr. Minister, at the risk of being unparliamentary, that is so much bafflegaff because what we are dealing with now is the policy the government is recommending and their policy is a referendum under the terms we put down here.

Mr. Kaplan: Well, I do not characterize your alternative as bafflegaff. I think your alternative has support; I think ours has supporters, and there is a possibility for the final version of the constitution containing either, or a third.

Senator Roblin: Well, pehaps the Committee may not report the measure, that would be the best solution of all

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However, I want to go on to another point, Mr. Minister, and that has to do with the question of the way the referendum works, because if I understand this bill correctly, the federal government can submit a referendum to the people on its own initiative, a course which is denied to the provinces without the matter ever having been discussed in a legislative assembly of any kind, either the federal Parliament or the provincial legislatures.

This is not my point; I must admit it was a point made, I think with some force, by Gordon Robertson. There are no provisions in these measures that we have before us that the substance of the resolution, the substance of the matter should be discussed in the legislature.

Mr. Kaplan: I do not think that is accurate. I do not think a referendum can be put …

Senator Roblin: Just Jet me finish.

Mr. Kaplan: All right.

Senator Roblin: The rules for the referendum have to go to Parliament because Parliament has arrogated on to itself under this bill the sole right to decide what the rules of the game are really going to be, and apart from that, and I would be happy to have you correct me, I espouse Mr. Robertson’s point that otherwise there is nothing in the bill that makes it mandatory that these highly important constitutional matters should be discussed in the normal parliamentary fashion, both in the federal Parliament and in the legislatures.

Now, why is that not so?

Mr. Kaplan: Well. I do not agree with that. I think before an amendment can be put to the country it has to be approved by the Parliament of Canada.

Senator Roblin: Where does it say that in this bill, and what about the legislatures?

Mr. Kaplan: Well, it is up to the legislatures. It is up to the legislators of the province to chose whether a parliamentary debate should take place within their legislative assembly, but so far as the federal is concerned, no matter can be put to referendum until it has been passed.

Senator Roblin: Well, I do not see anything that says that in this bill, would you point it out to me?

Mr. Kaplan: Well, I am very glad you have raised it because this perhaps may win your support, knowing now that under Clause 42 it does require parliamentary approval. Senator Roblin: Where is the language that says that?

Mr. Tassé: If I might assist here?

Mr. Kaplan: No, I see it here now. I am looking at Clause 42(2) where it clearly provides in paragraph (a), paragraph (b) and paragraph (c), and paragraph (a) says: I (a) an amendment to the Constitution of Canada has been authorized . . . by resolutions of the Senate and House of Commons;

So that makes it clear that no amendment can be put to referendum without parliamentary approval.

Now, how the matter is hanciled within the legislatures of Canada, you are quite right about that, the provinces have the

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time provided in this proposed constitution and can put the matter into the legislature or can chose not to do so.

Senator Roblin: Well, I am not satisfied with that wording. I think it should be made more explicit as to what the role of Parliament is.

Now, I want to go on to another point because I am interested in trying to examine the consequences of taking the referendum procedure, and this is another point that was raised by Gordon Robertson and I would ask for your comment on it.

He points out that a government in a province may take a position in respect of the subject matter of a constitutional amendment that is going to a referendum, and that position quite conceivably would be contradicted by the vote of the people in that province.

What in your view would be the constitutional position of a government whose policy on that measure had been rejected by the voters of that province? Would it have anything to do with the constitutional propriety of their remaining in office? How do you see that?

Mr. Kaplan: Well, I do not think the Pequiste government of Quebec is planning to resign in view of having failed in the referendum to convince Quebeckers to support separatism. So I imagine that a legislature or a provincial government could give what weight it chose to be referendum within its province. Senator Roblin: Well, you zero in on my very point.

Mr. Kaplan: Yes.

Senator Roblin: The one who has the power to frame the wording of the referendum can control what its implications are. The Parti Quebecois government can control …

Mr. Kaplan: They cannot control the results.

Senator Roblin: That is right, but they wrote the thing in such a way that they were able to live with either issue. Now, how can yo say that would happen in the case of a federally devised amending formula opposed by a provincial government? It is not on the same footing at all.

If you will allow the provinces to have some input into the wording of this constitutional amendment, then perhaps your argument might be closer but I do not think it is now.

Mr. Kaplan: Well, the hypothetical point you are making is discredited by the experience in the Province of Quebec. A perfect example of how limited a government is in terms of the outcome.

The interpretation, they attempted to give a broad interpretation to their questions, besides the language, but it was rejected anyway.

Senator Roblin: We are not dealing with that particular aspect, we are dealing with the structure that we are putting in

[Page 30]

place. We are not dealing with how people can manipulate it, because I am concerned with that question of manipulation.

Mr. Kaplan: Yes, but bear in mind also that the text which is put to the people is not a question framed by a government. The text which is put to the people in the referendum is the amendment to the constitution.

Senator Roblin: Well, who frames that?

Mr. Kaplan: Well, it is not a question which is more or less subject to whatever argument or interpretation one wants to make and which does not bfod the government concerned.

In the case of Quebec, for example, it was not bound by the outcome of the referendum because it was a question that was asked.

The procedure is a procedure of constitutional amendment of the constitution of Canada so the effect of the referendum succeeding is to change our national constitution.

Senator Roblin: Let me pnt the same question to you in another way.

The Joint Chairman (Senator Hays): Your last question, Senator Roblin.

Senator Roblin: My last one? I am just getting going here.

I want to direct the Minister’s attention to the situation with respect to the impact and meaning constitutionally speaking of referenda, because in the past in Canada they have never had a constitutional basis. By that I mean a referenda run by the Government of Quebec, or by the Government of Manitoba, which actually happened in days gone by, is not a binding decision on the government. In fact, the Supreme Court ruled that in the Manitoba case the referendum specifically could not bind the government and therefore the constitutional problem I am raising would not exist in those days.

This is quite different. We are now entrenching the referendum idea as part of our constitution. It is foreign to the way we did business in the past where no vote could bind the Parliament in the way that the Manitoba situation seemed to point to. We are abandoning that all together and we are moving into a new field where referenda are constitutionally entrenched and are binding.

Now, if they are binding on the provincial government and it loses the vote, where does it stand? Now, that is a much different situation from the Province of Quebec or anything we have experienced before.

Mr. Kaplan: Exactly, and if you are asking me to admit that this proposed constitution is opening the door to the people of Canada to give them direct access to their constitution, I admit it.

Senator Roblin: Mr. Minister, only if the federal government says so. The other party to the bargain does not have that open door and you know it.

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

We are now going to have a five-minute break.

[Page 31]

Mr. Kaplan: You are identifying the federal government with the federal Parliament. There is a considerable difference between the government and the Parliament …

Senator Roblin: Not these days. You could have fooled me.

Mr. Kaplan: Well, this amendment would not be put to the people unless it was, or could not be unless it was approved by Parliament.

The Joint Chairman (Senator Hays): We will now have a five-minute break.

(Pause)

The Joint Chairman (Senator Hays): Order, please. If the honourable members would take their places we will proceed.

Yes, Mr. Minister.

Mr. Kaplan: I wonder if I could give Senator Roblin some interesting information that one of my officials gave me, that in Australia the only way of amending the constitution is by a national referendum called by the federal Parliament, and it is a well ordered, democratic federal state and I am not saying we should copy what other countries do, but it would be hard to assert that a national referendum triggered by the national government is incompatible with federalism given the precedent in Australia.

Senator Roblin: Well, Mr. Chairman, I think I should reply to that because Gordon Robertson deals precisely with that question in his speech that he gave the other day here.

He pointed out that while it may be perfectly appropriate for Australia, it is not appropriate in terms of the Canadian constitutional conventions or historical development.

Now, that is his opinion and I am inclined to agree with it.

Mr. Kaplan: Well, as I think as far as-All right, perhaps that is as much as can be said for Australia.

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

The honourable Mr. Mackasey, you have a short supplementary question?

Mr. Mackasey: Shorter than short, Mr. Chairman, which should please you.

I just wanted to bring to the Minister’s attention that although Maxwell Cohen, one of the expert witnesses, expressed concern about the referendum, other expert witnesses, I make the distinction because they were invited here, expressed the contrary.

For instance, Professor Remillard invited by the opposition had been on record quite categorically in favour of a referendum, stating the obvious, it is a democratic principle, and coming back finally, Mr. Minister to Gordon Robertson’s observations, and one must pay attention to them because of

[Page 32]

his prominence and knowledge, the same Gordon Robertson is very much in favour of us finding an amending formula, which is really the crux of the whole matter.

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

Mr. Kaplan: I think I should point out that during Mr. Robertson’s tenure the government only took his advice when they agreed with it.

Mr. Mackasey: Would you repeat that?

Mr. Kaplan: During the term that Mr. Robertson was the senior advisor to the government, I suppose his advice was only taken when the government agreed with it.

Mr. Mackasey: Well, I have to differ about that. Having been in the government now and then I took his advice very frequently because it was much more intelligent than my own, but I want to say that Mr. Robertson …

Mr. Kaplan: I just did not want anyone to think that this would be the first time in history that the government and Mr. Robertson had ever disagreed.

Mr. Mackasey: No, because Mr. Robertson, as a man of integrity, brought forward advice which he realized at times we did not want to accept but he still had the courage to bring it forward and putting the onus on us to accept, but I must say in my many years of association with Mr. Robertson he is categorically on record as saying we need an amending formula. Would you agree with that?

Mr. Kaplan: I understand that as well.

Mr. Mackasey: That is more important.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey, and I go to the honourable Mr. Fraser for a short supplementary.

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

Mr. Minister, whether a referendum is appropriate or not, I do not think it is, this referendum procedure is only open to the federal government and that is clear. Now, for whatever reason that your government decided to give that option to the federal government alone, the fact remains that especially in Western Canada it is deeply resented because if you are going to have a referendum, then at least both sides of the partnership, when they’ reach this mythical deadlock that your government keeps talking about, ought to have an equal chance to go to the people and nave it settled and that is not the case here.

Mr. Kaplan: I think you will recognize, though, that Western Canada has a veto by the referendum formula provided so

[Page 33]

that nothing can be pushed down their throats that they do not want to accept in the way of an amendment.

Mr. Fraser: I am going to answer that. First of all, that is not the perception.

Mr. Kaplan: That is the reality.

Mr. Fraser: Just a minute. Secondly, it is not the reality because the initiative lies with the federal government alone. You can argue that you are going to the people and that the Parliament of Canada represents all the people, but the reality of political life right now is that the Parliament of Canada is a tool for the Government of Canada and the Government of Canada does not represent a great part of this country. You have just got tc remember that what you are proposing is done against the backdrop of reality that you keep talking about, and the reality is somewhat different than the happy little fiction that would suit a political science class but does not suit the realities of today.

The other point I want to make is this: if you honestly believe that Clause 41, which is the process of changing the constitution through the consent of a certain number of legislatures with the consent of the Parliament, if you want to call it that, then if you think that that is fair and reasonable, and no doubt you must or you would not have put it in, why do you have to have this other provision, because surely if the system that you have introduced to us here under Clause 41 is fair and reasonable, then the federal government ought to be prepared to take the verdict that comes out of it and if the federal government loses, why should the federal government alone be able to change the rules and change the playing field and change the actors to get what they could not get under the original formula which surely was put to us because you thought it was fair and reasonable.

Mr. Kaplan: I think you have distorted the process that has been put forward by the government in the description that you have given of it.

Firstly, I do not think there is a perfect amending formula and neither does the government.

Mr. Fraser: We have not got it here, I can assure you of that.

Mr. Kaplan: And that is the reason that the process that is envisaged for the next two years and beyond will easily permit a better formula to replace this one, easily, because if there is a better formula that more fairly represents both the population of Canada and the regional distribution of the population of Canada giving due weight to the fact that some of the provinces have small populations, then that formula will prevail.

The government, in choosing the Victoria formula, chose one which at a certain time in our history had consensus and was the only formula which ever had that particular form of support. That is the reason it has been put forward, not because it favours central Canada or favours the regions of Canada but because it was once in our history agreed on and it seems a good starting point.

[Page 34]

Secondly, I think it is the responsibility of legislatures to deal with the reality, not to assume that a false perception should be allowed to continue. The perception westerners may have that they are cut out of participation because of this amending formula is a wrong perception because in fact Western Canada can veto anything that the National Parliament may put forward to this national referendum process. Their support, on the basis provided in the Victoria formula or in the referendum alternative, is essential for an amendment to the constitution to succeed. The notion of transforming Canada into a unitary state or greatly derogating from the rights of a provincial government or the people who live in a region of the country is just that, a false perception. I think you should characterize it as one since you represent Western Canada rather than putting the false perception to me and asking me to comment on it.

Mr. Fraser: Could I just respond to that, Mr. Chairman?

The Joint Chairman (Senator Hays): Perhaps, Mr. Fraser, we could put you down. The Minister is going to be here this afternoon to pursue your point at greater length. You are on a supplementary and I have about four or five people who would like to speak.

Mr. Fraser: Mr. Chairman, I am sure you did not mean that you were putting me down but that you were putting me on the list.

The Joint Chairman (Senator Hays): Yes. That would be the last thing I would do.

Maybe at this point I might go to Mr. Gauthier who has been waiting for about two days to speak.

[Translation]

Mr. Gauthier: Mr. Chairman, my comments will deal specifically with Section 23 as amended or as now proposed.

Mr. Minister, you may find perhaps that my questions or comments should be put to the officials, rather than to you, since I shall deal with the drafting of the section and certain of the terms used.

I believe that a charter of rights and freedoms has been conceived not to protect the interests of the majority, but rather to protect the fundamental rights of the minority, and in my view, Section 23, subparagraph (3), does the opposite.

I would also want to serve notice to my colleagues of the Committee that the residents of the provinces subject for example to Section 133 of the BNA Act or 23 in Manitoba, must understand that their rights are not greater than mine in Ontario if they should come to visit me here, or if they should come to live in Ontario, and Mr. Chairman, before accc;:pting the constitutional proposals dealing with the right to education in the minority language, I want to be quite sure that those legal provisions which appear to be equal, will not be applied unequally.

My interest in my life as a franco-Ontarian obliges me to demand clear and precise explanations in this matter.

[Page 35]

Indeed, Section 1 of the charter provides that an application, restriction or other must be a matter of law, be reasonable, and justifiable.

But, in Section 23(3) the right to education in the language of minority is subject to two conditions. The first, one must be resident within a given region of a province, and secondly wherein there is a sufficient number of eligible children to warrant the application of this right.

Let us look first at the residential and regional requirements, then the number warranting the application of this right, and finally the delivery of school instruction within the region in a minority language.

This question raises many difficulties as to the interpretation to be given to certain terms. I am thinking more specifically of the terms “region”, “resident”, and “instruction”. Who will define an area within the province? Will it be the Official Languages Act? We all know that immediately after each census, a special commission is required to study those so-called bilingual districts. No one has yet succeeded in defining a bilingual district; I do not know why we should now want to undertake defining an area. In any case, it is a question I shall be asking to Mr. Tassé or to others, after my comments, so that we can have some clarifications of this matter.

Who will define “area”? The government? Will it be done through jurisprudence, order in council, or regulation?

I sure would like to know.

Mr. Kaplan: Would you like me to answer now, or would you rather I wait?

Mr. Gauthier: If you please, Mr. Minister, I prefer you answer later, I would like to complete this argument, and then I shall ask you a question at the end.

Mr. Kaplan: Very well.

Mr. Gauthier: The constitution as proposed, were it adopted, requires that I be resident in a region where numbers warrant.

Since I am not a lawyer, I do not know all the nuances in the difference between “residence” and “domicile”, but I do know however that the term “residence” is defined differently, in the Canadian Elections Act, Section 17, subparagraph (3), than in the Income Tax Act, Section 54(g), and these two are different from the usual definition of domicile according to the civil law. So, how shall the Province of Ontario define the term? What will be the definition accepted in Manitoba, or elsewhere, since Section 23 applies to all provinces?

The same argument could be carried on and on, Mr. Minister, if I debated the definition of “instruction”.

Indeed, you are asking me to approve an act-more than an act-a constitution, without knowing the conditions of application of the constitution, and moreover, you are requesting that I be, according to our Section I, reasonable, and that I submit to being regionalized in a sufficient number that I can be justified.

[Page 36]

As to the concept of an area, the province of Ontario, Mr. Minister, has been for several years now divided into 10 administrative regions for purposes of school instruction. I spent 11 years in the field of education, so I know what I am talking about. And if the definition is to be that of a school administrative area, or other, it should be explicit.

Suppose, that in region one, we should not have numbers sufficient to warrant the establishment of a French language secondary school, that it is possible in region two, will the children from region one be able to attend the secondary school in region two, even if they do not live in that area?

On reading Section 23(3), they could not attend that school.

But, we Franco-Ontarians, I repeat, must be reasonable, quantifiable, regional and justifiable.

Moreover, the amendments proposed to Section 23( 1) guarantee only the right to receive primary and secondary school instruction in a minority language. In Ontario, special legislation was required, as you know Mr. Minister, so that francophones within the Windsor area, although numbers warranted the establishment of a school, to have access to acceptable school facilities. Now the term “facilities” has been removed .

In my estimation, perhaps we should retain the original version, and add the word “service”. Perhaps the Committee might consider this point more specifically, during consideration of Section 23, but we must ensure and guarantee the availability of acceptable educational facilities, and appropriate services.

We wonder, Mr. Minister, what sort of Canada we are building, if the linguistic rights now proposed were enshrined within the constitution. What would happen to a francophone who left Quebec to live in Ontario?

I would ask you to recall the resolution adopted unanimously by the first ministers in February of 1978. There was no mention of area or residence. I quote:

Each child of the French-speaking or English-speaking minorities in any province has the right to receive primary and secondary school instruction in his language.

Personally, I stop there. But the resolution goes on:

Wherever the numbers of children so warrant.

I was told, at an earlier meeting of the Committee, that that text of the resolution could not be changed, since it was almost exactly the text proposed by the provincial premiers, but I note, on reading Section 23, paragraph 3, the spirit of that resolution has been changed.

Let us now talk in “number”, the clause which reads “where the number is sufficient to warrant it”.

Mr. Minister, governments usually pass special legislation in order to protect any species which may become extinct. I can assure you that the francophone minorities outside of Quebec, not only in Ontario, but probably also in Western Canada, are

[Page 37]

now becoming extinct, and I cannot undstand why it is necessary that these people be in a number sufficient to warrant the installation of services and school facilities.

I want to ask three questions: Who will define the term “area”, who will explain to me the significance of the word “residence”, or “resident”, and finally, how can we ensure that this section which must be applied uniformly across the country, will not suffer some distortion in its application?

Mr. Kaplan: I should first like to comment your statement that francophone communities are becoming extinct. If that is true, and we hope it is not, you have before you, for the first time, a provision which will be enshrined in a Canadian law, in a Canadian constitution. So, there is progress. In the context of your questions, I should also like to say that this is not a lessening of rights, but rather an increase in rights.

Mr. Gauthier: I am sorry, Mr. Minister …

Mr. Kaplan: No, I would also like …

Mr. Gauthier: You are on my time and I am sorry, I cannot agree with you. You have not …

Mr. Kaplan: No, but I would like the opportunity, if you will allow me, of finishing my answer and then we can discuss specific questions.

Mr. Gauthier: Very well.

Mr. Kaplan: First, concerning this formula, it is true that it is a formula which insists on a given area, residents within that area, in sufficient numbers, et cetera, and it is a formula. But without it, and I will go into details, the provinces could face a situation where a single family or a few families might insist, without any formula, that the provincial or municipal government provide school instruction in a minority language for a single family or only a few children …

Mr. Gauthier: You know the cannot do that. In Section 1, it states there must be reasonable limits.

Mr. Corbin: That is a ridiculous argument!

Mr. Gauthier: It is a ridiculous argument. Never has a minority ever requested a school for a single child or for only a few families.

M. Kaplan: True, but with this formula, for purposes of debate here, should it be removed, there would be the possibility that someone might insist that the government provide a school for a single person.

Mr. Gauthier: ‘Would somebody from the majority complain about that?

Mr. Kaplan: May I continue …?

Mr. Gauthier: Yes, but …

Mr. Kaplan: My answer, and then we can discuss further points.

[Page 38]

Secondly, you ask who will define the region, the residents, and the sufficient numbers?

The provinces have jurisdiction over these matters, and they must define them first. The provinces must establish the areas, define them, and determine what constitutes a sufficient number. However, if we arc not happy with the definitions provided by the provincial government, we can obtain a definition from the courts, in order to correct a situation within a province, or to define what constitutes an area, residence, or a sufficient number.

So, as for all other rights guaranteed or defined within this constitution, the courts, in the final analysis, rectify what is proposed by a province.

You stated that a province could define or establish areas which might exclude certain persons, if it so wished, in order to prevent them from receiving instruction in their language. But look at that argument from another point of view, that is that if we did not insist on the establishment of a region or regions, the province could define the whole province as the area, and establish one school for the whole province.

Mr. Gauthier: As is the case in Quebec, Manitoba, and New Brunswick.

Mr. Kaplan: Yes, it would not be reasonable, but, if the concept of area has been defined, the courts may require that the regions themselves be reasonable.

In answer to another of your questions, an area could be defined wherein a child at the primary school level may not be able to continue at the secondary school level, but it would be possible to have different boundaries for primary schools and for secondary schools. In my region of Ontario, that ic what is done for secondary and primary schools, but the province must also be reasonable in defining secondary school areas, since the children can travel farther when they arc older, and attending secondary schools.

So all the difficulties which you have raised can in fact be also useful, and since courts are established in order to solve such problems, and ensure rights, when necessary, I think the provisions of this section are sound.

Finally, the federal government has noted that this formula was indeed proposed by the premiers of the provinces of Canada, and where the constitution may place specific restrictions on a province, or restrict possible legislation, or direct provinces as to the exercise of their powers, it docs help to know that the premiers themselves approved such a formula.

Mr. Gauthier: Mr. Minister, I am sorry to say that what you have proposed is a ghetto policy; it is not at all what the provincial premiers had proposed. Please stop saying it is the same thing, when it is not at all. I have just quoted the provincial premiers’ proposal but I do not think I can convince you of that, and moreover you have not explained the term “residence”. In any case, I will come back to this later, and I hope then the Committee will listen more attentively.

[Page 39]

Mr. Kaplan: And against Section 24 …

Mr. Gauthier: Yes.

Mr. Kaplan: Which ensures that the court has the right to …

Mr. Gauthier: But, Mr. Minister, neither this resolution, nor the Interpretation Act covers the points which I have raised. I am not a lawyer, as I said, but the Interpretation Act does not define satisfactorily …

Mr. Kaplan: That is right, you are not a lawyer .. .

Mr. Gauthier: No; either the term “residence”, or .. .

Mr. Kaplan: We have lawyers here, and I think they will confirm the interpretation I have put to this particular clause.

Mr. Gauthier: Mr. Tassé?

Mr. Tassé: I have not much to add to what Mr. Kaplan has said.

We are not trying to draft a school code …

Mr. Gauthier: No!

Mr. Tassé: We simply wish to recognize a fundamental right …

Mr. Gauthier: Yes.

Mr. Tassé: To set out the parameters within which that right may be exercised, and at the same time to recognize that education is a provincial jurisdiction …

Mr. Gauthier: Yes.

Mr. Tassé: So I am not sure if I should conclude, from your remarks, that we should include a definition of area, and one for residence. Each province, of course, has its particularities …

Mr. Gauthier: Define them.

Mr. Tassé: Each province, according to its geography, the distribution of its human resources, of its population, must decide how it is going to organize delivery of education and school services. That is what is said here, and the charter recognizes that if minorities feel that the provincial authorities are not properly discharging their obligation, they can appeal to the courts, who will in turn decide whether it is reasonable.

Suppose, for instance, that school boards were so structured that a group of francophones or anglophones were spread out within a certain number of areas, although they could be regrouped under a single board within a given area, we could expect the courts to find that it is unreasonable to spread them through several boards, that they have been deprived of their rights under the constitution.

Indeed, it was impossible to foresee all problems. We must accept that the provinces, since indeed the premiers have accepted the principle that minorities have a right to education in their own language, will be prepared to make the necessary

[Page 40]

efforts and we have simply provided the necessary framework here.

However, if the minority is not satisfied with the application of the provisions of this section by the provincial school authorities, it can appeal, and let the courts determine whether its application was reasonable.

I would like to add to what Mr. Kaplan has said concerning school facilities. It was a question raised with the minister in a previous meeting, and Mr. Chretien had answered that he would reconsider the issue, but I am not in a position to tell you his decision …

Mr. Kaplan: It is with respect to the interpretation of the word “facilities”.

Mr. Tassé: Certain witnesses, among them the Commissioner for Official Languages, had proposed to broaden the text to cover new techniques in the delivery of education, but it was never the intention of the government to limit in any way the right to school faacilities, since these will continue to be the best way, of course, to educate our youth. However, following analysis of the comments on this matter, we have tried, through this text, to ensure that the right to a school per se would be maintained, but we feel it had broadened the rights of the minorities, in that in those cases where it is justified and reasonable, technology might allow, where numbers do not warrant the establishment of a school per se, to use other means, other techniques in order to provide school instruction as recongized in this section.

I think the intention in this text is quite clear. The text itself is under consideration, to see if it might not be possible to clearly recognize that the right to a school must be maintained.

[Text]

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

Mr. Hawkes on a short supplementary.

Mr. Hawkes: Proceeding in response, you have indicated that the minority could use the clause to sue if they felt their rights had been abrogated.

In law, would the same privilege be available to the majority who felt the particular government had been over generous, was commiting more than the constitutionally required amount of funds–could the majority sue to have the programme stopped with the reserve discrimination side of this particular clause?

Mr. Kaplan: I would like to draw your attention to Clause 24 which makes it pretty clear that anyone who feels that their rights and freedoms have been infringed by the Charter may apply.

Mr. Hawkes: Is that an affirmative answer, then?

[Page 41]

Mr. Kaplan: I would like to answer that question this afternoon.

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

Mr. Robinson, a short question.

Mr. Robinson: A short supplementary on the question of language rights.

I certainly appreciate the points raised by Mr. Gauthier. But one of the points raised earlier by witnesses was with respect to the possibility that, pursuant to Clause 43 of the proposed charter of rights, the language rights which presently exist under the provisions of the British North America Act, with respect to the Province of Quebec and also the provisions of the Manitoba Act with respect to franco-Manitobans, that those rights could be swept aside by a simple agreement between the province involved and the federal government under Clause 43.

Have you considered the possibility of adding to Clause 50, a section which requires certain fundamental matters to the constitution only to be made pursuant to the more elaborate provisions of the greater safeguards of Clauses 41 and 42; have you considered adding tq those the existing provisions which protect language rights, to prevent these being bypassed by an agreement between, for example, the Province of Manitoba and Canada, which would remove the rights of franco-Manitobans?

Mr. Kaplan: I would like to draw your attention, in Clause 43, to the fact that you said it was the federal government. But it would require the federal Parliament, and this is a substantial safeguard in itself, and one which the government considers adequate.

Mr. Robinson: Are you saying that these rights can be taken away, rights under Section 23 of the Manitoba Act or Section 133 of the British North America Act-that those rights can be swept aside by an agreement made between the provincial legislative assembly and the federal Parliament? You find that adequate-protection of those rights?

Mr. Kaplan: Well, given the rights which are created under this charter, which are quite farreaching, the rights that the charter protects, of course, would continue to survive-would survive.

But your point is valid. The Parliament of Canada and the particular province could change the rights to which you have referred.

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

Mr. Corbin, a short supplementary question.

Mr. Corbin: Thank you.

[Translation]

Mr. Chairman, my supplementary will follow up on Mr. Gauthier’s questions.

I am sorry to see that once more, linguistic rights granted to the minority are considered as a form of favour, or some generosity on the part of the majority. I still believe that there is a need to change attitudes throughout the country, and I have the impression, despite what has been said in this Com-

[Page 42]

mittee, despite at all the representations made by the linguistic minorities of the country, that we are still far from having found the successful formula which will assure minimum equality of linguistic rights.

It is all very well to say that the provinces will define, administratively, the meaning of the law, and that they will try to apply these as best they can, but again this morning, the newspapers report obstructions to this process by the Mayor of Penetang, the laissez-faire attitude of the minister, and it may well end up again that the francophones will not have a school, and all because people are hung up on interpretations, on what words mean, and on what they do not mean, and in Section 23, which is based on a resolution of the premiers of the provinces which I consider inadequate since it limits the application to numbers, we are only perpetuating and enshrining injustices which we have endured for 114 years.

That has been my theme for the 13 years I have been in Parliament, it is the point of view which I have extolled during consideration of these clauses in committee, and I am afraid that in trying to split hairs, we will only confirm the status quo again.

Personally, I am most uneasy on this point, most uneasy with this interpretation.

Mr. Kaplan: I do not agree with your interpretation, but I would like to ask you one simple question: if we removed this formula, what would you substitute in its place?

Mr. Corbin: I want to know …

Mr. Kaplan: Just a minute!

Would you put just anything, or place on provincial governments the burden of establishing the rules of the game under the direction, or with the necessary approval of the courts?

Mr. Corbin: Very simply, Mr. Minister-and this will be my last comment, Mr. Chairman, and I thank you for your indulgence-here is the formula which must be applied without any limitations, any qualifications: every child of the francophone or anglophone minority in each of the provinces has the right to receive primary and secondary school instruction in that minority language.

That would be the best solution, on which we could build, Mr. Minister.

Mr. Kaplan: I agree.

But we do not believe that Canadians in general will be ready to …

Mr. Corbin: Well, that is just too bad, we have been waiting for 114 years!

Mr. Kaplan: That coult mean a school for a single person.

Mr. Corbin: That is a ridiculous argument, Mr. Minister. You have no right to continue to peddle that argument before this Committee, before francophones here present who have been more than reasonable.

Mr. Kaplan: So what is the answer to … ?

[Page 43]

Mr. Corbin: I will tell you what is the answer. Follow the example of New Brunswick, where we have been most reasonable, where we have allowed the necessary delays in order to set up the necessary apparatus, schools, and administrative systems, without restricting the rights of anyone. We did it by building gradually. And I think it is more than ever time to act.

Mr. Kaplan: But if people do not wish to be reasonable, you have at least a formula which ensures reasonableness.

[Text]

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

[Translation]

Mr. Kaplan: We are proposing a reasonable alternative here. That is a definition of reasonableness.

[Text]

The Joint Chairman (Senator Hays): Thank you, go ahead. Mr. McGrath.

Mr. Kaplan: Mr. Chairman, I wonder if I could give an answer to Mr. Hawkes’ question now. I am ready to answer his question now.

The Joint Chairman (Senator Hays): Yes, Mr. Kaplan. Mr. Kaplan: I did not understand the technical, legal explanation I was given; but the answer is no.

I was not satisfied to put forward an answer that I did not fully understand, even though it was given to me by our law officers. I wanted to understand and agree with it. I now understand it.

The answer is no. Under Clause 24 a member of the majority in a province would not have the status. He might have other recourse, but he would not have recourse under Clause 24 to challenge the provision by a provincial or municipal government of the linguistic opportunities to the minority group in that province in education.

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

Mr. McGrath: Mr. Chairman, one of the areas I wanted to cover this morning has been dealt with extensively by one of the previous members who intervened.

But I would like to say, before getting into the other specific area which I would like to cover, which is not on this subject, that I have listened with great interest to this discussion.

Coming from the Province of Newfoundland where we have a very small, miniscule percentage of the population of French origin, it is a subject which is of considerable interest to me; because my own children, first of all, are receiving the benefits of a bilingual education.

When I look upon the right to French education in this country, I do not see it as a gift of any government, but as a right of citizenship.

Now I say that because if you denied that right of citizenship to people of Canada who come from unilingual parts of the country, then if you accept the bilingual nature of our country and the laws of our country, then you are denying these people equality of opportunity.

[Page 44]

I put that forward as a proposal which we tend to lose sight of, coming from a province where 97 per cent of the population is anglophone. I would like to think that my children, growing up in that province, would like an opportunity to pursue a career in the public service. They would be considerably disadvantaged in pursuing that public service career, if they did not have access to French language education. I think that point has to be made.

The other point, Mr. Chairman, I would like to cover concerns resources. I wanted to ask the Minister if he would tell the Committee if there has been a change; because I perceive that there has been a fundamental change in the government’s policy as enunciated at the First Ministers meeting last fall.

As I recall it, the question of off-shore resource ownership, or the off-shore question, was the subject of considerable debate.

As I recall the discussions, there was an agreement reached that the Government of Canada would-and I think the Minisler of Justice is quoted as saying that this would be a part of the ongoing process, and would constitute part of the agenda of the second phase of constitutional discussions.

It is interesting that the Kirby document-for the Minister’s eyes only-made reference to that, refers to the provincial position which will continue to be unacceptable to the federal government. The challenge remains to find some middle ground which would be attractive enough to some coastal provinces to break the provincial front. That is from the Kirby document.

We now have before the House, Bill C-48 which includes the Canada lands.

Interestingly enough, Bill C-48, which I look upon as a companion bill to what we are discussing here, had closure invoked on it; the second reading was invoked by closure, and it is now on its way to a committee.

But I would like to ask, if the off-shore resource question is still open to negotiation, as per the commitment given by the Minister of Justice last fall and last summer, it would seem to me that that commitment has been rather unilaterally preempted by the provisions of Bill C-48. There is nothing left to negotiate; the Government of Canada claims the Canada lands off the Atlantic coast and in the Arctic.

Mr. Kaplan: This is not the place for a long debate on Bill C-48.

But my understanding of Bill C-48 is that it leaves open the question of definition of Canada lands. The regime proposed applies to Canada lands; but the commitment of the Minister of Justice continues to be that discussion of definition is an acceptable subject and one which the government would continue to be prepared to discuss in phase 2, as you have put it, in the hope that agreement could be reached about it.

Mr. McGrath: Let me put it to you another w::y, Mr. Minister. In addition to the government taking the position that this would be a part of phase 2 of the discussions, the

[Page 45]

Prime Minister also took the position in the House, as did your colleague, the Minister of Energy, that the disputed claim to the off-shore was a question for the courts to decide.

So, here we have the government on the one hand saying that it is a question for the courts to decide; on the other hand, it is saying that this should be a part of phase 2 of the negotiations. Then they proceed up the middle with a bill which stakes out the government’s claim by statute to the off-shore, because that is what the Canada lands are.

Not only does it stake out a claim to the off-shore, but it defines just exactly how the off-shore shall be developed and what part of this development shall be enjoyed by the federal jurisdiction.

It would seem to me that the commitment made by the Minister of Justice last fall and the statement made in the House by the Prime Minister that this matter should be settled by the courts are meaningless.

Mr. Kaplan: I would agree with you that it certainly would be desirable in the interests of the development of that region to have those questions agreed.

But Bill C-48 does not prejudge in any way negotiation or the reference to the courts; whichever alternative any of the parties chooses is still open.

Of course, it goes without saying that I hope-and I know the Minister of Energy, Mines and Resources has expressed the hope in the House also–that an agreement can be reached about them.

Mr. McGrath: If it does not prejudge it, I submit that is not compatible with the provisions of Bill C-48.

My question, however, remains: why proceed with the Canada lands provision of that bill now before the second phase of negotiation gets underway.

Mr. Kaplan: Well, it is because it is legislation of national applicability.

Mr. McGrath: That is right, national applicability but primarily it is applicable to the Atlantic provinces; the only area where you cannot extend is the continental shelf and there are some very positive findings out there with regard to oil and gas.

Mr. Kaplan: Well, there are many parts of the country where there is no dispute about that question, the boundary between Canada lands and provincial lands, and the legislation only applies to Canada lands. It does not define them, so in areas where there is no dispute about them, the benefit of the legislation can be achieved right away, and in those areas where negotiations or reference to a court is chosen to determine the question, it is not prejudged by the passing of Bill C-48.

Mr. McGrath: I would just like to conclude, Mr. Chairman, I was going to put this forward as a point of order at the end of our proceedings on clause I before we get into clause-byclause, but last Thursday, while I was directing questions to the Minister with regard to Newfoundland’s claim to jurisdic-

[Page 46]

tion, although we were not referring to the oil and gas claim, we were referring to Newfoundland’s special rights, Mr. Strayer intervened at the request to the Statute of Westminster, claiming that Term 48 made provision for Newfoundland to enter as a province like all the rest, that is the gist of Term 48.

Well, of course the Minister has an advantage over us because he has his officials with him and they can cite these terms to support various arguments that are being put forward at any particular time, but he forgot to mention, and I am sure it was a momentary lapse of memory because Mr. Strayer would not do that deliberately, he forgot to mention Term 7 and I am going to read Term 7 into the record, it is not very long. Term 7 of the Terms of Union between Newfoundland and Canada states, and I quote:

The constitution of Newfoundland as it existed immediately prior to the 16th day of February, 1934, is revived at the date of Union and shall, subject to these Terms and the British North America Act 1867 to 1946, continue as the constitution of the province of Newfoundland from and after the date of Union.

I think that that Term is probably quite clear and, I am sorry, because somebody somewhere down the road would be reading these proceedings and Mr. Strayer’s intervention would go by unchallenged. However, if he does have an opportunity to read today’s proceedings he will know that there is another term in the Terms of Union that protect Newfoundland’s rights vis-a-vis the Statute of Westminster under Term 7.

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

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

Mr. Kaplan: Mr. Strayer can give an explanation about Term 7 and I think this would be the right point in the record for him to have the opportunity to do so. We have gone past 12 o’clock so we would be in the Chairman’s hands.

The Joint Chairman (Senator Hays): You go ahead.

Mr. Kaplan: Mr. Strayer.

Mr. B. L. Strayer (Q.C., Assistant Deputy Minister, Public Law, from the Department of Justice): Mr. Chairman, I would like to thank Mr. McGrath for bringing to our attention Term 7. I was quite aware that that is what he was referring to the other day when he talked about the proposition that Newfoundland entered Canada as an independent dominion, and it was with reference to my view of what Term 7 means that I said that I did not agree with that.

I think if one looks at the history of the eyent surrounding Newfoundland coming into Confederation, one can see that the purpose of Term 7 was to simply restore to Newfoundland a provincial type of constitution.

If I might read into the record also what Mr. St. Laurent said at that time about the purpose of Term 7 …

Mr. McGrath: Newfoundland was not a province in 1934.

[Page 47]

Mr. Strayer: Well, with respect, Mr. Chairman, I think it is highly arguable that Newfoundland was an independent dominion in 1934 either.

However, whatever Newfoundland was in 1934 I think is irrelevant to what happened in 1949, but in 1949, when Newfoundland did come in and Term 7 was written· into the Terms of Union, Mr. St. Laurent, in explaining the matter to the House of Commons, said the delegation from Newfoundland and its law officers insisted that they did not want the province of Newfoundland to get a new constitution out of the union. They wanted to be in the position of the provinces of Nova Scotia and New Brunswick which had constitutions before union and retained all the powers of their constitutions except those given to the central authority.

The idea was that in 1934 the legislature was suspended in Newfoundland, the constitution which had been set up by 19th Century documents, including letters patent of 1876, I believe, was suspended and a new kind of commission government was put in place.

In 1949 the intention was that the legislature and cabinet system that had existed in Newfoundland in 1934 was to be revived, but I think it is reading, with greatest respect to those who hold an opposite view, and I know there are those who do, I think it is reading far too much into Term 7 to say that that restored Newfoundland to an independent status which, frankly, may or may not ever have existed anyway.

The Joint Chairman (Senators Hays): Thank you very much.

Mr. Robinson: I do have a brief point of order which may require some consultation over the lunch break, if I may just raise it at this point.

My point of order is with respect to background documentation, in particular any cabinet discussion papers which may exist with respect to the proposed resolution.

As the Minister is aware, the government has given a commitment to comply with the spirit of the proposed freedom of information legislation. In that regard a number of Cabinet discussion papers have been tabled at first reading, when a particular bill has been tabled at first reading.

I would ask, Mr. Chairman, that the Minister consider whether or not he is prepared to table the background Cabinet discussion papers which accompanied this particular proposed resolution. I think they may be of some assistance to the Committee. I certainly have been looking with great interest at those massive briefing books, whether they constitute the Cabinet discussion papers I do not know, but in the spirit of freedom of information, in line with the policy enunciated by the government, I would ask the Minister to consider this request over the lunch break.

The Joint Chairman (Senator Hays): Thank you very much. The meeting is adjourned-on the same point?

Mr. Fraser: It is just a very short point of order also.

I would ask that the Minister and his officials might over the adjournment consider the question of Clause 44 which

[Page 48]

removes the veto of the Senate on constitutional amendments, and the question that I would like answered is that if this proposal goes forward in its present form, removing the right of the Senate to stop a constitutional amendment in Parliament, whether it would require another amendment at some future date to our constitution to bring back that power if and when agreement is reached as to a reformed Senate, and as the Minister knows, and as his law officers know, there has been extensive discussion in some parts of the country which indicate that there is a desire to consider changing the Senate in certain ways to give better representation in Parliament to the interests of the provinces and the regions.

My point is that if the proposal goes through now eliminating the Senate’s ability to block the constitutional amendment, then would it require an amendment to the constitution to bring back that power under a new and reformed Senate which might evolve after further discussions, and that is the point that I would leave with the Minister and the law officers.

Mr. Kaplan: All right, I will answer that at 3:30 p.m.

The Joint Chairman (Senator Hays): The meeting is adjourned until 3:30 p.m.

[Translation]

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

I would ask all the honourable members of this Committee to please take their seats so that we may get on with our proceedings which we interrupted at noon. [Text] The honourable Minister was asked some questions before we adjourned for lunch this morning and if he would be ready now to provide the answers to the honourable members I would invite him to do so, otherwise I would like to recognize now the honourable Paul Lucier.

Mr. McGrath: I have a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable James McGrath, before I invite the Minister to reply, on a point of order.

Mr. McGrath: It may not seem like an important point of order but it certainly has to do with the record and how it will be read from today’s Proceedings.

I was asking the Minister this morning with respect to phase two of the government’s round of negotiations whereby the commitment was made last summer, and again repeated by the Minister of Justice at the First Ministers meeting last September, that the off-shore jurisdiction question would constitute phase two of the constitution discussions, and my argument this morning was that this commitment has been pre-empted by the provisions of Bill C-48 which defined Canada lands.

I have the transcript of this morning’s Proceedings in front of me and my understanding is born out by the transcript of what the Minister said, and he said, and I quote:

My understanding of Bill C-48 is that it leaves open the question of definition of Canada lands.

[Page 49]

Mr. Chairman, you have to read the definition, you have to read C-48 in the context of the government’s energy program 1980, and I read from page 42 under the heading Canada Lands:

Under the British North America Act large areas of Canada fall within federal jurisdiction. These Canada lands which comprise almost twice the area of the 10 provinces combined include the area off Canada’s coasts.

And then it is accompanied by a map which clearly defines the area off Canada’s coasts. Then if you read Clause l of Bill C-48, it defines Canada lands, and under Clause 2(b) of Bill C-48:

“Canada lands” (b) those submarine areas adjacent to the coast of Canada and extending throughout the natural prolongation of the land territory of Canada to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea of Canada is measured, whichever is the greater;

And that is the end of the quotation from the bill.

So clearly there is nothing left to be defined, it is all defined in the government’s energy policy 1980, and clearly defined in the provisions of Bill C-48 which has now been given Second Reading in the House, albeit by closure, and I submit to the Minister that he left inadvertently the impression that it was still a subject for negotiation.

The Joint Chairman (Mr. Joyal): The Honourable Acting Minister of Justice.

Mr. Kaplan: Yes. I believe I stick by what I said this morning. I do not have a copy of the statute in front of me but it is obvious that a legislature or that Parliament can enlarge their territorial jurisdiction by passing a statute that if the determination of the court under the present legislative framework and history is that the land in question is under the jurisdiction of Newfoundland, that the definition contained in the statute could not possibly enlarge the jurisdiction of Canada, and I do not have the statute in front of me, I will consult it during our first break, with the honourable member’s indulgence, and take another crack at an explanation.

I do not have my transcript in front of me. I did not mean to say that the Canada lands expression is not defined in the statute, I know it is, but the definition that is contained in the statute does not determine whether or not that is under Canada’s jurisdiction. That is a matter that would be determined by other questions or on other bases than simply studying the legislation.

I think also, since the member has taken the trouble to raise it and to be critical of Canada on this score, I should draw the attention of the Committee to the approach that Newfoundland has taken, which is to purport to assert jurisdiction in a unilateral way prejudging the total question, and it is more of an imperialistic approach that Newfoundland has taken.

[Page 50]

Mr. McGrath: We have been called many things, Mr. Minister; it is the first we have been called imperialistic.

Mr. Kaplan: Well, it is the first time I have had a chance to comment on Newfoundland’s legislation. That is the way I feel about it and if the Committee wants, I will enlarge on this analysis which I have given, which is really just based on the ordinary authority that Canada was asserting in making its definition.

It is not an attempt to enlarge its jurisdiction, it is not a unilateral declaration of sovereignty over the offshore, it is simply an attempt to establish a regime for whatever offshore territory belongs to our country. That is what it is about.

Mr. McGrath: The bill says very clearly that Canada lands means lands that belong to Her Majesty in the right of Canada.

Mr. Kaplan: Exactly, and not lands that belong to Newfoundland; whereas Newfoundland’s assertion in its statute is an imperialistic assertion.

Mr. McGrath: Well, whether it is imperialistic or not, I raised it in context that you had pre-empted this as a subject for negotiation contrary to the undertaking given by the government last summer and last fall, that is the point I wanted to make and it has nothing to do with Newfoundland’s imperialism or anything else.

Mr. Kaplan: I am authorized to tell you that the willingness to negotiate continues unabated by our attempts, you can see by our intentions, to exercise proper housekeeping over areas which are found to be, agreed to be or which are within the jurisdiction of Canada.

If I could turn to Mr. Robinson’s request that …

Mr. Munro: On the same point of order, before he goes on? The Joint Chairman (Mr. Joyal): If it is exactly on the same point of order, I would invite Mr. Munro, with the consent of the honourable Minister, so that we conclude on that question before we turn it over to Mr. Robinson for another subject.

So I would like to invite now Mr. Munro.

Mr. Munro: Yes, it is relevant to jurisdictions over off-shore areas and I am wondering if the Minister would be good enough, when he is examining, as he said he would, this matter of the negotiable nature of off-shore resources following the patriation of the constitution, whether he would look into that aspect of the dispute between Canada and the Province of British Columbia as to the ownership of the channel between the mainland and Vancouver Island, which is a matter which is in suspense as far as-I am not asking the Minister for an answer at this particular time but l am just raising lit as something I would like him to consider and reply to when he replies to the honourable Mr. McGrath on the matter of off-shore resources.

Mr. Kaplan: Well, I think I can reply surely to that now because I am informed that that question of jurisdiction is presently under appeal before the courts, and of course the

[Page 51]

determination of the courts would settle the question as far as that is concerned.

Mr. Munro: Appealed by the federal authorities?

Mr. Kaplan: The federal government is appealing the decision of the British Columbia Court of Appeal.

Mr. Munro: And it is actively before the Supreme Court on Appeal?

Mr. Kaplan: The appeal has been launched but it has not been argued.

Mr. Munro: Thank you.

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

I would like to invite now the honourable Acting Minister of Justice to reply, if he is ready, to Mr. Robinson’s question as we left it at our adjournment this morning.

Mr. Minister.

Mr. Kaplan: Mr. Robinson asked if the government was applying its policy on access to information to Cabinet documents and discussion papers prepared on the subject of the constitution, and if any documents had been generated within the government to which the doctrine would apply, that the government should apply it and produce the documents.

I understand that there are no other documents and this was a search done over lunch, and Cabinet documents are easy to identify, they are known, and so I am sure about that.

Now, there are none that have been prepared which the Access to Information Act would require the government to make public. You referred, for example, to the briefing book which contains some policy advice and some negotiating ideas and is not the sort of document that was intended to be covered by the access to information law or by the Prime Minister’s direction to us to comply with that law now as though it were already in effect.

So there are no documents that I am aware of. Perhaps I can give a definitive answer to the question tomorrow because someone is checking further this afternoon.

Mr. Robinson: Thank you.

Mr. Kaplan: I am prepared to answer the other question on the effect on the Senate of Clause 44 but before I answer it I would like to ask that the question be put again for the benefit of the members and so that I can be sure I have it all. The Joint Chairman (Mr. Joyal): Certainly. I would like to then invite the honourable John Fraser, who was the member interested in that subject, Mr. Fraser, if you could rephrase your question so that the Minister and his advisors could have a good understanding of the elements of your question?

Mr. Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

As I read Clause 44, Mr. Minister, and to your officials through you, Mr. Chairman, as I read Clause 44 it says an amendment to the constitution of Canada may be made by

[Page 52]

proclamation under Clause 41 (1) or Clause 43, as appropriate, without a resolution of the Senate authorizing the issue of the proclamation if, within 180 days after the passage by the House of Commons, the Senate has not passed the resolution and if at any time after the expiration of those 180 days the House of Commons again passes the resolution.

Now, as I see that, what the proposal does is change our constitutional practices and probably the constitution itself by saying that the Senate can no longer, when it comes to the question of constitutional amendment, stop the House of Commons from passing a resolution under the main amending Clause 41.

I have, of course, argued that that strips the Senate of its historic role as a check against the House of Commons in actions that might not be to the advantage of the regions or the provinces, and I have argued that if the effect is that it takes away that check, then if we later reform the Senate into a more effective body to reflect the regions and the provinces, that function will be considerably emasculated and certainly emasculated in constitutional matters.

Now, my question is this: if this proposal goes through and if that power is removed from the Senate, then assuming that at some future date we get agreement between the federal government and the provinces on a new form of the Senate, would it require an amendment to the constitution to bring back that power of the Senate to stop a proposal in the House of Commons?

I have tried to put it, Mr. Minister, as clearly as I can and without getting into the arguments one way or the other, but I just want to know what the effect is in law?

Mr. Kaplan: Well, the answer to the question is yes. The suspensive veto provision is felt justified by the government because of the fact that, to succeed, in any event, the amendment which would otherwise require the consent of the Senate would require ratification, if I can inaccurately use that expression, by the amending formula.

So that if the Senate had been designed, as it has, among other things, to reflect a regional perspective, the regional perspective, this was the theory on which the government operated, the regional perspective would be accounted for by reason of the fact that the amendment could not succeed anyway without having broad direct approval from the regions by the majorities or by the referendum procedure contemplated.

So that the justification for suspending the Senate’s role in these cases was that if the Senate was there to represent the regions but the regions have already, by the formula-whatever amending formula is settled-expressed the actual view of the regions, the direct view of the regions, should the Senate be able to exercise a veto? The answer that the government gave was no; and that was the reason for that approach.

Now, if the Senate is redesigned, that would require an amendment to the constitution, because the Senate, I believe I am correct in saying, is more than an institution of the federal government. It is an institution that the provinces have an interest in.

[Page 53]

So, by reintroducing a veto power for the Senate could be part of the process of recreating the Senate.

Mr. Fraser: Through you, Mr. Chairman, I thank the Minister and his law officers for that answer.

It raises some interesting issues, one of which is that by this resolution the government proposes to change the function of the Senate, and as the Minister has just said, that means it is changing something which, of course, the provinces have a very great interest in and on which the Supreme Court of Canada has already ruled cannot be done.

Mr. Kaplan: That is what I had in mind.

Mr. Fraser: Yes.

So that what we are proposing here is something which the Supreme Court of Canada only a year ago has cast some doubt about.

But I do thank the Minister for making it absolutely clear that to bring back that safeguard would require another change in the constitution at some future time.

I would just like to conclude on this comment, through you, Mr. Chairman, and with the indulgence of my colleagues: I understand the argument that the government puts forward. It says that if the resolution has passed an appropriate number of provincial legislatures, then the Senate ought not to be able to block that will expressed by the vote of a certain number of legislatures.

But I do remind my colleagues in this Committee-and the Minister-that originally, of course, the function of the Senate was to act as a watchdog for the interests of provinces or regions where they did not have enough political clout to protect themselves.

I would like to finish with this comment, that that problem is made worse as a consequence of this proposal.

Mr. Kaplan: What you are saying is that the Senate is more than just the voice of the regions, and has a life of its own.

Mr. Fraser: What I am saying is that the Senate is a part of the Parliament of Canada and to the degree that this resolution eliminates its function, then it has demeaned not only the function of the Senate, but also the full function of what we have called “Parliament”.

I am quick to remind the Minister that the word the government chooses to use around here is not “government” but “Parliament” and this has changed the make-up of Parliament, at least with respect to the amendment of the constitution.

Mr. Kaplan: I concede that, and I have given the best explanation I can as to the reason which animated the government to make this particular proposal.

I think I ought to say, because of the remarks you have just made, that we do not consider this a re-run of the legislation which was introduced a year ago, because this is not legislation, but a resolution.

[Page 54]

Our advice is that this would not be treated by Canadian courts in the same way that a direct amendment of the Senate would be treated if it were instigated just by the federal government on a unilateral basis.

Mr. Fraser: I can understand the attempt to put a legal argument forward. I would submit gently to you that is a bit tortuous; what has to be realized, of course, is that you can call it a resolution or a bill, as the old Bill C-60 was; but except for the difference that it is being sent to Great Britain to be completed, it is exactly the same process-it is the House of Commons and the Senate passing it; that is exactly what you asked the House of Commons and the Senate to do with Bill C-60 and that the Supreme Court of Canada said you could not do.

Mr. Kaplan: At least you are conceding that we are amending our constitution here!

Mr. Fraser: I am conceding only that your argument that your proposal is in substance somewhat different from a piece of legislation is at most a very fine legal difference. The substance of what you are doing is exactly the same and it has already been said that you ought not to do it by the Supreme Court of Canada.

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

I would like now to invite the honourable Senator Lucier.

Senator Roblin: Might I add something.

The Joint Chairman (Mr. Joyal): I have some sympathy for any discussion around the table on the Senate issue, because it is not a subject which has been addressed at length by honourable members up to this stage.

But I wonder if I should not keep your name on the list because we were on a supplementary, as you will remember; and I would certainly invite the honourable Senator to address himself to that very question after we have completed our round with Senator Lucier and Senator Asselin, too, on the same subject.

If I have the agreement of honourable members I would keep the name of the honourable Senator Roblin on my list and invite him on the next round after I have recognized Mr. Munro who is already on the list

[Translation]

Senator Asselin, you have also brought something to our attention.

Senator Asselin: It did not concern the Senate, Mr. Chairman, it was a rather general question. I wanted to ask the Minister how we are going to bring about constitutional peace between the Federal government and the provinces. It is a general question.

During this debate, since we have heard from practically one minister only and that, today, we are lucky enough to have another minister before us to address this very important question of constitutional reform, if you allow me, I would like

[Page 55]

to put a very general question to him. I would like to know how he anticipates bringing back constitutional peace between the federal government and the provinces.

I will come back to that later in a more detailed fashion.

The Joint Chairman (Mr. Joyal): Very well. Thank you very much, Senator Asselin.

[Text]

I would like now to invite the honourable Paul Lucier on the main question.

Senator Lucier: Thank you, Mr. Chairman.

In reply to a question put yesterday by Mr. Nystrom concerning participation by the Territories in the amending procedure, I believe Mr. Tassé stated that the Territories could not be involved because they do not have the status of provinces.

Is that a correct assessment of the answer Mr. Tassé?

Mr. Kaplan: The inhabitants of the territories would be able to vote in the referendum. Their votes would be counted in calculating the existence of a national majority.

But the territories are not recognized in the way that provinces are for the purposes of the amending formula as proposed.

Senator Lucier: Now, Mr. Pearson, who is a government leader in the Yukon, when he appeared before this Committee made an excellent presentation on behalf of the people of the Yukon.

Mr. Pearson asked then that a procedure be established whereby the Yukon could eventually become a province. He was not in any way suggesting that we should do that now, or that we were ready for it. All he was saying was that there should be a procedure in place.

Now, that has not been done. I am wondering whether there is any explanation as to why that has not been put into the bill.

Mr. Kaplan: The answer to your question is that I ought to refer you to the BNA Act of 1871 which contains provisions which, of course, survive, and are carried forward here, enabling the introduction of new provinces into the Confederation.

The Act provides that the Parliament of Canada, summarizing it, may establish new provinces in any territories forming for the time being part of the Dominion of Canada, and may make provision for their constitution and administration.

That, of course, is a procedure that was much used between 1871 and now for the addition to Canada of provinces.

I do not think that their entry into Canada would automatically add them to the list of majorities provided for the operation of the amending formula. That would be something one could visualize a lot of ways in which that question could be resolved. There can be no question but that a new province should participate in the amending procedure as a government in the same way as other governments do.

[Page 56]

I suppose, in the first instance, a regional arrangement might be sought, like the great co-operation which exists within the Eastern Region of Canada, or which might exist within the Western Region of Canada.

But they would be excluded until such time as some agreement was arrived at, from participating in the amending formula process as governments.

Senator Lucier: I think Mr. Pearson’s proposal for a mechanism for achieving provincial status was not really in conflit with the BNA Act. Really, what they were suggesting was that there be some clarification that there be a procedure whereby the people of the Yukon themselves could take part in the process which is not spelled out in the BNA Act in fact, it is very unclear about the procedure in the BNA Act. It has been done in several different ways and it is not clear just exactly how you would go about it in the case of the Yukon becoming a province.

Their suggestion was simply that it be put in there in such a way that the people of the Yukon themselves could take part in the process when the time was ripe.

It seems to me it would have been very simple to put that in without really complicating matters.

Mr. Kaplan: Well, I think I can agree with you that it would be a very good idea to have it in. It is not.

It may well be a matter by which provincial governments would want to make submissions. They would be affected by the participation of new provinces in the amending process.

This perhaps could be an early subject for discussion in the process that will follow-the one that Senator Asselin is asking about-that happy period following the establishment and patriation of our constitution, when we turn our minds to developing a full and definitive constitution for our country.

Senator Lucier: Mr. Minister, this brings me directly into my next question which deals with Clause 32-constitutional conferences.

Another strong point made by Mr. Pearson was the fact that the Yukon and the Northwest Territories should be included in federal provincial conferences as the official representatives of the people of the North. After all, he said, the North consist of one third of our land mass of Canada and probably half of our natural resources. It seems to me we should have some say in what takes place in Canada.

Now, in fact you have’ just said this may be one of the subjects which would take place at the procedures for the Yukon and the Northwest Territories becoming provinces.

Those discussions would take place, as it is presently structured, at a federal provincial conference without the participation of the two territories concerned

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Now, why could Mr. Pearson’s suggestion not be followed and both territories be allowed to participate in federal provincial conferences without a voting privilege.

They fully understand that they are not going to come there and be able to vote against the Province of Ontario, Newfoundland or any other province.

Why should they not be able to come there and participate in the action of the federal provincial conferences without having the right to vote-at least to be able to put the views of the people of the North before the men and women who have to make decisions?

Mr. Kaplan: Well, I think before directly coming to the question, I would like to make the observation with which I am sure you will agree, that nothing that is done in this piece of legislation reduces in any way the involvement of the territorial governments in constitutional process; in other words, they have not lost anything.

Senator Lucier: I understand that, but we do not have much to start with.

Mr. Kaplan: I will agree with that, and I will come to that in a moment.

But since I have just come back from the Territories, where I had some discussions with people who were under the impression that they had lost a great deal, maybe they lost the opportunity; but they certainly did not lose any rights or benefits that they have under the present constitution of Canada-all of the different documents and so on which constitute it.

The present status of the territories as to their participation in constitutional matters is that they have a kind of a droit acquis to be part of a federal delegation.

The federal government, for the time being, can certainly give that assurance that they would continue to be part of the federal delegation, particularly when matters touching the establishment or development of provincehood or some increase in status are concerned.

Now, to go the direct question, the federal government has not been prepared to treat them like a province for the time being.

This amending process is a process developed between provinces and the federal governement, and not one in the negotiation process either in which the Territories are recognized as separate governments.

Senator Lucier: Mr. Minister, I am sure that Mr. Pearson very deliberately made the point that they are not asking to be treated the same as a province. They are asking for something more than being a colony.

There is some ground between being a colony and a province, and they recognize and accept that.

I think his submission very carefully pointed out that they were asking for less than being a province.

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Also, in reply to a question from me, Mr. Pearson stated that the provinces seemed to have no objection to the territories taking part in the conferences on a less than full membership basis, that they would be prepared to accept them, provided they did not have the vote, that they could participate, even if it was just for a point of giving information.

But I think it is really degrading to the people of both the Yukon and the Northwest Territories that they should be asked to sit as part of a federal delegation at a federal-provincial conference where the future of the North could be discussed.

I think it would not be asking too much for the Government of Canada to make a small change in Clause 32 which would give the people of the North an opportunity to participate in something less than full provincial status in those conferences.

Mr. Kaplan: Well, you are a very persuasive advocate of the North’s point of view.

I cannot make a commitment to change the constitution or to make any amendment on that subject in this particular operation; but the point is a good one.

Senator Lucier: Can you make the commitment that you will try, Mr. Minister?

Mr. Kaplan: I will make the commitment to report this to the government and to ask that in the consultations which are envisaged by this legislation, the provinces can be canvassed for their views, and if their views are as you have stated, that some effort be made to assure territorial presence at these discussions.

But I do not think it is inappropriate for the territories to be part of the federal delegation; because, after all sovereign governments are represented at these conferences: the provinces are fully sovereign; the federal government is fully sovereign, and the territories are not.

Senator Lucier: That is where we are headed, Mr. Minister.

Mr. Kaplan: I understand the North’s aspirations very well.

Mr. Fraser: A point of order, Mr. Chairman?

The Joint Chairman (Mr. Joyal): The honourable John Fraser on a point of order.

Mr. Fraser: Thank you, Mr. Chairman. I will make it very brief.

The Minister has just said that nothing in these provisions would affect the existing rights of the territories of the Yukon or the Northwest Territories.

I would just like to point out to the Minister and my honourable colleagues and also to the honourable Senator Lucier, who has raised this point-and justifiably so, that if Clause 44 goes through then you will not have a Senate to look after the potential future interests of either of the territories, who could be compelled, because the provinces and the House of Commons could decide that they were going to take away

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rights that both the Territories hope will come to them at some future time when it is appropriate to have provincial status.

I want to make the point and underline it, and I do so to an honourable Senator, that if that power is taken from the Senate to block a provision which may seem like a very good idea south of the 60th parallel-and it might seem a good idea in the House of Commons, but not in the territories, especially for the future development, the degree to which you take away the Senate’s right to block that, in the interests of a small region against the tyranny of the majority is all bound up in this question of Clause 44.

Mr. Kaplan: I think what you are suggesting is that really you are taking for granted that the Senate would, if an issue of territorial rights or territorial enlargement of rights came up, you are taking for granted what the Senate would decide on that question. I just would note do not assume either that the House of Commons would ignore the rights of the Territories or the extension of rights of the Territories.

Mr. Fraser: Just one brief comment, Mr. Chairman, and then I will get out of this and leave way for others who are ahead of me in line.

I am not assuming one thing or the other. I am stressing again the point that we have tried to make before. When you write a constitution, you are not writing a constitution because you assume that people will always act rationally or in the best interest of the minority. You are writing a constitution that tries to set safeguards against your irrational or unfair behaviour.

I cannot guarantee that the Senate would necessarily rise to the occasion; but I can guarantee that if it cannot do it, that it will not.

Mr. Kaplan: Let us take a look at the horrible scenario that you are laying out. You are expecting the Senate to come to the aid of the Territories in a situation where the House of Commons has not done so, where Ontario has not done so, where Quebec has not done so, where· a majority of the provinces of Eastern Canada have not done so, and where the claims and aspirations of the Territories have also been rejected by Western Canada.

Now to me, that is so improbable that it is hardly worth putting that forward, because the Senate’s veto, if it were to have one, would only mean something after the West had rejected the claims of the North, after Ontario, Quebec and a majority of Eastern Canada rejected the claims of the North. So that, to me, seems a highly improbable development.

I think, surely, the Territories could find some friends somewhere outside the Senate who would I support their interests and they wouldn’t have to rely totally on an appointed body to take their concerns to heart and to take their side in a constitutional debate.

Mr. Fraser: Mr. Chairman, the Minister has asked me a question, and I do not want to overdo this, but I just will put the answer very quickly.

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You could very well have the majority of the provinces go along with something which would affect the potential of the Northwest Territories and the Yukon, but you could have a significant minority south of 60° not going along with it and nothing could be done.

We have listened to one group after another of Indians and Inuit come in front of this Committee and point out with dramatic clarity just what happens to a minority when left to the whims and caprices and so-called generosity of a benevolent majority. I am just saying that it is a potential problem. I am asking the Honourable Senators, when it comes their last chance to take a second look at what this House of Commons does, to keep it in mind; and I certainly put out a plea that you do not emasculate the Senate when there are minority groups and places that are under-represented in this country which need protection.

Mr. Kaplan: I want to deal with the analogy, because I do not think it is apt. The recourse of the Indians is to the Parliament of Canada.

Mr. Fraser: Well, they are not satisfied they are getting it there.

Mr. Kaplan: I am not arguing with that. I am just wanting to show how different the position of the Territories are, because if constitutional amendments in their favour are being considered, they would not only have the support of the federal government’s to seek, but they would have the support of the regions of the country to seek, either under the referendum or under the votes of legislatures as provided in whatever amending formula is produced.

So there are far more safeguards and checks and balances relating to the future of the Territories than there are in the case of the Indians.

Mr. Fraser: It would not be appropriate for me to continue, Mr. Chairman, and I will not, but I just remind the Minister of the Niska Indian case, which is the first case that even began a nod that there was such a thing as aboriginal rights against the stated position of the present Prime Minister and the House of Commons. If you listened to any of the Indian briefs, they have no confidence that the House of Commons and people south of 60° are going to look after their interests, and even those Indians that are south of 60° do not feel that it is being looked after.

Mr. Kaplan: But you are asking the Territories not only to worry about the safeguard of the House of Commons’ concern for them, but about the concern of Western Canada, Ontario, Quebec and Eastern Canada, and the warning that you have given to Senator Paul Lucier is that if all of those powers are against them, they will have the Senate to fall back on. I think that they would find some comfort along the way, if in fact the Senate was going to come to their rescue anyway.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser, and I would like to remind you very respectfully that we have previously agreed to a procedure by which the Chair would recognize one supplementary question from each party, and you draw the attention of the Chair on a point of

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order which was in fact a supplementary question. That finally Jed to open a new debate on a very important issue which I recognize and have great sympathy for, but I think that in all fairness for all the other honourable members who are waiting very patiently to be recognized by the Chair, and have an opportunity to speak on other subjects, I think I have to invite you to abide by the previous procedure, and I would be grateful for your cooperation in so doing.

Mr. Fraser: Mr. Chairman, I of course abide by your invitation. I just could not resist the temptation to try to answer the Minister who answered his question with a question.

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

I would like to invite Mr. Don Munro on the main question.

Mr. Munro: Thank you, Mr. Chairman.

I have a series of questions which I would like to put to the Minister and I will interrupt him so that I get answers. I hope the answers will be complete and brief.

I would like to start by asking the Minister whether it is safe to assume that before embarking on their present course, the government compiled a complete catalogue of the possible consequences of proceeding in the manner outlined in the constitutional proposals now before us.

Mr. Kaplan: Do you mean other than the so-called leaked memorandum?

Mr. Munro: If you are accepting that the leaked memorandum outlined the possible consequences.

Mr. Kaplan: A memorandum to Cabinet was prepared and an effort was made in that document to inform Ministers about the options available and the implications of each of the options.

Mr. Munro: Then it is safe to assume further that that catalogue listed the likelihood, indeed the strong likelihood, of embittered federal-provincial relations beyond what they now are; because some of the proposals, if they were to become overriding law imbedded in the constitution, would deprive the provinces of some oi their current freedom of action and jurisdiction, would in effect intrude unilaterally and by federal decision into areas of jurisdiction that are now under current law and practice exclusively provincial, and because further, the referendum process, a relatively new concept in Canada’s constitutional practice, is designed in such a way as to eliminate, should the federal government so decide, the need for provincial consent for the purposes of constitutional amendments, even in amendments that would affect all the provinces.

Was that likelihood taken into account as well? Did the Cabinet decide to press on regardless of the effect on federalprovincial relations?

Mr. Kaplan: I want to concede that this does limit the action of the provinces. That is one of the effects, for example, of the Charter of Rights. It limits, as well, the action of the federal government in many ways and we have discussed some of them in the evidence that I gave this morning and yesterday.

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Perhaps one of the most serious limitations of the federal power of action is the power to amend the constitution unilaterally, which is being done in a sense in this process, but which can never be done again. I concede your point, but the limitation of provincial action has not been in favour of increased federal action; it has been in favour of the people, and no power of a province that is limited in this proposal gives any corresponding increase in power to the national government.

Mr. Munro: Was it made clear in discussions in Cabinet, and presumably in your caucus, that in proceeding as you now propose you will in effect be asking the British Parliament to make fundamental changes in Canada’s constitutional makeup affecting provincial jurisdiction.

Mr. Kaplan: I do not agree with that.

Mr. Munro: But you have just said that the Charter will.

Mr. Kaplan: It limits the scope of operation of the provinces and of the national government, but it does not change Canada into unitary status.

Mr. Munro: I did not say that.

Mr. Kaplan: No, but some of the members have.

Mr. Munro: But I am asking questions now.

Mr. Kaplan: Yes.

Mr. Munro: I am not saying anything about unitary status. I am just saying about invasions and intrusions and changes in Canada’s constitution and make-up affecting provincial jurisdiction.

Mr. Kaplan: l do not think it is an invasion or an intrusion because to me, l mean, we can debate about these metaphors but …

Mr. Munro: Changes.

Mr. Kaplan: Yes. To me an essential aspect of an invasion is some benefit derived by the invader, and there is not any.

Mr. Munro: Or any changes, you will buy that?

Mr. Kaplan: Yes.

Mr. Munro: Fair enough.

Mr. Kaplan: Linguistic rights are not for the benefit of a national government. The linguistic rights are for the benefit of the people who speak a minority language.

Senator Asselin: We would have to change that law.

An hon. Member: It is an invasion.

Mr. Kaplan: My concept of an inv,asion is that the aggressor benefits somehow.

Mr. Munro: Unless he is thrown out.

Mr. Kaplan: That is why I do not think it can be described as an invasion.

Mr. Munro: All right, I will settle for change.

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The next question is, were the Minister’s colleagues, Messrs. MacGuigan and Roberts when they made the trip to London, instructed to tell the British government and did they indeed tell the British government, that this would be one of the consequences of the British acting as the Canadian government wants them to act? Was the British government informed of these consequences on the federal fabric of Canada?

Mr. Kaplan: I think they took the documents with them and that the British government Ministers and officials who were informed of the progress of this measure in Canada were allowed to see and were in a position to draw their own conclusions about invasion or aggression or fundamental transformation. I reject all of those terms myself. I do not think they are apt descriptions of the process, but I do not think the British need to have conclusions drawn for them. I think they are capable of drawing conclusions themselves from seeing the documents.

Mr. Munro: This is one of the reasons that I had hoped that I would be able to pose these questions to those who went to London or to Mr. Chretien, the Minister of Justice. But I do think that you are suggesting that there was nothing explicit in the instructions given to the Ministers who went to London to explain the matter of the changes that would be brought about by these proposals in federal-provincial relations, that it was left to the British, with all their other pre-occupations, to read the documents and form their own conclusions. Nothing explicit was said in London about these matters, is that correct?

Mr. Kaplan: I do not agree with that because I was not present and I do not know the exact tenor of the discussions, but the conclusions about change can be drawn by any competent legislator or official interested in this type of issue who reads the documents. Whether another person other than yourself would be able to characterize them as an invasion or a fundamental change, I do not know.

Mr. Munro: I settled for change. We are not talking about invasions anymore, as far as I am concerned.

Mr. Kaplan: Yes, even change implies a change in the relationship between levels of government, and I do not think that has taken place here.

Mr. Munro: I would now like to ask the Minister if he and his colleagues, having examined the effect of following this procedure, have they examined the effect on British Par- liamentarians? Have the members of the Canadian Cabinet considered that what they are doing is presenting the British parliamentarians with a heads-I-win, tails-you-lose sort of propostion. This is a dilemma with which you are confronting the British.

You are saying to them in effect this: approve this measure and we, the Liberal Cabinet, 1 will get our Charter of Rights over the opposition of a number of provinces. We will get the constitution patriated and we will have entrenched in it a new concept of Canadian constitutional law that we failed to get approved a few years ago, namely the referendum process. And still talking to the British You probably add this: do not worry about the damage that this will do to Canadians, to

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Canada’s internal federal fabric. That is our concern of the federal Cabinet. You just do what we ask and do not ask any more questions. That is the heads-I-win side side of the coin.

The opposite side of the coin looks like this. What you are also saying to the British parliamentarians, and I hope that you as Canadian Ministers considered the whole deal in this light because if you have not you can hardly be said to deserve the exercise of the authority you do, because what you are saying is this: if you dare to withold your approval from these proposals, we, the Canadian Cabinet will create in Canada the most God-awful row that you have ever heard which will put the Boston Tea Party in the shade, branding you as an imperialist power, trying to enforce your colonialism upon Canada.

Furthermore, you are saying to the British government that if they fail to give ready approval to your proposals, you will whip up such a frenzy of anti-Britishism in this country that you will have no trouble whatever in securing passage in Canada of legislation that will break Canada’s ties with Britain, the Crown and the Commonwealth. Is that the situation in which you want to place fellow parliamentarians in the British Parliament? Are you doing it deliberately or have you just failed to think these things through? That is the tails-you-lose side of the coin.

Mr. Kaplan: I think your interpretation of this process is hysterical, although you have phrased it very moderately. Britain was an imperial power for centuries and the legacy of imperialism, of its past imperialism is not a pleasant one. Britain spends hundreds of millions of pounds a year, for example, and many, many hours of its time because of its imperial past and its imperial legacy and I would say that its responsibilities to Canada are among the easiest of all of the legacies of imperialism.

I think that there is precedent for going to Great Britain and receiving from Westminster parliamentary approval of actions of the Parliament of Canada. There are precedents for going without provincial support. There are precedents for going with provincial objections, in the face of provincial objections. There are precedents for going, not only in the face of provincial objections, but in the face of pending legislation; and if I took as long for the answer as you did for the question, I could lay them all out.

There are sufficient examples of each of those to show that this initiative is well within the tradition and that it represents probably one of the most pleasant legacies of imperialism that Westminster has to live with.

Mr. Munro: You are prepared to disregard entirely the effect on the British Parliament and British parliamentarians of putting this dilemma before them.

I would next like to ask the Minister whether he and his colleagues have considered the fall-out in Canada under either of these circumstances. Let me elaborate. Take Westminster’s approval, the heads-I-win part of the proposition. You fully understand, I hope, that you will thereby be poisoning federalprovincial working arrangements perhaps irreparably and in as

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far as you are, you are encouraging separatism west of the Iakehead if not elsewhere in Canada.

Now, take Westminster’s rejection. I do not know whether you have considered these things, but just take Westminster’s rejection, the tails-you-lose sort of thing. Again, you have driven a wedge, possibly two wedges into the heart of the Canadian federation. Again you have encouraged separatism, certainly west of the Ottawa valley and possibly also east of the Gaspe. Has that been considered in proceeding along the route that you have chosen?

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Mr. Kaplan: Well, again I think your scenario is a hysterical one. Irreparable is a very long time.

Mr. Munro: That is true, it is.

Mr. Kaplan: And within a country I think that there is so much to gain by co-operation and by …

Mr. Munro: Agreed, agreed. No one is contesting that.

Mr. Kaplan: And by consultation. I am confident that having the constitution brought back to Canada, having patriation, having this Charter of Rights which will have the acceptance of Parliament will not irreparably damage this country but that there will continue to be very good reasons for the federal and provincial governments and for the Parliament and the legislatures to seek to work together.

Mr. Munro: That is your best judgment?

Mr. Kaplan: And I think myself that constitutional amendment will proceed more easily in the future than in the past because the symbolism of the patriation process which has been a bargaining ploy used by many provincial governments will have been taken off the table and we can talk about real problems of duplication, of overlapping, of powers lodged for historical reasons with the wrong level of government, and that there will be more progress because of this than there has been for the last 53 years.

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

Mr. Munro: I have one final question, if I may.

The Joint Chairman (Mr. Joyal): A very short question.

Mr. Munro: Yes. I am wondering if you have not examined the double likelihood of creating for Britain the dilemma such as I have described and of creating in Canada deeper divisions. I wonder whether it has occurred to you that you are thereby demonstrating, the Liberal government, your failure to face up to your responsibilities as the government of a country within the Commonwealth as well as government of a federal state, and if you have examined these prospects and have decided to proceed regardless, has it occurred to you that you have thereby demonstrated your unworthiness to govern?

Mr. Kaplan: Well, I do not think we should run Canada in the interests of Great Britain.

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Mr. Munro: Well, I am not suggesting that.

Mr. Kaplan: Well, it sounds as if you are.

Mr. Munro: You are souring the relations in Canada by proceeding the way you are.

Mr. Kaplan: Well, I addressed the sour relations within Canada, as you put it, and I wanted to address our relations with Great Britain.

I think that it is important to maintain good relations with Great Britain and I am sure we will continue to retain good relations with Great Britain. I know I have been a back bencher myself for 12 years, when I read the reactions of some back benchers to this package, to the delicious opportunities to comment on it in Canada and in Great Britain, I understand the process that is taking place in Great Britain but I insist that what we have to do as a national government, and what members of Parliament do, is to act in the best interests of our own country.

Great Britain has its responsibilities derived from its colonial past and from the happy establishment of a commonwealth of nations which have very friendly relations. It has its responsibilities and our understanding is that Britain will meet its responsibilities, and maybe within Westminster some back benchers or perhaps opposition parties may attack the government for the action it has taken but we have to be guided by what is good for Canada and at this time in our history, for reasons that the Minister has mentioned when he appeared before you, but the reason for taking the historic opportunity now to patriate the constitution, to entrench equalization and a Bill of Rights, these are the things that are motivating us and that are much more important, and I think these are things that Canadians would want us to consider.

Even if your hysterical scenario for Great Britain’s reaction to this and for our future relations with Great Britain are true, and I do not think they are true or likely, far from probable, not even possible I would argue, I think that we would have to do what is right for our own country.

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

Mr. Munro: Thank you.

The Joint Chairman (Mr. Joyal): The honourable James McGrath on a supplementary question.

Mr. McGrath: Very briefly, I would like to ask the Minister what right does he feel the government has to ask Great Britain to entrench a Charter of Rights which, by his own admission, would restrict the provinces in certain areas against the wishes of a majority of the provinces, and indeed against the wishes of the majority of the people of Canada as indicated by a most recent Gallup poll?

Mr. Kaplan: Well, that is not my interpretation of that Gallup poll. I read the poll with interest, I read the headlines, I looked all over it and I did not see any connection between the headline and the poll.

I understand why Canadians prefer to patriate the constitution without unilateral action, but that is not an option. The conclusion that has been reached after 53 years of trying is

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that Parliament itself should take its undoubted authority to patriate the constitution and proceed to do it and that is exactly what we are doing.

Mr. McGrath: Well, as Solicitor General, and this is a final question, Mr. Chairman, I will not transgress, as Solicitor General of Canada do you feel it is right that the government of Canada should proceed to ask Great Britain to entrench unilaterally a Bill of Rights and an amending formula while six provinces have an appeal pending before three provincial appeal courts, which obviously will go to the Supreme Court of Canada? That strikes to your responsibility as Solicitor General.

Mr. Kaplan: Not only do I feel that it is not an improper thing to do, but there is precedent for doing it. It has been done before in the rich history of our country, and to try and characterize this as some new way of amending the constitution is inaccurate.

This is one of the ways of amending the constitution and it is one that has been used in the past.

If legislature were to be held up by courts, they could be held up endlessly. That is why they are not held up by them, why they proceed, and there are so many precedents for that within the country.

Mr. McGrath: There are no precedents for what you are doing, sir.

Mr. Kaplan: Within the country of amending legislation or enacting legislation while challenging litigation is pending.

Mr. McGrath: There is no prededent for what you are doing in terms of changing the constitution.

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

I would like to invite now Mr. Lorne Nystrom.

Mr. Nystrom.

Mr. Nystrom: Mr. Kaplan had mentioned earlier that he wants to do what is good for the country and Mr. Chretien was before the Committee last week and did say last week that the government has in the works another advertising campaign to promote this package, which I think is very relevant to our consideration of the package, and he said the package is ready to go at his signal, and I want to ask the Minister whether or not he has had a chance to consider the ramifications of this, and whether or not he can asure this Committee now that there will not be any federal government advertising program of this package while it is before Parliament.

Mr. Kaplan: I think as an Acting Minister of Justice in this case I would prefer to leave that question for my colleague to answer when he returns.

Mr. Nystrom: Well, Mr. Irwin perhaps wants to 1 add something.

Mr. Kaplan: Yes, Mr. Irwin knows the Minister’s answer.

Mr. Ron Irwin (Parliamentary Secretary): I do not think the Minister gave an indication as to when the funds would be used. He did indicate that it has been approved by Parliament, but Mr. Fleming, who is responsible for communications, said

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in the House some time ago that there would not be advertising on these types of packages or legislation until Parliament has voted on the particular legislation. I think that is still the position of the government but you have to look at what both Ministers have said together.

Mr. Nystrom: Well, I thank Mr. Irwin for that new information, Mr. Chairman, because my understanding from Mr. Chretien was that the package was ready to go at his word, in fact I moved a motion in the House yesterday under Standing Order 43 that the government not proceed with the advertising program while the package is before Parliament.

Mr. Kaplan: I do not know what decision my colleague will take on that but I know that there is already a great deal of advertising on the subject of the constitution by provincial governments and by other interest groups.

Mr. Nystrom: Well, it is interesting that you do not know what the decision is because Mr. Irwin has already said something else.

Mr. Kaplan: He said that the decision was not made but that it would be made in relation to some future event.

Mr. Nystrom: I thought what Mr. Irwin said was that a decision has been made there would not be any advertising while this is before Parliament.

Mr. Irwin: I said Mr. Chretien did not say when and where, and Mr. Fleming said in the House some time ago when he was questioned on several different days, that the policy as far as he was concerned was that there would not be government advertising on specific legislation until the legislation had been approved by the House. That has to do with the billboards and the various ads you saw, One Canada, Make it Yours, that type of advertising that was criticized by the opposition.

Now, that was the policy that Mr. Fleming had indicated he would follow, but again Mr. Chretien said-I do not think he said that the package was ready to go specifically, he said several things …

Mr. Kaplan: Well, I think if I can interrupt, I will consult the record of exactly what he did say and I will repeat it and that is the present position of the government, because I know that no further progress has been made on that question since his statement.

Mr. Nystrom: Well, we have a couple of positions and I see Mr. Goldenberg was trying to aid the Minister and I will be looking forward to your comments on this later on, sir.

Mr. Kaplan: If my recollection is correct Chretien said in this place …

Mr. Nystrom: I wonder if I can get you to …

Mr. Kaplan: My further comment will be in agreement with you.

Mr. Nystrom: I wonder, Mr. Minister, whether you can tell us in your opinion whether or not it is appropriate for the

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government to use government funds or taxpayers’ funds to advertise what is in essence a proposal from the government? Is it proper to advertise a package or proposal or bill or resolution when it is still in the proposal stage, it has not passed Parliament, it is not the law of the land?

Is it appropriate to allocate funds to advertise something that still is in effect a partisan measure?

Mr. Kaplan: I believe that Parliament expressed a view on the patriation process in general terms by a resolution under Clause 43, and I think myself that that resolution of Parliament justifies federal advertising. That is my opinion but again I am not the Minister who will be making that decision.

Mr. Nystrom: So it justifies government advertising of a proposition before it is passed by Parliament.

Mr. Kaplan: Well, it was approved by Parliament in general terms under a Section 43 resolution.

Mr. Nystrom: Well, I am talking about this package before us?

Mr. Kaplan: Well, do you mean the package with the amendments that have just been brought forward, the package before …

Mr. Nystrom: I am talking about whether or not you approve, sir, of the government allocating funds to advocate or advertise in this country something that has not passed Parliament?

Mr. Kaplan: Well, I think since this measure was approved by Parliament in terms of the Section 43 resolution, which approved a general patriation initiative, that your question is hypothetical.

Mr. Nystrom: No, I am not talking about the motion under Section 43.

Mr. Kaplan: For the purposes of giving forthcoming evidence to this Committee, I do not have to deal with a question of whether, absent parliamentary approval, advertising is justified because I have indicated that in my opinion a resolution passed under Section 43 was a unanimous view of the House of Commons that an initiative to patriate the constitution was approved.

Now, this is a measure, this measure may change every few weeks as good amendments are put forward and adopted to change it, so that I do not think you would ever have a state, to pursue your hypothesis, you would never have a state where you had the approved package with no possibility of further change on which, in your concept, advertising would be justified.

I am saying that Parliament looked at the question of patriation, adopted it not by a majority but unanimously, and in my view advertising was justified by that.

Mr. Nystrom: I remind you, Mr. Minister, in the advertising campaign last summer there was no reference to Section 43,

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and I also remind you, Mr. Minister, that Section 43 last summer …

Mr. Kaplan: There was referP.nce ta the substance of Section 43.

Mr. Nystrom: I would remind you, Mr. Minister, that Section 43 only talked about patriation of the constitution.

Mr. Mackasey: On a point of order.

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

Mr. Mackasey: I know there has been tremendous latitude since the beginning and wisdom on the part of the Chairmen, but I am wondering, really, if this is the time to be discussing the advertising policies of tre government or whether we have a resolution in front of us.

I mean, really, there is a fundamental difference. I could pick all kinds of issues; I could talk, for instance, about divisions within parties or provincial attitudes on constitution; if we have that kind of latitude, you let me know that. However, I cannot in my mind, and I am trying to be quite logical about it, link the advertising policy of the government with the matter on hand which is a general, at this stage, questioning of the Minister and his officials on the issue of the resolution.

The Joint Chairman (Mr. Joyal): On the same point of order the honourable Mr. McGrath.

Mr. McGrath: Relevancy has never been known to inhibit Mr. Mackasey.

Mr. Mackasey: Well, I note this is Mr. McGrath talking.

Mr. McGrath: I think it is relevant, that is all.

The Joint Chairman (Mr. Joyal): Well, I would remind the honourable members that that very subject is something that could be debated in the House of Commons as such, there is no doubt in my mind about that, and I would remind the honourable members that we are on the clause by clause discussion and we should address the witnesses on any one clause of the proposed motion, but at least there should be relevancy of the question with one or the other of the clauses, and I understand the interest of members of Parliament and honourable Senators generally to know about the way that the government is spending the budget that the Parliament has already voted, but I think up to this point he would be advised to put his question on a matter that is more related to the subject addressed, that is one or the other clauses in the proposed motion.

Mr. Nystrom, would you continue, please.

Mr. Nystrom: Thank you, Mr. Chairman.

I was being very conservative and respectful to the proceedings of the Committee. It was raised last week and I thought that set a precedent, and it seems to me, secondly, that it would be contempt to this Committee and the work of this Committee if the government is considering or contemplating an advertising campaign before this Committee or Parliament finishes dealing with the resolution and documents before us.

Mr. Kaplan: Why is it contempt?

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Mr. Nystrom: Mr. Chairman, we are dealing here with something that is a proposition of the government, it has not passed Parliament, and if the government is to spend the taxpayers’ money on something that is strictly a partisan proposal, I do not think that is right.

I remind you of an incident that occurred in this country back in the 1960s when the Canada Pension Plan came in, when a number of people went to the then Minister, Judy LaMarsh, and said: look, there is a growing concern and opposition to the Canada Pension Plan, please advertise out of government funds as to why we need it, and she said no, I will not do that, that is not proper, it is still a proposition. It is not the law of the land, it has not been passed by Parliament.

In other words, Mr. Fleming is right, Mr. Irwin is right, and I just wanted you, Mr. Minister, to take a positin in the Cabinet that morally you should not be spending the taxpayers’ money to advertise something that is a proposal, that is strictly a partisan proposal. Whether or not it is good or bad is irrelevant.

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

Either we follow the rules and your rulinP, five minutes ago, or we do not.

Now, you make up your mind, Mr. Chairman, whether you want us to, otherwise I will be guided accordingly.

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

I was about to interrupt the honourable members with great respect because, as you will remember, the Chair in the House of Commons has already ruled that any questions dealing with the content of the proposed motion was not admittable in the House of Commons for the very·reason that that subject has been referred to this Committee, but on the very question that he is raising now I do not think it is the proper jurisdiction of this Committee to take a final decision, and more than that I think that the government has not taken yet a decision to go on with the advertising campaign.

So if the honourable members want to press upon the government not to take such a decision, I think that the best forum to do so is in the House of Commons and not at this point in this Committee.

He was right to say that last week the issue was put to the honourable Minister of Justice, but I will remind him that up to this point we should go on on a clause by clause basis and he should address himself to one or the other clauses of the motion, and I am quite sure he has so many reservations on some of the other aspects of the motion that he will find plenty of subjects to entertain the guests with this afternoon.

So, Mr. Nystrom, you are back on the road.

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Mr. Nystrom: No problem, I was only responding to the Minister’s question.

I would then like to refer him back to Clause 42. I raised questions yesterday about the wisdom of contemplating regional majorities if we have a national referendum and I have the general impression that you might be taking that into consideration and giving it some more thought.

Just to refresh your memory, of course, Mr. Minister, if we do under Clause 42 have a national referendum in this country we need what are called double majorities, a national majority of all peoples in Canada, plus we need a majority in each of the regions, but one defines regional majority in different terms.

For Ontario and Quebec one needs an absolute majority of the people voting; in the Atlantic provinces we only need a majority for something to carry in two of the four provinces, and if you had a slim majority in the two smallest provinces, Prince Edward Island and Newfoundland, you could indeed find only about a third of the population in the whole region voting yes and the other two-thirds voting no and still the yes wins, and in Western Canada all you need is a majority of two of the provinces representing half the people and again, you can tell by using different calculating methods that a majority of Westerners could say no and still the yes could win.

Now, I am wondering whether or not in light of our conversation yesterday you have had a chance to do some thinking and perhaps could indicate to this Committee whether or not you would be prepared to entertain an amendment that we should treat all regions the same and require regional majorities in all four regions, not just Ontario and Quebec?

Mr. Kaplan: Well, let me say I did do a lot of thinking about this and I should say straight off that I agree with the formula that is being proposed, in spite of your efforts to try and convince me that there was something essentially unfair about it.

You have characterized, for example, the situation in the Atlantic provinces as unfair because it could result in a majority of the population of the region being against something and yet having that measure carry because two governments, two provinces which do not contain a majority contain enough people in each to make that province come out in favour.

Now, that is a situation that the Atlantic governments chose. They prefer that to having a straight majority of the population carry the day.

Now, what is their reason for that? Is it a desire to be oppressed by Ontario and Quebec? I do not ihink so.

I think the very sensible reason that the provinces in Atlantic Canada have chosen to accept something that you consider, as an outsider, to be so unfair, is that they are trying to give weight to the fact that there are four provinces there.

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Mr. Nystrom: I wonder, Mr. Minister, if you could table that information before the Committee. Certainly, when the Premiers were down they did not make any reference to that.

Mr. Kaplan: My understanding is that the Atlantic Premiers asked.

Mr. Nystrom: No, no. And Clause 41 and the amending formula, they asked and all four of them agreed that there should not be any reference to the 50 per cent figure in terms of the amending formula.

Mr. Kaplan: I am taking the consequences that you have drawn from it, that it is so unfair; yet it is a formulation which makes sense in terms of the regions.

Now, this may not be the fairest referendum or amending formula. It is the one that the federal government sees as being the fairest. But machinery is contained within the proposal for having a different formula. You cannot convince us that your system is fairest of having straight majorities in the region. That does not mean to say that you might not be able to convince seven provinces containing 80 per cent of the population.

Mr. Nystrom: I was just asking, in closing, whether or not you can provide this Committee with any evidence that the Premiers of the Atlantic Region, or the Western Region want the referendum rules drafted in this way, where regional majorities do not apply in Western Canada or in Atlantic Canada. I do not believe you could back that up with facts.

Mr. Kaplan: They were talking about Clause 41, but obviously Clause 41 and Clause 42 are linked. It is a total alternative that the federal government is putting forward. Mr. Nystrom: That is what I said. You are confused with Clause 41, but I am talking about Clause 42 and the referendum.

Mr. Kaplan: I wanted to use the Atlantic situation to illustrate that the weight of majority population, even within a region, may not be compelling evidence of the view of that region.

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

I note that the Minister has been with us for a long period of time. I think it would be probably agreeable to all members to adjourn for about five minutes.

We will resume our work in five minutes.

[Translation]

We adjourn until 5:10.

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

Would you please take your seat.

[Text]

I would like to invite Mr. Robinson on very short supple mentary question. I would like to remind him that the main question was put by Mr. Nystrom.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. I thank the Chair for your indulgence. I will be very brief.

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My supplementary question arises in connection with the use of referenda, which was referred to by Mr. Nystrom.

I would like to ask you how you reconcile the protection of aboriginal and treaty rights, such as they are defined inadequately as they are in the proposed resolution-how you reconcile the protection of these rights with the concept of a referendum?

Would you not agree that a referendum initiated by the federal government could take away any of these rights which, supposedly, may exist at any time in the course of the next few years, and suggest to native people in this country that their rights should depend upon the will of a majority, with regional majorities, of course-not even majorities in some regions-is denying the existence of these fundamental rights.

How do you reconcile the referendum mechanism with the protection of treaty and aboriginal rights?

Mr. Kaplan: Well, I ask myself, to begin with, how they are affected by this constitutional process at all.

I note that they survive the process, It is made clear in the constitution that they are not to be diminished by the fact of the constitution, and that they continue after the constitution.

Mr. Robinson: Can they be taken away by referendum?

Mr. Kaplan: They are to have the same status as they have before.

Mr. Robinson: Can they be taken away by referendum?

Mr. Kaplan: If they can be taken away by referendumwell, that involves the whole referendum process and the national majorities and the regional majorities, and so on: that is a better safeguard than they have now, because they can be taken away now by a simple act of Parliament, or at least some can.

Mr. Robinson: You do not believe that there should be any requirement for consultation or approval of Indian, Inuit, or Metis groups which specifically affect those groups before they go to a referendum?

Mr. Kaplan: I think there should be consultation about those matters.

Mr. Robinson: And approval?

Mr. Kaplan: There is consultation on those matters, and nothing in the constitution reduces or diminishes their status. In fact, it may be that their status is enhanced by them, although many of them will continue to be matters within the competence of the Parliament of Canada and not matters subject to the protection, say, of the rights and freedoms provisions of the Charter of Rights.

Mr. Robinson: Thank you.

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

Senator Austin, on a supplementary question.

Senator Austin: Thank you. On the same supplementary question, Mr. Chairman, I would like to say to the Minister

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that I would also like to invite him to consider the other side of Mr. Robinson’s proposition, that the referendum procedure could be used in appropriate circumstances to create rights for the native and aboriginal communities. You can envisage a situation in which, after extensive negotiations, there is a deadlock with the provinces over fundamental questions of equity for the native community.

It may well be that if there is a national majority and regional majorities, in accordance with the requirements of a referendum procedure, the Government of Canada might seek the approval of that national majority in order to affect rights that some provinces long deny in equity to their native citizens. So that the referendum is something that has to be used with great care and national equity in the future.

It is difficult to predict how it can be used beneficially or negatively.

Mr. Kaplan: The opportunities are there, as the Senator indicates, for using them beneficially.

I think it ought also to be noted that there are no rights provided in this constitution which cannot be removed by an amendment of the constitution, obviously.

Senator Austin: Does that not trouble you? Where does that take you? Would it not trouble you if Mr. Robinson’s implied premise were possible, that something was so entrenched that it was absolute and no matter what the national will, or no matter what the national need, it could not be changed by any manner of democratic procedure?

Mr. Robinson: Not by referendum.

Senator Austin: I do not know of any more democratic procedure than a referendum which takes due care for the regional interests. Mr. Nystrom makes a very interesting point about population interests and wiping out provincial boundary jurisdictions. I do not know what my reaction is that, though I support the government’s present scheme until I have given it a little more thought.

But I do know that I do not support in any way the concept that something is so absolute that a clear national will could be frustrated by the concept of absolutism.

Mr. Kaplan: Yes; we are democrats working with the understanding that the highest will is the will of the people and the safeguards are provided which make it very difficult for rights and freedoms to be derogated or to be reduced.

But to eliminate the possibility that the national will could eventually express itself, is pretty naive, I think. It is putting too much into your aspirations for a constitution-I think they are unrealistically high. There are rights which you would seek to forever remove from democratic possibilities.

What alternative do you propose?

Mr. Robinson: The ordinary amending formula.

Mr. Kaplan: What would break a deadlock?

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The Joint Chairman (Mr. Joyal): Order, please. I would like to remind honourable members that they should address the Chair, in order to have an orderly debate.

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

Senator Roblin: Mr. Chairman, I am not entirely sure if I am on the main question.

I am a little hesitant to launch out because the item that is concerning me has been pretty well threshed over, but I do think it is worth another word or two.

It has to do with Clause 44 and the proposal that the Senate be dealt out of the constitutional performance at a certain stage and under certain conditions.

Now, I am not unduly sensitive about their rights, or the privileges of the Senate, because it is pretty well known, in some circles at any rate, that I much prefer a reformation of the present body.

I am one of those advocating an elected Senate, elected in such a way that it does not interfere with the primacy of the House of Commons; but nevertheless, an elected Senate which would provide legitimacy for what they do.

An hon. Member: Of course!

Senator Roblin: I am delighted, to see that I have picked up a supporter across the table, and I will call that 1.0.U. one of these times.

An hon. Member: I spoke on that subject more than two years ago. I spoke on that before Senator Roblin was there.

Senator Roblin: If so, I congratulate you. I am sorry that you have not done anything more than speak about it so far. I must say that you are on the right side to make your views weigh the case.

Because some maverick Senators decided to test this matter, it did go to the Supreme Court, and we know what the Supreme Court said, that the federal government could not tamper with the Senate without the consent, explicit and direct of the provinces.

Unfortunately, I do not have that ruling in front of me, but I do recall that Section 2(f) of the enquiry that was put to them, said, could the government do exactly what they are proposing here, that is, give the Senate a suspensory veto instead of the present power it had, in. But I must say I am on the outside looking in. But let us not bother with that.

I am not unduly sensitive, Mr. Minister, because you want to deal with the powers of this Senate as a matter of principle. But I do put it to you, that this was attempted before, as you know in Bill C-60 in 1978-a proposition to do with the Senate was introduced by the government.

We were told by all the people who knew, that it was legally constitutional, and I think the gentleman who is sitting beside you, tendered his advice, among others-and I don’t wish to give them the exclusive responsibility for this piece of legal interpretation; but they gave, somebody gave the Committee and the government the advice that what they were proposing

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to do under that bill two years ago was completely «Copacetic» and there was no problem with it and the constitution was safe and the Supreme Court would declare that to be and the Supreme Court ruled unanimously that it could not.

Now you are proposing to bring in indirectly, and if I may use my opinion, by the back door, exactly the same thing that the Supreme Court said you could not do when you tried to do it in 1978 under Bill C-60.

I hear your argument as to why that is a good thing, but I am bound to confess that I am not convinced. When you tell me that this bill does not trench on the rights of the provinces-well, you can express your position.

But I put forward to you the proposition that the Supreme Court has said that the Senate is a matter which concerns the provinces; here, you are proposing to deal with the Senate in a manner which the provinces so far have not approved of.

I put it to you, that, certainly in this instance you are over the mark.

Mr. Kaplan: Well, I concede again, that the powers of the provinces are constrained by this set of constitutional changes; but it is not a reduction in favour of increased authority to the federal government.

If I could come back to something you have indicated earlier, you said you favoured the replacement of the present set-up by an elected Senate without reducing the primacy of the House of Commons, that that would be the sort of proposal which you would favour.

That makes a lot of sense to me-and here I am speaking personally. But what is the primacy of the House of Commons under the present constitution? I am not aware of any primacy. In fact, I agree with you that it has in the popular conception and perhaps in the national will, a certain primacy, and that is part of the justification for having the House of Commons prevail when the concept of a suspensory veto is put forward.

Senator Roblin: Mr. Minister, on a second’s reflection, I am sure you will recognize that the House of Commons has a primacy. It is the organ of the federal government which makes or unmakes governments. This government can be defeated in the Senate every day of the week and it is not going to make any difference to its right to continue to run the affairs of Canada. That is the primacy of the House of Commons. To make or break governments. There is no greater primacy than that.

Mr. Kaplan: What about the passage of legislation?

Senator Roblin: In the case of the passing of legislation at the present time the Senate has the right to refuse to pass it if they Wish; but we are talking about the primacy of the House of Commons.

I put it to you that the making or breaking of governments is really the touchstone.

Now, if you want to go on to discuss my proposition, I would say that the very thing you are doing here is the wrong way. If you want to give the Senate a suspensory veto, then give it in

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ordinary matters of legislation; but do not deprive the Senate of its veto on matters in connection with the constitution, because that is the wrong way to go about it.

However, I wanted to put that to you, that, in my opinion, just because you are not changing the powers of the federal government, does not mean you could unilaterally change matters which are of concern to the provinces. I reject that as a logical, effective way of approaching this problem.

It is no good to say that you are reducing both levels of government uniformly. That is not the point.

You are dealing with the provincial share of it-unilaterally! That is the point.

Mr. Kaplan: The situation in which the Senate’s resolution is made suspensory is one in which the approval of the country, of the regions of the country, is obtained under the procedures in the amending formula; in other words, the degree to which it matters that the Senate disagrees is reduced, because before the Senate’s position can otherwise hold up legislation or the amendment, you would have to have the approval of east of Canada, of the West of Canada, and of Ontario and of Quebec.

So what would be in your view the justification for the Senate vetoing a matter, given not only the approval of it by the House of Commons by the approval of it under whatever amending formula is agreed, but one which would certainly reflect the views of the region.

Senator Roblin: You are dealing precisely with my point because as the situation stands at the present time, I am convinced by the logic that was expressed by Mr. Nystrom and others with respect to the problems you get into when you introduce this regional concept into constitution making.

In the ordinary affairs of our Canadian constitution, we do not deal with the regional concept; we deal with the provincial concept. You have gone off that base and you are dealing with the regional concept, and it opens up a lot of problems, the solution of which is not apparent. One is to do with the question that Mr. Nystrom raised, mainly that a majority voting no, let us put it that way, in the provinces of western Canada, leaving the maritimes out of this argument, that is another kettle of fish, but the provinces in western Canada could vote no to a matter in terms of the popular vote and yet they would be ascribed as having voted yes.

Now, if you get the manifest contradiction in your regional voting pattern, as is quite possible, then I think the question as to whether or not the Senate should have some say about that has some more weight to it than lt might otherwise have.

I want to go off the Senate thing because I think that has been thoroughly exhausted, but I want to put it to you that this whole question of using the regional concept in your amending formula really ought to be looked at more carefully. I do not think you have solved the problem when you can get a majority in western Canada, and that is what western Canadi-

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and are afraid of; we have heard what the separatists in the west are doing with this clause. They are pointing out that we can vote no in the west and yet the returning officer will write down that we voted yes.

Mr. Kaplan: But if the returning officer writes down that they voted yes, it will be because certain provinces within the west have voted yes, because two or three provinces have voted yes; I guess it would be two, considering the numbers.

Senator Roblin: Precisely, and I think that is your problem. Now I think we have to readdress that because in western Canada, over 28 per cent of the population of our country live in the west, and if you want to compare it with Quebec, there is some 400,000 less of a population in the province of Quebec than there are in the four western provinces, and we do not know what the western situation is going to be in the future, but that is the way it is right now.

Now, we can have the point where one region, namely Quebec, can register its opinion as a region by a majority vote and yet another region of Canada with a larger population faces the prospect that it might not be able to have its majority opinion on a popular vote, which you are so fond of, recorded as being effective in the discussions.

Mr. Kaplan: Do you not think that it would be much more arbitrary to take the majority vote in the west as the position of the west?

Senator Roblin: Certainly I do, and I would say move off the regional principle.

Mr. Kaplan: On to what, though?

Senator Roblin: On to the Vancouver formula, or if you do not like that, there are many variations such as the Toronto consensus; move off the regional basis, That is how you solve that problem.

Mr. Kaplan: Senator, you are putting your finger on the reasons that we are now dealing with the question after 53 unsuccessful years of trying to come up with a perfect solution, because there is no perfect solution and it seems also that there is no solution that will achieve a consensus of support.

The Victoria formula did, but that consensus did not last very long. But the fact that that, in the whole of the 53 years, was the only formula that did achieve a measure of consensus, and I concede a limited measure, that is why the federal government has picked it; not because it favours the position of the federal government or favours the position of Ontario or Quebec, it does not. What it has going for it is not necessarily that it is the fairest formula or the perfect formula, but that at a certain point in time, unlike all of your other ideas and my other ideas, it was once acceptale to all I I governments of Canada.

Now that is why it is chosen, and if there were a present solution, the Statute of Westminster would have repatriated the constitution with an amending formula.

Senator Roblin: Let us deal with the point you raise.

First of all, you talk about 53 years. It would have done you good, Mr. Minister, to have been here when Allan Blakeney

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appeared before us because he exposed that 53 years as the kind of unsubstantiated statement that it really is. How many of the 53 years have we been discussing the essential factor of your amending procedure, namely the referendum? We have never heard of it in this connection, as far as I am concerned, only very recently indeed. One of the flaws of your whole position is that we have-and I will not say yours, I say ours. I am in this with you; I am looking for a solution.

One of the problems that we face in connection with the referendum is that we have not thought through thoroughly enough its implications. Now you mentioned the Victoria formula, but did you ever ask yourself: why is it out of favour now? The reason is very clear, because the provinces have realized that regionalism, as expressed in Victoria, has a lot of problems that we have not solved, and they want something else.

I happen to believe that there are other formulae that will attract more support than the Victoria one available right now.

Mr. Kaplan: It is exactly because of that that the door is left open for alternative formulations. This is the one aspect of the constitutional package where the door is clearly left open, where it is recognized that there may be a better answer, that regionalism may be out of style, as you have suggested.

Senator Roblin: There is only one door left open. That door is the referendum door and I wish that door was sealed up and walled up because the referendum system does not suit our country. That is the door that is open, and how is it open? Well, it is open about that far because you have got seven provinces and 80 per cent. I do not really think that is open very far.

I put it to you that we would do well, no matter what else we do in this bill, if we drop that referendum idea and say: we have not really thought this thing out. It has not got the answer to the questions we are trying to solve. I would sooner wait a little bit and get a better answer than rush ahead with this one.

Mr. Kaplan: But what reason is there to believe that waiting a little bit will produce a better answer. It seems to me that if history has a lesson for us, it is that time will not produce a solution to the amending formula, and if you deny us a referendum, you are admitting a deadlock. You are saying it is better to have a deadlock than to be able to break the deadlock, and when you look at how long we have lived with a deadlock, how can you favour an amending formula that would have a deadlock?

Senator Roblin: Mr. Minister, I am a little more relaxed about the time element than you are. I can see that. I do not believe the possibilities of negotiation have been exhausted, not by a long shot. I believe that the possibilities of negotiation and getting a good result are still there, and I see no reason for impatience. We have allowed impatience to overtake our idea of patience.

You say 53 years; I think that is a myth. Mr. Blakeney dealt with that matter. I am not going to repeat what he said.

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Mr. Kaplan: After 1971, Prime Minister Trudeau believed that negotiation could still produce a solution. I know the question was raised, why was this not done after 1971, and the reason was, I gather, and this is my own interpretation of the facts, that consensus had been so close. I mean, they had actually agreed on a particular day and yet, IO years later, 11 years later …

Senator Roblin: Mr. Minister, I do not really wish to get into this because it becomes a matter of dispute and opinion, but when I read that “Ministers’ Eyes Only” document that dealt with the meeting in September, when they set their policy on the assumption of failure, I said to myself, there is something wrong with the negotiating stance of the federal government if that attitude of mind is the one that informs the people in charge. I think I stand by that position. Negotiation has not been exhausted. The Prime Minister’s patience has been exhausted, that is all.

Mr. Kaplan: I understand the negative interpretation that you have drawn from that memorandum, but the memorandum certainly contemplated the possibility of a successful, agreed conclusion of the conference.

It should be obvious to everybody that that would have been better; the Canadian people would have preferred that. The federal government would have preferred that but I do not think that the initiative of amending the constitution should be discouraged or put off because of the inability of that format of federal-provincial meetings to produce a successful conclusion.

The Joint Chairman (Mr. Joyal): This will be your last question, honourable Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman. You have been kind to me.

The position that you want us to accept then, is that we take your formula in order to get this bill through Parliament and through the various stages regardless of the fact that it would not pass if it had to abide by the amending formula that you propose for all future considerations. Morally, I find that a very difficult proposition to swallow.

Mr. Kaplan: I think that 53 years suggests that nothing would pass that process.

Senator Roblin: 53 years, nonsense.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Roblin, and I am quite sure that you will recongnize that anyone that approaches the constitutional question has to be of infinite patience.

Senator Roblin: Mr. Chairman, you set us a splendid example. I wish it was contagious.

The Joint Chairman (Mr. Joyal): Thank you very much. I would like to invite honourable Bryce Mackasey on the supplementary question.

[Translation]

Mr. Mackasey: Is it possible to ask a supplementary question, Mr. Chairman?

[Text]

The Joint Chairman (Mr. Joyal): I think so, Mr. Mackasey. I would seek the agreement of the honourable members

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around the table and I still have Mr. Hawkes on my list as a main speaker.

Go ahead, Mr. Mackasey.

Mr. Mackasey: Before Mr. Roblin leaves, I just want to remind him that Premier Blakeney, when he was here, and I have read his brief and I would like to get back to it, quite astutely emphasized the length of 53 years. We have not been discussing for 53 years. It was the Bill of Rights, not the amending formula and the amending formula has escaped us for 53 years.

Senator Roblin: I do not think Mr. Blakeney was referring to a referendum. That is my point.

Mr. Mackasey: If we are talking referendum, you are absolutely right. We are talking about the amending formula.

The other point I want to make, Mr. Minister, that seemed to be overlooked here is that suddenly we are down on regions, but is not the concept of regions the basis for the Senate appointments? Are they appointed by provinces or by regions. I ask you this from your law officers because somehow the inference could be left here that suddenly we have discovered regions as an alternative to provinces when, in fact, the regional concept goes way back to the original building of this country when the basis for appointing Senators was done by regions.

Mr. Kaplan: In fact, I am told that it is a regional allocation of Senators; so many from the western provinces; so many from the central provinces, Ontario and Quebec; and so many from the east.

Mr. Mackasey: Maybe your officials would like to reemphasis that because I think this is a fundamental point.

Mr. Kaplan: Yes, I understand the weight of what you are saying. You are saying that this regional fact is already recognized in addition to the fact of provincehood. It is a good point.

Mr. Mackasey: You see Mr. Minister, for the last few weeks whenever we talk amending formula, the inference is left that suddenly we are downgrading the importance of provinces at the expense of regions as if this was a new concept of the Prime Minister of the present government.

Mr. Kaplan: Permit me to draw the Committee’s attention to Section 22 of the BNA Act where it provides that: In relation to the constitution of the Senate, Canada shall be deemed to consist of four divisions …

Mr. Mackasey: I did, not hear you.

Mr. Kaplan:

In relation to the constitution of the Senate, Canada shall be deemed to consist of four divisions: I. Ontario; 2. Quebec; 3. The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island; 4. The Western Province of Manitoba, British Columbia, Saskatche-

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wan and Alberta; which Four Divisions shall be equally represented in the Senate as follows …

Mr. Mackasey: Mr. Minister, that is a very fundamental principle. Call them divisions or call them regions but they are the basis for the representations in the Senate.

Mr. Kaplan: Yes.

Mr. Mackasey: And obviously, therefore, if the Senate is, we presume, to represent or make sure that in the House of Commons somebody’s interest, some groups’ interests are being properly represented, it is regions rather than provinces.

Mr. Kaplan: Yes, so viewing western Canada and eastern Canada as regions has a pretty well established foundation.

Mr. Mackasey: If we stick with the concept of regions for the amending formula or for the referendum formula, we are only being consistent with what the Fathers of Confederation in their wisdom, and we have heard a lot about their wisdom …

Mr. Kaplan: Exactly.

Mr. Mackasey: Thank you, Mr. Minister.

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

I will invite Mr. Robinson on the supplementary question, and then do the same with honourable Senator Austin.

Mr. Robinson: Thank you, Mr. Chairman.

A brief supplementary arising from the question of Senator Roblin in respect to referendum, and that is this, and it follows up on questions of Mr. Nystrom yesterday: Mr. Minister, how do you expect to defend the amending formula, particularly the referendum provisions in western Canada when those persons who are opposed to this formula will point out that although a majority of all of the people of Quebec is required and a majority of all of the people of Ontario is required, that amendment to the constitution of Canada can be passed despite the fact that 60 per cent of the population of the western provinces, a population greater than that of Quebec, are opposed to a particular proposed amendment? How can you expect anybody to defend that in western Canada?

Mr. Kaplan: Let us explore that 60 per cent of western Canada. What would that mean in terms of provinces in a hypothetical example? For example, the majority …

Mr. Robinson: Two provinces would be supporting it perhaps by a fairly narrow margin, for example, let us say British Columbia and Manitoba; two other provinces, for example, Saskatchewan and Alberta reject it, shall we say, by a substantial margin. They feel that this amendment is not in the best interest of their people.

It would be permissible under the terms of this proposed amending formula for an amendment to be foisted upon the people of western Canada despite the fact that a majority, a clear and decisive majority of the people in that particular region, and you talk about regions, Mr. Minister, despite the fact that a clear majority of the people in that region were strongly opposed to that particular proposed amendment, how

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is this going to be saleable in western Canada at a time when already there is very serious concern about some of the other provisions of this proposed amending formula? How can you defend the equity of that?

Mr. Kaplan: I wonder if you are serious in your question.

Mr. Robinson: I am very serious in my question.

Mr. Kaplan: Because I think if the government had proposed a formula which gave effect to the majority as you proposed it, you would be asking the following question; you would be asking how can we voice something on western Canada or propose voicing something on western Canada when the majority of the population of each of two provinces was against it. In other words, you are attacking what the government is proposing because it is proposing that. If we ignored the fact of provinces within western Canada, you would object to that. Here we are providing nuances within the western Canadian participation in order to reflect the fact that there are four provinces there; some have low population and some have high population.

Mr. Robinson: One minute you talk about provinces, the next minute you talk about regions.

Mr. Kaplan: But I feel that that criticism should be made of what you are saying. You are criticizing the aproach to the West because it is sensitive enough to take account of the existence of provinces within that region. If we had failed to take account of it, you would be objecting to us for failing to take account of it. In other words, neither solution is a perfect one but it is desirable to have an amending formula in a constitution; it is desirable to give the West a veto power. The West is given a veto power.

Mr. Robinson: Not as a region.

Mr. Kaplan: It is also four provinces and the formula that is proposed takes account of that. If we did not do it, I am certain you would be objecting to our failure to do it.

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

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

Again I would like to put a variation on the proposition that Mr. Robinson has just given you. It would be impossible under the simple population example for a vote to have 51 per cent of the western region but actually only the population-put it this way, you would have 51 per cent of the western regions but you could have that particular proposition defeated in three of the four provinces; one province might have an 1 overwhelming vote in favour of it; the people of three other of the western provinces might have a vote that is negative to some degree and yet the motion might carry, and I feel that the people of three of the four western provinces would have an understandable sensitivity to their wishes not being expressed but expressed somehow by a preponderance of one part of their region.

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Mr. Kaplan: The approach which you are arguing today, Mr. Robinson, is one which would ignore the interest of the less populated western provinces.

Senator Austin: Mr. Chairman, I believe it does and it is my question.

Mr. Robinson: Mr. Chairman, on a point of order, Senator Austin has misinterpreted, I am sure innocently, what I was suggesting. I was not suggesting that there should not be a requirement for two provinces as exists already. All I was suggesting was an additional safeguard, Senator, of a regional majority as well.

Senator Austin: I have not picked up that additional nuance. So you are suggesting it must be two provinces plus …

Mr. Robinson: Plus an overall regional majority. Senator Austin: Plus an overall regional majority. That would really be a very substantial kind of support for something, and as Mr. Mackasey just said, could lead you to another form of referendum deadlock in the country. You could have that region by that double step opposing the will of the rest of Canada. It is a very complex and convoluted suggestion.

Mr. Minister, I wanted to ask you this question, or at least to inform you with respect to Senator Roblin’s questions about the issue of delay and as Senator Roblin referred to, the government may have lost its patience, but there is no deadlock. You were not here to hear the evidence, but Premier Hatfield came to us and tols us in succinct words that the only purpose of delay would be to achieve more delay, and we have also had Premier Davis tell us that he supports the government breaking the present constitutional deadlock in the circumstances. So those two Conservative Premiers have added their weight to the government’s view that this is not just a lack of patience. It is, in fact, an overwhelming frustration of the process itself and it support the comments you are making.

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Mr. Kaplan: Thank you very much for adding that to the weight of the argument I tried to make to the Senator.

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

I would like to invite now Mr. Hawkes on another subject, I understand.

Mr. Hawkes: Mr. Chairman, I intended to raise a subject that has not yet been raised in Committee and I suspect that there might be supplementaries, and given the hour I am wondering if I could be given some sense of priority at the first convenient opportunity, but it might serve the interests of the Committee best to call it six o’clock and to commence again this evening.

The Joint Chairman (Mr. Joyal) : Well, I see that we have still at least eight minutes to go on and we are working on a 10-minute round and I am quite sure that we could do as we have done with the honourable David Crombie yesterday,

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which was to open the subject and come back in the first row and we will reconvene later on tonight, and then you are able to at least inform the Minister generally of your interest and you could perhaps seek additional information and that will help you and other members to receive a complete answer.

Mr. Mackasey: He is in his hospital bed, he is probably watching TV right there. He can listen to it.

Mr. Hawkes: I am pleased to hear that the Minister of Justice is listening and I wish him well.

The Joint Chairman (Mr. Joyal): If I were the treating doctor of the honourable Minister of Justice, I would recommend as my first instructions, to ban all TV and all allusions to constitutional conferences at this point, but I would invite Mr. Hawkes to go on with his questions.

Mr. Hawkes: Given the delay, he will not hear us until about 7:30 anyway.

Mr. Minister, those of us who have sat in this Committee over 200 hours have heard a number of groups that expressed an interest in more time because they wanted that time for concensus, but I think even more importantly groups have warned us that the words of this Charter will govern us in the future, that intentions are not sufficient and will not have much sway in a court of law, but that in fact the way the words are written is the way that we will be governed in the future and in fact, those are what a court can use in reaching its interpretation.

We have seen, in the original Charter, some discrepancy between the drafting and the intent of the government. We have seen, I think, in testimony and witnesses who brought to our attention some unintended consequences of wording and some of those have been looked at and corrected.

I want to deal with you in trying to get a sense of government policy and whether the words in some of the clauses, and one clause in particular, reflect the government’s intent. I see a set of words in the Charter that begin in the following fashion:

“Nothing in this Charter limits …. ”

If we just take that phrase, I am not a lawyer, but I assume that what that phrase does is set aside all of the rights in the Charter. It makes this, if you like, that wording is dominant over what comes before and what comes after when it says: “Nothing in this Charter limits”; am I correct? Could you get me some technical advice on that?

Mr. Kaplan: Well, I would want to know what sentence that was hung on, but it could have the opposite meaning of that which you suggest, far from reducing rights it could assure supplementary rights.

For example, nothing in this Charter takes away existing rights of one kind or another; if that was the total sentence, then it would add in addition to the rights contained in the Charter or accorded in the Charter, or recognized in the Charter, there would be an assurance of the survival of other rights.

So it could have just the opposite effect to that which you say.

And if I may also comment on an earlier observation of yours, I cannot accept the logic of people whose position is that

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they want a full opportunity to respond to the measures put forward by the government. If you take that to its logical conclusion, you could never finish the process because the government would put out its position, you would agree that they should have the right to respond to it, they would; the government would be influenced by their reactions to the government’s proposals and would respond, but the response would be different from the original proposal and it would be different, probably, from the submissions of the group who are asserting this right, so that then they would have the right to respond again to your reaction to their response.

You would have to give them time to respond again; you would have to take some account of their response and change your proposal somehow or other, so since it was different from your original proposal and your revised proposal, the logic of the right to respond would give them another right to respond again to how you reacted to what they proposed in respone.

I mean, you just cannot do that. If you are going to have action, you have to say at a certain time: we will take the responsibility at this point for taking into account the public’s reaction to what we have done and pass something which we will stand behind and which we will see passed into legislation, or in this case, passed into a resolution. To do otherwise, is to enter into some kind of a trap that you can never get out of.

Mr. Hawkes: I think the thrust of that offer of assistance from the people of Canada, in part at least, was to put many minds to work on possible interpretations of particular sets of words. Surely you are not suggesting that in the interests of speed, you would want to put into preeminent law in this country, bad sets of words that have unintended consequences, that do damage to society?

Mr. Kaplan: No, but what I am saying is that this is it, that the measures have been brought forward, the Conservatives themselves felt that running until February 6 would be enough time to collect, I think perhaps they have changed their minds, but I remember very well in the House they felt that if this proceeding was extended to February 6, that would be enough time. So it is extended to February 6, we are collecting an enormous amount of response, the public of Canada is very interested in constitutional reform, the government will take account of their reaction and bring forward, presumably bring forward measures and already have brought forward some measures that respond to this reaction.

However, to suggest that that further reaction or that that further set of amendments calls for another opportunity to the public to respond gets into the trap that I have already described, that I just do not think makes sense.

Mr. Hawkes: Can we just continue with the set of words I started with and just see if they express the intent of the government?

Mr. Kaplan: All right.

Mr. Hawkes: I read a little further:

“Nothing in this Charter limits the authority of Parliament or a legislature”.

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We are dealing here, then, with a statement in the Constitution of Canada which affirms the rights of a Parliament or legislature to ignore the individual rights in other parts of this Charter? Is that not the intent of that particular wording?

Mr. Kaplan: I say categorically not, and I think it is most unfair to read the phrase as if the phrase was a sentence. I think I have located the one that you are referring to and I would like to read that whole sentence.

The sentence says: “Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French”. Well, what is your objection to that? What amendment would you propose to that to make it fairer?

Mr. Hawkes: Mr. Minister, you have the legal advice and I do not. I am not a lawyer, I am simply enquiring into the meaning of the drafting and asking whether or not the drafting adequately reflects the policy intent of the government. What you are saying to me is that the phrase, “Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French”, what you are saying to me is that that first part of the phrase, “Nothing in this Charter limits”, does not have the effect of setting aside other parts of the Charter?

Mr. Kaplan: Well, let us say that the paragraph read:

“Nothing in this Charter limits the authority of Parliament to deny habeas corpus to an individual”.

Now, that of course you would have a point, because that does derogate from the rights and freedoms accorded in this Charter, but if you look at the sentence that is there, it is obvious that it does not. It does not affect, it does not reduce the rights and freedoms provided elsewhere in the Charter. It simply assures that the Parliament and the legislatures have the continued prerogative and sovereign authority, which I think Canadians want them to have, to advance the equality of status or use of English and French.

You can take the first word as “nothing”. Take the word “nothing” and play games with it and you can make repulsive sentences out of it, but what will that prove?

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

I see that you have additional questions and you will be the first one of our speakers tonight when we resume our work after our dinner, and I see that Senator Austin has a point of order to raise at this point before we adjourn our meeting.

The honourable Senator Austin.

Senator Austin: Mr. Chairman, I did want to discuss before the Committee my understanding of the arrangement that has been made amongst Mr. Epp, Mr. Nystrom and myself, and I had Mr. Epp’s agreement to do that. I believe it should wait until 8 o’clock when Mr. Epp is present.

However, it was agree that at 8 o’clock the Official Opposition would present amendments to this Committee, their pro-

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posed amendments to this Committee, their proposed admendments to this Committee, and I would appreciate it if Mr. Hawkes could speak to Mr. Epp to square their own arrangements on their side as to what procedure they want to follow right at 8 o’clock.

The Joint Chairman (Mr. Joyal): On that very question. Senator Austin, I had an opportunity earlier to speak with the honourable Jake Epp and I took the initiative on behalf of all the honourable members of this Committee to offer him a fair opportunity to table and present the amendments on behalf of the Official Opposition, and I think that honourables members of this Committee will recognize that it is a very important moment in terms of the evolution of our discussions and exchange of views, and I offered to the honourable Jake Epp all the time he needs to make his full presentation so that our further debate would be made easier if we had a full opportunity to hear from him.

So, as a Joint Chairman, and it is probable that the honourable Senator Hays will be in the Chair as we do alternate usually, he will invite the honourable Jake Epp to make his full presentation at 8 o’clock tonight.

That seems to be agreeable to the representatives of the Official Opposition.

Senator Austin: Yes, it is, Mr. Chairman, and my understanding is that following that presentation Mr. Epp will be prepared to take questions of a kind that would provide information as to the amendments, from other members of the Committee?

The Joint Chairman (Mr. Joyal): Yes, with the proviso that of course Mr. Epp or other representatives of the Official Opposition will not be in the Chair in the usual session that we have with cross-examination of witnesses. I think that it would not be the proper form or the proper way of dealing with additional information, but I have conveyed the views to the honourable Jake Epp that some points might need some additional information following his presentation and he would be agreeable to answering short questions.

Senator Austin: My understanding, then, Mr. Chairman, is that should Mr. Epp’s explanations and the Committee’s questions of Mr. Epp terminate before 10 o’clock, we could then go back to the general review under Clause 1 until 10 o’clock, but it is my further understanding that tomorrow afternoon at 3:30 p.m. Mr. Nystrom may have some amendments to propose on the part of his party and he would also be prepared to take some questions from the Committee with respect to explanations, although he would not of course offer himself as a witness in the strict sense, as you have just said with respect to the procedure relating to Mr. Epp, but that following the end of that period .of discussion tomorrow afternoon of the NDP amendments, it is agreed on the part of the three parties that we would begin our clause by clause consideration of the joint resolution and that, Mr. Chairman, was going to be my report at 8 o’clock. I think perhaps we might simply refer to it again at 8 o’clock to make sure that Mr. Epp acknowledges that this is the arrangement because I did not originally want to speak in his absence so we could have his approval.

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I would simply then add that it will be necessary for the traffic committee to discuss a procedure with respect to the timing of further amendments. Obviously the amendments to be introduced tonight and tomorrow are not all the amendments that will be placed before the Committee. I understand that the Minister of Justice, or the Acting Minister of Justice will have additional amendments and no doubt other amendments will come from the parties but the traffic committee, bearing in mind the January 30 date, will have to set some form of a limit so that amendments can be appropriately considered by the Committee.

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

Mr. Nystrom on the same point of order.

Mr. Nystrom: On the same point of order, I just wanted to inform Senator Austin and yourself, Mr. Chairman, that all the parties of course are having caucus meetings tomorrow and we will be discussing the constitution and we have not decided how we will proceed yet in terms of whether or not we will do the same as Mr. Epp.

We may indeed do that. We may instead of doing that just release a few at a time with of course adequate notice, we just have not made that decision so I cannot comment one way or another as to what we will be doing on Wednesday or Thursday.

We certainly, even if we go the route of releasing them all, would not be ready, for reasons of translation and so on, by tomorrow afternoon. I just want to make it clear that we have not made that decision and we will give everybody adequate notice that it might be two or three at a time or it could be the whole package.

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

Mr. Don Munro.

Mr. Munro: Thank you, Mr. Chairman.

On this same point of order, do I understand, Mr. Chairman, as we would be proceeding following the presentation of the two packages of amendments, that we would be proceeding to clause by clause, that that prevents us from calling witnesses under Clause I, are we standing Clause I and could turn back to it, perhaps, because there is the evidence, I think, of the honourable Mr. Roberts and the honourable Mr. MacGuigan whose testimony would I think be of interest.

Under clause by clause it might difficult procedurally to receive them as witnesses and to ask them questions, but if that still permits. us, by going to clause by clause, to revert to Clause I for certain purposes, not just to hear Mr. MacGuigan and Mr. Roberts but other Ministers as well.

The Joint Chairman (Mr. Joyal): I think that I should reserve that point for further discussion tonight because, as the consensus was conveyed to me by the honourable Jake Epp earlier this afternoon, that very question has not been the object of an agreement. Up until now the agreement as was put to me was that the honourable Jake Epp would be invited

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on behalf of the Official Opposition to introduce the amendments or the so-called package of amendments that the Opposition wants to present at this point of our work, and there will be the possibility of short questions for additional information that might arise after that presentation, and then we will continue the general discussion with the honourable Acting Minister of Justice for tonight, and that would be the schedule of our work for tonight.

For tomorrow, we just heard that Mr. Nystrom wants to have further consultation with his caucus, and I understand that other related matters are the objective for discussion amongst the parties around the table.

So if there is no more expression of views at this point …

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I listened with interest and of course agree with my learned friend, Senator Austin, who speaks on our behalf.

I just want to point out it is a rather novel concept of spotlighting, if you like, proposed amendments of the opposition not as they relate to a clause but as a package, and the question it raises with me, I cannot conceive of two hours of questioning Mr. Epp on his amendments since we are going to have to take each one of those amendments in his package as we come forward clause by clause, and I am only thinking of the time factor.

The other thing, without getting into a debate and I appreciate Mr. Munro’s point about Mr. Roberts and Mr. MacGuigan, presumably the one thing they have not in common is their visit to England, we have already heard that we want to honourable John Munro, we have also that we would like to have the honourable Monique Begin.

I would like to say as a member of this Committee that the government would designate the Minister to speak on those particular issues, and if the government in its wisdom, the Minister of Justice, wants to relegate or delegate questions on health and welfare or on Indians or Great Britain to another Minister, that is his prerogative, but I have full confidence in the Minister of Justice’s ability representing the government to deal adequately with any of those issues, because this would be again a tremendous departure, and although this Committee may have an exalted position in the eyes of some people, more exalted in the eyes of others than in my own, is still has to follow the normal procedure of committee.

It is not usual for us on Clause 1, on anybody’s resolution or bill, to be inviting the whole gamut of Cabinet Ministers. Theoritically Mr. Munro’s concept, why stop with two Ministers, why not go 12, 13 and 14 Ministers?

The Joint Chairman (Mr. Joyal): I thank you very much, honourable Bryce Mackasey, for having expressed your views.

I think that at this point our agenda for tonight is quite clear and the concerns that you have will certainly be conveyed by the honourable Senator Austin at a further meeting of the Subcommittee on Agenda and Procedure.

[Translation]

The meeting is adjourned until this evening at 8 p.m.

[Text]

The meeting is adjourned.

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EVENING SITTING

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

Before resuming our discussion and exchange with our witness tonight, I would like to inform honourable members of this Committee, on behalf of the honourable Senator Hays, that all parties around the table have agreed, so that tonight we will open the meeting with an invitation extended to the Official Opposition in the House of Commons to make a general presentation of the amendments that they would like to see discussed by this Committee.

We would then continue, following that presentation, with the exchange of ideas and questions that we have an opportunity to have with the honourable, the acting Minister of Justice.

Tomorrow afternoon at the opening of our meeting at 3:30, we will hear from representatives of the New Democratic Party either or the amendments of that party, or amendments that the N.D.P. party would like to bring to this table for further discussion, and, I should say, adoption, if possible.

We would be in a position to start our discussions and study on a clause-by-clause basis.

It is to be understood by all three parties, that, as was agreed on January 12, the title, the preamble, the address of the proposed act, including Schedule A, would be stood, as it was unanimously stood on that date. We will go and start with Clause I of Schedule B of the proposed motion.

We would proceed as far as each party at the table wants to introduce amendments and discussing amendments by order, which is the way in which they appear in the proposed text.

That being so, we would be in a position to move on and to have the possibility of continuing our discussion with the same procedure and then revert to the title, the preamble, and the proposed resolution.

Generally, that proposed procedure has received agreement by all three parties.

On behalf of the honourable Senator Hays, we are glad to invite the honourable Jake Epp to make his presentation tonight.

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

Before I begin, I would like to thank members of this Committee for their indulgence this evening. I think that while it is not general procedure that a member of the Opposition party does present a package of amendments in the form our party is doing it tonight. We feel that the topic before us and the Canadian people is important enough for this format; and we would like to thank Committee members for the collegiality they have shown in the matter in order to proceed in this way.

I would also like to take a moment to thank members of the Department of Justice, especially Edith MacDonald and Gerard Bertrand for the work and help they have been. It is not often that public servants arc thanked in public, but I think where it is deserved, it should be done.

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I would like to express to them, not only our thanks, but to commend them on the professional manner in which they have dealt with our party and gave us the advice and help that they in fact did.

Mr. Chairman, in presenting our proposed amendments …

The Joint Chairman (Mr. Joyal): I apoligize for interrupting the honourable Jake Epp.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Eymard Corbin on a point of order.

Mr. Corbin: Is there a valid reason why the French version of this text has not been distributed?

[Text]

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Jake Epp to provide the answer.

Mr. Epp: I would like to thank Mr. Corbin for raising that. I was going to make mention of it. I apologize to Mr. Corbin. The French text is done. I understand that there was a mechanical problem with the machine, and they should be here momentarily.

Mr. Chairman, in presenting our proposed amendments to the government’s resolution, we do so in the knowledge that it is the popular will of Canadians that our constitution rest in this country. It is also the popular will that we have a Charter of Rights and Freedoms for the Canadian people embedded in the constitution.

The Progressive Conservative Party’s position in these matters reflects the popular will. The desire to enhance our freedoms is based on the strong traditions of our party. It was this party, through the vision and leadership of the Right Honourable John Diefenbaker, which gave Canadians their first Bill of Rights. The Bill of Rights gave expression to the full citizenship Canadians desired. No longer were they hyphenated Canadians. The sovereignty of God over the nation was expressed. The family was recognized as the cornerstone of our society. The right to own personal property, so often denied in other countries, was guaranteed. Those principles are valid today; all amendments to the Charter rest on that foundation.

Mr. Trudeau says that he will not be accepting any more amendments. For the sake of Canada, I hope with all my heart that he will reconsider. Because we will be moving quite a few amendments of major substance, not just on the Charter, but on all aspects of the resolution-and I believe, Mr. Chairman, it has been the role of this Committee to look at the proposals made by members of the Committee in as positive a light as possible.

Mr. Chairman, we have listened to Canadians, and believe we have also listened to colleagues on both sides of this table. I believe the acceptance of our suggestions will save us from constitutional chaos and deepening national division.

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Our consistent and unalterable principle is that the nature of foundations of the Canadian federal partnership make utterly unacceptable the current federal government policy of unilateral action. And our pride in an independent Canada and her free citizens will not let us accept that our constitution should be changed by Britain through some dust-covered vestige of colonial power.

We are proposing to the Committee that it recommend to parliament that the current resolution be split. What we could term a ‘patriation package’ based wholly on agreement now in Canada, should be sent to Britain for immediate action. What I might call the ‘Canadian package’ should be sent to the provinces by Parliament under the agreed amending formula that would be put in place. Thus, all changes in the Constitution would take place here in Canada, dealt with by no one but Canadians in their agreed Canadian way.

First, the patriation package. We want to see Britain asked to patriate our constitution to Canada on the basis of the Vancouver amending formula, acceptable to all the provinces.

Parliament should also commit the Government of Canada to a comprehensive, accelerated and sustained First Minister’s Constitutional Conference to address the full broad range of constitutional renewal issues. An amendment to achieve this purpose is offered in our amendment to Clause 32.

The first component issues to be addressed under the new amending formula provisions would be the Charter of Rights and Equalization. Resources could also be given attention.

At this stage, I would like to draw the attention of members of this Committee to the very reference under which this Committee is operating; and we would also like to put forward that, should the Committee find some manner in which to accept amendments on resources, we would be moving an amendment on resources at that time. Members will have noticed, I am sure, that that amendment is not in their possession, for reasons of the narrow reference by which this Committee is functioning.

We will be proposing that this Canadian package, improved as much as possible, should be recommended by the Committee for Parliament’s passage.

These items, should not be sent to Britain, but referred instead to the provinces under the amending formula. The Committee should vote for them. We believe that Parliament should vote for them and not let them hang in abeyance; that Parliament should declare its position; but then not to send them to a foreign Parliament where such basic decisions for Canadians do not belong.

Our proposal to split the package is not an amendment to this proposal, but rather it is a procedural motion.

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Mr. Chairman, we would like to serve notice to you and to members of the Committee that we will move that procedural motion or motions at the appropriate time.

On our amending formula proposals, to be part of the patriation package, I want to touch on a few highlights.

We believe that all the provinces, whatever their individual preference is, have agreed in principle that they could accept the Vancouver formula; further, they realize that it is the only one that could go to Britain now, or at any near date on the basis of agreement. I say that, Mr. Chairman, not in deprecation of the Victoria Formula; I believe it has been put forward by members opposite in the same good spirit as I am putting forward the Vancouver Formula tonight. But I say to them that I believe the Vancouver Formula has more recently received approval than has the Victoria Formula.

So, we are proposing that the September Best Efforts Draft wording coming out of the continuing committee of Ministers studying the constitution, for the basic elements of the Vancouver Formula be substituted for the government’s Clause 41 wording.

We recognize that some additional details of the Vancouver consensus had not been worked out in final form when the Prime Minister arbitrarily stopped negotiations in September.

For example, consideration was given to financial arrangements in the summer discussions. These discussions were inconclusive and pointed out the need for a resolution in this area.

But there was an impasse on Vancouver, and final agreement was within reach. Not only do I believe that Mr. Chairman, but I believe that many of us who participated directly and those of us who observed, believe that agreement could have been reached this summer.

We are confident that the First Ministers could finish that task very quickly, and find agreement on those final details.

Accordingly, we have provided for that in a sub-clause of our Clause 41, providing for such an agreement to be added to the main essentials of the formula.

Some members opposite will find it familiar when we talk about eight provinces encompassing an aggregate of 80 per cent of the population.

Of course, we reject utterly the use of a referendum mechanism whereby the federal government could completely ignore the provincial partners in our federation. The former leader of the New Democratic Party, Mr. David Lewis, has called that “immoral”. Mr. Lorne Nystrom, our colleague here, has called it “very dangerous in a federation”, and a denial of “the basic essence of federalism”. Mr. Gordon Robertson, the former Secretary to the Cabinet for Federal Provincial Relations, has condemned the referendum on the

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same ground, and has expressed publicly his deep concern over the likely divisive effects of the use of such a device.

We will not play with Clause 42; we will not try to amend it, or say how it shall apply, or in any other way, even partially concede validity to anything about it.

I should possibly point out to members at this time that references to Clause 42 in our amendments have been struck in all cases. It simply has no place in the Canadian federal way of doing things.

We do not like the present form of the federal Upper House-and I might say, Mr. Chairman, this is no reflection upon members who sit in the Other Place and who sit also at this table-but we do not want to see its modernization, in keeping with a renewed federation, foreclosed by premature unilateral action now.

To turn now to the Canadian package, which we will be calling on Parliament to send to the provinces for their approval-and, again, I might repeat-after Parliament has made its decision and voiced its opinion and support for that package.

Mr. Chairman, then, the Charter. Clause I: From the very early stages of our Committee’s work, it became apparent that this section would need to be improved if this Charter was to effectively protect the rights of all Canadians.

The government has responded to those criticisms in its proposed amendment, an amendment which recognizes that governments must demonstrate the necessity of any infringement on the inherent rights which all Canadians have.

However, our party also feels that this first section of a fundamental document should recognize and affirm the basic principles underlying both the Charter of Rights and our nationhood. These were eloquently expressed in the Canadian Bill of Rights of Prime Minister John G. Diefenbaker.

Mr. Chairman, possibly this would also be a good place to inform you that we have worked on a preamble; and it is our view that a preamble is needed for the Canadian constitution-a preamble that only reflects our common heritage as a nation and a people, but which also can be a symbol to others as to what the principles arc on which the nation is based.

While we recognize as well, Mr. Chairman, that at this present time that is outside the scope and reference of this Committee, it is for that reason that you do not see a preamble in that sense before you tonight.

The first amendment, then, to Clause l, would be as follows:

I. Affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions. Affirming also, that individuals and institutions

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remain free, only when freedom is founded upon respect for moral and spiritual values and the rule of law.

We then continue unchanged. Mr. Chairman. with the government’s present Clause 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 law as can be demonstrably justified in a free and democratic society.

I should also like to inform members of this Committee at this stage that the manner in which this is proposed, that in terms of the procedure the Clerk has pointed out to me today that while the words can remain, you will see, Mr. Chairman, in your kit of amendments that the wording is placed slightly differently, and that is for reasons of drafting; that we are quite open to the suggestions made by the Clerk and any others that you might make, whereby the amendments are more acceptable in terms of procedure through which you will have to guide us, but as well, it will in no way be an attempt through our amendments to delete clauses of the government’s proposals which have merit; that has not been the purpose of our amendments, but rather to keep the matter as parallel to the government’s proposal as is possible.

Mr. Chairman, it is obvious to all members of this Committee that what we have done in Clause I is to include the salutation, the first two paragraphs of the Diefenbaker Bill of Rights. We believe that was approved, as we know, by Parliament in 1960. It expressed the opinion of the country at that time. That Bill of Rights has remained in the minds and in the hearts of many Canadians as being an expression of the basis on which our society is based; and we believe it is important, not only to include those principles which are in those paragraphs, but as well, to entrench our heritage which came down to us since 1960.

This improvement to Clause I emphasizes that the spirit of the law is as important, if not more important, than the letter of the law.

I should also point out, Mr. Chairman, what we are also attempting by this amendment to point out to members and to Canadians that we are talking about the sovereignty of the nation, and that that sovereignty comes from God, that rights are inalienable rights, that they are inherent in the individual person, rather than, which is now the present case in the government’s proposal, that rights come from governments.

Clause 2: While we support the protection of a fundamental freedoms, presently listed in Clause 2, we are proposing an additional provision:

2(e) freedom from unreasonable interference with privacy, family, home, correspondence, and enjoyment of property.

This amendment will ensure that all Canadians, and in particular, many new Canadians who have come to our country in search of freedom and security, will be protected from the arbitrary encroachment of any government on many aspects of their individual lives.

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Mr. Chairman: Clause 5: We recommend that the old Clause 5 be added to Clause 4: and that is a technical amendment; and that an entirely new concept be added in a new Clause 5, and that that concept be entitled “Right to Information” and it would read as follows:

5. Everyone has the right to have reasonable access to information in possession of any institution of any government.

Mr. Chairman, as you know, when we were in government, we were deeply committed to freedom of information legislation and it was one of the first pieces of legislation that we put forward on the Order Paper. This is a further attempt by our party to adopt this principle, not only in terms of freedom of information legislation, but enshrining it in the constitution.

Section 7: we propose that Section 7 should be amended so that it will reflect the Canadian Bill of Rights. It would read as follows:

Everyone has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except in accordance with principles of natural justice.

It is desirable that any encroachment on the enjoyment of property should only occur under the appropriate framework. We believe also that natural justice, those words, as proposed are superior wording to fundamental justice in view of the greater body of Canadian law supporting the former concept.

I also want to repeat, Mr. Chairman, that the right of property, to own property, to enjoy property has been one of the issues in letters to members, at least on this side of the table, as well as members on the other side of the table, that Canadians have indicated that they want this protection.

The argument can obviously be made at this stage, Mr. Chairman, is the Conservative Party now not unilaterally encroaching on provincial rights as much as we say that the government is doing; because of the fact that property and civil rights are obviously included in the powers of the provinces in Section 92 of the British North America Act. I want to say to members that they would have to refer back to our amendment whereby the Charter would be sent back to the provinces for their approval, and it is for that reason that we do not believe that unilateralism or encroachment in fact are valid charges.

Section 9: an amendement to prevent arbitrary deportation is proposed, and it would read:

Everyone has the right, not to be arbitrarily detained, imprisoned, or deported.

Some people might argue does this not invalidate present immigration law? And I see Mr. Mackasey, who had that portfolio and those responsibilities at one time, and I am sure he would recognise that what we are dealing with here is not with landed immigrants or permanent residents, but Canadian citizens.

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Section 11: The Canadian Jewish Community has expressed some concerns that the wording of this Section would prevent the bringing to justice of war criminals. The government’s amendment does not fully address these concerns even though the government, and I want to point this out, has gone some distance, we believe, in trying to address those concerns. We propose the following amendment to make sure that the concern is in fact dealt with:

11 (g). Not to be found guilty on account of an act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law.

And we are adding the following words:

Or was criminal according to the principles of law recognized by the community of nations.

Clause 14: The deaf deserve equal treatment accorded to all other citizens. Thus we propose that Clause 14 should be amended to read as follows:

A party or a witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

This is but a recognition, Mr. Chairman, not only of one group of handicapped, but I believe more importantly that sign language is another language form and shculd be included as well.

Clause 15(1): We feel that the rights of persons with mental or physical disabilities should be protected. The so-called handicapped clause. Accordingly we are proposing an amendment to meet that objective:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

It is the last four words we are adding.

Clause 15(2): There is an unfortunat connotation inherent in the use of the word ‘disadvantaged’ in the government’s amendments. We suggest an alternative proposal which we believe avoids this problem. I should tell you, Mr. Chairman, I think that all of us have wrestled with the word ‘disadvantaged’ and how better can we express it in constitutional form.

We would propose that:

Sub-section (1) does not preclude any statutory distinction that has as its object the amelioration of the condition of any class of persons.

Clauses 16 to 23: On minority language issues, so important to so many Canadians, we regret that there is not more agreement among the governments of Canada. However, we believe that provisions for language rights in education are

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reasonable, and have a good chance of commanding consensus support. We hope to see the day when language majorities will be prepared to go even further, with fewer qualifications on provision of educational services.

Similarly, we welcome the language guarantees included in other respects. For example, in Clause 16 through Clause 20, as affecting the federal government and New Brunswick.

I should point out to members also that we have proposed a new Clause 21 which they will find in their information kits, which provides for the following conditions:

We look forward to a gradual extension of services to linguistic minorities, on a reasonable and fair basis, in other provinces on their own initiative. We regret that the government has not seen fit to include in the resolution provisions allowing provinces to opt into any or all of those provisions under Clause 16 to Clause 20, and we are proposing an amendment so that this can happen in the easiest possible manner, and that is the new Clause 21 I referred to earlier.

Clause 25: We support the government’s amendments to Clause 25 concerning native rights. We recognize the need for further discussions and refinements of aboriginal and treaty rights. We welcome the Prime Minister’s commitment to include ‘Canada’ native peoples and the constitution’ as a priority in the next round of constitutional discussions.

I want to stop here for a minute, Mr. Chairman. We spent much time on how best to express both the aboriginal and treaty rights, and yet to keep it within the art form and maybe the state of the negotiations that are now going on between Canada’s government and Canada’s native people, and we do not feel at this stage that we at least have reached further consensus than that which is expressed in Clause 25 in view of the negotiations that are taking place.

Further to Clause 25 we propose the following amendment:

Any rights or freedoms that may pertain to any cultural community.

And members will notice quickly that that is an attempt to strengthen the multicultural reality, one which the government has recognized in its amendments and we believe this simply strengthens what the government has already agreed to earlier. It affirms the rights and freedoms enjoyed by various cultural groups whose preservation is important to ensure the vitality of Canada.

Clause 26: We propose to amend the section dealing with laws respecting evidence to correspond with the evidence code as developed by the Law Reform Commission of Canada:

No provisions of this Charter, other than Clause 13, affects the laws respecting the admissibility of evidence in

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any proceedings or the authority of Parliament or a legislature to make laws in relation thereto.

(2) Notwithstanding Subsection (1), in any proceedings, evidence shall be excluded if it is established that it was obtained under such circumstances that the use of it in the proceedings would tend to bring the administration of justice into disrepute.

I should point out, Mr. Chairman, that we believe that this is a very close parallel to the experience in Scotland where judges can determine independently as to whether or not that evidence will in fact affect adversely the rights of individuals involved, as well we believe that it is an expression of English common law that has come to us to this day.

The new section then: numerous representations have been made to the Committee concerning denominational schools of Newfoundland. The Government’s initiative does not meet the expressed concerns. Therefore we propose that a new section should be included in the Charter of Rights to expressly guarantee these rights. Our amendment reaffirms the rights Newfoundland and Canada agreed to in the terms of union, 1949, and it would read as follows:

No provision of this Charter affects, or abrogates or derogates from Section 17 of the schedule to the Newfoundland Act.

Another new section, Mr. Chairman. I should possibly point out at this stage as well that we have not given these sections numbers, even though you will see in our presentation they have numbers, but I want to point out to you and to the clerks that those numbers are not sacrosanct and will change, obviously, because we will have to do re-numbering as other parties being forward amendments as well.

The new clause comes in: Parliament has traditionally voted on capital punishment and abortion as a matter of free choice, and we believe that this practice should continue. Important and delicate issues such as these should be settled by the people through their elected representatives. To meet this objective we propose:

Nothing in this Charter affects the authority of Parliament to legislate in respect of abortion and capital punishment.

And we believe that on both sides of that issue, Mr. Chairman, the right of conscience has been preserved for parties of both sides.

A new clause again: we propose an additional amendment which is also contained in the current Canadian Bill of Rights which would require Ministers to examine legislation carefully and to assist in preventing laws from being enacted that do not conform to the Charter, the so-called scrutiny clause, and members will notice that we have labelled it for our purposes i today Clause 28.

Clause 31: we support the government’s return to the best efforts draft which was developed during the summer and which entrenches equalization payments. Additionally in their kit, Mr. Chairman, members will find clauses which will delete the interim amending formula as well as those clauses, namely

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Clause 44, which relate to the Senate and which we believe removes the power of the Senate and the protection of provincial rights which are inherent in the Senate.

As well, Mr. Chairman, we have an amendment to amend Clause 50, and that amendment, the purpose of it is to reduce the possibility of amending in any way the constitutional monarchy which we all hold dear, as well as affirming the Queen as head of state.

Committee members will recognize that we are making substantial amendments to the government’s proposed resolution.

Our amendments have tv.o objectives. First, to improve the protection of rights and freedoms; second, to show the way out of the current divisive impasse. With good will, imagination and leadership we can find the ways to have our constitution in Canada and to push on to renew our federation.

That is our offer to the government, that is our pledge to the people. We want to bring Canadians together. If the government will respond to our proposal, the parliamentary consensus that would result could well be the foundation for the full renewal of our Confederation.

Canadians do not want stagnation or impasse. They do not want arbitrary unilateral action. They simply do not believe that these are the only two alternatives. Neither do I.

I hope the government will listen to us. If they do not, and press ahead instead on their ruinous course, they will have our opposition every step of the way with every weapon at our command. It has been our purpose throughout these discussions to be positive, to put Canada’s interests first and to search for objectives which will unite Canadians. We oppose the government’s unilateral action precisely because it divides Canadians.

I would also like to point out to members opposite that there are two omissions in the amendment kit that is before you. One is Clause 7, you will notice that is not attached to the body of the other amendments, but I believe you should have a copy of it in loose form in your kit. That is Clause 7. It is also in the French summary, I believe.

Then Clause 41, there are a number of words missing and I would like to direct the attention of members to those clauses as well.

At Clause 41(3), it should read:

An amendment to this section may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the House of Commons and the Senate and of the legislative assemblies of eight or more provinces that have in the aggregate, according to the then latest general census, a

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population of at least 80 per cent of the population of all of the provinces.

Mr. Chairman, I thank members for the patience and the courtesy they have shown me tonight and if I could prevail on them for just a few minutes longer I would ask that Senator Tremblay be able to do a brief summary in the French language.

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

I am grateful to the honourable members for the agreement that we have arrived at tonight. I think it is commendable of all the honourable members and that it will make our discussions much easier in the forthcoming days so that we know the general approach, and I think on behalf of the honourable Senator Hays I would like to thank you and invite the honourable Senator Tremblay

[Translation]

Senator Tremblay: I would like to thank you, Mr. Chairman, and the members of the Committee, who, through their silence, have indicated their willingness to let me speak at this point, though the regular procedure would be for us to begin our question period immediately.

Of course, I do not intend to give a detailed account of the package described by Mr. Epp since there was a simultaneous translation of his explanations.

I would like to make some very general remarks on the significance of the proposal being made to the members of the Committee this evening. The package is, as you will have realized, a comprehensive one. I believe that you are being presented with a true option to the draft resolution which the government has brought forward and its thrust can be summed up in the following manner.

The aim of our proposal is to bring this patriation attempt back within the normal federal circuit whereas several aspects of the draft resolution have exactly the opposite effect, notably with respect to the unilateral character of the action being proposed. I think that this is a very basic point of our proposals, the most significan of which would result in purifying the draft of its elements which are not in keeping with a federal system.

To give but one example of this, as Mr. Epp has already pointed out, we are not suggesting mere minor amendments to Section 42 which so obviously goes against the spirit of a federalist arrangement but we are advocating its outright removal. I could give some other illustrations but I would be getting into details.

Having taken care of the purifying of the present draft of its nonfederal elements, we also contribute to the improvement oi other aspects of the draft, in particular the charter or rights, which must be reinserted into the normal federal scheme of things, as Mr. Epp so rightly underlined. This means interparliamentary and intergovernmental consensus in Canada. Our proposals for the improvement of the charter are made with

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that in mind and, as Mr. Epp mentioned, our package is not a closed one.

We also deal with other aspects of the draft but I would like to get back to my opening point, namely that our package must be seen in the context of an attempt to make our procedures conform with normal schedule federal practices and I will limit myself to this very general description at this point in our discussion in order to allow the greatest number of members to raise whatever questions or points they are probably anxious to make.

Thank you, Mr. Chairman and thank you once again to the members of the Committee for allowing me to make these introductory remarks at the present time.

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

[Text]

I have, as you have mentioned very clearly, a list of speakers who would certainly like to put forward views tonight.

On a point of order the honourable James McGrath.

Mr. McGrath: It may facilitate the work of the Committee and cut down on our paper load if there is agreement that our amendments be appended to today’s proceedings. If it is so agreed, I move?

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): D’accord. It is accepted unanimously.

I would like to invite now Mr. Ron Irwin as our first speaker on the statement as we have just heard it.

Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

I have listened with interest to Mr. Epp’s and Senator Tremblay’s statements on behalf of their party and I welcome their support of patriation and an entrenched Charter of Rights. We still do not agree on the process but that is no surprise at this stage.

We are still discussing the merits of the Vancouver formula over the Victoria formula, we are still pondering referendum versus no referendum and so on. Naturally we would have applauded a more decisive statement of support for the Charter of Rights and equalization. However, we fully appreciate the opposition’s concerns about provincial involvement.

I do not intend to comment on each of the proposed amendments. Much of what has been proposed has already been discussed and I am still certain that there will be more discussion.

WE will be entering, hopefully tomorrow, clause by clause study and as we proceed we will express our point of view on each of the proposed amendments. Right now I think the main thing that we are looking for is clarity and I have some questions to start with taht you might categorize as soft questions.

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Basically what is the Vancouver formula, Mr. Epp?

Mr. Epp: Mr. Irwin, if you would take a look at your amendment package, Clause 41, the Vancouver package is placed before you there.

What is attractive to us about the Vancouver formula are the following two principles, Mr. Irwin.

One, it retains the principle of the equality of the partners of the federation; secondly, it had approval, most recently, of the two formulas that are before this Committee, namely Vancouver and Victoria. If you recall, Victoria goes back to 1971.

There is, and we mentioned this in our statement today, there are refinements, we believe, to Vancouver that are needed, and l believe that government members as well have stated that Victoria would need further refinement. l think that has been a generally conceded position by both around this table.

The difficulty, before I get to Vancouver, and I am not trying to be too lengthy …

Mr. Irwin: I am more interested in the mechanics of the Vancouver formula, just what does it mean?

Mr. Epp: All right, the mechanics of the Vancouver formula are the following: that you would need two-thirds, or in the Canadian experience, obviously, seven provinces having an aggragate of 50 per cent for approval of amendments to the Canadian constitution.

The four areas of opting out are included in Clause 41 (2), and then if you turn the page to Clause 41(3) there is also a provision whereby the amending formula itself, to eigt provinces having an aggregate of 80 per cent of the population, can in fact amend the amending formula.

Mr. Irwin: On opting out, just in a summary fashion, the provinces can opt out, I take it, if their law-making is affected, if their rights or privileges are affected, if their assets are affected or if their natural resources are affected; is that correct?

Mr. Epp: That is right.

Mr. Irwin: Now, what would be the mechanics of a principle such as equalization, just how would this work?

Mr. Epp: You will recall, Mr. Irwin, that in our proposal while we accept the principle of equalization payments as put forward by the government, because that was the best efforts draft of 1979 that was agreed between the federal and provincial governments of that time, that equalization would be further refined and a’ddressed to the amending formula when the whole matter as we have proposed would be taken back to the federal-provincial conferences, and if you check our Clause 32, and I am sure you have not had the time to do so, the mechanism there to reach agreement has been put forward.

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Mr. Irwin: If Alberta wanted to stay out of equalization, they could under your proposal; is that correct?

The Joint Chairman (Mr. Joyal): Honourable Senator

[Translation]

Senator Tremblay: Thank you, Mr. Chairman. If I may, I would like to make a distinction here.

Mr. Irwin has asked a question on equalization payments.

Equalization payments as such have nothing to do with the distribution of jurisdiction. Jurisdictions are the one issue at the very centre of the division of sovereignty within the federation.

However, equalization payments are aimed at solving the problem of inequality that exists between the provinces with respect to their capacity to fulfil their jurisdiction under the constitution. Consequently, the two issues are completely divorced from one another. Therefore, an opting out of equalization is completely out of the question.

Equalization payments are contained in provisions that are tackling the problem of inequalities between provinces and their capacity to fulfil their responsibility with respect to jurisdictions given to them in the constitution.

The amending formula affects the distribution of jurisdiction as such.

[Text]

Mr. Irwin: Mr. Chairman, my questions are fairly straight forward and fairly simple, and I would appreciate a little bit more affirmative and simpler answer.

Now, what about minority education? We could not, under your proposals, impose this on Ontario and Ontario could opt out; is that correct?

Mr. Epp: our whole position, Mr. Irwin, has been that we cannot impose and we will not impose. That also includes the educational clauses.

Mr. Irwin: That has to do with natural resources, the Charter of Rights and Freedom of Information, we could not impose freedom of information on any province; is that correct?

Mr. Epp: I believe that I have explained to you earlier that in terms of the amendment and the manner in which agreement would be found is in the time honoured way in the Canadian tradition, and we have given you the mechanism for it.

Mr. Irwin: Now, you say illegal evidence basically should be left up to the courts so that you do not want the court in disrepute. Under what you are suggesting, with the opting in and opting out, there could be a federal government under a criminal code with an evidence act making illegal evidence illegal; one or two provinces, because it comes within the rights or privileges, powers of a legislature and they can pass their own evidence act as evidenced in Ontario, the Ontario Evidence Act. You could have two or three provinces with illegal

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evidence condoned and seven provinces with illegal evidence not condoned; is that not correct?

Mr. Epp: No, I do not believe that is correct, Mr. Irwin. I think you would recognize that there is a checkerboard right now in the administration through the Attorneys General, the administration of law.

Mr. Irwin: So are you saying that you are going to provide uniformity and there is a checkerboard now?

Mr. Epp: That is correct.

Mr. Irwin: Well, is not evidence a power of the legislature, is that not a power of the legislature?

Mr. Epp: It is being exercised right now.

Mr. Irwin: But is it not a power of the legislature?

Mr. Epp: Well, obviously, exactly through that method it is being exercised right now by the provinces, namely the administration of Justice.

Mr. Irwin: I suggest to you under your formula that certain provinces could opt out because it affects their powers under Clause 41(2) as proposed by you; is that correct?

Mr. Epp: You do not opt out if you are out, that is right.

Mr. Irwin: Now, the same applies to the deaf? You could have circumstances where certain provinces could opt out under what you are suggesting, although it sounds very good here, some provinces could have the right of an interpreter for the deaf and some provinces could opt out of that right?

M. Epp: Mr. Irwin, I think you and I are starting from two different positions and that is this, that you are starting from the position that the provinces will not find agreement with the federal government in many of these areas of federal-provincial negotiation. That has not been the Canadian experience and we believe much more so that the provinces and the federal government sitting down together will in fact find agreement rather than the need or the desire both to create a checkerboard country or to see that opting out is a means whereby to get out from under.

Mr. Irwin: I am not attacking your position, Mr. Epp, but I think it is important we have clarity. From what I see here you support patriation plus a formula that allows opting out and nothing else unless the provinces agree; is that correct?

Senator Tremblay: May I introduce a comment here? Mr. Irwin: And no tie-breaking mechanism?

Senator Tremblay: Yes, in fact.

Mr. Epp: I agree.

[Translation]

Senator Tremblay: When we refer to the Vancouver formula, we use the expression «Opting out» I think it leads to confusion on the meaning of the formula.

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The matters that are listed concern jurisdiction or rights already existing in the provinces, which means that any amendment that would change those rights is one that would automatically give to the central government a responsibility which until then rested with the provinces.

We must decide whether all provinces will have to go along with such an amendment. Will there be absolute centralization or will allowance be made for a certain measure of diversity by permitting a certain number of provinces, which would be in the minority, not to opt in.

The distinction already exists since we are talking about areas of provincial jurisdiction. We must decide, when an attempt is being made to centralize certain activities, whether the centralization is to be absolute or whether a certain latitude will be allowed, This is the intention of the formula. It is not a matter of opting out but rather opting in.

[Text]

Mr. Irwin: But the truth of the matter is you could have a right affecting the handicapped in five provinces and not in five other provinces. Is that correct?

[Translation]

Senator Tremblay: The present situation is one of decentralization and the formula would allow for centralization which is not necessarily absolute. In this respect, there could be some diversity, but limited to a small number of provinces.

However, when there is consensus on what is perceived as a requirement by everyone, provinces will not enjoy such a possibility. At the present time, there are charters of rights in all the provinces. These charters have common features. There would be no difficulty in bringing about uniformity, at least for the common characteristics, but there are diverse situations in our country. The Vancouver formula has the advantage of allowing a certain flexibility so that some provinces would not be required to opt in.

[Text]

Mr. Epp: Mr. Chairman, could I just add one thing?

Mr. Irwin, you mentioned that five provinces could opt out. Under the formula that is not possible. It would be a maximum of three that could opt out after agreement.

The other point I would like to make is that historically we have had an opting in and opting out before especially in the area of social services. I will just give you one example: under the Victoria formula, I believe if that had been in effect at that time, you would not have been able to introduce and receive agreement-it might have happened through negotiation, and I am not forclosing that-but I am simply talking about the formula now; you could not have had agreement with Canada Pension Plan, because at that time Quebec opted out; and under the Victoria plan, where Quebec support is needed for an amendment, you in fact could not have had the Canada Pension Plan for that very reason.

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So, you have the same situation even in Victoria through the Canadian experience, whereby because you have a federation you have some form of checkerboard, if I may use that wordyou do not have total uniformity or conformity-under any formula.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin. I would like now to invite Mr. Nystrom.

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

I would like to ask questions in three or four areas very briefly.

If I may, Mr. Epp, I would like to start with Clause 32, where you talk about a constitutional conference in Canada to discuss future constitutional change and the renewal of the Canadian constitution.

You are talking here about the conference being assisted by the continuing committee of Ministers on the constitution, and the Prime Minister and the First Ministers of the provinces shall constitute a permanent conference to be designated “the Constitutional Conference of Canada.”

My question is, who are the participants-the Prime Minister and the First Ministers? Do you have 11 participants?

Mr. Epp: That is correct. In terms of the conference itself, if you go further down, Mr. Nystrom, you will notice there is another mechanism as to the preparation for the conference.

Mr. Nystrom: I wonder why you have rejected the idea which was thrown out by your Leader earlier of a constituent assembly, where you talked about 110 people participating. I am somewhat surprised that you did not enshrine that as a mechanism.

Mr. Epp: It is a good idea, Mr. Nystrom. We feel it is another step. We thought at this stage, in terms of the scope we had in the proposed resolution, that this had to be our first effort; but we have not abandoned the constituent assembly. We still feel that the participation of more Canadians, for instance, as proposed by the Mayor of Ottawa, Mrs. Dewar or Archbishop Scott, is still an idea which has merit, but at this time we have not brought in that amendment, and we believe it should be brought in but it would be in that second phase.

Mr. Nystrom: This is a change, then. I understand your Leader had suggested that this should be the mechanism to negotiate the new constitution. I am curious as to why you have switched on this one.

Mr. Epp: I do not believe it is a change. What our Leader and we have been saying is in terms of the overall renewal of the federation, there are areas we believe we should be dealing with in this Committee, quite apart from the proposed resolution. This has been our position for some time, namely, that we should be addressing ourselves to how better do national institutions function and serve Canadians and that Canadians feel they are part of the decision making process. We feel this is the first step in moving towards that constituent assembly.

Mr. Nystrom: What is the role, then, of that constituent assembly? Would it be something which would make recom-

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mendations to the group of 11, or will its deliberations be binding in terms of a new constitution?

Mr. Epp: We have not determined that, for the reason that we feel it could only be determined by way of agreement between the First Ministers, and that a constituent assembly, if it finds merit at a level of the constitutional conferences that we have proposed, that it would be a proposition that would have to be discussed at that time.

Mr. Nystrom: What about the first Canadians, the native people? There is no enshrinement of their participation in the constitutional renewal. It seems to me that they are very special. Why are they not given a seat?

Mr. Epp: I agree with you, Mr. Nystrom; but it was not in our attempt at this stage to go beyond the First Ministers; that we have said in our constituent assembly that, not only should it be representative of elected people, both at the provincial and federal levels, but also should include other people in a direct representation and that one group we have already spelled out and pointed out is that of the native people.

Mr. Nystrom: I am just wondering what is your timetable on the constituent assembly. I think there are some problems with what you are suggesting; for example all the first ministers are men; there are no women. Slightly over 50 per cent of our population are women.

Mr. Epp: Mr. Nystrom, we do not have a timetable tonight. We believe that is a matter which would be discussed at that conference.

Mr. Nystrom: So, it would be discussed and decided at that conference.

Mr. Epp: Yes.

Mr. Nystrom: The second thing is the amending formula. If have heard you correctly, you have said the Vancouver consensus needs some further refinement. Is that correct?

Mr. Epp: That is correct.

Mr. Nystrom: How do we further refine the Vancouver consensus if we patriate the constitution with the Vancouver consensus as you have outlined it here? How do we refine it after that point?

Mr. Epp: Well, we have said that we want to patriate, and we are committed to the fact that we need an amending formula.

There is some school of thought that you only patriate and you do not need an amending formula. That is not our position.

We have pointed out, Mr. Nystrom, that in our Clause 41 (3) that there is a mechanism whereby the amending formula of Vancouver can be amended, can be approved.

I think you will recall as will this summer when the Vancouver formula was discussed, that there was general agreement on Vancouver, but because of the fact that the First Minister’s conference was called for September and there was no subsequent meeting either of the continuing committee or the First Minister’s, that some of those refinements were not completed.

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But we believe that at this stage Vancouver is sufficiently firm that in fact we can patriate with it.

Mr. Nystrom: Would you agree with me if I were to say that there was some refinement going on from the Vancouver consensus, indeed there was an evolution away from the Vancouver consensus to what is called the Toronto consensus?

Mr. Epp: I do not think it was a movement away from the Vancouver consensus. I have always looked at that process as a development from the Alberta proposal, so-called, originally to the Vancouver consensus to what was becoming then known as the Toronto formula.

I think that consensus was developing. I say to you quite openly today-and I am very candid about this clause, that I believe that the Minister of Justice-and Mr. Chairman, I am sure all members of this Committee hope for a very speedy recovery of the Minister of Justice, so that he could return to this Committee Room-I believe that the Minister of Justice, along with the continuing committee of ministers and the first ministers would have received agreement in that development that was taking place this summer. I only regret that it was stopped too soon.

M. Nystrom: Je vais poser ma prochaine question au senateur Tremblay en anglais, je le regrette, parce que je n’ai pas ici le texte francais.

Ca concerne la section 41(3).

And as Mr. Epp has said, in Clause 41 (3) there is a provision here where we can amend the amending formula. I wanted to ask Senator Tremblay, in view of the long time and the very important question of Quebec, about the importance of Quebec in our country, I wonder whether or not Senator Tremblay has any concern about the enshrinement of Quebec’s position, because it says that to change the amending formula, we need the agreement of eight or more provinces representing at least 80 per cent of the Canadian population.

Now, of course, today Quebec represents about 27 per cent of the population; but does that not leave it open to the risk that in, say, 15, 25 or 40 years or whatever, that Quebec’s population may, indeed, be under 20 per cent-it could be 19 or 18 per cent, and Quebec would then not have a veto, and a lot of the rights Quebec now enjoys under the constitution could be taken away.

I am just wondering whether or not he can recommend this approach to us, because I think it is embedded with certain dangers for the Quebecois; because Quebeckers are a very small minority in North America as well as in this country, and a minority which we have to ensure receives protection in our constitution, and the basic part of our constitution is the amending formula, and here is a provision which could leave Quebec without protection in the future.

[Translation]

Senator Tremblay: Mr. Nystrom, let me first of all point out that the 80.8 formula or the 8.80 formula applies to any modification of the general amending formula.

[Page 112]

If it is important to obtain the agreement of eight provinces representing 80 per cent of the total population, then the 41 formula, the general formula, applies. This is my first point.

I recognize that Quebec is being asked here to wager on its future, a future which can be counted in generations since the present trend would indicate that several generations must pass before the situation which you describe could materialize.

I realize that the Victoria formula gave any province which at one time represented 25 per cent of the population an eternal veto. From a very limited Quebec standpoint, one which I would describe as fearful, the consecreation of a given situation for all time is much more reassuring but I personally find such an instance on a permanent veto rather tiresome, especially when the objective situation may change. As a Quebecker, I am willing to accept the bet implicit in the 8.80 formula, knowing that the situation will be guaranteed for at least two or three generations if the present trends continue, and we must realize that we are talking about modifying the amending formula.

In the meantime, the amending formula which is proposed here would allow Quebec to acquire something else which is quite important and which may arouse misgivings in some, and I am not talking about Quebeckers. I am referring to the formula which would not make it compulsory on the provinces to go along with an amendment, the result of which would do away with existing juisdiction? There is some potential here for certain elements of a special status. Both sides of the question must be considered.

Personally, I would weigh the eternal veto, in spite of any change in the objective situation, against the opening towards a much greater degree of self-determination made possible through the application of the normal amending formula

[Text]

Mr. Nystrom: Mr. Chairman, Senator Tremblay spoke of protection for two or three generations. Whether it is two or three generations or perhaps 20 years, what he is really saying is that Quebec will be treated like any other province. That possibility is there, because there is no guarantee that Quebec will have the right to opt out of anything in the future or have a veto in the future.

My question is:

[Translation]

Am I to assume that under the amending formula Quebec would be a province like any other in view of the fact that Quebec does not have any protection should its population account for less than 20 per cent of the total Canadian population. In such a case, would Quebec not be the same as any other province?

Senator Tremblay: Yes, to some extent.

[Text]

Mr. Nystrom: I find that interesting. I find it interesting that we would have a provision here which could take away some of the rights that Quebec now has, because Quebec does have some special rights in our constitution. I wonder whether or not the Senator may rethink that.

[Page 113]

[Translation]

Senator Tremblay: Let me ask you for an explanation.

What exactly do you see as being so greatly threatened? It may be because you are not a Quebecker that you see Quebec under such great threats.

[Text]

M. Mackasey: On Point of order.

[Translation]

Senator Tremblay: As a Quebecker, I do not feel as threatened.

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

I would like to remind the members of the committee that we had agreed to engage in an exchange aimed at providing further information and clarification and that the actual debate was not to begin until the amendments were voted on in the order in which they appear in the proposal which we are discussing at the present time.

I am, of course, quite willing to allow the members to ask whatever questions they would like, and to make their comments, provided they do not start on the actual debate which will begin tomorrow afternoon.

I just wanted to remind the member and the senator that this was the procedure we had agreed upon.

Senator Tremblay: I wish to come back to Mr. Mackasey’s intervention.

I was trying to be funny when I said that Mr. Nystrom was not a Quebecker and that, as a Quebecker, I myself did not share his fears for our future.

To me, this gives a humorous twist to the situation. But my brand of humour may have been a little too hermetic.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay, for this explanation. My thanks also to Mr. Nystrom. I now invite the hon. Bryce Mackasey to take the floor.

[Text]

Mr. Mackasey: Mr. Chairman, Mr. Minister: the procedure is a little unusual, but in retrospect I remove any reservations I had before dinner as to the manner of proceeding. I think it is very useful, the Conservatives bringing forward a package, because if I may sound a little partisan, it is the first time they have had a position on anything. It is simply my opinion, Mr. Chairman. I may be wrong but I would like to say that their position is no position.

Let me make the point. I am rather pleased at the statement of Mr. Epp: becatise it has come a long way to the position of the government in the present resolution.

First of all, it is the first time that a leading spokesman of the Conservative party has said anything beyond “Let us bring the constitution home and once we have it in Canada we will do all these great and glorious things.” That has been the position of the Conservative party

[Page 114]

There is a change in their position, in that they are saying: “Let us go to England and bring it back with an amending formula.” That is a fundamental shift in the position of the Conservative party. All the rest is a matter of degree, when we are talking about human rights and all the rest of it.

Mr. Epp may fudge and fidget a little; but the fact of the matter is that it is the first time that Mr. Epp, on behalf of his party, has suggested that the proper course is to bring back to Canada the BNA Act with an amending formula, imposed on us-those were his words-by the British Parliament.

The fact is, Mr. Chairman and Mr. Minister, that the Conservatives have seen the light! They have realized that if you bring the constitution home without an amending formula, then it is useless: it could have been done five years ago, I 0, 50 years ago.

Finally-and this is the importance of this documentfinally the Conservatives concede that there must be an amending formula in the constitution. That is progress. It shows that we may just resolve our issue. That is progress, Mr. Chairman.

Just think about it. At this time yesterday, we were all despondent, discouraged, demoralized. We had been told that the Canadian public were watching this program; that the bad Liberal Party was going to send this resolution to England and ask the Mother of Parliaments to impose an amending formula on the poor, down-trodden people of Canada. That is, in essence, what they were saying.

And Mr. Epp comes along and says: “The first thing we want to do in our split version of the resolution is to go to England and ask the English Parliament to impose on the poor, down-trodden Canadians an amending formula.

Now, the amending formula they are going to propose, is the Vancouver formula. We have suggested more or Jess the Victoria formula. Perhaps the answer lies between the Vancouver formula and the Victoria formula. Who knows?

The point I am getting at, Mr. Chairman, is that there is a fundamental change in the position of the Conservatives as stated in Mr. Epp’s package and it is important and I hope that we really seize the importance of what Mr. Epp has said: for the first time since we have sat around here-all political parties have agreed to one fundamental thing: not only must we patriate the constitution, but we must patriate with an amending formula.

There can be a difference here as to what that formula should be, but at least there is no difference amongst any of us that there must be one.

An hon. Member: What is the question, Bryce?

Mr. Mackasey: I am not making a question-nor did you get that suntan between Christmas and January either.

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

[Page 115]

I am sorry to interrupt the honourable Bryce Mackasey, but what I have just expressed as a concern previously to the honourable Senator Tremblay and to Mr. Nystrom was that at this point we are not in the debate.

We are seeking general information, as was put to you by Mr. Irwin and Mr. Nystrom, on the content of the package as was proposed by the honourable Jake Epp.

I think your point, Mr. Mackasey, is one which needs to be expressed, but at this point we should stick more to what was the consensus and I think as a good member you have attended the full session that we had this afternoon, and it was made clear that we would seek information and not enter into a debate.

With that proviso I would invite you to continue.

Mr. Mackasey: Mr. Chairman, I will always co-operate with the Chair. Without that type of co-operation, our meetings will become chaotic. A lot of us have strong convictions. I am asking the question in my own way.

An hon. Member: Was that a preamble, Bryce?

Mr. Mackasey: It was a short preamble, because I feel very deeply about this.

Mr. Chairman, Mr. Epp did not only table an amendment, but he made a statement–quite properly so, because it is a matter of importance, and since we had that privilege in the beginning, why not? I am just answering his statement.

It is important to me to make that distinction, and to congratulate the Conservatives. I have every right to congratulate the Conservatives for seeing the light and insisting that there be an amending formula, and it is quite conceivable, Mr. Chairman, that between now and February 5 we may come to a meeting of minds, and if we do not then it can happen in 24 months.

Some hon. Members: Hear, hear!

Mr. Epp, you have divided the package, and secondly, there has been a refinement to the Charter of Human Rights and other features, and many of your amendments I think are commendable and positive and I happen to share your views on handicapped people as an individual.

If perchance we, or this Committee does not agree to your first thrust, are you prepared, however, to accept your amendments or are you prepared to go forward with your other amendments and if accepted here, support them, even if we do not agree to your first concept, and I ask you that in good faith before I come back?

Mr. Epp: Thank you, Mr. Chairman.

I have to, and I apologize, frankly, to other members of the Committee, but I have to clear the record in terms of some of the things that Mr. Mackasey has said. I do not want to get into the debate, but I want to point out very quickly to Mr. Mackasey that this is not the first time that the Conservative Party has taken any position on the constitution.

Specifically, on October 22, this party, through its leader, placed a motion before all members of the House of Com-

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mons, asking for two things: patriation now; and secondly, to be done on the basis of the Vam:ouver Formula.

You, Mr. Mackasey, voted against it and that is your choice, I do not question that, but I do believe, with all respect, Mr. Mackasey, that you being the kind of person you are, you would want to have the record show quite clearly that what I have placed before the Committee is what in fact has happened. That is the one point that has to be made.

Additionally, Mr. Nystrom, if we could just come back to your comment earlier, you asked Senator Tremblay: do you not feel that Quebec should have a special position in any amending formula? I think that was the purport of your question. You were worried about imposition.

I think if you take a look at the present process before us, that what the situation is now, that the federal government is taking on all ten provinces and imposing on Quebec, as well as equally on all the other provinces, imposing on Quebec unilaterally, without any recourse on the part of Quebec to any either opting out, or for example, what effect it might have on Bill 101, on language or culture.

Now, regarding your position, Mr. Mackasey, and I could go on but I will leave that for debate, but I want to give you an answer to your question which you finally came to. Yes, we have divided the package. You asked me: will we still support the goverment’s position even if our r.mendments are not approved?

Frankly, I do not-may I just finish? Frankly, I hope that is not a threat that you are placing before us, but that you are open. You said we had seen the light; I am a believer that lightning can strike in the same place twice and that you will see the light and the other point that I am making to you is this: unfortunately, and I say that with deep respect, unfortunately this Committee is still functioning without any knowledge as to whether we will have the opportunity to move amendments when we read this proposed resolution and report out of Committee, or whether we can move amendments at that stage, and obviously that caveat, whether or not I will have the opportunity, or colleagues of mine will have the opportunity to move amendments that might not be approved in this Committee, that option I have to retain.

Mr. Mackasey: Mr. Chairman, Mr. Epp, what I was asking you was, if we reject the concept of splitting the resolution in two, that is the concept I am talking about, will you nevertheless then continue with your amendments and so forth to the resolution, if early on we reject your concept, from the very beginning, when it comes forward?

Mr. Epp: Mr. Mackasey, I rbpeat what I said earlier, but additionally I want to indicate or tell you very frankly that we will be looking at this whole package, the government’s package, their amendments, our amendments, Mr. Nystrom’s amendments, and what we will be doing at that stage is we will be voting on each clause and we will be starting that tomorrow.

[Page 117]

You will see how we vote on each claust.” and how we will support the various elements.

Mr. Mackasey: Now, Mr. Chairman, that I accept. Now, in conclusion, I just want to say what I think about the Vancouver Formula stemming from Mr. Nystrom’s questions, stemming from Senator Tremblay’s replies and Mr. Epp’s position.

Mr. Epp said something very wise to Mr. Irwin, I believe, in that we approached the problem from different positions, and I am not talking personally, Mr. Epp, what I am talking about is my conviction, that the Vancouver Formula as we understand it, you have amended it a little with Clause 41 (3), all the rest of it, is a cop-out. What it means is in ten years the balkanization of this country, that is an opinion I have, Mr. Epp, that we will not end up with one country; we will end up with four or five regions.

Now, I say this, Mr. Chairman, because our country is unique as compared to the United States. We share things, equalization is an example. We speak very eloquently and compassionately about equality of opportunity in this country, for all Canadians, wherever they live and then to the days when you had to move into the central regions of Canada in order to have equality of opportunity, and that is reflected, Mr. Chairman, in our support of the educational system, particularly at the secondary level at least, with funds. It is reflected, Mr. Chairman, in Medicare. It is reflected in everything we have done to create equal opportunity for the children of any province, no matter where, whether it be Northern Quebec, wherever it might be, where it may be what we call a “depressed area”, or used to, that is the fundamental, and when we build into our constitution a provision that provinces can opt out of their responsibility, can opt out of that uniformity, the checkerboard pattern which we have dismissed so easily tonight is just a fancy word for balkanization. It is the first step towards balkanizing this country and it amazed me when I listened to the Premier, and it amazes me that it forms the nucleus of the proposals tonight that any of us who believe in strong central government, who believe in the federal system, somehow want an amending formula that says to Alberta, and I should not use Alberta as an example: yes, the rest of the provinces have just decided to do this for their minorities or for their underprivileged or for some other facet, but we are not opting in it.

The opting out formula is insiduous. It runs contrary to the whole concept of this country. This country, Mr. Chairman, was founded under difficult circumstances, geography and under-population. The members know it better than I know it; but the one thing that )las kept Canada together is that we have been Canadian and our whole country is based on one concept: equality of opportunity, and you cannot have equality of opportunity unless you have equality of educational facilities, of medical facilities right across this country and what, Mr. Chairman, what the opting out does is make it possible to have different standards of living in this country and all of us

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have received letters, I received one just this afternoon from a doctor in Nova Scotia pleading …

Mr. Robinson: A point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Point of order, Mr. Robinson.

Mr. Robinson: I do apologize for interrupting Mr. Mackasey in his flight of oratory, but I think there are a number of important questions which honourable members around the table would wish to ask, and while I would be interested in hearing about the correspondence which Mr. Mackasey received this afternoon, I do believe that the purpose of this particular session is to clarify the proposed Conservative amendments, and if Mr. Mackascy wishes to circulate copies of his correspondence I know we would be interested in seeing it.

Mr. Mackasey: Mr. Chairman, the satire and ridicule of

Mr. Robinson is not unexpected, it has been reflected since we sat here, and I am not unaware of the fact that he is the only member here who voted against the resolution in the House of Commons which shows the extent of his convictions.

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

Mr. Mackasey: Mr. Chairman, I will …

The Joint Chairman (Mr. Joyal): I would very respectfully invite you to conclude briefly; as Senator Hays put it very wisely this afternoon, you have used 15 minutes out of your 10.

Mr. Mackasey: Mr. Chairman, I …

Mr. Nystrom: On a point of order, Mr. Chairman, on the same point of order since you mentioned time, I do not begrudge Bryce speaking and so on, but I would suggest so people can participate, that perhaps after he has finished we limit the interventions to perhaps five minutes apiece and in that way, more people can get involved, participate, and I think that is the feeling on both sides.

Mr. Mackasey: Mr. Chairman, I apologize if I …

Senator Roblin: I want to raise a point of order, too, because

Mr. Mackasey, not intentionally I am sure, but he is rewriting history. He apparently is not aware of the fact that the Canada Pension Plan, the Medicare Plan, the Health Plan, was brought into this country under the principle of opting out.

Mr. McGrath: A government that he was a member of.

Senator Roblin: Well, I do not know whether he was a member of it then.

Mr. Mackasey: Yes, I was.

Senator Roblin: But I was around the table …

Mr. Mackasey: I was a Member of Parliament.

Senator Roblin: I think that that should not go on the record uncorrected because it leaves an entirely false impression about what the history of this country has been and how we have experienced the effect of allowing provinces to have discretion in certain areas.

[Page 119]

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

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

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Mackasey.

Mr. Mackasey: On a point of order.

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Mackasey, you cannot intervene on a point of order that has been raised on another question that you have just explained yourself. And I wish to say to the honourable gentleman that we have previously agreed to a procedure and this procedure, in the last two months, has really functioned very well and has given good results and I think that all honourable members have agreed to that.

We have agreed that this session tonight would serve first to give more clarification and bring more information on the content of the proposed motion, and I was to invite you to conclude your intervention in order that we allow more members on the government side to put questions, and with such a provision I would like to invite you to conclude at this point.

Mr. Mackasey: Mr. Chairman, I …

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

The Joint Chairman (Mr. Joyal): Mr. Robinson, I have invited Mr. Mackasey to conclude and I will receive your point of order after Mr. Mackasey has concluded.

Mr. Mackasey, you can go on.

Mr. Mackasey: Mr. Chairman, I apologize because normally I think I respect the Chair and I do not think that people can count on two fingers the number of times that I have interrupted another speaker, including Mr. Robinson, and I resent it and it gets me angry and I apologize, but I might remind Senator Roblin that the Quebec Pension Plan, the Canada Pension Plan did not result from Province opting out of a constitutional responsibility but in a legislative agreement between the central government and the provincial governments, not uncommon in a federal system. He should know better.

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

Miss Campbell: Mr. Chairman, following up on a point of order that Mr. Nystrom raised, it was before anybody else even interrupted, he did raise the point on the procedure tonight and I just wondered what was going on.

The Joint Chairman (Mr. Joyal): The Chair has not taken a decision or has not requested the c;onsent of the honourable members on this point because that point was not a point of order but a suggestion that we should consider after Mr. Mackasey has completed his intervention, and that is why I did not want to interrupt Mr. Mackasey to ask for consent or seek consent from the honourable members around the table on another question.

[Page 120]

I think we should deal with those questions in order and that is why I am seeking the advice of Mr. Robinson who has requested the Chair to speak on the point of order.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I am sorry, I should have phrased it as a question of privilege rather than a point of order.

I do not want to appear overly sensitive, and I would want to certainly consult the record, but what I understand Mr. Mackasey to have been doing was to have been reflecting on a vote which I cast in Parliament and, as I say, I may have been misinterpreting what he said in the heat of the moment but I certainly would hope that was not his intention and I would hope that he was not suggesting that in some way he was questioning my convictions with respect to a particular vote.

I am sure Mr. Mackasey would be the first to agree that that would not be particularly parliamentary.

Mr. Mackasey: I believe what I was questioning was Mr. Robirson acting as chairman.

Mr. Chairman, you are the chairman and when you feel I or any other member has spoken enough and you remind us as forcefully as you can, that is sufficient and we do not need to be reminded by other members.

Mr. Robinson: Mr. Chairman, to conclude after that interruption, Mr. Mackasey of course not interrupting other questioners as he had indicated, after that interruption I would just like to indicate that I do believe that there is at least a possibility of a question of privilege and I do hope that Mr. Mackasey would withdraw those comments and avoid any suggestion of reflection on the vote of a member of Parliament.

The Joint Chairman (Mr. Joyal): I think that the intention of Mr. Mackasey is very clear and it is not what he had in mind when he made an allusion to the way you have voted previously in the House of Commons.

As was suggested by Mr. Nystrom previously, Mr. Nystrom was suggesting that we restrict the forthcoming interventions to five minutes because I have five questioners on my list and we have 15 minutes left, and with the agreement of the honourable members of the Committee I would invite them to restrict their intervention to five minutes, and in so doing I would invite Mr. Jean Lapierre.

[Translation]

Mr. Lapierre: Thank you, Mr. Chairman.

Mr. Minister, I have listened very attentively to our Conservative colleagues proposals and, as Mr. Mackasey said, I think that they have indeed seen the light. As Senator Tremblay mentioned in his statement, their proposal supposedly purifies ours of all its non-federal aspects but it does advocate nonetheless unilateral action.

In other words, Senator Tremblay, you acknowledge that a measure can be both federal and unilateral, if I have understood your statement correctly.

This is all rather amusing to me. It reminds me of certain situations when the Conservatives go to Quebec, and sign

[Page 121]

petitions such as that put out by Solidarity Quebec, and which was opposed to any unilateral action. Mr. Clark signed it, Mr. La Salle made a great show of signing it in the Montreal Forum and condemned any unilateral action. Yet unilateral action is exactly what is being recommended to us this evening by the Conservatives.

Mr. Epp’s written statement says that you are not in favour of any arbitrary unilateral action and for this reason you are proposing the Vancouver formula which is supposedly less arbitrary than the Victoria one.

When we see this type of double standard, one thing being said in Quebec and something else in other parts, we are quite impressed to see that Mr. Epp’s package has forgotten no one. There is something for God, for the family, for the deaf, the handicapped, property owners and for all social classes in the Charter of Rights. Very generous of you, Mr. Epp …

An hon. Member: Except for the Indians!

Mr. Lapierre: Yes, except for the Indians, as I have been reminded. It is very generous but your own constituents will not be able to enjoy these rights because of the amending formula which you are suggesting and the fact that your premier is against a charter of rights. Therefore, your thoughtfulness will benefit other Canadians whose provincial governments are willing to go along with the charter but will certainly not be of any use to your constituents and yourself.

This is an illustration of the kind of checkerboard Canada which the Victoria formula holds in store for us. Senator Tremblay says he has no fears for the future and that he is willing to make this implicit bet, realizing that the French speaking minority in Canada which is particularly concentrated in Quebec could by the year 2000 represent less than 20 per cent of our total population and thus no longer have a veto over constitutional amendment. This would amount to isolation for Quebec and he points out that this applies only to changes in the amending formula but the amending formula is the keystone.

Mr. Epp tells us that at the present time Quebec is without any recourse. Our only possible recourse with the formula being proposed would be to embark on another revenge of the cradle if we felt that our status was threatened. This is about the only solution which you offer us. I have already made my own small start but I do not think that it would be enough!

I can understand why Senator Tremblay says that all the Senate’s powers must be retained since it would be the only institution which could protect us, should such a situation come to pass. You and of course Senator Asselin would be there watching over our interests! But we cannot be sure that it is enough.

I think that this position has made one thing clear, as Mr. Mackasey so rightly pointed out. Namely the fact that the Conservatives have realized the need for unilateral action. But of course, we cannot let Quebec know about it! In any case, there are less and less people able to spread the news but you

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should not say it in Quebec because you signed the Solidarity Quebec petition.

I find this refusal to take Quebec into account quite unacceptable; maybe there were not enough members in the caucus the day when this was discussed but this formula would not be swallowed by Quebec francophones.

Mr. Minister, you may have some comments on this. I am really astounded at Mr. Epp’s generosity toward everyone except his constituents who would not be protected by the new charter.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre. You have used up your five minutes.

I think that it would only be fair to give Senator Tremblay the opportunity to answer the first part of your question since it was mainly directed to him and to the Honourable Jake Epp.

Senator Tremblay: Thank you, Mr. Chairman. I think that it should suffice to read a passage of Mr. Epp’s statement to answer your first question concerning the unilateral character of what is being proposed. It is page three of the statement.

‘There was no impasse at Vancouver … ”

It is that last five lines of the paragraph. And an agreement was within reach. We are confident that the first ministers will be able to bring this matter to a rapid conclusion.

Mr. Lapierre: Inaudible.

Senator Tremblay: We expect that they will come to an agreement on those points of the formula which remain to be settled.

Mr. Lapierre: I did not understand you.

Senator Tremblay: In other words, our pos1t10n at the present time is that a certain consensus was already reached on the broad outline of the Vancouver formula …

Mr. Lapierre: And if there is no agreement?

Senator Tremblay: Allow me to finish, if you do not mind.

As I was saying, our pos1t1on is based on the fact that a certain consensus was already reached, and we realize that the work was not completed. For instance, still to be settled is the question of financial compensation when a province does not opt into an agreement to hand over a certain responsibility to the federal government but continues to take charge of its obligation, and the related costs. Several suggestions have been :made about possible financial arrangements but no final choice was made. Therefore, we realize that work has still to be done.

We are simply saying that these matters should be settled by the first ministers and then an amending formula can be presented to London.

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Mr. Lapierre: And if it does not work that wary?

Senator Tremblay: You have doubts about whether it will work and I am quite confident in the outcome; under the circumstances, the only possible way to find out is to go ahead and hold the conference, but this is the step which you refuse.

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

[Text]

I would like to invite now Miss Campbell.

Miss Campbell: Thank you, Mr. Chairman. I should be relatively brief.

I of course can only say that I dislike the Vancouver formula, as I have said right along, because in the Atlantic provinces you must, in order to veto, unless you want to opt out of everything, have all four provinces under the existing formula but I would like to go to the charter of rights and I would like to ask quickly on the charter of rights, I thought every group that came before us asked us to entrench before because, realistically speaking, your premier, Mr. Epp, is against a bill of rights, entrenching a bill of rights, so he would probably be one of the first ones that would opt out even with your proposed amendment to the charter, but is it not so that every group that came and spoke on the charter of rights as such felt that the opportunity was here in this Committee, prior to going and patriating the constitution, where afterwards you would be trapped with whatever amending formula is agreed to and getting the consensus, they felt we were given an opportunity to entrench this charter of rights, accept it, they urged us, they said: do not wait, do not come back, because these are the rights of all Canadians; it is this Committee that has been given the opportunity to do this.

Mr. Epp: Miss Campbell, I think you and I could argue that point for a long period of time. The groups that appear before us what to see an entrenched Bill of Rights. We say that right up front in our statement tonight. What also Canadians, 64 per cent of them, other polls as well, indicate that they reject is the unilateral imposition that is inherent in the gove1nment’s proposal, and we have addressed that as well.

You say whether the Premier of Manitoba will opt out. I would suggest that you ask him. I am not his spokesman, I know he can speak well for himself as I am sure that your Premier could as well, and does.

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Regarding the matter before us, for instance the legal question, there is a legal question, there is the Canadian tradition. You say anyone can opt out. I will give you an example of why the Victoria formula is not acceptable to us in western Canada. Quite apart from the economic argument that has been coming forward for western Canada since 1974, and I am not trying to embarrass anyone, but for example Mr. Nystrom and I had a discussion today, and this is going on across western Canada, but in a small community like weyburn yesterday 1,300 showed up to a meeting calling for separatism and what we are doing with the Victoria formula, if we accept the Victoria formula, what we are doing is that we are entrenching a regional mentality in the constitution and western Canadians already are feeling that they are more often relating to western Canada than to the Canadian nation.

That is one.

The second thing is this, that if we go that route we will have further division, additionally, is what you are going to have. You might have four regions, which you want. But what you also might not have is a country and that is that we are trying to avoid.

We are saying to you, you can hold your position, you can go ahead with unilateralism, you can go ahead with the division but we are suggesting to you that this is a better approach.

Miss Campbell: All I want to say is, because I would like to go to the other section, is that I disagree with you in implying that I am not for Canadianism or anything like that. Our amending formula at least allows for two years of coming together, not afterwards.

I would just like to go to your page 9 where you offer this Committee, and I am rushing this because of the time, the provision:

No provision of this Charter affects, or abrogates or derogates from Section 17 of the schedule to the Newfoundland Act.

I understand why and I thought that the amendment, I think it was 47 of the proposed amendment to the Minister last week, would take care of that. Why did you single out only one? Why did you not incorporate the Terms of Union for Prince Edward Island or the natural resources question that was brought out in Clause 31 in the amendment or Section 93. Why do you make it one particular section. You are allowing the implication, just by implication, that the others can be opted out on.

Mr. Epp: Miss Campbell, no, I am not in any way indicating that. Additionally the denominational educational committees which appeared before this Committee representing all Newfoundland denominational schools, and I would say as a person who does not live in Newfoundland, representing the population of Newfoundland, were sufficiently coricerned to come here, and present their case. The government responded in part but the DEC since the amendments of the government have said that they do not go far enough, that they do not entrench what they have had since 1949 guaranteed in the Terms of Union Section 17 and in order to avoid any question, to avoid any derogation, abrogation and to protect what is now a Term.

Now, you say wait. That is fine. We spent two months, we have all come to know what the charter of rights is, we have talked about the bill of rights all through the l 960’s and all through the l 970’s, why give the opportunity to opt out and then if I want to go to one province I do not have those rights, they have opted out under your formula, and you are not going to get that consensus.

I just ask the simple question because I do want to go on to a couple of other areas that you brought out, particularly the Newfoundland one: did the groups not come and ask us to entrench before repatriating? I distinctly heard that.

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of Union in Newfoundland which is respected and desired by the people of Newfoundland, that is why you see that amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Miss Campbell. The honourable Senator Roblin.

Senator Roblin: A point of privilege, and it is this, I am not happy with the way in which the discussion between Senator Austin and myself ended up this afternoon on the question of the elected Senate. I want to tell Senator Austin that I have no patent rights on that idea, that I do acknowledge his initiative in the matter. I just hope we can work together to achieve it.

Senator Austin: Senator Roblin, I consider you a very good friend and very good working colleague and never thought otherwise.

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

Senator Austin: Incidentally, a man who beats me at squash!

The Joint Chairman (Mr. Joyal): As it is 1O o’clock, we adjourn until 3:30 p.m. tomorrow afternoon. [Translation] The meeting is adjourned.

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APPENDIX “CCC-13”

SUMMARY OF PROPOSED AMENDMENTS
TO JOINT RESOLUTION
ON THE CONSTITUTION
PRESENTED TO THE SPECIAL JOINT COMMITTEE
BY THE HONOURABLE JAKE EPP

TUESDAY, JANUARY 20, 1981

Section 1-Guarantee of Rights of Freedoms

1. Affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions.

Affirming also that individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law.

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

Section 2-Fundamental Freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of information;
(c) freedom of peaceful assembly;
(d) freedom of association; and
(e) freedom from unreasonable interference with privacy, family, home, correspondence, and enjoyment of property.

Section 5

Present Section 5 becomes 4(3).

New Section 5-Right to Information

5. Everyone has the right to have reasonable access to information in the possession of any institution of any government.

Section 7-Legal Rights

7. Everyone has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except in accordance with principles of natural justice.

Section 9-Legal Rights

9. Everyone has the right not to be arbitrarily detained, imprisoned, or deported.

Section 11-Legal Rights

11. Any person charged with an offence has the right…

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(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the principles of law recognized by the community of nations;

Section 14-legal Rights

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Section 15-Equality Rights

15(1). Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

15(2). Subsection (1) does not preclude any statutory distinction that has as its object the amelioration of the condition of any class of persons.

New Section to Follow Section 20
Official Languages of Canada

21 (1). The legislative assembly of each province to which subsection 16(2), 17(2), 18(2), 19(2) or 20(2) does not expressly apply may, by resolution, authorize the issuance by the Governor General of a proclamation under the Great Seal of Canada declaring that any of those provisions
(a) has application in the province; or <br(b) has application in the province to the extent and under the conditions stated in the resolution.

21 (2). Where the legislative assembly of a province authorizes the issuance of a proclamation declaring that a subsection referred to in subsection ( 1) has application in the province, the proclamation may be issued notwithstanding any other provision of this Act respecting the procedures for amending the Constitution of Canada and shall

(a) if the subsection is to apply in the province without any limitations or conditions, amend the subsection to include the province as a province named in the subsection; or
(b) if the subsection is to apply in the province to the extent or under conditions stated in the resolution authorizing the issue of the proclamation, subject to section 22 so apply in the province and for purposes of amendment be deemed to be a provision of the Constitution of Canada that applies to one or more but not all provinces.

New Section to Precede Clause 24
Enforcement

26(1). No provisions of this Charter, other than Section 13, affects the laws respecting the admissibility of evidence in any proceedings or the authority of Parliament or a legislature to make laws in relation thereto.

26(2). Notwithstanding subsection (1), in any proceedings, evidence shall be excluded if it is established that it was obtained under such circumstances that the use of it in the

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proceedings would tend to bring the administration of justice into disrepute.

Section 25-General

25. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of
(a) any aboriginal, treaty or other rights or freedoms that may pertain to the aboriginal peoples of Canada including any right or freedom that may have been recognized by the Royal Proclamation of October 7, 1763; or
(h) any rights or freedoms that may pertain to any cultural community; or
(c) any other rights or freedoms that may exist in Canada.

New Section-To Follow Section 26

No provision of this Charter affects, or abrogates or derogates from Section 17 of the Schedule to the Newfoundland Act.

New Section-To Precede Section 27

Nothing in this Charter affects the authority of Parliament to legislate in respect of abortion and capital punishment.

New Section to Follow Section 28

Obligation to Examine Regulations and Bills

29(1). The Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor General in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration and every Bill introduced in or presented to the House of Commons, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the House of Commons at the first convenient opportunity.

29(2). The Attorney General of a province shall, in accordance with such regulations as may be prescribed by the Lieutenant Governor in Council of the province, examine every proposed regulation in draft form and every Bill introduced in or presented to the legislative assembly of the province in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the legislative assembly at the first convenient opportunity.

Section 32-Renewal of the Canadian Constitution

32(1). No later than two months after the coming into force of this Act, the Prime Minister of Canada and the first ministers of the provinces shall constitute a permanent conference to be designated the “Constitutional Conference of Canada” hereinafter referred to as the “Conference”.
32(2). The Conference shall examine all Canadian constitutional laws and propose amendments necessary for the development of the Canadian federation.
32(3). The Conference shall meet at least twice each year.
32(4). The Conference shall be assisted by the “Continuing Committee of Ministers on the Constitution.”

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Section 33-40-(Part IV)

INTERIM AMENDING FORMULA

To be omitted.

Section 41-General Amending Procedure

41 (1). An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the provinces.

41 (2). Where an amendment to the Constitution of Canada is authorized under subsection (1) that affects
(a) the powers of the legislature of a province to make laws,
(b) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province,
(c) the assets or property of a province, or
(d) the natural resources of a province, and the legislative assembly of a province has, by resolution, declined to authorize the amendment prior to the issue of the proclamation bringing it into force, the amendment has no effect in the province until the legislative assembly of the province by resolution approves the amendment.

41(3). An amendment to this section may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the House of Commons and the Senate and of the legislative assemblies of eight or more provinces that have, in the aggregate, according to the then latest general census, a population of at least eighty per cent of the population of all of the provinces.

Section 42
“REFERENDUM PROCEDURE”
To be deleted.

Section 44

Senate role in “Amendment without Senate resolution” to be omitted.

Section 46
“REFERENDUM RULES”
To be omitted.

Section 47
“Limitation of General Amending Procedure”

47(1). The procedures prescribed by Section 41or43 do not apply to an amendment to the Constitution of Canada where there is another provision in the Constitution for making the amendment, but the procedures prescribed by Section 41 shall.

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nevertheless, be used to amend any provision for amending the Constitution, other than Section 41, but including this section.

47(2). The procedures prescribed by Section 41 do not apply in respect of an amendment referred to in Section 43. Section 48-Amendments by Parliament

48. Subject to Section 50 Parliament may exclusively make Jaws amending the Constitution of Canada in relation to the executive government of Canada or the House of Commons.

Section 50
Matters Requiring Amendment Under General Amendment Procedure

50. An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by section 41:
(a) the office of the Queen and Her status as head of state of Canada and of the provinces and the office of the Governor General and the Lieutenant Governor of a province;
(b) the Canadian Charter of Rights and Freedoms;
(c) the commitments relating to equalization and regional disparities set out in Section 31;
(d) the Senate; …

Section 51-Consequential Amendments

51. Class I of Section 91 and class 1 of Section 92 of the Constitution Act, 1867 (formerly named the British North America Act, 1867, the British North America (No. 2) Act, 1949, referred to in item 22 of Schedule I to this Act, are repealed.

Section 57-Commencement

57. This Act shall come into force on a day to be fixed by proclamation issued the Governor General under the Great Seal of Canada.

Section 58
“Exception Respecting Amending Procedure”
To be deleted.

Other Issues: