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 48 (29 January 1981)


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Date: 1981-01-29
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 48 (29 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 48

Thursday, January 29, 1981

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


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

Constitution of Canada


RESPECTING:

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


APPEARING:

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

WITNESSES:

(See back cover)

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


WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Deputy Minister;
Dr. B.L. Strayer, Assistant Deputy Minister, Public Law;
Mr. E.G. Ewaschuk, Director, Criminal Law Amendments Section.


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
Donahoe
Lapointe
Lucier
Petten
Thériault
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Gauthier
Irwin
Lapierre
Mackasey
McGrath
Nystrom
Robinson (Burnaby)—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Thursday. January 29, 1981:

Mr. King replaced Mr. Fraser;
Mr. Allmand replaced Mr. Gingras;
Mr. Mackasey replaced Mr. Allmand;
Mr. Munro (Esquimalt-Saanich) replaced Mr. Crombie;
Mr. Bossy replaced Mr. Gimaiel;
Mr. Manly replaced Mr. Nystrom;
Mr. Beatty replaced Mr. Hawkes;
Mr. Fraser replaced Mr. King;
Mr. Crombie replaced Mr. Munro (Esquimalt-Saanich);
Miss Campbell (South West Nova) replaced Mr. Bossy;
Mr. Nystrom replaced Mr. Robinson (Burnaby);
Mr. Hawkes replaced Mr. Beatty;
Mr. Robinson (Burnaby) replaced Mr. Manly;
Mr. Beatty replaced Mr. Hawkes;
Mr. Gauthier replaced Mr. Tobin.

[Page 3]

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

On Thursday, January 29, 1981:

Senator Petten replaced Senator Bird;
Senator Connolly replaced Senator Wood:
Senator Wood replaced Senator Connolly;
Senator Lapointe replaced Senator Goldenberg;
Senator Donahoe replaced Senator Roblin;
Senator Thériault replaced Senator Rousseau.


[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, JANUARY 29,1981
(86)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:59 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Allmand, Bockstael, Bossy, Corbin, Crombie, Epp, Gimaiel, Hawkes, Irwin, Joyal, King, Lapierre, Mackasey, McGrath, Munro (Esquimalt-Saanich), Nystrom, Robinson (Burnaby) and Tobin.

Other Member present: Mr. Fraser.

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

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister: Dr. B. L. Strayer, Assistant Deputy Minister, Public Law; and Mr. Fred Jordan, Senior Counsel, 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, I 980, Issue No. 1.)

The Committee resumed consideration of the motion of Mr. Corbin.—That the heading preceding Clause 15 and subclause 15(1) of the proposed Constitution Act, 1980 be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

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 or age.”

and of the motion of Mr. Robinson (Burnaby),—That the proposed amendment to subclause 15(1) of the proposed Constitution Act, 1980 be amended by

(a) striking out everything immediately following the words “Every individual is equal” and substituting the following:
“in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without

[Page 5]

unreasonable distinction on grounds including sex. race, national or ethnic origin, colour, religion or age.”;

(b) adding to subclause 15(1) the following: “, physical or mental disability,”;

(c) adding to subclause 15(1) the following; “marital status,”;

(d) adding to subclause 15(1) the following: “sexual orientation,”;

(e) adding to subclause 15(1) the following: “political belief,”;

(f) adding to subclause 15(1) the following: “lack of means”; and

(g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

By unanimous consent, the subamendment of Mr. Robinson (Burnaby) was amended by deleting parts (b) and (f).

The question being put on part (a) of the subamendment of Mr. Robinson (Burnaby), it was negatived on the following division:

YEAS:

Messrs.
Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Asselin
Austin
Connolly
Goldenberg
Hays
Lucier
Petten
Rousseau
Tremblay

NAYS:

Messrs.

Bockstael
Corbin
Epp
Gimaiel
Hawkes
Irwin
King
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Tobin—21

The question being put on part (c) of the subamendment of Mr. Robinson (Burnaby), it was negatived on the following division:

[Page 6]

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Asselin
Austin
Connolly
Goldenberg
Hays
Lucier
Petten
Roblin
Rousseau
Tremblay

NAYS:

Messrs.

Bockstael
Corbin
Epp
Gimaiel
Hawkes
Irwin
King
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Tobin—22

The question being put on part (d) of the subamendment of Mr. Robinson (Burnaby), it was negatived on the following division:

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Asselin
Austin
Connolly
Goldenberg
Hays
Lucier
Petten
Roblin
Rousseau
Tremblay

NAYS:

Messrs.

Bockstael
Corbin
Epp
Gimaiel
Hawkes
Irwin
King
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Tobin—22

The question being put on part (e) of the subamendment of Mr. Robinson (Burnaby), it was negatived on the following division:

[Page 7]

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Asselin
Austin
Connolly
Goldenberg
Hays
Lucier
Petten
Roblin
Rousseau
Tremblay

NAYS:

Messrs.

Bockstael
Corbin
Epp
Gimaiel
Hawkes
Irwin
King
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Tobin—22

The question being put on the amendment of Mr. Corbin, it was agreed to.

Mr. Irwin moved.—That Clause 15 of the proposed Constitution Act, 1980 be amended by striking out lines 6 to 9 on page 6 and substituting the following:

“(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.”

Mr. Epp moved,—That the proposed amendment to clause 15 of the proposed Constitution Act, 1980 be amended by striking out all that portion of subclause 15(2) following the words “preclude any” and substituting the following:

“statutory distinction that has as its object the amelioration ofthe condition of any class of persons.”

After debate, the question being put on the subamendment of Mr. Epp, it was negatived on the following show of hands: YEAS: 6; NAYS: 15.

Mr. Robinson (Burnaby) moved,—That Clause 10 be amended by

(a) striking out line 6 on page 5 and substituting the following:

“lawful;

(d) if without sufficient means to pay for counsel and if the interests of justice so require. to be provided with counsel;”: and

(b) by adding after paragraph (d) the following:

“(e) to protection against self-crimination from the moment of arrest and the right to be informed of that right.”

After debate, the question being put on the subamendment of Mr. Robinson (Burnaby), it was negatived on the following show of hands: YEAS: 10; NAYS: 13.

[Page 8]

Mr. Epp moved,—That Clause 15 of the proposed amendment of the Constitution Act, 1980 be amended by striking out the word “age” in subclause 15(2) and substituting the following:

“age or mental or physical disability.”

After debate, the question being put on the subamendment of Mr. Epp, it was agreed to.

The question being put on Mr. Irwin’s amendment, as amended, it was agreed to.

Mr. Manly moved,—That Clause 15 of the proposed Constitution Act, 1980 be amended by adding immediately after line 9 on page 6 the following:

“(3) Subsection (1) shall not be interpreted so as to deny or limit the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.”

The question being put on the amendment of Mr. Manly, it was negatived on the following show of hands: YEAS: 2; NAYS: 18.

Clause 15, as amended, carried.

At 11:46 o’clock a.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(87)

The Special Joint Committee on the Constitution of Canada met this day at 3:44 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, Petten, Roblin, Rousseau, Tremblay and Wood.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Joyal, Lapierre, Mackasey, Manly, McGrath, Nystrom and Tobin.

Other Member present: Mr. Robinson (Burnaby).

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

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; Dr. B. L. Strayer, Assistant Deputy Minister. Public Law, and Mr. Fred Jordan, Senior Counsel. 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, Issues No. 1.)

The Chairman presented the Seventh Report of the Sub-committee on Agenda and Procedure which reads as follows:

A)—That the sitting hours of this Joint Committee be as follows:

[Page 9]

Friday, January 30, 1981
9:30 a.m. to 12:30 pm.
2:30 p.m. to 6:00 p.m.

Saturday, January 31, 1981
9:30 a.m. to 12:30 p.m.
2:30 p.m. to 6:00 p.m.

Monday, February 2, 1981
9:30 a.m. to 12:30 p.m.
3:30.p.m to 6:00 p.m.
8:00 p.m. to 10:30 p.m.

B)—That the Sub-committee on Agenda and Procedure meet on Monday, February 2, 1981 at 12:30 o’clock to evaluate progress.

After debate, Mr. McGrath moved,—That the Seventh Report of the Sub-committee on Agenda and Procedure be amended by adding the following recommendations

—That the report of the Select Committee on Foreign Relations of the House of Commons of the United Kingdom, respecting certain constitutional questions arising out of the Joint Resolution now before this Committee, and now in the possession of the Canadian government, be tabled in this Committee.

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty

Crombie
Epp
Fraser
McGrath
Nystrom—9

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Mackasey
Tobin—14

The question being put on the Seventh Report of the Sub-committee on Agenda and Procedure, it was agreed to on the following division:

[Page 10]

YEAS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

YEAS:

Messrs.

Bockstael

Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Mackasey
Nystrom
Tobin—15

NAYS:

The Honourable Senators

Asselin
Roblin
Tremblay

NAYS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath—8

On Clause 16 of the proposed Constitution Act, 1980

Mr. Corbin moved,—That clause 16 of the proposed Constitution Act, 1980 be amended by

(a) striking out line 11 on page 6 of the French version and substituting the following:

“langues officielles du Canada: ils ont un”

(b) by striking out lines 15 to 18 on page 6 and substituting the following:

“(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.”

The question being put on the amendment, it was agreed to.

Clause 16, as amended, carried.

On Clause 17 of the proposed Constitution Act, 1980

On motion of Mr. Corbin. it was agreed,—That Clause 17 of the proposed Constitution Act, 1980 be amended by renumbering clause 17 on page 6 as subclause 17(1) and adding thereto the following subsection:

“(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.”

Clause 17, as amended, carried.

On Clause 18 of the proposed Constitution Act, 1980

[Page 11]

On motion of Mr. Corbin, it was agreed,—That Clause 18 of the proposed Constitution Act, 1980 be amended by renumbering clause 18 on page 6 as subclause 18(1) and adding thereto the following subsection:

“(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.”

Clause 18, as amended, carried.

On Clause 19 of the proposed Constitution Act, 1980

On motion of Mr. Corbin, it was agreed,—That Clause 19 of the proposed Constitution Act, 1980 be amended by renumbering clause 19 on page 6 as subclause 19(1) and adding thereto the following subsection:

“(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.”

Clause 19, as amended, carried.

On Clause 20 of the proposed Constitution Act, 1980

Mr. Corbin moved,—That Clause 20 of the proposed Constitution Act, 1980 be amended by striking out lines 36 to 39 on page 6 and lines 1 to 3 on page 7 and susbtituting the following:

“same right with respect to any other office of any such institution where

(a) there is a significant demand for communications with and services from that office in such language; or

(b) dues to the nature of the office. it is reasonable that communications with and services from the office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.”

After debate, the question being put on the amendment, it was agreed to.

Clause 20, as amended, carried.

Mr. Crombie moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding thereto immediately after line 3 on page 7 the following:

“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

(b) has application in the province to the extent and under the conditions stated in the resolution.

[Page 12]

(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 all purposes, including the purpose of amendment, be deemed to be a provision of this Charter.”; and

(b) renumbering the subsequent clauses accordingly.

After debate, at 6:03 o’clock p.m., the Committe adjourned to the call of the Chair.

EVENING SITTING
(88)

The Special Joint Committee on the Constitution of Canada met this day at 8:11 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Donahoe, Hays, Lapointe, Lucier, Petten, Thériault, Tremblay and Wood.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Gauthier, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.

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

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

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; Dr. B. L. Strayer, Assistant Deputy Minister, Public Law, and Mr. Fred Jordan, Senior Counsel, 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 Proeeedings, Thursday, November 6, 1980, Issue No. 1.)

The Committee resumed consideration of the motion of Mr. Crombie,—That the proposed Constitution Art, 1980 be amended by

(a) adding thereto immediately after line 3 on page 7 the following:

[Page 13]

“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 ol” a proclamation under the Great Seal of Canada declaring that any of those provisions

(a) has application in the province; or

(b) has application in the province to the extent and under the conditions stated in the resolution.

(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 all purposes, including the purpose ofamcndment, be deemed to be a provision of this Charter.”: and

(b) renumbering the subsequent clauses accordingly.

The motion was allowed to stand.

Clauses 21 and 22 carried.

On Clause 23 of the proposed Constitution Act, 1980

Mr. Corbin moved,—That Clause 23 of the proposed Constitution Act, 1980 be amended by striking out lines 16 to 42 on page 7 and substituting the following:

“23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population ofthe province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population ofa province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

[Page 14]

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.”

Mr. Nystrom moved,—That the proposed amendment to Clause 23 of the proposed Constitution Act, 1980 be amended by striking out everything immediately following the words “citizens of Canada” and substituting the following:

“in a province, who are members of the English speaking or French speaking minority population of that province, have a right to have their children receive their instruction in their minority language at the primary and secondary school levels wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) In each province, the legislature may, consistent with the right guaranteed by subsection (1), enact provisions for defining the term “English speaking or French speaking minority population” and for determining whether the number of children of citizens of Canada who have a right guaranteed by subsection (1) resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.”

After debate, the question being put on the subamendment, it was negatived on the following division:

YEAS:

Messrs.

Robinson (Burnaby)
Nystrom—2

NAYS:

The Honourable Senators

Asselin
Austin
Donahoe
Hays
Lapointe
Lucier
Petten
Thériault
Tremblay
Wood

NAYS:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Gauthier
Irwin
Lapierre
Mackasey
McGrath—22

After debate, the question being put on the amendment, it was agreed to on the following division:

[Page 15]

YEAS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Thériault
Wood

YEAS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Gauthier
Irwin
Lapierre
Mackasey—14

NAYS:

The Honourable Senators

Asselin
Donahoe
Tremblay

NAYS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Nystrom
Robinson (Burnaby)—10

Clause 23, as amended, carried.

Mr. Irwin moved,—That the proposed Constitution Act, 1980 be amended by adding immediately after line 42 on page 7 the following heading and section:

Enforcement

24. (1) Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration ofjustice into disrepute.”

After debate, the question being put on the amendment, it was agreed to.

Clauses 24, 25 and 26 were allowed to stand.

Mr. Irwin moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 10 on page 8 the following:

“26. This Charter Shall be interpreted in a manner consistent with the presentation and enhancement of the multicultural heritage of Canadians”; and

(b) renumbering the subsquent clausses accordingly.

[Page 16]

Mr. Robinson (Burnaby) moved.—That the proposed amendment adding a new clause immediately following line 10 on page 8 of the proposed Constitution Act, 1980 be amended by striking out everything immediately following the words “interpreted in a manner” and substituting the following:

“that

(a) is consistent with the preservation and enhancement of the multicultural heritage of Canadians; and

(b) ensures the distinct cultural. economic and linguistic identities of the aboriginal peoples of Canada.”

By unanimous consent, the amendment and the subamendment were allowed to stand.

Mr. McGrath moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding thereto immediately after line 15 on page 8 the following clause:

“27. No provision of this Charter affects or abrogates or derogates from section 17 of the Schedule to the Newfoundland Act.”; and

(b) renumbering the subsequent clauses accordingly.

Senator Petten moved,—That the proposed new clause following clause 26 of the proposed Constitution Act, 1980 be amended by striking out everything immediately following the words “this Charter” and substituting the following:

“abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada, in respect of denominational, separate or dissentient schools.”

After debate, the question being put on the subamendment. it was agreed to.

The question being put on the amendment, as amended, it was agreed to.

At 10:40 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 17]

EVIDENCE

(Recorded by Electronic Apparatus)
Thursday, January 29, 1981

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

I understand that the honourable Minister of Justice will be absent for about five or ten minutes. He has advised the Chair that he will be here at around 10 o’elock and I see that he will be in at any moment at this point.

On Clause 15—EquaIity before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I would like to invite Mr. Robinson, on behalf of the NDP party, to move the subamendment that was left last night at our adjournment at 10.30.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I believe that I moved the N-21 yesterday in French and English. I did want to have an opportunity to question the Minister with respect to the proposed amendment. I do not know whether you would prefer that we delay or that I proceed. I am in your hands, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I understand that you moved the amendment last night and in the usual way you introduced the amendment. You gave explanations and arguments why that amendment and in which context the amendment is presented; and I am quite sure that while we are awaiting the Minister, who should be here at any moment, that you may have an opportunity to introduce the amendment in general terms.

Mr. Robinson: And also, Mr. Chairman, an opportunity to question the Minister on the proposed amendment.

The Joint Chairman (Mr. Joyal): Certainly.

Mr. Robinson: Thank you, Mr, Chairman.

I should say, Mr. Chairman, just before starting, that there are two changes to the proposed amendment. Naturally, paragraph (b) should now be deleted in view of the fact that the government has accepted the amendment with respect to physical and mental disability and i would also ask honourable members to delete paragraph (f) and to change paragraph (g) to (f). That would remove the words “lack of means”.

We will be proposing another amendment later in the proceedings dealing with the equalization provisions which will touch upon the matter of economic rights, and it is our view that it would more appropriately be dealt with at that time, rather than within the context of Clause 15.

So, we are now dealing with the amendment which would make the changes in the substantive portion of the paragraph and which would add three new grounds of proscribed discrimination: marital status, sexual orientation and political belief.

Mr. Chairman, then to explain the purpose…

Senator Tremblay: What page are you on?

The Joint Chairman (Mr. Joyal): Honourable Senator Tremblay, I would be grateful to you if you would address the Chair for such questions, and I know you were absent last

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night and we are now on the revised subamendement that is identified N-21, Clause 15(1), page 6. lt is a subamendment to a main amendment that has already been introduced by the government party through Mr. Irwin.

Senator Connolly: Thank you, Mr. Chairman.

I was absent last night, but you will all be glad to know that I watched you very carefully on television. You performed very well.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Connolly. Go ahead, Mr. Robinson. Senator Tremblay.

[Translation]

The hon. Senator Tremblay.

Senator Tremblay: On a point of clarification, Mr. Chairman.

Mr. Robinson has just brought about some changes to his motion and I mustconfess that either through distraction or something else, I could not really understand what he was doing.

The Joint Chairman (Mr. Joyal): Then I will repeat it for your benefit.

Senator Tremblay: Well, I was attentive but I did not understand.

The Joint Chairman (Mr. Joyal): So, here it is, Senator Tremblay.

Mr. Robinson is suggesting, with the agreement of the Chair, to delete paragraph (b) of the subamendment that read:

[Text]

adding to Clause 15 (1) the following:
“physical or mental disability.”

[Translation]

As you know, last night we already unanimously agreed to this part of the subamendment.

As well, Mr. Robinson is asking hon. members of this committee to agree to delete paragraph (f) . . .

[Text]

Senator Tremblay: “lack of means”.

[Translation]

The Joint Chairman (Mr. Joyal): Exactly. Mr. Robinson suggests that there will be another amendment to deal with this part of the subamendment and, finally, he is asking to change paragraph (g) to paragraph (f) since he is dropping the previous paragraph (f).

So that it is only a matter of substituting the letter “t” for the letter “g”.

Senator Tremblay: If (b) is dropped, we will have to change something else.

The Joint Chairman (Mr. Joyal): No, (b) has not been dropped since we had previously agreed to it.

Senator Tremblay: Very well.

The Joint Chairman (Mr. Joyal): As you know, we have already carried a motion that allows us to renumber and reorganize in a logical order all amendments and subamendments previously carried.

Senator Tremblay: I thank you very much, Mr. Chairman.

The Joint Chairman (Mr. Joyal): You are welcome, Senator Tremblay.

[Page 19]

Mr. Robinson, would you proceed?

[Text]

Mr. Robinson, you can go on.

Mr. Robinson: Thank you, Mr. Chairman.

If it is now at least clear what we are doing, I would like to explain the purpose of the proposed amendments.

There are a number of changes in the substantive paragraph, aside from adding the three new grounds of prohibited, unreasonable distinction. First of all, we have added the word “in” in response to a number of witnesses who appeared before us.

I recognize that the government amendment includes the word “under”, but we want to make it very, very clear to the courts that we are dealing not only with the administration of the law, but also with the substance of the law, and by including the word “in” as well as the words “before” and “under”, we believe that we are leaving no room for doubt with the courts.

The second major change to the government amendment. Mr. Chairman, is to include “access to employment, accommodation and public services”, within the grounds which cannot be discriminated against, and that would be a recognition of a principle which was enunciated as early as 1972 by the Molgat-MacGuigan Committee following up on the Victoria Charter.

They said, and I would like to quote from their report;

A large area of the discrimination against all these groups of Canadians lies in the area of private morality and individual mores. To the extent that bills of rights provisions can give a focus to the spirit of tolerance and egalitarianism in our country, they can help to break down the barriers of ignorance and contempt which are the breeding grounds of discrimination

They go on to propose, Mr. Chairman,

These fundamental protections from discrimination apply not only within the framework of the laws, but also in these essential aspects of Canadian lives; namely, employment, accommodation and public services.

As they say:

The full control of discrimination practiced by private citizens would necessitate the supplementing of such constitutional provisions with ordinary legislation, both at federal and provincial levels.

We believe this should be extended to the private sector as well, in these key areas; and in these areas, Mr. Chairman, incidentally, often discrimination on some of the grounds referred to has been unfortunately significant.

The next major change in the substance, aside from the proposed additional grounds of discrimination, and Mr. Chairman, If I may just come back to that for a moment, I thought it was rather interesting that Mr. Irwin, in his questioning before this Committee of the Minister, assumed in his questioning that the particular grounds of discrimination included the private sector. The Committee will recall that Mr. Irwin asked the Minister whether this would not include protection

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from discrimination in obtaining a job and so on, and it was necessary for the Minister to say no, as the provision is presently worded, that is not protected. It is precisely to recognize the concern expressed by Mr. Irwin and by other witnesses and by the Molgat-MacGuigan Committee that this amendment is being proposed.

The final area of concern relates to the wording, and to clarify what we are intending, we would change the word “discrimination” to the words “unreasonable distinction” and instead of using the words “in particular” we would use the word “including”. This would recognize some of the concerns expressed by Senator Connolly, Miss Campbell and also a number of witnesses, that by using the words “in particular” we may not be clearly enunciating what the intent of the drafts people was. By using the word “distinction” we are making it very clear that we intend that we are not just dealing with a more narrow concept of discrimination which could be interpreted in a somewhat restrictive way.

Mr. Chairman, in addition, and we will be coming to Clause 15(2), there will a proposal that certain grounds can never constitute reasonable distinction and there can never be reasonable distinction on certain specified grounds.

The final area which I would like to touch upon in our proposed amendment is the addition of three new examples. This is’ all this is, Mr. Chairman, examples, because we are using the word “including”. The list is not exhaustive, as the Minister himself has said. Those three examples of the kinds of unreasonable distinction which we believe should be precluded in a civilized society, in Canadian society, are marital status, sexual orientation and political belief.

Mr. Chairman. speaking briefly to each of those proscribed grounds, dealing first with the area of marital status, I would point out that the ground of marital status was recommended for inclusion by the MacGuigan-Lamontagne Committee which studied Bill C-60 in 1978. They did allude to certain possible difficulties and implementation, but it would be my submission that these difficulties of implementation should not prevent the protection from discrimination or unreasonable distinction on the grounds of marital status. There was very recently a case involving the Canadian Human Rights Commission in which they pointed to discrimination on the grounds of marital status in the income tax provisions and stated that that was inappropriate and, Mr. Chairman, we believe that this ground should be explicitly recognized in the proposed charter of rights,

The second which we propose be added is the ground of sexual orientation. This again, Mr, Chairman, was a ground which was proposed to be added by many witnesses appearing before the Committee, including the Canadian Human Rights Commissioner, Mr. Gordon Fairweather, speaking on behalf of his Commission. He stated, Mr. Chairman, that a list of the enumerated grounds which does not include marital status, physical or mental handicap, political belief and sexual orientation does not offer adequate protection. The addition of sexual orientation as a proscribed ground of discrimination was also proposed by, among others, the Canadian Human

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Rights Commission, the United Church of Canada. the National Association of Women and the Law, the Canadian Co-ordinating Council of Deafness, the BC. Civil Liberties Association, the Canadian Association of Social Workers, the National Action Committee on the Status of Women, and a very significant group, the Canadian Teachers Federation.

Mr. Chairman, all of those groups proposed that we should follow the example of the Province of Quebec and recognize that in a civilized society, in today’s society, that discrimination or unreasonable distinction on the grounds of sexual orientation should not be tolerated and should not be permitted. I would briefly draw the attention of the Committee to the remarks of the group which appeared before us representing the Canadian Coalition of Gays and Lesbians, and what they said was:

We are not suggesting that the majority does or does not endorse homosexuality as a way of life, but what we accept in a free society is the principle of supporting the rights of a minority, of tolerance, and that there is a difference between saying that someone has a right to do something and saying that it is the right thing for that person to do, and that the question of distinction on this particular ground is a human rights issue.

Mr. Chairman, to conclude on this particular point on this particular ground, I would just like to again quote from that brief on this subject and some of the inividious circumstances of not accepting what has already been accepted in Canadian law, the right to privacy which is being proposed to be extended by quoting again from that brief:

In the present circumstances, gay people are either vulnerable to discrimination or are forced to try to escape such oppression by concealing their sexual identity. Neither alternative can be countenanced in a democratic society. The first alternative offends the principle of minority rights; the second alternative is surely one of the most oppressive forms of discrimination, to pressure people into lives built around deception and lies.

Mr. Chairman, on that basis, I would urge Committee members to accept this as a prescribed ground of distinction.

The final ground that we recommend, Mr. Chairman, is adding the ground of political belief. This is a ground which is explicitly recognized in the International Covenant on Civil and political Rights and is not at the present time recognized in the Canadian Human Rights Act but, Mr. Chairman, many groups appearing before us urge that this ground be included and I would support the inclusion of this. The Minister, at some point, asked are there any examples of discrimination on the basis of political belief. One need only point to the infamous Goyer blacklist, the list of some 21 civil servants who were clearly discriminated against on the basis of their political activities and their political beliefs.

Mr. Chairman, I would propose that these three grounds should be added as additional grounds of unreasonable distinction and that the other changes which are being proposed to strengthen this very fundamental clause of the proposed chart-

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er of rights this clause dealing with equality rights should receive the support, I would hope, of all members of the Committee.

Thank you, Mr. Chairman.

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

Mr. Hawkes: On a point of order, Mr. Chairman.

There is a lot of new thoughts in this total subamendment. Are we going to vote on each set of words or are we going to vote on the total, and therefore, how should we discuss it?

The Joint Chairman (Mr. Joyal): it is the understanding of the Chair that the subamendments have all been introduced as a package; but at the request of Mr. Robinson on behalf of the New Democratic Party there will be different votes for each of them, But in so far as they are all subamendments to the same Clause 15, it was Mr. Robinson’s request that they should be introduced as a whole for better comprehension and discussion of the over-all amendments.

Mr. Hawkes: So, in order to facilitate the work of the Committee, could we discuss one set of ideas at a time?

The Joint Chairman (Mr. Joyal): Yes, certainly.

Do you have any questions or comments which you would like to put forward at this time?

Mr. Hawkes: Yes, I do. I do not need to have a priority position. I would be interested in this clause at some point.

The Joint Chairman (Mr. Joyal): The fact that you have been absent for two or three days, Mr. Hawkes, makes us feel that you should have priority at this point in the discussions on these amendments.

Mr. Hawkes: Well, perhaps I should start with the the last one-political belief. I do not know whether I am asking questions of the New Democratic Party or of the Minister of Justice who is not here.

The Joint Chairman (Mr. Joyal): I understand the honourable the Minister of Justice is in the audience. He will be joining us in a moment.

I am quite sure that you could put your questions.

Mr. Hawkes: May I ask the Minister of Justice or his officials this. In law how are you going to define “political belief”? What type of case law might apply to those words and what implications do you see for adding that as a specific subcategory to Clause 15?

Mr. Robinson: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): On a point of order, Mr. Robinson.

Mr. Robinson: Mr. Chairman, I know that the Minister is very concerned about this particular amendment and recognizes the importance of it. Perhaps, before we hear questions from Committee members we might hear from the Minister at

[Page 23]

least as to his initial response which might facilitate questioning.

The Joint Chairman (Mr. Joyal): Yes.

Hon. Jean Chrétien (Minister of Justice): There are two aspects to this matter. We do not want to have a long list there. It is a term which can create some problems. it has not been defined. It can create a great of problems. One immediately comes to mind: what if someone has strong Ku Klux Klan ideas? You can say it is a political belief; perhaps it is not a political belief: but they can try to put it in that category.

I think it is too vague a term and, in our judgment, could create some problems.

Because of the uncertainty we would rather not have it.

The Joint Chairman (Mr. Joyal): Does that answer your question, Mr. Hawkes?

Mr. Hawkes: Well, no.

Let me put the question another way.

There has been a great deal of controversy in the House of Commons in the last week or 10 days on the National Advisory Council on the Status of Women. Part of the controversy centred around the qualifications for appointment to the Council and whether or not the Council is independent.

There are some who assert that to belong to a particular party is one of the important characteristics which precede appointment to that Council and many institutions of government.

Now, if this phrase was put into the Constitution of Canada. so that you could not discriminate on the basis of political belief, would that in effect have implication for people’s political activity and, therefore. subsequently their ability to be appointed to a lot of advisory bodies and councils.

Would that be removed as being possibly discriminatory?

Mr. Fred Jordan (Senior Counsel, Public Law, Department of Justice): On that particular question, I would prefer to stay away from the political aspect of the issue.

I do not know what the criteria are for selecting people for that Council. Those are matters determined by the Governor in Council in making appointments. There could be a number of factors which go into the selection of them. if one of them was political belief, the fact that one was chosen over another would not run foul of this as far as I can see.

Mr. Hawkes: What about in the area of national security where for appointment to very sensitive positions in government thcre is a considerable amount of checking done by the Crown in terms of security checks. Part of the information which might be gathered in that process might relate to political belief and in the current circumstances. a belief in political systems which are very different from democratic systems might be sufficient reason to exclude somebody from

[Page 24]

holding a position where a lot of confidential information was passed.

If this clause were put into the Constitution of Canada, would that mean that we would lose under law the power for the government to decide that someone who was predisposed to the Russian perspective, for instance, might be excluded? Would that clause make such exclusion illegal?

Mr. Jordan: Mr. Chairman, it would depend upon the circumstances. One has always to refer back to Clause 1. You have to demonstrably justify the reason for making the distinction.

I am sure if this were an employment position in National Defence where you were handling military secrets and the person had political opinions which were associated with those of countries that we consider potential enemies in war or otherwise, that might be a demonstrably justifiable reason for an exception to the prohibition against discrimination on the ground of political belief.

But it would vary with the circumstances. You would not carry that all the way down the public service.

There are a great number of positions where political belief should not be a criterion of the job qualifications involved.

Mr. Hawkes: There are some people in the country who believe that the American system of changing at least a portion of the managers within government on the basis of political belief is something which, in the United States, happens subsequent to presidential elections.

Some people belief that that system might also be something that Canadians should consider at some length and might wish to adopt in whole or in part.

If this particular clause were added to the Charter, would it affect that kind of determination, if we wanted to move in that direction in the future, would this clause make that more difficult?

Mr. Jordan: Mr. Chairman, in response to the question, if the government of the day could demonstrably justify that having a political loyalty to the party in power was an essential requirement of that job position, then it may not be affected by this. On that one I would have great difficulty in trying to guess what the courts might say.

Mr. Hawkes: But the decision would then be made by five out of nine Supreme Court judges in the ultimate sense rather than the elected people?

Mr. Jordan: Yes; and the government would have to be able to show, if anyone wanted to challenge that basis of hiring, that what they were doing was demonstrably justifiable, given the functions that these public servants were performing.

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

The honourable James McGrath.

Mr. McGrath: Not at this moment, Mr. Chairman.

The Joint Chairman (Mr. Joyal): The honourable Duff Roblin.

[Page 25]

Senator Roblin: Mr. Chairman, I would just like to explore the question that Mr, Hawkes has opened up at little further, it is a matter of some concern to me that what is—and must essentially be and remain-a political judgment should become a question ofjudicial decision.

It seems to me that the question of whether or not the higher ranks of civil servants, for example, should be switched when the government changes really cannot have any legal application. It seems to me that is entirely a political judgment.

If that political judgment has to be circumscribed by a clause of this kind, it seems to me that it creates a situation which one might be quite about in terms of theory, but in terms of practical application in the administration of public affairs, particularly with the new administration coming in, it would be quite intolerable.

Now, is there any body of experience. to which we can turn in respect of this matter?

The United States Constitution, I take it. provides no clause similar to this “political belief” clause we have here, or if it does, there is certainly a very wide way around it.

So I wonder if you could throw any light on that aspect of the matter?

Mr. Jordan: Mr. Chairman, as I understand the situation in the United States, this has been accomplished under their freedom of expression provision in the Bill of Rights.

With regard to the changes that do occur with changes of administration there. the courts have held this to be a valid exception to the right of freedom of expression in terms of the views you hold. Whether that is a good or bad approach . . .

Senator Roblin: Well, that really does not bear on my point because you are talking about freedom of expression as applied to the problem. Well, that is one matter.

However, when you specifically say political belief, that is something I think goes a little farther. Is there anything in the American system that corresponds to this political belief clause we have here?

Mr. Jordan: No, that expression does not appear in the United States Constitution.

Senator Roblin: Well, if we did have it in our constitution how do you suppose the expression would be interpreted, what does it mean?

I am sorry my friend John Fraser is not here because he has a very handy dictionary which explains many of these legal-political phrases so I cannot appeal to him, but it seems to me that where does political belief stop and bigotry begin, that whole area of the right of opinion and the rights of a person to express a view in the context of the society in which he lives is called political belief, I suppose, but would you go so far as to say that those folks who advocate the overthrow of our par ticular society are within the saving ambit of this clause political belief or not?

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Just how far does this expression take us and what improvement does it offer, perhaps this is argumentative, what improvement does it offer over our traditional way of doing things in which we do allow, I think, a very free and open expression of political opinion that is grounded by common-sense barriers as to how far one can go without trespassing on the public good?

Mr. Jordan: Mr. Chairman, I believe Senator Roblin has put his finger on the very problem we have with this and that is why it is not one of the items we felt was appropriately included in a list of grounds of nondiscrimination because. quite frankly, I cannot tell you what it means either.

The Minister mentioned one illustration at the outset. I do not know whether one could characterize the philosophies and views and policies of the Ku Klux Klan as being political beliefs, religious beliefs, I do not know what their foundation is but they certainly could fall into the realm of political beliefs. and that is white supremacy.

Perhaps another illustration I could give you is. you were talking about traditions in our Canadian society, what would be the impact of including this with regard to political parties and the people they hire to work for them? Would they be forced to hire those who held beliefs of other political parties? When it comes to choosing candidates in elections could you say no to someone who did not espouse the philosophy of the particular party in question, because you discriminate against him on the basis of his political beliefs?

I think it is a very dangerous area in which to venture.

Senator Roblin: Well, I liked your argument up to the last point, but on that point I think I could trust political parties safely to defend themselves from the intrusion of people who do not think the way they do.

Mr. Chrétien: It might be that someone who is excluded as a candidate in one area could have financial claims or what not against the party. You live through the problems of accepting or not accepting some certain candidate, it is a very difficult area.

Senator Roblin: Well, Mr. Minister, I can tell you that my experience has been, I found, and I learned this the hard way, that one can usually trust the good judgment of the nominating convention to choose a man that the party as a whole can adopt. Now, that is not always the case, particularly when people decide to become independent or to split from party views. I was an independent once mayself so I understand that position.

However, I think it really does not deal with the main thrust of my concern here and that is the problem of definition is considerable and the advantages that we gain from it I think are rather slight. In theory I cannot object to it but I say to myself what advantage do we have by including this that we do not have under our present system, and I do not know how far you carry this business of being particular or identifying individually the various rights you want to protect. I myself prefer the broader approach to the problem confident that the

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expression of public opinion either in politics or in the courts will keep us straight on these matters.

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

Before I invite the next speaker I would like to remind the honourable members that we have already agreed to abide by a certain procedure and that certain procedure, I will remind you, is the following:

That the mover of any amendment or subamendment shall be entitled to a maximum of five minutes to present the amendment or subamendment;

Second, members of the Joint Committee shall be entitled to speak once only to any amendment or subamendment and for a maximum time ofthree minutes;

Third, the mover of any amendment or subamendment shall be entitled to a maximum of three minutes to conclude;

And fourth, members of the Committee shall be entitled to a question to the Minister on a clause with a supplementary question to be allowed at the discretion of the Chair.

I remind honourable members, and I would invite them to look to the Chair during their questioning, to get an indication of how much time is left to them. This is the procedure we followed in the past and that procedure has served us well. The Chair feels awkward in cutting off a member when he is pursuing a line of questioning, but we have now a more strict time allocation than in the past when we had more time for questioning witnesses, and at this time I would invite honourable members to abide by that general consensus that was expressed around the table at the beginning of the week, and I would be grateful if all honourble members would try their best to abide by this procedure.

The honourable James McGrath.

Mr. McGrath: I accept your admonition. Mr. Chairman, and I will try and abide by it.

Senator Roblin: If only we could move the witness up beside the Chairman then we would not have any problem, we would all be looking in the same direction, but thank you for your discretion, Mr, Chairman.

Mr. McGrath: I would like to ask the Minister one or two questions regarding this amendment, because there are many things in it that at first blush appeal but when you get into it you can see some of the problems. jurisdictional problems it creates.

For example, how do you ensure by constitutional amendment without seriously infringing on provincial jurisdiction access to employment?

Mr. Jordan: Mr. Chairman. in response to that, the clause as presented by the government addresses itself only to laws and relationships between the state and individuals, it does not attempt to deal with private relationships in such areas as employment, accommodation and public service. To the extent that those are provided by the government obviously they would be covered.

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However, the terms of the landlord refusing to rent his premises on one of the prohibited grounds of discrimination is amply covered by all the human rights codes which address themselves to the private areas of discrimination, and I can only say here that I think the whole of the Charter is addressing itself to the protection for individuals against acts by the state, and I would be very worried if we ended up with a Charter that mixed into that the domain of private infringement of liberties and freedoms. I think those are ones to be left to be dealt with by human rights codes.

Mr. McGrath: Well, it seems to me, Mr. Chairman, by way of brief comment, that what we are seeing here is an attempt similar to the one made by Mr. Robinson under the legal rights provisions of the Charter to include things that are already well covered by the Criminal Code, and now you are trying to address all social problems, and of course the Constitution was never meant to do that. You are getting into a very dangerous area when you attempt to do that.

Perhaps the Minister may want to comment on that.

Mr. Chrétien: That is exactly it. We said we want to establish the basic rights of Canadians in the Charter but there is still room for the legislature and so on. You cannot write all the social problems and possible solutions of the day into the constitution because society evolves and it might be that some change we do not see might be made by a provincial government, and they would not be able to enact anything because they would be caught in the constitutional problem and everything would become a constitutional problem subject to the complicated process of amending the constitution.

I do think we establish a framework but we have to leave the legislature with some authority and room to manoeuvre.

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

I would like to invite Mr. Robinson to conclude at this point. There are no more speakers on my list.

Mr. Hawkes: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Hawkes.

Mr. Hawkes: What is he concluding? I thought we were going to go at each of these ideas separately. Is he concluding the one on political belief, is that what he is concluding, or the total amendment?

The Joint Chairman (Mr. Joyal): No, he is concluding on the whole of the subamendment and the Chair will call the vote separately.

Mr. Hawkes: Does that mean that for all of his new set of ideas then my total time, as a member of this Committee, to look at political beliefs, sexual orientation, material status and all the rest of the tings, that I have three minutes to make my presentation?

The Joint Chairman (Mr. Joyal): Mr. Hawkes, with great deference, you have started your line of questioning by the last part of the subamendment and I understand that in all logic, if

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you would have liked to question on some other section or parts of the subamendment, that you would have addressed your questions on marital status or sexual orientation or the interrogatory parts of the subamendment first, but the Chair understood that you started with the last part and that you had no more questions on the first part of it.

I am certainly in a position to use my discretion in allowing you additional questions, but as I said to you, that is one subamendment and the procedure that we have accepted. and it was at the very suggestion of your own party when we had the meeting of the Subcommittee on the Agenda, and it was endorsed by unanimity around the table, that it would be the procedure and we are dealing at this point with one subamendment with different votes.

I certainly want to be aggreable to you and give you an opportunity to question, but the Chair has to be bound by the rules, and I am using my discretion up to a point when I apply those rules.

Mr. Hawkes: In my original point of order, Mr. Chairman, I guess having been away for a couple of days I may have got it wrong, but I thought if we were going to vote on these issues separately, then we would have a discussion on them separately and the reason for starting with the last one was because I assumed it would be the first one voted on and then we would move to the next set of words.

The Joint Chairman (Mr. Joyal): If you have any questions, I would invite you to ask them at this point in the context of the procedure and the time allocation that I have to abide by.

Mr. McGrath: On the same point of order for the help of my colleague who was away for a few days, we did agree today at our steering committee meeting to review the procedure and the concerns that Mr. Hawkes addresses are legitimate concerns. We are going to be meeting at 12 o’clock and certainly it is something that we can address at that time.

The Joint Chairman (Mr. Joyal): I invite yo to ask further questions, Mr. Hawkes.

Mr. Hawkes: Could I go back to the Minister of Justice then, with at least two short questions. He spoke to the difficulty of defining political belief. Could you give me the definition of religion? Do you feel that in law religion is clearly definable, and the illustration used by one of your officials a minute ago was that the beliefs of the Ku Klux Klan, it would be difficult to tell if they were political or religious, and I am wondering how we get out of that conundrum. You suggest that religion is difficult to define, just as political belief is.

Mr. Jordan: Mr. Chairman, I think the same problem does exist to some extent with regard to the definition of religion, but this is one that has been in bills of rights such as the United States Constitution and the Diefenbaker Bill of Rights for over 20 years now, and the sensing through the courts as to what constitutes a firmly held and recognized and acceptable, religious belief is a little easier to handle than political belief. I am not saying that there is any definitive definition of a

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religious belief because that would be to mislead you. So there are problems there, too.

Mr. Hawkes: I think we are aware when provinces put in human rights codes, and we had some eloquent testimony from Premier Blakeney, that by putting in no discrimination on the basis of sex. he reminded us that the first case that came to his attention was a recently widowed woman who put an ad in the paper asking for a female boarder, and that that contravened the Human Rights Code.

In your explanation, I think to Senator Roblin, you indicated that the NDP amendment would start to intrude into the private sector and you made the comment that you would prefer that intrusion into private sector activity to be handled through human rights codes, rather than through the constitution. Could you elaborate on that kind of logic?

Mr. Jordan: Mr. Chairman, I think when I spoke about what is better handled through ordinary human rights legislation, be it provincial or federal, was the question of private relationships where one individual is discriminating against another as opposed to what the Charter is proposing to do, and that is to stop the state from enacting laws which are of a discriminatory manner or authorize discrimination or carry it out in acts through government agencies.

That was the point I was making there.

Mr. Hawkes: Are you making that point, because . . .

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Hawkes, but I have to remind you that you have asked the Chair to ask questions on other parts of the subamendments and you are coming back on the same part of the amendments, and I think I cannot allow that because, as I mentioned to you, at this point I am bound by the rules that we have already accepted. When I invited you to ask additional questions. I thought that you would address the Chair, or the witness or other members on other parts of the subamendments; on marital status or the interrogatory parts or on sexual orientation, but now I understand that you are still questioning on the last part, which is political belief and you have already spent ten minutes on that first round of questioning, because the very question that you have asked the witness is the distinction between religion and political belief or political ideas, and that I understood was in relation to political belief or the definition of political belief.

I would invite you to question, but on other parts of the proposal.

Senator Lucier: Mr. Chairman, on a point of order.

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

Senator Lucier: Mr. Chairman, I am really impressed with Mr. Hawkes’ wisdom, but it seems to me that I have been sitting here for a long time with, I think, a great amount of patience, more than I usually show, but it seems to me when you read out the rules and the rules say that Mr. Hawkes is

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allowed three minutes, he started out the round with just under 10 minutes, you bent the rules again. for some reason that I do not understand, and allowed him to go on again; there must be an end to this somewhere. Surely, somewhere along the way we are going to decide that this thing has been discussed long enough, at least by Mr. Hawkes, and let us get on to following the rules. whatever they are; let us follow them to some degree and get on with the discussion.

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

I have no other choice then, but to accede to the point of order of Senator Lucier and to invite you, with the same proviso as was expressed by honourable James McGrath, that that question will be discussed later on today at 12 o’clock at the meeting of the Subcommittee on the Agenda, and there we might decide to review the rules. But at this point I have to stick by the rules.

Mr. Hawkes, if you have any other questions in relation to other parts of the proposed motion. I would invite you to address them, but within the framework of the time allocation that we have already accepted.

Mr. Hawkes: Could we ask the Minister of Justice to tell us in law what the words “marital status” would mean, and what the words “sexual orientation” might mean?

Mr. Chrétien: I do not intend to give you the definitions of this and that. I have explained earlier that we are writing a Charter of Rights. We do not want to include everything in that. This is exactly the type of problem. You put 50 words there, 100 words there, and I have to give you a definition that l do not want to give you because I do not want to accept the amendment.

I am not here as a judge to determine what marital status means, what sexual orientation means. lt is because of the problem of the definition of those words that we do not think they should be in the constitution. Do not ask me today to tell you what it is, because those concepts are difficult to interpret. to define and that is why we do not want them in the constitution. I am not going to venture to tell you what is sexual orientation. I am not interested; and I will not fall into that trap, because we do not want them for the reason that it is socially, and in terms of law, it is a very difficult area.

I am not going to take the responsibility of giving you a definition of those things because I do not want to have them in the constitution. When we are in Parliament discussing those things under a bill of rights of a Criminal Code, at that time I will have to give the legal opinion of what that means, but today, Mr. Chairman, with due respect, I do not want to comment on any of those words because I do not want them there and I do not want to say something here that later on when we will be in front of Parliament discussing those problems, they will quote back to me what I have said on the spur of the moment. That could be of great consequence.

So being a responsible Minister. I will not give you one comment on those words that I reject and I would ask my advisers to follow the same thing because I do think that

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following this discussion, I am getting very worried that we are completely sidetracked because of the comments on meaning of words and this and that, and we are not here to debate that. They are too vague; we do not want to create a political debate on them at this time.

We have a Parliament to decide that in due course and I do think that from there on I cannot say anything and you could put the question but I will not reply to those questions.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp.

Mr. Epp: Mr. Chairman, two points on a point of order that I would like to make arising from Mr. Hawkes’ intervention and also the Minister’s.

First, regarding the Minister’s comments that he does not want to get involved in the amendment, that it goes beyond the scope of a charter of rights, I agree with him. I think we are going far too far, frankly. That is my personal view and I am not expressing it on behalf of my party; far too far in a charter of rights where we want to hang every barnacle and every eavestrough and every coat of paint on a charter of rights and at the end we do not even know what we have done. So that part I have no difficulty with.

Where I have some difficulty and I do not think possibily the Minister meant in the way I understood it, and that is that it is not our job here to look at words that are in the proposed resolution as to what their meaning might be. I think that is another question.

Mr. Chrétien: That is another question. That list of words that do not find their place, will not find their place in the constitution.

Mr. Epp: You were speaking about an amendment as opposed to a resolution.

Mr. Chrétien: No. I will reply within the framework of the resolution, but for example, I was speaking that now we are going to have an amendment on marital status. I do not want to debate it. I do not want it in the constitution, neither sexual orientation. If you want a debate, you introduce a bill in the House and we will debate it there.

Mr. Epp: Mr. Chairman, if I could just conclude.

If we are referring to this particular amendment, again I agree with the Minister and his views as to a charter; apart from whether it should be entrenched now or later, that is for another day. I do not think we should add all these matters to it and I believe we are ready for the vote on the amendment.

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

Mr. Robinson, to conclude on the proposed subamendment.

Mr. Robinson: Thank you, Mr. Chairman.

I do have just a couple of brief supplementary questions from the questions which have been asked. I did not have an opportunity to question the Minister earlier.

Mr. Chairman, my first question is with respect to the matter of the private sector. Would the Minister clarify his views. Do you believe that these grounds of unreasonable

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distinction or discrimination should not be extended to the fundamental areas of employment, the right to a job, to housing and to public services, is that your position?

Mr. Jordan: Mr. Chairman, the governments position has already been expressed on this and I can simply confirm it, that the Charter of Rights, in this area equally it should be confined to relations between the state and individuals and not get into the area of relationships between individuals themselves.

Mr. Robinson: Mr. Chairman, that of course means that in the private sector there could very well be discrimination on the basis of sex or race, but I will not pursue that point.

My second question arises from questions of the Conservative Party and also certain statements that the Minister made.

Mr. Minister, we are not talking about barnacles or eavestroughs; we are talking about human beings. Would you respond, please, to the representations which have been made by the Canadian Human Rights Commissioner, by the United Church of Canada, by the Canadian Teachers Federation, the National Action Committee on the Status of Women, and many, many other organizations and individuals on why you are not prepared to include sexual orientation in the Canadian Charter of Rights.

Mr. Chrétien: We haave explained that there other grounds of discrimination that will be defined by the courts. We wanted to have an enumeration of grounds and we do not think that it should be a list that can go on forever.

We do think that at this time we have given enough in this Charter for the protection of the right of the individual in front of the legislature and law that can be passed. In these areas evolving in the law, we do not want to get involved in making definitions at this time and that is why it is not there. There is still the Human Rights Commission and there is still the Human Rights Bill that are in front of Parliament here and in front of the legislature and these things will be debated there.

We have responded yes; we have received the breifs; we have prepared the answers of the resolution and we said we cannot include everything from the Criminal Code as it was under the other section earlier. Now we are going into the social field and we are reviewing all the social acts that have been passed over the last 15 or 20 years and we will be led into trying to enshrine them all, the virtue that has been expressed there, or to be translated into the Charter, and we do not. So that is the answer. We have looked into that and it is not appropriate at this time to-enshrine it in the Canadian constitution, but those problems have to be dealt with in Parliament and through the legislature.

The Joint Chairman (Mr. Joyal): That will be your final question and final intervention, Mr. Robinson. I am sorry, I will have to abide and apply the rules with the same kind of clarity that I have invited Mr. Hawkes earlier, and if I would not be so doing, the Chair would be unfair.

Mr. Robinson: Mr. Chairman, I quite understand it. I certainly agree.

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My final question, Mr. Chairman, in view of the fact that I have made the grounds for this amendment, I believe, fairly clear earlier on is this: are you then suggesting that you may be prepared to move. as a government, to make reference to the grounds of marital status, sexual orientation and political beliefin federal legislation?

Mr. Chrétien: We will be back in Parliament some day. I hope, and there will be some law and we will have laws on human rights, their are some propositions that are being proposed by the Commissioner, Mr. Fairweather and we are looking at a possibility of putting some amendments there and when we come to that law, if you want to ask those questions. if they are not there, I will tell you why the are not there. Of course the door is not closed. We still have our responsibilities in front of Parliament of Canada, but I do think that on the enshrining these problems or solutions into the constitution, it is no. But of course when we are in front of Parliament. I am not preoccupied a minute. You will be there and you will ask those questions, and I will show the same great patience that I have shown so far, and the progressive answers I have given so far.

Mr. Robinson: Thank you, Mr. Chairman.

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

The Chair would like then to call the vote on the proposed subamendments and we will call separate votes on each of the clauses of the proposed subamendments.

I will call the vote on Paragraps (a), (c), (d), and (e). Yes. Mr. Robinson, on the vote.

Mr. Robinson: I would ask for a recorded vote on each of these, please.

The Joint Chairman (Mr. Joyal): Certainly I would like to invite the Clerk of the Senate to call the vote in the usual way on paragraph (a) of the proposed subamendment as introduced by Mr. Robinson.

Amendment negatived: yeas, 2; nays, 21.

The Joint Chairman (Mr. Joyal): I would like then to call the vote on paragraph (c) to the subamendment which is adding to Clause 15(1) the following: marital status. The Clerk of the Senate, please.

Amendent negatived; yeas, 2; nays, 21.

The Joint Chairman (Mr. Joyal): I would like to call the vote on paragraph (d) of the subamendment, reading:

adding to Clause 15(1) the following: sexual orientation,

Subamendment negatived: yeas, 2: nays, 22.

The Joint Chairman (Mr. Joyal): I would like to call the vote on paragraph (e) of the proposed subamendment reading,

adding to Clause 15(1) the following: political belief,

Subamendment negatived: yeas, 2; nays, 22.

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The Joint Chairman (Mr. Joyal): I will not call the vote on paragraph (f), taking into account the fact that paragraph (e) has been defeated.

I would like to invite honourable members to go back to the main amendment Introduced by the government party and Mr. Irwin.

Mr. Epp: Mr. Chairman, does that conclude Clause 15(1)?

The Joint Chairman (Mr. Joyal): No, I still have another amendment on Clause 15(1)—CIause 15(1); it is an amendment introduced by the NDP Party.

Mr. Epp: I would like to raise a point of order later.

The Joint Chairman (Mr. Joyal): I would like to call the vote on the proposed amendment on Clause 15(1).

Amendment agreed to.

The Joint Chairman (Mr. Joyal): Mr. Hawkes.

Mr. Hawkes: Mr. Chairman. I had some questions on the amendment. The clause is amended. But it is debatable. I would like to be included on the list when you come to that stage.

The Joint Chairman (Mr. Joyal): Certainly.

The next amendment is one moved by the NDP party. and identified N-22, Clause 15, new subclause after Clause 15(1). page 6.

Mr. Robinson: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Robinson.

Mr. Robinson: Mr. Chairman, in view of the disposition of the previous amendment, I am perfectly prepared to withdraw this particular amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. The Chair was about to advise you to do so.

I understand that the honourable Jake Epp has an amendment or a question in relation to Clause 15(1).

Mr. Epp: No, Mr. Chairman. It is not in relation to Clause 15(1). I just thought it would be an appropriate time to raise a point of order before you go to the next subclause.

You will recall that yesterday I raised a point of order in terms of the tabling of amendments.

While all of us understand around the table that all amendments and their final wording might not be available at this moment, yet in terms of the amendments which are to be moved and which parties intend to move, generally in their final form they should be available to us.

I raised that last day. Senator Austin and Mr. Nystrom and I had a very brief meeting which was inclusive, and I understand there have been additional discussions to which I was not party. That is fine. I am wondering what the state of the art is right now.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Senator Austin, and the honourable Mr. Nystrom.

Senator Austin.

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Senator Austin: Mr. Chairman, I would prefer to leave the response to the point of order to the discussion of the steering committee which, it is now agreed, will be held at 12 o’clock noon today rather than to move into an extended discussion as to what an appropriate cut off date is.

I indicated last night that I agreed with Mr. Epp that we do need a cut-off time. As far as I can see, it is a question, Mr. Epp, of discussing the needs of the three parties in terms of that cut-off and then agreeing to a system and a time.

Mr. Epp: Mr. Chairman, the only difficulty with Senator Austin’s comments, if I may respond to them, is that I believe we will be through with Clause 15 prior to 12 o’clock taking a look at the work ahead of us in the next hour.

I know the justice department has some difficulty in terms, even of our own amendments, which they have had for some length of time when I made them public—in terms of drafting or having them conform to what the clerks would like to see in terms of drafting. I want to be as forthcoming as I can.

It is for that reason, I think. this matter has to be discussed, and at least then we would have to hold the whole matter up after completing all the work relating to Clause 15, because Clause 16 and on are not before us in those final drafts, even though they have been made available for some time.

We do have a difficulty in the sense that they are not in our hands in the form in which they should be; we will need them to discuss the whole matter.

Senator Austin: Are you talking about your own amendments, Mr. Epp?

Mr. Epp: No, everyone’s.

The Joint Chairman (Mr. Joyal): Mr. Nystrom.

Mr. Nystrom: Mr. Chairman, I think we are having some of the same things happen to some of our own amendments in terms of getting them properly drafted into legalese and translated or written in both official languages. As soon as that technical problem is resolved there would be no problem in making them available—certainly, the amendments in the next number of clauses—to honourable members.

But I think we should discuss the matter at the steering committee, as Mr. Austin has said.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move to the next amendment dealing with Clause 15(2). The first amendment that the Chair has been informed on Clause 15(2) is. . .

Mr. Epp: Excuse me. Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes, Mr. Epp.

Mr. Epp: I am sorry to delay the work of the Committee but I do not believe that this matter has been resolved—at least not to my satisfaction certainly.

I would like to clear up the record that I have G-22 and on dealing with Clause 6 and which are government amendments. Our amendments should be available as well.

But there is another element to this, and that is while we have these amendments we do not even have the gist of

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possible amendments from NDP on these clauses and how are we to relate to them?

Mr. Chrétien: May I offer some information to the Committee?

The Joint Chairman (Mr. Joyal): Yes, Mr. Minister.

Mr. Chrétien: I am informed that all the amendments up to Clause 40 will be ready in five minutes.

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

Mr. McGrath: Why not let us adjourn after Clause 15.

Mr. Epp: Following Mr. McGrath’s suggestion, Mr. Chairman, I think we should adjourn after Clause 15; after we have completed that, we can organize ourselves for the next session.

Mr. Chrétien: Let us finish with Clause 15(2) and then we could go to Clause 16—it would take two minutes.

Mr. McGrath: Mr. Chairman, If I may . . .

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: Mr. Chairman, we are disposed to make as much progress as we can. It is in that vein that my colleagues raise the point of order.

Perhaps after we have disposed of Clause 15, we not only want the amendments in our hands, but would like an opportunity both to study them and relate them to what we are doing. We are dealing with very serious questions here and that is why I suggested an adjournment.

The Joint Chairman (Mr. Joyal): The Chair is in full concurrence with the point of order as raised by Mr. Epp.

I have just asked our Clerk to give us the minutes of the meeting of the Subcommittee on Agenda and Procedure where there has been unanimous consent to inform the Chair of the amendments at least 24 hours before. You put the Chair in a position where the Chair has to make a ruling, and even though the Chair does not pronounce on each of those amendments, nevertheless the Chair has to study them.

You will understand that our Joint Chairman and myself cannot come to such meetings taking only those papers and putting them through the machine; we have to read them and make sure that there are no errors or that no corrections are needed; sometimes we have reservations, and Senator Tremblay has properly raised many points yesterday which were quite acceptable.

We find ourselves in a position where we do not have the feeling that we are doing the best work. As responsible members of this Committee we cannot accept that. For instance, this morning I noticed that I have received all the amendments on Clauses 16 to 23 from the government party. I understand that there is no amendment from the Official Opposition, from the Conservative Party; but Nystrom has announced that he would have another package of amendments.

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At this point, I am in a position where I cannot give any rulings. I have not had time to study.

I think, in all fairness to honourable members, the point you have raised has to be accepted, insisted upon and emphasized by the Chair.

I think Mr. Nystrom will understand it. Yesterday I did not call you back. Mr. Epp. on that very point of order, because I did not see Mr. Nystrom sitting at the proper time when I might have invited him to reply to your point of order.

At this point I think honourable members have to understand that we are in our final step of work and it is the most important step.

As Mr. Hawkes realized this morning we are at a stage where we should have talked about those amendments.

Mr. Hawkes was right in asking the question that he did ask this morning, because he did not have time to study them the previous hours. Otherwise, the Chair will be always faced with the same situation when we are dealing with clauses in relation to the referendum, in relation to the amending formula and all honourable members know that those questions are very technical and very complex and we need some time—caucuses among honourable members so that they would know if they are going to accept amendments.

We have had experience in the past days where some members had caucuses and need to have caucuses, because when they do not have a caucus or such an opportunity to meet they cannot come to the meeting and express views which are in accordance with. or in conformity with the line of policy that they want to pursue.

I think the Chair has to insist upon that, especially in view of the fact we are now in the real final step, and I know that everyone at this table is concerned at the fact that we have to report to the House; it would be unfair to the House if we are not in a position to report.

In order to report, or to give any judgment on what part of our work would be completed, I think we have to expend our best efforts so that we would put ourselves in a position so that we would be able to report and debate properly.

In saying so, I think I express the views of all honourable members.

Mr. Irwin: Mr. Chairman, If I may . . .

The Joint Chairman (Mr. Joyal): Mr. Irwin.

Mr. Irwin: Mr. Chairman, might I suggest that when we finish Clause 15 that we deal with Clauses 16 to 20 dealing only with New Brunswick and not touch Clause 23 or any suggestions on Ontario which may come forward until after the lunch hour, if this is agreeable.

Some hon. Members: Agreed.

Mr. Epp: Mr. Chairman, might this be a solution for the Chair and all honourable members of this Committee, that we

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conclude Clause 15 and then call an adjournment and go right into the steering committee.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): I see there is agreement and consensus around the table to the suggestion as expressed by the honourable Jake Epp.

Mr. Irwin: Mr. Chairman. I would like to clearly state that I do not think that any amendments or suggestions coming forward on Ontario should interfere with our completion of the New Brunswick amendments first.

Mr. Epp: It is agreed to adjourn after Clause 15.

The Joint Chairman (Mr. Joyal): I think there was a suggestion put forward that after Clause 15 has been voted on, there will be adjournment and honourable members participating in the steering committee will meet, and the Chair will not entertain any other resolution, motion, question or political issue which will go beyong Clause 15.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): That is agreed.

I would like to invite honourable members to take the next amendments. There is the main amendment introduced by the government party identified as G-21, Clause 15(2). page 6. There are two subamendments in relation to that main amendment; there is one subamendment introduced by the Official Opposition identified as CP-8(2) Clause 15, page 6; and another subamendment, identified as N-23, Clause 15(3), page 6.

I would like to invite Mr. Irwin to introduce the government amendment, and then the Official Opposition and then the NDP party.

Mr. Irwin.

Mr. Irwin: Mr. Chairman, on behalf of the government, I wish to move that Clause 15 of the proposed constitution act, 1980 be amended by striking out lines 6 to 9 on page 6 and substituting the following:

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origine, religion, sex or age.

Il est proposé

Que l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 6 à 9, page 6, de ce qui suit:

«(2) Le paragraphe (1) n’a pas pour effet . . .

I think there is a misspelling here, Mr. Chairman, it should be a “d”.

. . . d’interdire les lois, programmes ou activités destinés a améliorer la situation d’individus ou de groupes défavorises, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe ou de leur age.»

[Translation]

Thank you

[Page 40]

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

[Text]

I would like now to invite the honourable Jake Epp to move the amendment on behalf of the Official Opposition.

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

I would like to move CP-8 (2), Clause 15: that the proposed amendment to Clause 15 of the proposed constitution act, 1980 be amended by striking out all that portion of Subclause 15(2) following the words “preclude any” and substituting the following:

Statutory distinction that has as its object the amelioration of the condition of any class of persons,

Senator Tremblay will read en Français.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

[Text]

Il est proposé

Que le projet de modification de l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, au passage qui suit le membre de prhase «n’a pas pour effet d’interdire», au paragraphe 15(2), de ce qui suit:

«les mesures Iégislatives destinées à ameliorer la situation de telle ou telle categorie de personnes.»

[Translation]

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

The Joint Chairman (Mr. Joyal): Thank you, [Text] Senator Tremblay.

I would like to invite Mr. Robinson on behalf of the New Democratic Party to move the next amendment identified N-23, Clause 15(3) page 6.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I would move that the proposed amendment to Clause 15 of the proposed constitution act, 1980 be amended by striking out in the proposed Clause 15(2) everything following the words “conditions of disadvantaged” and substituting the following:

classes of individuals including those that are disadvantaged on the grounds specified in that subsection.

Et en français, il est proposé

Que Ie projet de modification de l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, au passage qui suit le membre de phrase «à améliorer la situation», paragraphe 15(2), de ce qui suit:

«de catégories de personnes défavorisées notamment pour les motifs énonces dans ce paragraphe.»

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

I would like to invite Mr. Epp to introduce the amendment in the usual way.

Mr. Epp: Thank you, Mr. Chairman, I will be brief.

If you would read Clause 15(2) of the government, you will notice the word “disadvantaged”. That word has, we think,

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unfortunate connotations and that the word would be better replaced with the distinction of “condition of any class of persons”.

We think that the effect would be the same but it would put it into a positive framework in terms of the constitution rather than in a negative perspective and I believe also, Mr. Chairman, it should be noted that this wording or the sense of the wording was suggested by Mr. Fairweather as well as a number of other groups that appeared and supported the thrust of the clause but felt the word “disadvantaged” was one which could be better served with words such as “and any class of persons”.

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

Mr. Hawkes: At some point is the government going to respond?

The Joint Chairman (Mr. Joyal): Yes, Mr. Hawkes. I see that the Honourable Minister of Justice is in the audience, but maybe some questions can be addressed to the officers of the department.

Mr. Epp: I could ask Mr, Nystrom in view of the seat he has taken maybe he would like to respond for the government.

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

Mr. Epp: What would be the answer?

The Joint Chairman (Mr. Joyal): Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman. I have two or three questions.

A week ago the government announced a program that would designate five or six communities in Canada that were hard hit by layoffs and they had special programs planned for those communities; one involved people 54 years of age and older who could take early retirement; another one was for people 45 years of age and over who could be eligible for a portable wage subsidy.

My question is: the wording proposed by our party versus the wording porposed by your party, what might the legal ramifications of those two separate wordings be for a program of what kind which is age based and related to five or six designated communities in Canada? Would there be any distinction whatsoever and, if so, what would those distinctions be?

Mr. Jordan: Mr. Chairman, I am not familiar with the details of this particular program but I presume that it is one authorized by law and therefore would come within the Conservative proposal for having the distinction based on the statutory rather than a more general basis as the government proposal would have it.

With regard to the age qualification, I do not know, since the proposal before us now does not relate back to the grounds of discrimination in subclause l, I would wonder if the age factor would be able to be looked at under the amendment proposed here as opposed to the wording that the government

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has put forward, where they related back to including the specific grounds in one.

Mr. Hawkes: Could I just check out what I think I heard you say, that the Conservative wording about the statutory distinction between any class of persons would mean that nobody could challenge the program, but that our wording would be strengthened if we repeated the grounds from the previous paragraph; but that if you leave it alone the way the government did the word disadvantaged might or might not be applicable in the situation?

Mr. Jordan: Well, Mr. Chairman. I guess the distinction I was making in the first case is that there are a number of so-called affirmative action programs, which this subclause is called in the jargon, which do not necessarily find a basis in law. This one. I do not know by what the device the government has authorized the expenditure of funds for this program, that is why I was saying that presumably it comes under some law authorizing it, which is the requirement of the amendment as proposed by your party.

Mr. Hawkes: The government’s amendment says “law program or activity”, our amendment says “statutory distinction”.

One of the things that it seems to me to be important in whichever choice of words you use is that many decisions could be made by civil servants in government when you have “law, program or activity”, that civil servants could make those decisions to discriminate on the basis of things that we find in Clause 15(1) without examination by parliament, and that if people found those distinctions to be offensive they would not be as challengable in court using the government’s wording of “law, program or activity”. Whereas, if the wording proposed by our party on the basis of statutory distinction would imply that any distinction which was based on the ideas in Clause 15(1) would have to be debated in public prior to their utilization.

Am I correct in that kind of idea related to the choice of words?

Mr. Jordan: Mr. Chairman, I think the simple answer is yes, but perhaps I can give an illustration of the concern we have with limiting it in that way,

To take the universities, for example, they receive block funding from provincial governments without any conditions attached as to how they spend the money except for educational purposes within the university. They may decide. as some of the various faculties have, to mount affirmative action programs to encourge women to enter law school, native people to enter law school; these do not have any statutory authority in that when the Government of Ontario or Quebec or whichever made the appropriation; and these funds may be used for affirmative action programs.

I think it would be most unfortunate if those kind of programs were excluded simply because in each case parliament or the legislature did not sit down and put in clause

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saying: affirmative action programs can be undertaken in spending these funds.

I think you are aware of the way in which appropriations are voted by Parliament, the definition of the range of things which are encompassed by them are frequently not very elaborate.

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

I see that honourable members are ready for the vote.

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to call the second subamendment, the one moved by the New Democratic Party, identified N-23-1 Clause 15(3). Page 6 and invite Mr. Robinson to introduce the amendment in the usual way.

I repeat that the amendment is identified as N-23-1 Clause 15(3), page 6, and the Chair has been informed very appropriately by one of our observers that the Chair should give the title of each clause before we open the debate on one clause because the Chair has been informed that for Canadians who are watching our work it might be really a jungle of figures and words, and they will not now exactly what the honourable members are discussing. In the future the Chair, with the consent of honourable members, will identify each clause in reading in the proposed motion by the text that you will find in the margin so that the Canadian public could know at least generally the title or the main subject or object of our discussion.

So Mr. Robinson, if you want to go on with the next amendment dealing with affirmative action programs.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment would change the proposed Clause 15(2) as follows:

I move that the proposed amendment to Clause 15 of the proposed Constitution Act, 1980 be amended by striking out in the proposed Clause 15(2) everything following the words “conditions of disadvantaged” and substituting the following:

classes of individuals including those that are disadvantaged on grounds specified in that subsection.

Mr. Chairman, en français, il est proposé

Que le projet de modification de l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, au passage qui suit le membre de phrase «à améliorer la situation», paragrahe 15(2), de ce qui suit:

«de categories de personnes défavorisées notamment pour les motifs énoncés dans ce paragraphe.»

Mr. Chairman, just speaking very briefly to this proposed amendment, the essential change in this from the government’s proposal is that we would remove reference to individuals. It is our view and the view that was expressed by many witnesses appearing before this Committee, including the Canadian Human Rights Commission, that it is inappropriate to talk in the context of affirmative action plans about disadvantaged individuals, that what we are concerned with is disadvantaged

[Page 44]

groups or classes of individuals and that there could be very serious problems in mitigation if we were to extend this concept, this very worthwhile concept of affirmative action to individuals.

One need only point to the Bakke decision in the United States as an example of some of the difficulties which may ensue.

Then the second change, Mr. Chairman, is simply to refer to the grounds specified in that subclause generally rather than specifically referring back, although in light of the defeat of the earlier amendment that portion of our proposed amendment is not of particular concern. The major concern to emphasize is to remove the reference to individuals from the affirmative action provisions and to make it very clear that we are talking about disadvantaged groups of Canadians.

Thank you, Mr. Chairman.

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

I understand that honourable members are ready for the vote.

Mr. McGrath: Mr. Chairman, could we have a response from the Minister?

The Joint Chairman (Mr. Joyal): Yes. The honourable Minister of Justice.

Mr. Chrétien: Yes, I will ask my advisor to. . .

Mr. Robinson: Mr. Chairman, perhaps if I aska specific question of the Minister or his officials it might focus on the issue.

Mr. Minister, through you, Mr. Chairman, why was it felt desirable in your proposed Clasue 15(2) in both the original and the revised versions to include references to individuals, disadvantaged individuals, as opposed to specifying disadvantaged groups when we are dealing with affirmative action?

Mr. Chrétien: It is related to the reason why we cannot accept your amendment and I will ask my advisor to reply.

Mr. Jordan: Mr. Chairman, I think the provision is in there out of an abundance of caution. I think one can think of the situation where the very small employer is hiring only one individual, he chooses one based on one of the prohibited grounds ofdiscrimination.

One can arguably say, well, he is picking out of a class which has already been identified as one of those for affirmative action programs, but I would be very reluctant to have a court interpreting that as saying you are hiring one individual, he is a native, you do not fall within the category because it talks about classes of individuals on whose behalf the affirmative action is being taken.

[Page 45]

So I guess it is the lawyerly caution that we did not want to leave a situation where the court could strike down that kind of arrangement.

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

I see honourable members are ready for the vote.

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable members to take the next amendment, it is the subamendment identified CP-8(3), Clause 15(2), page 6, it is a subamendment moved by or on behalf of the Conservative Party and I would like to invite the honourable Jake Epp.

Mr. Epp: Mr. Chairman, I move that Clause 15 of the proposed amendment of the Constitution Act, 1980, be amended by striking out the word “age” in Clause 15(2) and substituting the following:

age or mental or physical desability.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Tremblay.

[Text]

Senator Tremblay: Il est proposé

Que le projet de modification de l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, dans le paragraphe 15(2), au mot «âge», de ce qui suit:

«l’âge ou les déficiences mentales ou physiques».

[Text]

Mr. Epp: Mr. Chairman, speaking to the amendment. you will recall that the same amendment. the same wording was approved in Clause 15(1). We are moving it in Clause 15(2) to conform to what has already been agreed to in Clause 15(1).

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

May I request the attention of the honourable Minister of Justice to reply to the proposed subamendment as introduced by honourable Jake Epp?

Mr. Chrétien: He can reply for me.

Mr. Jordan: The answer is yes, Mr. Chretien.

The Joint Chairman (Mr. Joyal): So I suggest that all honourable members vote immediately.

Mr. Epp: Before we change our minds. Subamendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to then come back on the main amendment, the one identified G-21, Clause 15(2), page 6, the amendment as introduced by Mr. Irwin.

Mr. Robinson.

Mr. Robinson: Mr.Chairman, do you have N-23-1. which I believe should be dealt with before we proceed to the main amendment G-21?

The Joint Chairman (Mr. Joyal): No, it is a new subclause, it should be Clause 15(3) and now we are dealing with Clause 15(2) and before I call the vote or invite honourable members to introduce any other amendments in relation to Clause 15 I have to complete this, get a debate on Clause 15(2), and seeing no other speakers on the proposed amendment I would like to

[Page 46]

then call the vote on the amendment as introduced on behalf of the government party.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable members to take the next amendment, it is an amendment identified as N-23-1, Clause 15(3), page 6. The purpose of this amendment is to add a new Clause 15(3) after Clause 15(1) and Clause 15(2).

I would like to invite Mr. Robinson to move and introduce the amendment in the usual way.

Mr. Robinson: Mr. Chairman, Mr. Manly will be introducing this particular amendment.

The Joint Chairman (Mr. Joyal): Mr. Manly.

Mr. Manly: Thank you, Mr. Chairman.

I will move the clause in English and I will ask Mr. Robinson to do so in French.

I move that Clause 15 of the proposed constitution act, 1980 be amended by adding immediately after line 9 on page 6 the following:

(3) Clause 15(1) shall not be interpreted so as to deny or limit the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.

M. Nystrom: En français, il est proposé

Que l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié, par adjonction, après la ligne 9, page 6, de ce qui suit:

«(3) Le paragraphe (1) n’a pas pour effet de nier ou de restreindre la reconnaissance des droits ancestraux ou issus de traités des peuples autochtones du Canada.»

The Joint Chairman (Mr. Joyal): Mr. Manly.

Mr. Manly: Thank you, Mr. Chairman.

Clause 15(2) that we just passed makes provision for affirmative action programs for individuals and groups that are disadvantaged. Clause 15(3) would extend this and make provision for recognition of aboriginal and treaty rights for the aboriginal peoples. Some people might think that they are already covered by Subsection (2). We know that most aboriginal peoples are clearly disadvantaged in economic terms in our society, but Mr. Chairman, aboriginal people want to retain their identity as peoples but they do not always want to remain disadvantaged.

Our society does not want them to remain disadvantaged. We must have some provision so that we can recognize their rights without having to categorize them as disadvantaged people.

This subclause makes provision for programs that can recognize aboriginal people not as disadvantaged but as people who have a unique place in Canadian history and deserve a unique place in Canada’s constitution; and I would like to ask the

[Page 47]

Minister if he agrees with my argument and if he is wiling to. in the spirit that he manifested earlier, accept the amendment.

Mr. Chrétien: I agree, not with the amendment, but with the comments made by the member. I do think that there are some technical reasons in terms of not to be repetitious as this problem is being dealt with in other sections. and I will ask Mr. Jordan to give the technical reasons.

Mr. Jordan: Mr. Chairman, I was somewhat unclear until I just heard the explanation of what the purpose of this amendment was.

Perhaps I can put it in these terms and see if it coincides with Mr. Manly’s explanation. Presumably the intent of this amendment is to ensure that nondiscrimination on the basis of race will not be interpreted as denying the ability to recognize the rights of aboriginal people which are based on race. In other words, quite apart from disadvantage, that it will not deny rights which they may have, aboriginal, treaty or otherwise.

Mr. Manly: This is a presumption.

Mr. Jordan: Is that a correct understanding of your intention?

Mr. Manly: Our intention is that this should not apply to aboriginal rights which could be interpreted on the basis of race, yes.

Mr. Jordan: Our view is that the amendment is unnecessary, I think for two reasons. First of all, the constitution under Section 91.24 clearly recognizes that laws may be made for indians and for indian lands and therefore, laws that are passed to benefit indians under that section are not going to be struck down as being discriminatory because the British North America Act has already made specific provisions for dealing with people on the basis of race.

Secondly, I think Clause 25 of the Charter as proposed by the government expressly provides that the charter of rights which includes the nondiscrimination based on race, does not deny the existence of aboriginal, treaty or other rights of the aboriginal people that may exist. So I have considerable difficulty in seeing why it is necessary to insert in this particular provision an assurance which appears both out of the constitution in Section 91.24 and in a later provision of the charter.

Mr. Manly: I suppose Mr. Chairman, that it is a question of paramountcy and there is some fear on the part of aboriginal peoples that Clause 15 could very definitely be used to deny them some of the recognition of their rights and that if the situation came before a court and Clause 15 of the Charter of Rights was put over against Section 91.24 of the present BNA Act, there is some uncertainty as to which would have paramountcy.

Mr. Jordan: I think perhaps, Mr. Chairman, Clause 52(1) deals with this and it talks about the Constitution of Canada being paramount and that includes the Charter and where

[Page 48]

there are two provisions which would appear to be in conflict, the courts would have to read both of them to give them the meaning which they are intended to have. The one is intended to be able to pass laws that are for native peoples; but quite apart from that, I think the proposed Clause 25 is all comprehensive. It says, the statement of any rights in this, which includes the right not to be discriminated on the basis of race, shall not in any way be construed as denying the existence of rights that pertain to aboriginal peoples in relation to treaties, the Royal Proclamation and other relevant bases of claims.

Mr. Chrétien: Mr. Manly, I think, there is a danger that when you write in a bill two or three sections that relate to the same problem, the courts do not read the proceedings of these meetings after the law is passed and very often they read the text and they ask why there are three or four different interpretations, and it is clarity for simplification and no danger that one text might be used against the other. It is better to concentrate our wishes to protect the rights of the aboriginal peoples of Canada to have certain rights not to be denied to them. It is better to concentrate that on the clause that affects them specifically, otherwise you always run the risk that the one clause might be played against the other, and we do think that this amendment is unnecessary and could create some problems. So, having doubts about it, it is better to clarify and there will be some amendments coming up later on on that issue which will clarify the situation about the aboriginal people of Canada, and I do not want to accept this amendment because there is danger of confusion. We agree that this should not deny the opportunity of the natives of Canada, the aboriginal peoples of Canada, to have a special recognition of their rights eventually and so on. It is for the reason given by Mr. Jordan and for the reason I gave you that we do not accept that, but the argument you made in relation to the aboriginal people, we concur. Even if we concur, we do not have to accept this amendment.

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

Honourable James McGrath.

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

Very briefly, we accept the explanation of the government. We appreciate the concerns addressed by Mr, Manly in the amendment that he put forward, but we feel that it is unnecessary and indeed, as the Minister points out, if you put too much in there, it could weaken the rights that are already addressed in the constitution and for that reason we are going to vote against the amendment.

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

Mr. Manly, to conclude before the Chair calls the vote.

I see that honourable members are ready for the vote.

Amendment negatived.

[Page 49]

The Joint Chairman (Mr. Joyal): We then come back to the whole of Clause 15 dealing with non discrimination rights.

Clause 15 as amended agreed to.

[Translation]

Le coprésident (M. Joyal): Fine.

[Text]

According to our previous agreement, our meeting is adjourned until 3:30 pm. I would invite all honourable members and representatives of the media and observers to leave the room so that the Subcommittee of the Agenda and Procedure might have their meeting as soon as possible.

[Translation]

The meeting is adjourned until 3:30 p.m.

[Text]

AFTERNOON SITTING

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

May I request the honourable members to take their seats around the table so that we can resume consideration of the proposed motion.

Before the Chair calls the next clause of the proposed motion, that is Clause 16, I would like on behalf of honourable Senator Hays, our Joint Chairman, to introduce and present the seventh report of the Subcommittee on Agenda and Procedure.

Your Subcommittee met on Thursday, January 29, 1981 and agreed to make the following recommendations:

(A) That the sitting hours of this Joint Committee be as follows:

Friday, January 30, 1981
9:30 a.m. to 12:30 p.m.
2:30 p.m. to 6 o’clock

Saturday, January 31, 1981
9:30 a.m. to 12:30 p.m.
2:30 p.m. to 6 o’clock

Monday, February 2, 1981
9:30 a.m. to 12:30 p.m.
3:30 p.m. to 6 o’clock

(B) That the Subcommittee on Agenda and Procedure meet on Monday, February 2, 1981 at 12 o’clock noon to evaluate progress.

Senator Austin.

Senator Austin: Mr. Chairman, there was one item left out of your report and that was the Monday evening sitting on February 2 from 8 o’clock to 10:30 p.m.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Austin. I think it is agreed that we should make that amendment to the proposed report.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, there have been additional discussions to the report before members of the Committee and I would suggest, to facilitate that matter, that Senator Austin possibly put that on the table and then I will respond.

[Page 50]

The Joint Chairman (Mr. Joyal): Senator Austin.

Senator Austin: Well, Mr. Chairman, I was of the impression that any additional matters would not be put on the table and that they would he stayed until 12:30 p.m. on Monday.

Mr. Epp: Well, Mr. Chairman, possibly what should be mentioned, then, is this. You have given the report and we are in agreement with the report, but I believe what is important to underscore, and I want to make sure that I have the import of the matter correct, and that is the purpose of evaluating progress at 12:30 p.m. on Monday, the government has its purposes and the Progressive Conservative Party has its purposes. I cannot express the purposes of the government, that is not my role, but I can on behalf of our party say this: that first of all, we do not, it is not in our view advisable to sit on Saturday, the two sessions, but we will accept those two sittings on Saturday and the condition that we have placed is that if progress is such by 12:30 p.m. Monday. that I will bring forward the request that I made to the Subcommittee, namely a request for an extension of this Committee’s life by one week. We believe that is a reasonable approach, we believe we have demonstrated very clearly that the work of the Committee has been such that we have worked diligently at it.

We also have testimony, I will not go into that to take the time of the Committee now, but we have testimony both in the House and in the other place, in the Senate, whereby Government House Leaders committed themselves to the fact that if the case could be made that additional time would be needed, a reasonable extension oftime, that that would be considered.

It is under those conditions, Mr. Chairman, that we accept the schedule up to Monday night with the assessment of progress to be made at 12.30 p.m.

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

Honourable Senator Austin.

Senator Austin: Mr. Chairman, I do not want to join issue with Mr. Epp. He has his reasons and he stated his reasons to the Committee. All I would say for our part is that we are prepared to see what progress we make up until Monday at 12.30 p.m. and to keep open our thinking as to what may be required in the proceedings of the Committee next week.

Thank you, Mr. Chairman.

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

So I see with that proviso as expressed by honourable Jake Epp. I understand that there is concurrency on the report.

Mr. Nystrom, do you want to address the . . .

Mr. Nystrom: No. I just wanted to confirm that.

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

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, that being the ease. I have another matter I would like to raise.

[Page 51]

If one takes a look at the reference that gave life to this Committee, from the Government Order of October 2, 1980 which was passed in the House on October 2, here is one part of the reference to the Committee:

With such amendments as the Committee considers necessary shall be presented by both Houses of Parliament to Her Majesty the Queen; additionally, and to recommend in the report whether or not such an address and with such amendments should go forward.

Mr. Chairman, as you know, we have been stressing in this Committee that while there are parts of the proposed resolution that find favour with us in terms of intent, we disagree very thoroughly with the process and we feel that it is very seriously damaging the Canadian federal system.

That has been given even more scope by the report of the All Party Committee studying the constitution in Westminster, and in order for members of Parliament to make an assessment on whether that part of the reference can be answered fully and adequately, it is important, I believe, that this Committee has the opportunity to also study that report.

Therefore, I would move, seconded by the member for St. John’s East, Mr. McGrath, that the report of the Select Committee on Foreign Relations of the House of Commons of the United Kingdom respecting certain constitutional questions arising out of the joint resolution now before this Committee, and now in the possession of the Canadian government, be tabled in this Committee.

At this very moment, Mr. Chairman, the access to information bill is being debated in the House of Commons. The government has committed itself to access of information, the government has a copy of this report, it is vital to the work of this Committee and therefore it is on that basis, that it is important that all members of the Committee study this report in order that we can more fully answer the question of whether or not we should recommend to our House and to the Senate that we should proceed along the path which the Prime Minister feels should be charted.

Thank you.

Mr. Mackasey: Mr. Chairman, I would like to ask a question: is that motion in order?

The Joint Chairman (Mr. Joyal): The Chair was in consultation with our Clerk because as of now we are on a clause-by-clause discussion and anything pertaining to other matters than the clause-by-clause basis should get at first sight unanimous consent around the table, and we are in consultation with the Clerk on that but I am ready to hear the views of honourable members on the admissibility of such a motion.

Honourable James McGrath.

Mr. McGrath: Yes, Mr. Chairman, precisely on the point of order which Mr. Mackasey has raised.

I say to you with respect that we are not technically on clause-by-clause, we are considering the report of the Steering Committee with regard to time allocation and how we dispense and dispose of the limited time we have left open to us.

[Page 52]

You have not called the clauses and I submit to you that this amendment is moved in connection with the report of the steering committee on agenda and procedure.

In that respect, Mr. Chairman, I would submit to you and to the learned officers of the table that the amendment is in order.

Mr. Fraser: You have got to admit that is pretty good, Jack.

The Joint Chairman (Mr. Joyal): Well, I would then understand the proposed motion should be an amendment to the report?

Mr. McGrath: If technically that would satisfy the Chair.

Mr. Epp: That is acceptable.

The Joint Chairman (Mr. Joyal): You raised yourself the technical issue, saying that the report has not yet been adopted and maybe we will get some light from the Minister of Justice that will prevent us from getting involved in a procedural issue.

Mr. McGrath: Mr, Chairman, on the point you raised, I would then move that the seventh report of the Subcommittee on Agenda and Procedure be amended by adding thereto the following:

That the report of the Select Committee on Foreign Relations and the House of Commons of the United Kingdom respecting certain constitutional questions arising out of the joint resolution now before this Committee and now in the possession of the Canadian government be tabled in this Committee.

Mr. Chrétien: Mr. Chairman, I have to give an explanation that might clarify.

I cannot table something I do not have, so perhaps it will be useful for the Committee to know what the situation is, and I am willing to tell you the situation.

We do not have this report in Ottawa . . .

Mr. McGrath: On a point of order, Mr. Chairman.

Mr. Chrétien: If you do not want to have the truth, I will not tell it.

Mr. McGrath: Senator Austin has intervened, we are in a procedural discussion, I have moved an amendment to the seventh report. I do not think it is proper or indeed in order for the Minister to intervene at this time. He is not a member of the Committee, he is a witness.

The Joint Chairman (Mr. Joyal): Honourable Senator Austin.

Senator Austin: Mr. Chairman, on the point of order, I think the motion is clearly out of order because the matter was never considered at the Steering Committee and because it was not considered at the steering committee there is no possibility of it being included in a report of the steering committee.

Thank you, Mr. Chairman.

[Page 53]

Mr. Mackasey: Mr. Chairman, I would appreciate a ruling on my very simple question: is or is not the motion in order? If it is in order, then we will debate the motion; if it is out of order we can save a lot of time and surely the law clerks should be able to advise us on that point.

Mr. McGrath: Mr. Chairman, on the point raised by Senator Austin may I just say that the report of the Steering Committee is not only debatable but is amendable.

The Joint Chairman (Mr. Joyal): As I already pointed out to the honourable member, I have said at this point that if he wants to move a certain motion he has to move it as an amendment or an addition to a report, and in so far as we are still in the process of considering the report of the Subcommittee on Agenda and Procedure, an honourable member can put forward an amendment and that amendment will be discussed around the table and that is the very advice that the Clerk has just forwarded to me.

Mr. Bockstael: Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Bockstael.

Mr. Bockstael: On a point of clarification. I believe I heard you say that the seventh report had unanimous agreement, and then the honourable Mr. Epp came up; I have another point. I thought this was disposed of, you did not call for a vote but you said it has been unanimously consented to which to me was tantamount to it being adopted, period. Then the honourable Mr. Epp came up and said: I have another point, it is a different matter, it is not the report. It is another matter.

So I do not know how we can go back and dovetail it or piggyback it to the report.

Mr. Epp: Mr. Chairman, I do not think I used the words “the report”.

Mr. McGrath: We are dealing with my amendment.

The Joint Chairman (Mr. Joyal): Up to now I think I have to answer the honourable Mr. Bockstael’s point because I think it is in relation to the admissibility of the motion as moved by honourable James McGrath.

It is true that I was in the process of getting consent around the table and that is why I have addressed myself to Mr. Nystrom and get the concurrency of Mr. Nystrom, and when I was to revert to the representatives of the Conservative party Mr. Jake Epp said: I have another point on that aspect; and that is why I received that other point.

The first one was clear and settled to the satisfaction of all members around the table, but before he, on behalf of the Conservative Party, expressed his consent to the report he raised another point, and that is where the second point came out.

We are still on the amendment as proposed by Mr. McGrath.

[Page 54]

Mr. Beatty: Are you accepting interventions on the amendment, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes, honourable Perrin Beatty.

Mr. Beatty: Mr. Chairman, the Minister, although I do not think it was in order for him to intervene at that point, indicated there would be difficulty in complying with the request of the Committee if they were to concur in the amendment proposed by my colleague Mr. McGrath.

In the Canadian Press dispatch which was made available to some members of Parliament earlier today, Mr. Kershaw. in an interview with the Edmonton Journal. indicated that copies of the report had been made available to the Canadian government, I believe over the course of the last few days.

Senator Austin: Mr. Chairman, on a point of order and with apologies to Mr. Beatty, I wonder whether Mr. Epp would be agreeable to the Minister making the statement he was prepared to make a few minutes ago for the sake of clarifying the question that has been raised by Mr. McGrath.

Thank you very much.

Mr. Epp: Mr. Chairman, on that request, that is acceptable to us with the caveat, of course, that we will continue to debate depending on the Minister’s answer.

Mr. Beatty: Do I understand, Mr. Chairman, that if the Minister is to speak now, that it does not prevent me from concluding my remarks which were interrupted by Senator Austin?

The Joint Chairman (Mr. Joyal): Not at all.

Mr. Beatty: Thank you..

Mr. Chrétien: The situation is this: I am told that the Select Committee has delivered a copy of the report to the Canadian High Commissioner in London and she has received the report, and she has given a commitment to the members of the Committee and to the British Parliament that it will be under an embargo until 7 o’clock tomorrow morning.

So we do not have a copy, we do not have a physical copy. and if I had one I would be obliged to refuse to table it because our very respected ambassador, the High Commissioner in England, has given her word and the last thing I would want to do is to create an embarrassment for the ambassador who was named as ambassador to England not too long ago, and I do not want her, in committing such a mistake, that she would be forced to resign.

The Joint Chairman (Mr. Joyal): Honourable Perrin Beatty.

Mr. Beatty: Thank you, Mr. Chairman.

Mr. Chairman, I do not think anyone takes the Minister’s intervention very seriously.

Let me indicate to the Committee that not just a copy was made available to the Canadian High Commissioner as stated by the Minister, in fact the Canadian Press report reads as follows:

[Page 55]

Kershaw said the Committee gave 26 copies of the report to the Canadian High Commission in London on Wednesday.

The Minister is quite correct in saying that the report will not be tabled in the House of Commons in Britain until tomorrow, but that will be done tomorrow.

There is time now, the report is in the possession of the Government of Canada, the embargo relates to the position of the Government of Canada, whether or not it leaves the hands of the Government of Canada. We are not asking that the Committee be given a copy of the report, Mr. Chairman, immediately, prior to the tabling of the report in the British House of Commons, but rather that the government which has in its hands today, with the High Commissioner in Westminster, has in its hands 26 copies of that report, should be taking action today to convey copies of those reports to Canada for release . . .

Mr. Chrétien: They are in the bag already.

Mr. Beatty: So they are on their way already. So then we understand, Mr. Chairman, that copies of the report are on their way to Canada and the government’s obligation, then, if this amendment is accepted, would be to make the report available to the Committee upon tabling in the British House of Commons.

In other words, we are not asking that any embargo be broken. The Minister has already indicated the reports are on their way to Canada. The sole issue is once they are made available in Britain they should be officially brought to the attention of this Committee.

Mr. Chairman, I want to, in defence of Mr. McGrath’s amendment that he has moved, refer us again to our responsibilities here as given to us in our Order of Reference. The House of Commons and Senate have charged us with the responsibility of deciding whether or not the government’s constitutional package should go forward in any form, or whether it should go forward in an amended form, amended from the way it is today.

The preliminary reports which we have received indicate that the Kershaw Committee, an all party, Select Committee of the House of Commons, is recommending to the British government that the resolution which is before the Committee today should not be considered constitutionally acceptable by the British government, that they should not be obliged to act on it and that indeed their obligation, if anything, would be to turn down a request made by the government following a report of this Committee to amend Canada’s constitution in Westminster in this way.

Mr. Mackasey: Mr. Chairman, a point of order. We do not have the report. we do not know what is in it . . .

Mr. Chrétien: When we have the report we will give it to you.

Mr. Mackasey: Mr. Beatty is stating what he presumes to be in the report.

Mr. Chrétien: Do not worry, you will have it.

[Page 56]

Mr. Beatty: Mr. Chairman. Mr. Mackasey just made my point for me, he just made the point very directly, that the Committee does not have the report and should be entitled to see it. The Minister just said . . .

Mr. Mackasey: Point of order. Mr. Chairman, that is not what I said.

Mr. Chrétien: I will not have it translated.

Mr. Beatty: Fine. Mr. Chairman, if we could have order, if the interruptions from the other side can be held down for a short time?

Mr. Mackasey: On a point of order, I do not as a rule want to interrupt anyone and do not heckle and interrupt, I however have raised a point of order which is important to me in that Mr. Beatty, unintentionally, misrepresented what I said. I said very clearly that Mr. Beatty is telling the Committee what he considers to be in that report when neither he or anyone else has that report.

I did not say the report should be made available to the Committee. I did not say we should debate it, I am simply saying he is totally out of order in telling us what is in the report which he has never seen.

Mr. Beatty: Mr. Chairman, I am debating Mr. McGrath’s amendment which is before the Committee and I am entitled to do that. If Mr. Mackasey is now saying it is his position that the Committee is not entitled to see the report, so be it.

The Minister has just said to the Committee. though, while Mr. Mackasey was interrupting, that he is prepared to make the report available to the Committee as soon as it is available here in Canada, and I would like to ask the Minister If I could, Mr. Chairman. if he could indicate that that is an undertaking made by the government, because we have had problems with undertakings from the government previously, is he making an undertaking on behalf of the government that that report will be tabled in this Committee immediately upon his receipt of the report if the Committee is sitting and it has been released in the British House of Commons?

Is that my understanding of the offer you made?

Mr. Chrétien: No. I said that when I have a copy. It is going to be public tomorrow morning at 6 o’clock, our time. It has been delivered to an airport in London, and it will come.

I do not know when it will come and you will have it tomorrow and it will be public tomorrow, I do not have to make a great commitment. I do not have it. and I do not know, if it were to arrive at midnight tonight. do you want me to wake you up? I do not know. As soon as we have it. there is a few hours difference between now and that time: you will have it tomorrow. unless the plane crashes.

Mr. Beatty: Do not get your hopes up. Mr. Minister. It will likely get here.

Mr. Chairman, on the basis then of the Ministers undertaking that the substance of a motion moved by Mr. McGrath is acceptable to him—did the Minister not say . . .

[Page 57]

Mr. MacKasey: On a point of order, Mr. Chairman. That is not what the Minister said.

He said he would deliver to us copies. that is all he said. and by that time the report will be public in every reputable newspaper, certainly the Globe and Mail and the Gazette tomorrow morning. That is all the Minister said, that he has no objection to making the report available to all Canadians, including members of the Committee.

Mr. Beatty: After Mr. Mackasey’s third intervention, I would invite him to take a look at Mr. McGrath’s amendment because that is exactly what he asks for. On those grounds, Mr. Chairman. I would ask that the motion be now put.

The Joint Chairman (Mr. Joyal): Honourable James McGrath on the motion.

Mr. McGrath: Mr. Chairman, there are a couple of points that have been raised. The Minister claims that he does not have possession of the report. We realize that.

The motion asks for the report to be tabled in the Committee. It does not set a time.

I want, Mr. Chairman, to lay on the record some of the reasons why I feel it is necessary and germane to the proceedings of the Committee that we have the report tabled, not immediately, not within the hour, but within it becoming available to the Government of Canada in Ottawa. It is now in the possession of the Canadian High Commission in London. That means it is in the possession of the Government of Canada and the Government of Canada has a copy and when the embargo has been lifted. then the motion merely requires that the report be tabled with the Committee.

The reasons, Mr. Chairman, are Canadian Press today carries a story whereby the chairman of the Select Committee. Mr. Kershaw, in addition to indicating that 26 copies of the report had been tabled with the Canadian High Commission in London on Wednesday, went on to say this, that I quote from the Canadian Press report.

He said:

The Committee’s main recommendation is that Britain must draw to the Canadian government’s attention the Committee’s finding and its supporting arguments about British constitutional obligations.

and I continue to quote:

Kershaw said one of the main reasons for the Committee’s position is that the Statute of Westminster binds Britain as guardian both of federal and provincial interests, a point made by Alberta and other provincial governments. The Committee concluded that Trudeau does not need . . .

Anyway, Mr. Chairman, it is not legible. I am reading from a photostat of the Canadian Press report. I am prepared to file it

[Page 58]

with the Committee, but the main points of the report I read into the record.

Mr. Mackasey: Read it.

Mr. McGrath:

The Committee concluded that Trudeau does not need unanimous support from the provinces but must have backing from the great majority of them.

and that is not legible; that is why I did not read it.

Mr. Chairman, that argument which apparently forms the pith and substance of the recommendations of the Select Committee on Foreign Relations of the House of Commons of Westminster, in which they recommend that the Parliament of Canada not go ahead, that they refuse to proceed with the joint address, they cite the Statute of Westminster which is four square with the arguments presented to this Committee by a number of expert witnesses, including one witness who did not appear. the former Assistant Deputy Minister of Justice for Canada and now Emeritus Professor of Law at the University of Ottawa, Mr. Elmer A. Dreidger.

Mr. Dreidger makes exactly that point with respect to the provisions of the Statute of Westminster being binding on the British Parliament; and I submit to you. Mr. Chairman, that if you take a look at our Order of Reference, and it is important that this be restated. our Order of Reference states in part and I quote:

And to recommend in their report whether or not such an address with such amendments as the Committee considers necessary should be presented by both Houses of Parliament to her Majesty the Queen.

That is the crucial part of the Order of Reference of this Committee. The recommendations of the British Select Committee now on the public record as a consequence of an interview with the Chairman of the Committee speaks to this very question of legality. The Committee is claiming that under Section 7(1) of the Statute of Westminster, the Parliament of Great Britain does not have the authority to accept the proposals contained in the joint resolution before this Committee.

Therefore, Mr. Chairman, it follows that if that is the position of the Parliament of Westminster, then that imposes an obligation on this Committee that it recommend to the House of Commons and the Senate of Canada that we not proceed with the joint resolution, the joint address to her Majesty the Queen, regardless of any deliberations that have transpired here over the last few days and will transpire over the next few days. But I submit to you that immediately the report is in the possession of the Government of Canada in Ottawa and the embargo has been lifted by the British Parliament, then. Mr. Chairman, that report should be tabled with this Committee so that we can determine whether or not we should recommend, in accordance with the terms of the Order of Reference, whether or not the joint address should be transmitted to her Majesty the Queen.

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

[Page 59]

I understand that honourable members are ready for the question.

An hon. Member: A recorded vote.

The Joint Chairman (Mr. Joyal): A recorded vote. I would invite the Clerk of the Senate then to call the vote in the usual way.

Amendment negatived; yeas, 9; Nays, 14.

Mr. Epp: Mr. Chairman, if I could just speak, in view of that, I am sure you will now call the vote on the report. Notwithstanding the comments I made earlier, I believe that there has been a serious breach in terms of the government’s own plan and access of information, and, that being the case, we will not support the report of the Subcommittee.

Mr. McGrath: Mr. Chairman, If I may supplement what my colleague has said. In the normal course of events, the Report of the Subcommittee on Procedure and Organization would have gone through, under protest. We made it very clear in the steering committee that we objected to having to sit on Saturday; we objected to these hours. There is nothing changed in the report except that part of the report that was presented to us this morning has been amended to include only up until Monday.

On these grounds alone, we are justified in voting against the report; but further, Mr. Chairman, on the grounds that our amendment. which was a very serious amendment, which would have given this Committee an opportunity to have before it, in due course. within the next few days, the report of the British Select Committee on Foreign Relations, then I think we are perfectly justified in voting against the report.

The Joint Chairman (Mr. Joyal): Mr. Nystrom.

Mr. Nystrom: I intend to support the steering committee report, despite what happened to the amendment. I, of course, regret that the members across the way did not vote like I did in the amendment, as I believe in freedom of information; but I do want to say, Mr. Chairman, that I take the Ministers word. He has promised this Committee he will be making it available as soon as possible. So I do not think that should be any of our consideration whatsoever as to whether or not to vote yes or no on the steering committee report. He has given us his word. He tells us the bag of reports are in the airplane and he says he is going to pray the airplane does not crash, and he will deliver them. I just urge our fellow Committee members to approve the report and not throw the kershaw report in as a red herring on whether or not to vote yes or no to the Steering Committee report.

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

I see that honourable members are ready for the question.

An hon. Member: A recorded vote.

The Joint Chairman (Mr. Joyal): All those in favour of the seventh report of the Subcommittee on agenda and procedure, please answer the call of the Clerk of the Senate and of the House of Commons.

Report agreed to: yeas, 15; nays, 8.

[Page 60]

On Clause 16—Official languages of Canada.

The Joint Chairman (Mr. Joyal): I would then invite honourable members to come back on Clause 16 of the proposed motion and invite them to take the amendment in relation to Clause 16. It is the amendment identified as number G-22, Clause 16. page 6. It is an amendment moved by the government party, and I would like to invite monsieur Corbin to present the amendment in the usual way.

[Translation]

Mr. Corbin: Thank you, Mr. Chairman.

I move

that Clause 16 of the proposed Constitution Act, 1980 be amended by

(a) striking out line 11 of page 6 of the French version and substituting the following:

[Text]

«langues officielles du Canada: ils ont un»

[Translation]

(b) by striking out lines 15 to 18 on page 6 and substituting the following:

[Text]

«(2) Le français et l’anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions de la Législature et du gouvernement du Nouveau-Brunswick.

(3) La présente charte ne limite pas le pouvoir du Parlement et des législatures de favoriser la progression vers l’égalité de statut ou d’usage du français et de l’anglais».

In English, Mr. Chairman, I would like to move that Clause 16 of the proposed constitution act, 1980 be amended by (a) striking out line It on page 6 of the French version and substituting the following:

langues officielles du Canada, ils ont un

(b) by striking out lines 15 to 18 on page 6 and substituting the following:

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and Government of New Brunswick.

(3) Nothing in this charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

[Translation]

Mr. Chairman, I thank you and I would like to add that I am very pleased to be able to move these amendments making French and English the official languages of the Province of New Brunswick.

Thank you.

[Text]

The Joint Chairman (Mr. Joyal): Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Perhaps some guidance from the Chair, if I could, initially, with respect to a question of order.

I have, Mr. Chairman, an amendment which I will be proposing on behalf of the Conservative party which is a new Clause 21 with respect to allowing provinces to opt in with respect to language rights. In our view that is made necessary

[Page 61]

by the government’s resolution which has the effect of having Clause 50(b) overpower the amending formula in Clause 43.

Now my difficulty with the order is that the amendment which I will be offering, and the comments that I would like to make, deal with Clauses 16, 17, 18, 19 and 20 and indeed, would not ordinarily come until I was able to move a new Clause 21. However, by the time I get to Clause 21, we will have dealt with the language policy.

So logic drives me to ask the Chair if it would be reasonable for me at least to be able to refer to the new Clause 21, which is an opting in opportunity for provinces without it being twice out of order. Is that a reasonable approach?

The Joint Chairman (Mr. Joyal): I think that, generally speaking. honourable members have been very co-operative to open discussions in favour of the possibility of standing some clause to go back on some other clause. At this point we are on Clause 16 and unless you give me more information about what you want, I am in a position to ask for the honourable members to stay on Clause I6. but I am in the hands of the Committee for that.

Honourable Bryce Mackasey.

Mr. Mackasey: I just want to make sure I have a copy of the amendment. I think we have. It has been circulated, thank you.

The Joint Chairman (Mr. Joyal): The Chair has not had it at this point. I am not in a position to . . .

Mr. Crombie: I just received a distribution of it, Mr. Chairman.

Mr. Epp: Mr. Chairman, maybe to help the Committee, if they would take a look at the original package I tabled on Tuesday last, it was then listed as Clause 29. It is listed now as Clause 21 because of the drafting, and I believe that might help.

The Joint Chairman (Mr. Joyal): The Chair does not have any problem in receiving that amendment and I fully consider that when we will be dealing with Clause 21 that you will be invited to move the proposed amendment, Mr. Crombie, and even though it does refer to some previous clauses of the proposed motion, if there is a change to be made because of a new amendment that would have been accepted in those previous clauses, I think you will be allowed to adjust them accordingly and there will not be any problem with that.

Mr. Epp: Could we have further guidance from you Mr. Chairman. Would it be advisable, after we have completed all phases of the Clauses 16 through 20, to stand them in order to facilitate Mr. Crombie’s purpose at that time.

The Joint Chairman (Mr. Joyal): Yes, after we have dealt with all those clauses we could make that proviso if it does help in dealing with Clause 21, and I think at that point I will raise the issue with the honourable members of the Committee. and they will have an opportunity to express their views.

Mr. Epp: Thank you.

The Joint Chairman (Mr. Joyal): I would like to draw attention then, to the honourable members, we are back on Clause 16 as proposed.

[Page 62]

Mr. Epp: Mr. Chairman, one further word. As all members will notice, we are on a new section in the proposed resolution. It would be my request that in order to facilitate the work from Clause 16 to 20, because for all intents and purposes it is the same topic. the same heading, that you recognize, for that matter, a spokesman for all parties to introduce the manner in which they might approach the whole section, and I think that would in fact save time with the Committee, and we are ready to do that.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp, for your co-operation.

I would like to invite honourable David Crombie, and before you go on, I would, for the benefit of our viewers and listeners, inform them that Clauses 16 to 20 that we will be dealing with are entitled “Official Languages of Canada”, “Les langues officielles du Canada”, so that they know generally the subject of our discussion, because it is very technical for those of our listeners who do not have any copies of the documents that we are handling in such a debate.

Mr. Crombie.

Mr. Crombie: Thank you very much, Mr. Chairman, and I appreciate the lenience of the Chair and the opportunity given by members of the Committee to deal with all of the clauses.

I will not deal with the technical aspects of the motion. I will wait until that is properly placed as a new Clause 21. What I would like to do, in relation to that motion, Mr. Chairman, is to offer some general thoughts which I have found important and I think perhaps others have as well, when it comes to the question of language policy.

I think one of the tendencies we have, Mr. Chairman, in this country is to assume that when we deal with language policy of Canadians that somehow we are all alone and isolated and the world does not either have anything to say to us or pay any attention to what we say about language policy.

But I think we start off with a single fact, that in this space ship earth, in this world, there are approximately 2,500 languages, and there are only about 150 countries to go around to serve them all; any country’s attempt to try to deal with more than one language within one geographicl space is certainly paid attention to by other countries who have the same problem.

Many countries in the Western World have had to deal over the past 450 years of two, three or four languages.

Newly emerging countries in Asia and Africa have many tribal languages and dialects which have to be dealt with.

So the first point I would like to make is that we are dealing with something which is of world-wide significance, and how we deal with it is very, very important.

Over the years, Mr. Chairman, countries have sought to deal with more than one language in one country in a number of ways—territorially. where they have said in certain parts of the country there will be one kind of language and in another part of the country, another language. The best example of

[Page 63]

that would be Belgium. where territorial bilingualism is rigidly adhered to.

We also have personal opportunities with respect to more than one language in other countries. That is true in Switzerland as it is in Finland.

We have, as well, Mr. Chairman, institutional bilingualism in relation to certain services from government.

Most countries, Belgium, Switzerland, Finland, to use three examples, also have that kind of bilingualism.

One lesson which comes out of the world experience, Mr. Chairman, is that most countries attempt to solve it in relation to their own conditions. Indeed, that is what Canada has done. Canada, by and large, has organized its language rights and liberties in respect of Canadian traditions.

I do not have the time, Mr. Chairman—and I wish I had in some ways—and my good friend, Jim Fleming, when he puts on his advertising program, very often forgets that we are helped by a historical perspective. That is not in the commercials, as you know.

I think it is important to recognize that throughout the whole history of this country, we can pick language policy as the one trail you could pick through the three and a half centuries. I guess, that either English-speaking or French-speaking people have been here.

You can pick one or two which are very significant, Mr. Chairman: in 1774 there was the Quebec Act. It is important to remember that that act established, or if you like, re-established the rights of the French-speaking Canadians with respect to their religion and systems of laws. That was confirmed in 1791 and drowned in 1840.

In 1867 and subsequent years, we attempted to arrive at policies which would allow the survival of both languages so that both may coexist.

That long history netted out one other, in my view, at any rate, fundamental principle in this country and that is that we rejected two extremes: the extreme which says that all of Canada should be English-speaking; and we rejected the tradition which said that there should be an independent French-speaking state, north of the 49th parallel. I reject those two. There are some Canadians who do not, but I do and I think members of this Committee do as well.

I could go through the record and show. Mr. Chairman, how provinces in this country have done with respect to the use of both English and French. Again, I do not have the time for that.

It is unfortunate that I do not have the time, because looking at the province of Ontario—a province I know very well—people would be surprised to learn of the number of government services which are offered in both languages. Indeed, I shall not speak any further of institutional bilingualism of that nature as noted in Clause 16, nor with educational matters, because that is dealt with in Clause 23.

[Page 64]

We have by and large, adopted a Canadian pragmatic, practical way of offering services and educational facilities in both languages differently over a time in provinces.

What I would like to deal with, Mr. Chairman, is something which I consider to be not a major step forward, but can become so.

I want to deal very specifically with the question of what languages we use in the courts, and legislatures.

Mr. Chairman, the situation as it now stands today is that in the province of Manitoba both official languages have the right to be used in the courts and in the legislatures by virtue of Section 23 of the 1870 act.

In the province of Quebec, as a consequence of Section 133 of the British North America Act, both official languages have the right to be used.

In the province of New Brunswick, as a consequence of their own volition, both official languages have the right to be used.

In the province of Ontario, only one official language has the right to be used—EngIish.

Had I been able to have more time, Mr. Chairman, I would go into an extremely long list explaining how the Province of Ontario, my home province, has done more in the past 10 years with respect to bilingual services than at any time in the history of the province.

Indeed, Mr. Chairman, when it comes to the question of the courts and the legislatures the province of Ontario has seen the need.

It should come as no surprise to people, though often it does, that one may speak French in the legislature of Ontario. Indeed, Mr. Chairman, in 1979 Ontario adopted the policy of having a bilingual situation with respect to the criminal courts anywhere in the province.

Also, in 1978 there was the adoption by provincial law of ten designated areas so that there would be bilingual services in French and English for those areas where there was a sufficient concentration of the language and now encompasses some 77 per cent of Franco-Ontarians.

I mentioned that because the problem that I see is that even though both French and English can be used in the courts and the legislature, the only right given is to the English language.

If I can put my problem succinctly, it is this in short: I can find no principle which allows me to accept the proposition that an English speaking Canadian should have the right to speak in the legislature of the Province of Quebec or plead in the courts of the Province of Quebec and a French speaking Ontarian should not have the same right. That is the nub of the problem.

I am one of those therefore, Mr. Chairman, who believes that the Province of Ontario should preach what it practices.

The Province of Ontario does offer that facility. It simply holds back the right. I think that is an in appropriate—indeed, and unjust—way for us to continue. There may well have been historical views which were acceptable to some in the past, but I do not think there is going to be any foundation for them in the future.

[Page 65]

I wish to conclude—because I know I have strained my five minutes—by looking at some of the reasons, for one moment, why there has been some difficulty in accepting that proposition.

First of all, there has been some suggestion that we ought to impose that right of French speaking Ontarians on the Province of Ontario.

As you know, Mr. Chairman, I am utterly opposed to that process—indeed to any kind of imposition, of any unilateral action, in fact. I think the history of the Province of Quebec and of Ontario—indeed of all the provinces of this country,—is such that at any time rights or lack of rights are imposed, then this country has suffered.

So that, firstly, I think it is important that I do not suggest—and I have never suggested, and I would oppose as I have every item in this constitutional proposal where there is unilateral action by the federal government to impose anything on a province.

Secondly, Mr. Chairman, there are some people who have suggested that, although it is only a small step, it is only symbolic, and it is not very important, that it is only a symbolic act; that symbols are not very important; that if you can already do it in the province of Ontario, why make a big issue out of it only for the sake of a symbol.

Well, Mr. Chairman, symbols are extremely important. I do not need to lecture or offer modest thoughts to members of this Committee to establish that symbols have been important to humankind since they have been around. Millions upon millions and billions of people have been organized on the basis of the symbol of the Cross.

People in this country have organized and gone to war and have died on the symbol of the Maple Leaf. Symbols are extremely important. We can no longer afford in this country a symbol which says that if you are French in Ontario you have a lower collar than English in Quebec. This is unacceptable in terms of any symbol I know of for unity in the future.

Certainly, Mr. Chairman, if there was one principle that the future must use, when it comes to the final step, after 350 years, of two peoples warring in the bosom of a single state—Lord Durham’s phrase—the one principle is that of equality. There is no other principle which is acceptable. And I speak to that. Finally—and I hope not drawing too grand a sweep to it, although it is a small step, simply Confirming what Ontario already does, and making it a right rather than a sufferance, I think it would have a bit ofa breakthrough for us.

If you read the history of this country, as many of us have, we are struck by the imagination and the courage of early Canadians. I think we have suffered considerably in the past number of decades with an acute case of timidity, Mr. Chairman; we have tended not to want to deal with things and have attempted to solve our problems by avoiding them.

It seems to me that, if we intend to take the future, then the only way in which I know how we can do that is to make sure that we, first of all, deal with ourselves and find out who

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exactly we are. For my money, Mr. Chairman, who we are-Canadians; we are Canadians and we come from many countries, speaking many languages and from many cultures, and we have organized ourselves as a political entity, as the rump of two empires, the French Empire and the British Empire.

Maybe, finally, if we admit and clearly understand that we may be able to tap the resources of this country.

Let me say, finally, that there are some people—and I have received a lot of advice this morning—who wish that I would let sleeping dogs lie and not raise the matter. .

I am not one of those who believes you ought to rush in where angels fear, to tread; I have lived a public life where I understand the importance of the middle ground and compromise. I used to make my living doing that.

But I also know from personal experience that change does not come by itself. Although everyone I have talked to so far has said “David, I agree with you in substance, but . . It is the “but” that bother me. It is the “but” that holds the country back.

So, Mr. Chairman, when the motion comes forward, if it is a motion which deals with those sentiments, then it will be a motion which I will support if it is worded in relation to the sentiments I have offered.

Thank you.

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

Mr. Nystrom, followed by the honourable Bryce Mackasey.

Mr. Nystrom: Mr. Chairman, my first words are words to compliment and commend David Crombie for the remarks he has just made. They were very wise and very courageous remarks and I concur wholeheartedly with those remarks.

I think the question of languages is, perhaps, one of the most, if not the most, sensitive of issues in many countries around the world, certainly in Canada.

We, as Canadians, have spent more time on language debates, on misunderstandings and misconceptions of what the Official Languages Act means and of what bilingualism means, than on any issue in the last 20 or 30 years.

I was elected back in 1968 and shortly thereafter, we introduced in Parliament the Official Languages Act by the Prime Minister, and I am proud to say I was one of the members of Parliament who supported that act, and supported, again, a few years later the reaffirmation of that act in Parliament.

What David has just said to us is that the chief thing we have to be concerned with here is the whole question of equality.

Now, I do not really know as much as I should know about the province of Quebec; but what I do know about that province is that many Quebecois believe that their language is not really equal to the English language in Canada and many parts of this country.

I think if we want to make sure that French-Canadians Quebecois are really at home in Canada, we must have the

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equality of the two languages, even if in some cases it is more, symbolism.

Now, David has referred to the fact that in Ontario one can speak French in the Legislature and there are now, of course, provisions where the French language can be used in the courts of Ontario. These are very important steps.

There is another very important step, which may be more symbolic than anything else, and that is to enshrine some of these rights in the constitution.

He has referred to the possibility that we may be having before this Committee a motion to that effect, and I only want to make one appeal to you. I do this because of a sensitivity of issue, because of the fact that it is so easy to misunderstand, so easy to distort, and because of some of my frustrations in the last few days over the way it has been misunderstood by some people and distorted by other—and I can only think of some open-line hosts who totally distort the issue and do not do this country a service in telling people what we mean by equality of language in Ontario and Quebec.

Because of that sensitivity, because of the potential explosiveness, and because of the fact we want to do something that is positive for francophones in this country outside of Quebec, particularly in Ontario because there are so many francophones in Ontario, that we should seek in this Committee, as Mr. Crombie has said, to come up with a motion which would be unanimous, if that is possible.

I know when you have 25 people on a Committee and dealing with an issue as sensitive as language with people from so many different regions of the country as we have here, that may be difficult.

But I, Mr. Chairman, do not think it is impossible. I think we can do it. I am hoping that we can do that, and that sometime before the end of these proceedings we could have an all party agreement and all member agreement, which is unanimous, and which will provide the wish and the hope that we can have the same services in the province of Ontario for the francophone as exists in the province of Quebec for the anglophones.

We said a long time ago that we intend to move a motion regarding this area but before we do that we hope that we can come to some kind of consensus, all of us, unanimously.

I just wanted to make these remarks and perhaps if we get into details on Clause 16 later on, ask one or two questions of the Minister about the details of the resolution before us today.

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

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I think the tone set by Mr. Crombie and my very close friend Lorne Nystrom is one that should prevail on all the sections because the fact remains that the French language and the French culture is one of the greatest protections we have in the country against assimilation from the United States. Its very existence as an official language which our government brought in, which Parliament

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supported, that by itself has developed into one of the great forces against assimilation.

Mr. Crombie spoke with great emotion about French Canada and the contribution of its people. I am one of the beneficiaries, I repeat what I have often said, as Jim McGrath has said about his own province. I had the good fortune, Mr. Chairman and Mr, Minister, of growing up in la belle province and I have often said making the first speech in 1962 for a newcomer to politics in Shawinigan-Grand Mere to the English community because the candidate of the day. our present Minister of Justice, could not say good afternoon in English, and he was talking to the people who had the money to finance his campaign, incidentally.

I got lost on the way and arrived about 40 minutes late so I know the agony he went through and we often talk about it.

I suppose to live in Quebec as an English speaking Quebecker who loves the province and the people is almost a privilege because they have lived together, Mr. Crombie, a long time; the first Talbot was an Irishman from Dublin, as you know. That is going back many. many centuries. And we have developed in Quebec a Iove-hate relationship and I have often talked to Rene Levesque about the problems of separation, what would they do in Quebec when there are so many hundreds of thousands of mixed marriages.

I think we all appreciate French Canada and French Quebekers, what they have contributed. and how many times in our history they have met the challenge of federalism and will in the future.

When we talk about separation. once again it is French Canada in the referendum that had to come forward and place the love of their country before their own misgivings and concern about preservation of their language and their culture.

Now, circumstances, Mr. Chairman, have been that I represent another beautiful part of the country, Lincoln, and I am not unaware of the sensitivities of the language clause, and Mr. Crombie and Lorne have talked about the need to extend to the French speaking Ontarians the right that the English speaking Quebekers have. I would have preferred that Mr. Crombie had said the English speaking Ontarians have, an equally valid comparison.

The English speaking Canadians and English speaking Quebekers are also proud of their language and their culture. and 95 per cent of them do not have any guilt complex about recent events, they cannot trace any time when they have practised discrimination. Certainly the railway workers in Verdun or Notre-Dame-de-Grâce represented by Warren Allmand or others are hardly in a position to discriminate, and the discrimination from the business community in Westmount was just as strong against an Irishman on James Street as it was against anybody else. We all know what it is.

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However, what we are talking about here, fundamentally, are the rights of French speaking Canadians in Ontario that exist under tolerance, not as part of a constitution, but in provincial legislation. Mr. Crombie is not suggesting, as he said, that we include in this Charter the extension of Section 133 to Ontario. I am not going to question whether that is consistent with his first argument of many weeks ago, it is unimportant, I know that he is tortured, in good faith, on the issue, I know he would like to do that, I know we would all like to do it and we are torn on one hand with our sense of what should be, and our concern of somehow creating the type of backlask in Ontario that would negate the ten years that Mr. Crombie talked about so eloquently and factually, the progress that has been made in that province.

I do not pretend, Mr. Chairman, to say much more other than the amendment that is before us to me is superfluous in the sense that the same thing—not superfluous in the sense that it does indicate good intentions, but superfluous in the sense any time Ontario wants to extend the right, not the Charter but in the constitution, to French speaking Canadians in the courts and the legislature, it can do so through Clause 43. Nobody can visualize the federal government and the Parliament refusing such a request if it came from the Province of Ontario.

So if some of us hold our options as to how we vote on the amendment, I would hope that it is not interpreted at the time, I know it would not be by Mr. Crombie, as against his instincts or that of Mr. Nystrom. My concern when we arrive there is whether or notwthis is not superfluous, Mr. Chairman, I know that I have gone beyond my time but we have really moved a lot of clauses and I can only speak for myself again in suggesting, yes, Mr. Crombie, we share your sentiments but ironically we are not going quite as far as we should be.

There are two things I would like to see before I leave Parliament: that right to French speaking Canadians enshrined in the constitution, not only in Ontario but everywhere; and I would like to see freedom of choice brought back to the Province of Quebec so that new Canadians coming to that province have a choice to be educated in either language. They are both fundamental to me.

Thank you.

[Translation]

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

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I would like to ask two questions to the Minister of Justice in order to clarify what to me has been mis-interpreted in New Brunswick after the minister filed his amendments last week.

Some newspapers alleged, in bold type of course, that the federal government, or the federal Parliament if you want, was going to impose French on the courts of justice in New Brunswick and in the other institutions of government.

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Mr. Minister, my question is very simply as follows: does this amendment stem from a unilateral decision of the federal government or is it proposed at the express request of the Premier of the province of New Brunswick?

Mr. Chrétien: In the first draft submitted to the committee, Clauses 16 to 20 applied only to the Canadian government, to the Parliament, and to the federal institutions and it is at the express request of Mr. Hatfield that we submitted the amendments adding to Clauses 16 to 20 a second paragraph making bilingualism official in the courts and the other government institutions of New Brunswick. It was done at the specific request of the Premier of New Brunswick, Mr. Hatfield.

Mr. Corbin: My second question, Mr. Chairman. You have just said that the request was made by the Premier of the government of New Brunswick.

In your opinion, is it necessary for this request to be ratified, or approved by the Legislature of New Brunswick to be valid?

Mr. Chrétien: I think so and we have a commitment from Premier Hatfield to the effect that as soon as the Legislature of New Brunswick reconvenes, it will be asked to pass a resolution in support of the position adopted by the government of New Brunswick. We have accepted this commitment and that is why, even though the resolution has not yet been passed, we have accepted the request submitted by the Premier of New Brunswick and have added to Clauses I6 to 20 a constitutional commitment to bilingualism in the province of New Brunswick.

We were assured that there was going to be a debate in the Legislature to ratify this request and that is why we have accepted to include this section immediately so that we would not have later to propose another amendment to the Canadian constitution.

By the way, Mr. Corbin, I would like to explain why the government is not ready to accept the amendment proposed by Mr. Crombie.

[Text]

I will speak in English.

Mr. Crombie, we will not accept your amendment for the very reason, and it is related to the question of Mr. Corbin, we have looked into that and we were inclined to, we looked very sympathetically at that amendment, but in order to make sure that what you want, the new Clause 21, we have come to the conclusion that what is happening in New Brunswick, the example set by Premier Hatfield, had been done here, not only in New Brunswick but in front of all Canadians in a very courageous way, so if ever another province does that anywhere in Canada, if the circumstances prevail, with your amendment this could be a problem that will not attract the national attention because it will be passed in the legislature of that province and I do think that, according to the provision in the constitution today, in order to bind that province it will have to be approved by the Parliament of Canada at the same time.

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So if there is ever another province who follow the example of Mr. Hatfield we will have to approve that in Parliament, I have no doubt it would pass very easily, but I want it to be approved by the Parliament of Canada at that time, too, so that all Canadians will know what is happening and it will be the fourth province; we have now Quebec. Manitoba and New Brunswick, if there is a fourth one it will be passed in that legislature and it will be passed in the House of Commons and the Senate. It will not be reversible.

We have the mechanism in the present amending formula for that, and this is why we do think on balance that we prefer to keep the present mechanism to amend the constitution in a way we call bilateral. If we want something that affects one province to be inscribed in the constitution or removed or changed, we need the consent of the national parliament and the provincial parliament or assembly. So we want the same mechanism to apply for whenever a province will want to do exactly as New Brunswick has doneflt will be public not only in New Brunswick but in the face of all Canadians and that is why your Clause 21 is not, in our judgment, acceptable because it will not attract the necessary attention that I would like to have the day that Ontario or any other province decides to move.

Mr. Crombie: Mr. Chairman, on a point of order. I think there is a further question from Mr. Corbin.

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

Mr. Crombie: I had indicated at the outset of my own comments that I was not going to deal with the substance . . .

Mr. Chrétien: I wanted to clarify the position and I used the occasion of my reply to Mr. Corbin.

Mr. Crombie: No. I understand that, but I did not want the Committee to think that that was all there was to our understanding of why it was necessary to have a new Clause 21. I would at least like, before it is rejected, I would at least like the Committee to hear why, part of it being that you do not have to be a full blown New Brunswicker to get in; you could take a portion of it. The Province of Ontario would at least like to extend it to the courts or to the legislature.

New Brunswick is now more bilingual than the federal government. Our argument and the reason for our amendment, I do not want to get into the whole argument, but the reason for it is that if a province would like to be a little bit more, then it can do it; therefore I would like you to listen to those arguments . . .

Mr. Corbin: The Minister bootlegged that in there.

Mr. Crombie: I know he did and he is very good at it.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable David Crombie.

Before I call all the speakers I have on my list, and I can name them all: I have Senator Asselin, Senator Tremblay, I have Mr. Hawkes, I have honourable Jake Epp, Miss Campbell and many other speakers that want to speak on the proposed clause.

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I have to remind honourable members that we have accepted some rules and those rules would allow a first intervention of five minutes and I would invite honourable members to stick within that five minutes so that we might go on with our work, and if it would not be too much bother, if you could look at the Chairman some time and we can indicate to you how much more you can go on with your intervention.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, just on a point of order, I am not trying to get anything in and I will take my turn when you recognize me, but if I can have the attention of Mr. Mackasey just for a minute?

On the point that Mr. Mackasey made, that if the government would not accept our opting in and might feel that the better route is through their present Clause 43, and that that should not be regarded as a rejection, I want to simply say to Mr. Mackasey we feel that this clause is not related to those kinds of political arguments; we are not going to accept it in that way at all.

I will speak later but I want to make sure that that does not become part ofthe discussion.

The Joint Chairman (Mr. Joyal): Thank you, honourable Jake Epp.

I would like to invite honourable Senator Asselin.

[Translation]

Senator Asselin: Mr. Chairman, I believe I would be derelict in my duty as a citizen of the Province of Quebec if I did not intervene in this debate which, in my opinion, is an extremely important one.

We are presently examining the Charter of Rights and the fundamental objective of this Charter, Mr. Chairman, is the equality of rights and freedoms, the equality of chances for all citizens before their Parliamentary and legal institutions. We have been doing this for the last few days; we have granted certain communities and certain individuals rights that they did not have before and we have entrenched them in this Charter we are now examining.

We are also here, Mr. Chairman, to correct the wrongs done for many years now.

If we look at the facts for a few moments, we have in Ontario, as my colleague, Mr. Crombie, said so well and I congratulate him for that intervention, 600,000 Francophones who have been fighting for dozens and scores of years to try to have their rights in the fields of education and language recognized.

I will not, of course, give you the specifics of all the battles our French-speaking compatriates had to go through to get their own schools in Sturgeon Falls, Cornwall, Elliott Lake, and they are fighting even now in Ottawa-Carleton to get their own school board.

I am not saying, Mr. Chairman. that the Ontario government has made no progress in recognizing certain rights for Francophones and I do want to congratulate the Government of Ontario for having acted in that manner. However, in 1981,

[Page 73]

I get the distinct impression that these are half measures and, as a French Canadian, I cannot condone the fact that half measures only are being granted to 600,000 of my compatriotes living in Ontario.

Perhaps all that is slightly too sentimental for me because I am from Quebec and that, as Mr. Mackasey has said so often because he has been a member of the National Assembly of Quebec, we recognize fully the rights of the English-speaking minority in Quebec.

Just to show the satisfaction of that English-speaking minority, I have here an open letter, Mr. Chairman, from a group of businessmen, lawyers, doctors, and others, that was sent to the three political leaders of Ontario begging them to accept the imposition of bilingualism in the Ontario legislature and its institutions as well as before the courts of justice of Ontario.

That letter was sent under the heading of the Council of Quebec Minorities.

We have had before this committee, Mr. Chairman, French-speaking people who have told us about all their grievances and the problems they have had to confront and they have also told us and reminded us that this is the only chance they have, historically speaking, to have granted to them those rights that they have alays been refused.

Mr. Chairman, we will not have the opportunity to study a Charter of Rights for many years hence. It will be said, of course, that my party says that none of these rights should be imposed upon the provinces, that it must be left up to the provinces to decide in such or such an area. The government also says that we cannot impose upon Ontario that they grant their 600,000 French-speaking people those rights they have been requesting for so long because the Premier of Ontario refuses such an imposition. Of course, history will judge the acts of the political parties in presence here today.

Mr. Chairman, I did intend to table amendments which would help the French-speaking population of Ontario to finally see justice done. I have discussed those with the colleagues of my party, I consulted my colleagues from the Liberal party yesterday and it would seem that these amendments I would like to table would not garner immense support.

Of course, my colleagues on the other side will tell me to table them and we will then see. If such amendments were to be tabled before this committee, we would need at least a relative consensus so that no one could accuse the different political parties of playing politics with such an important question.

We will therefore not be imposing bilingualism upon Ontario for the reasons I have just stated. Now, what will the consequences of all that be, Mr. Chairman?

We Quebeckers and French-speaking citizens of this country will still project the image of a group of Canadians who, outside of the Province of Quebec, do not have equal rights before the law and before the Parliamentary’institutions of the different provinces concerned.

[Page 74]

It is not because we suffer from an inferiority complex, because almost all Quebeckers or a great number of Quebeckers can speak enough English to make themselves understood. But to refuse to the children of our French-speaking compatriates in Ontario the right to schools so that they might be educated in their mother tongue, that is a crying injustice that the politicians should immediately remedy.

Refusing to French Canadians the right to address themselves to courts in their language. . . it was said this afternoon that we can speak French before courts of criminal justice. Is bilingualism for criminals only when one cannot speak French before the civil courts of Ontario? That is not yet allowed.

The Chairman, I am almost tempted to quote the Premier of New Brunswick, Mr, Hatfield, when he came before this committee and said that if the federal government could not guarantee the protection of language rights to francophones in Ontario then I believe that you should seriously consider doing away with the protection of English in Quebec.

If we do not want to impose anything upon Ontario, let us not impose anything in Quebec. Let it be taken away from Manitoba. It will be said that all these are acquired rights or vested interests but I must remind you that when Upper Canada existed, Ontario was bilingual and we lost that right in 1840 because of the Act of Union. If injustice was indeed created at that time, there is still time left for us, Canadian parliamentarians, to redress those injustices.

Mr. Hatfield also said that the decision to impose bilingualism on Quebec but not upon Ontario only served to perpetuate an act of flagrant injustice which is bad for Canadian unity.

We are here, dear colleagues, to examine this charter and, using that, build a more united Canada, a more tightly knit Canadian unity. We want to gather all Canadians under a charter of rights and we are being refused the possibility of asking or imposing upon the government of Ontario as it has been done for other provinces, the French-speaking minority’s right to speak its own language in its own parliament, before its courts of justice and in its schools.

Mr. Chrétien: If I may correct you . . .

Senator Asselin: I am waiting.

Mr. Chrétien: I would just like to make a remark, with your permission, because I liked your presentation. However, you often refer to schools. Now, under clause 23, the question of schools will be settled and that must be clarified and the Ontario government is entirely in favour ofthat.

Senator Asselin: We will speak further of Clause 23, Mr. Minister.

Mr. Chrétien: No, not but that does leave the impression . . . a distinction must be made between the institutions and education. Under the project we have and I think that many have not understood that aspect of it, the educational rights of

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French-speaking citizens outside of Quebec will be guaranteed by Clause 23.

Senator Asselin: Clause 23, Mr. Minister, in my mind, does not go far enough and I will tell you why in due course.

Mr. Chrétien: It is very important that the viewers are not left with the wrong impression.

Senator Asselin: Would you allow me to finish what I had to say. Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes, I would like you to finish, Mr. Asselin, since you have already gone far beyond your time.

Senator Asselin: In that case, Mr. Chairman, I say that if we do not assume our responsibilities and correct the injustices being perpetrated upon our French-speaking compatriots in Ontario, I say to you that history will judge us very harshly and I repeat once again that I have here amendments which could be of use to improve the situation. lf it were to be indicated to me that a majority of this committee would vote in favour of those amendments, Mr. Chairman, then I would be quite happy to table them.

I thank you.

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

The Honourable Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I will be brief with my general comments concerning the totality of the provisions we are now examining.

I would first like to thank my colleague, Mr. Crombie, for having said what he did in calling upon his province to joint the others who might eventually opt for or who are already in the situation described by the clauses in question.

I think that kind of intervention will help soften, in the eyes of Quebeckers, a feeling which is rather quite strong and which Senator Asselin alluded to a moment ago.

If we were to follow only that feeling, as Senator Asselin said, redressing that injustice would, as he pointed out, probably take the form of an imposition and we could propose such a thing but, in fact, there is another principle which is equally at stake here. lt is the principle that I would call the self-determination of the provinces in such a matter. That is the principle the minister himself has developed several times, the principle of non-imposition, the principle that the provinces must be free to opt for the clauses we are talking about. it is keeping that perspective in mind that my colleague, Mr. Crombie, said that he would be tabling in due course the proposal of amendment that we have studied.

As a clarification, the minister told us before that he would not accept that amendment because, unless I am mistaken about the number, under Clause 43, the constitution can be amended through a resolution of the province in question and

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of Parliament when the substance of the said amendment affects only that province and he told us that such a move would have more repercussions if the province exercised that freedom that we do grant it with Parliament’s permission.

It would seem to me there is a slight paradox there. On the one hand, you are insisting upon the principle, with which I am in agreement, of the freedom of the provinces but Parliament’s approval must be obtained so that a province might exercise said freedom.

As I said, there is quite a paradox there. I will not go any further at this stage because I imagine that we will be analyzing all this when we discuss the specific amendment we are suggesting which does not require Parliament’s permission for the exercise of a freedom that we are bestowing upon the provinces,

At this stage, I simply wanted to stress the clear paradox there was in what the minister said before.

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

Mr. Jean Lapierre followed by the honourable Jake Epp.

Mr. Lapierre.

Mr. Lapierre: Thank you, Mr. Chairman.

As were my colleagues, so was I very touched by the intervention of Messrs. Crombie, Nystrom, Mackasey, Asselin although rather less by Senator Tremblay’s.

The Senator is crying paradox and I think the paradox in his proposal is that he says the charter should not be imposed upon the provinces, that we are in favour of applying 133 and since the charter would neither be imposed nor negotiated it should be as good a charter as possible but 133 should not be included.

You must admit that it is also a paradox, Senator Tremblay. Besides that, I am convinced, as is Senator Asselin, that we must evolve towards progress. I believe that the present project does bring certain progress for a group of French-speaking people outside of Quebec as far as their rights and more specifically their fundamental equality is concerned because that should be the point of the whole thing. At least, the francophones in New Brunswick will finally have access to that fundamental equality because of the greatness and the intelligence of their provincial premier who came before us and asked us to be bound.

I think, as Senator Asselin, that it is regrettable that we cannot do anything which would allow the 600,000 Franco-Ontarians to enjoy that same right which is certainly not a privilege and, as I often say, as politics are the art of the possible and as perfection is enemy of well enough, it will not be possible to answer the expectations of all those numerous groups who came before us.

There are queer practical reasons for that and it is certainly with much regret that the French-speaking members in this committee cannot find any clear practical way to give them those rights.

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The amendment suggested by my colleagues across the floor is, in my opinion, not really necessary.

As Mr. Mackasey has said so clearly, Clause 43 makes it very easy for any province to choose to have the provisions of Clause 133 applied; the provinces could even go further than that if they wanted to.

With 34, if they are in a great rush. there are transitional steps there with a provision making it possible for a province to opt for those provisions.

I was slightly concerned by what Senator Asselin said. As was the case for the minister, we were concerned when we heard this SEnator say that we were refusing educational rights to franco-Ontarians.

I think that when we get to Clause 23 we can debate this in greater detail, but some of your friends are quite opposed to this effort we are making to recognize educational rights in the language of the minority everywhere in Canada and that applies not only to Ontarians but also to all French-speaking minorities across Canada where numbers warrant.

You were asking us to redress injustice, Senator Asselin. I do not think one can redress injustice. We can look at the future much more positively and perhaps in looking at the future with a positive eye we will find. once this committee has finished its work, that we have taken an historical step. I think it is a challenge for all parliamentarians sitting here and surely the present provisions are a great step forward, even though we are perhaps only giving recognition to the Official Languages Act which was simply an ordinary statute before but which will no become constitutional reality. This is quite an evolution in mentalities. historically speaking, because I do not think that l0 years ago the people around this table could have agreed on the recognition of both official languages in Canada.

Now, 10 years later, French Canadians have managed to impose that concept. it was not motivated by external factors but rather by internal ones and I think that the French Ontarians, who have managed to convince us of their needs so eloquently, do have that inner fire which has motivated many Quebekers in Ottawa and will certainly be present still during our debates.

The Joint Chairman (Mr. Joyal): Thank you. Mr. Lapierre.

The Hon. Jake Epp, [Text] followed by Mr. Hawkes.

Mr. Epp: Mr. Chairman, I want to direct just a few comments to the general theme that has been opened up. I think the first matter that must be mentioned and kept in perspective is the integrity of the federal system, and that is important.

Additionally. and I think I can say this, I think we have the collegiality around this Committee, that many members on both sides of the table have agonized over this question in a very sincere way; and tried to come up with not only maintaing principles of a federal state but also what they saw as equality.

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I want to say especially to Mr. Mackasey that the reason we are suggesting we opt in is because we believe it is an easier method by which to achieve some of the goals, and as Mr. Crombie said, that symbols are important. We believe some of the symbols can be achieved as well at a time and in such a manner that they might in fact be used later on for additional steps, and as members will look ahead, they will notice that we do not approve of the interim amending formula as it is called.

It is for that reason that Clause 34, as far as we are concerned, cannot apply. So it is a matter of a total package when members opposite take a look at why we have proposed the procedure that we have.

Mr. Chairman, those of us who were around in 1973 when the Official Languages Act was reconfirmed: we were not here in 1969 as many members around this table were, for many of us that was a very difficult time; and I came from a province that is included under Section 133 by virture of Section 23 of the Manitoba Act of 1870. In private discussions and in other discussions with friends around this table, the possibility has sometimes been raised, well if it does not work at this stage to include any province under Section 133, any province, should those provinces who are in fact included under Section 133, should they not have the opportunity then to be relieved of the responsibilities under that clause.

If I can speak just from a provincial perspective for a minute, obviously not speaking from a Quebec perspective but from a Manitoba perspective, as one who lives there and one who represents a riding that has the second largest number of French Canadians in any riding in Manitoba. The only one that has more is my friends, Mr. Bockstael, from St. Boniface. I would urge all members on both sides of this table not to even consider reopening that question for Manitoba. There are old scars there; there are old wounds there. I think for many of us. Mr. Bockstael on one hand and maybe I just to a small degree. and others have been trying to build bridges. Mr. Bockstael and I might disagree very strongly on a partisan basis but we do not disagree in terms of the need to build bridges between the different communities in Manitoba.

To open it in kind of a chess game, if you take my pawn, I am going to take yours approach on language for us in Manitoba, I would suggest that that would be very detrimental and I do not think either the province or the cause of Canadian unity would be served in any way.

So I want to say, if I can, Mr. Chairman, just from a personal point of view, that no matter how we approach these clauses, that an option not be considered, that if it cannot be extended to one province, that those who are in it, that it was imposed upon them and that they should then have the right to opt out. I think that is not in keeping with historical facts. Those historical facts, as I see them, back in 1864 and 1867 in fact was a guarantee for the Province of Quebec. It was also a request by the residents of Manitoba in 1869-1870 that a

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similar clause be included in the Manitoba Act, which became known as Section 23.

I think if we take a look at the historical facts, the imposition as we use the word today in this context, is quite different in the context of 1870, and I just urge all members, Mr. Chairman, that that not be considered as an option.

The Joint Chairman (Mr. Joyal): Thank you, honourable Jake Epp. Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman. I notice that the Minister of Justice is caucusing with the New Democratic Party. My intervention requires a moment or two of his time. If there are other people on your list, I would be happy to move down in order.

The Joint Chairman (Mr. Joyal): I would request, the honourable the Minister of Justice to sit for short period of time; Mr. Hawkes would like to address some questions to you. After Mr, Hawkes has completed his questions, the Chair would be in a position to call the vote.

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

Mr. Minister, my concerns are related to Clause 16(3) as amended.

On January 21, I had an exchange with the Acting Minister of Justice about the government’s intent in a policy sense in relation to the amendments which the government is proposing.

Subsequent to that exchange on January 21, I contacted several of the expert witnesses who have appeared before us and I would like to ask the Minister a couple of questions, and maybe make a suggestion to him.

But my original concern related to this clause. It was a concern which arose out of any clause which has the appearance of conferring rights upon a government and affirming those rights.

It is written that nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English or French.

Some of those experts I have contacted have said that it could be argued in court that this clause is a kind of dominant clause which might affect other individual or group rights contained in other clauses of the Charter, that the situation was not clear; and they wondered from the Acting Minister of Justice’s testimony and from cases which have been argued before the Supreme Court, whether or not it was the intention of the government that nothing in Clauses 16 to 23 of this Charter would limit the authority—and the rest could be included.

I am just wondering whether or not your officials could look at that suggestion from some of the peopIe—it did not go into the testimony—but they wondered whether or not, in reality, the government wanted to make sure that nothing else in the language rights clause could be construed by a court as limiting the authority, or whether it was the intent of the

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government in that nothing in the whole Charter from Clause 1 on through would limit the authority of a parliament or legislature.

Mr. Chrétien: I will check. I do not exactly know what you mean. Of course, when the Charter trenched it will limit the powers of the Parliament of Canada and the legislature to do certain things. This clause here is related to Clause 16. As I see it, it will not have an effect on other provisions in the Charter.

However, I will check that. But the short answer to your question is that we do not think so.

Mr. Hawkes: Would it not be advisable. then. would it not be better to stand this part of the clause until you have had an opportunity to consult precedent and consider the issue I am raising?

Mr. Chrétien: No. I am sure. But I think we can perhaps not vote on Subclause 3 of Clause 16 for the time being and vote on the two others and come back to that subclause after the adjournment at 8 o’clock tonight.

But the probability ofa problem is so slim that I do not wish to delay the work ofthe Committee unnecessarily.

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

Madame Campbell.

Miss Campbell: Mr. Chairman, I was originally on the list. but I took my name off. However, I do have a couple of questions for Mr. Crombie on his proposal, If I may.

I was very impressed by what he had to say, his proposal, being half Acadian and I am certainly sympathetic with your view.

But you are not asking us to impose it in this clause, but you are just allowing another way of allowing a province to opt in; it could be the court system, the legislature or anything else.

Have you communicated your views to Premier Davis that we should do this? That he should be opting in?

Mr. Crombie: Oh yes.

Miss Campbell: He is well aware that you are sort of in support of us wanting to act unilaterally?

Mr. Crombie: My position has clearly not been lost on him.

Miss Campbell: Are you also speaking for the national Leader of your party as well?

Mr. Crombie: The amendment I have placed has the support of the party. There can be no question about it. The amendment I proposed is from the Conservative Party.

Miss Campbell: But your views are very much stronger than the amendement.

Mr. Crombie: The amendement—of course I did not deal with it; if you are asking me a question on it. In our view . . .

The Joint Chairman (Mr. Joyal): The question is certainly in relation to the proposed amendment. But I would like to

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keep the honourable member’s name on the list and when dealing with the amendment in the usual way, I would certainly call the honourable member.

Miss Campbell: I thought we were dealing with it in a global way.

The Joint Chairman (Mr. Joyal): It is a very global discussion, but the Chair was at the point of calling the vote on a specific clause at this point.

But, if you will accept my suggestion, Miss Campbell, you will be the first one on our list to intervene on the proposed amendment as was explained in general terms by the honourable David Crombie.

I think that is satisfactory to everybody.

I see honourable members are ready for the vote on the proposed amendment as read by M. Corbin.

Clause 16 as amended, agreed to.

On Clause 17—Proceedings of Parliament.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment in relation to Clause 17. lt is the amendment G-23.

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I would like to move that Clause 17 of the proposed constitution act, 1980 be amended by renumbering Clause 17 on page 6 as Clause 17(1) and adding thereto the following subclause:

(2) Everyone has the right to use English or French in any debates and other proceedings of the Legislature of New Brunswick.

[Translation]

Mr. Chairman, I move

That Clause 17 of the proposed Constitution Act, 1980, be amended by renumbering Clause 17 on page 6 as Sub-Clause 17(1) and adding thereto the following Sub-Clause:

[Text]

“(2) Chacun a le droit d’employer le français ou l’anglais dans les debats et travaux de la Législature du Nouveau-Brunswick.”

[Translation]

Thank you, Mr. Chairman.

[Text]

I see that honourable members are ready for the question.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to come back to Clause 17. I see honourable members are ready for the question on Clause 17.

Clause 17 as amended agreed to.

On Clause 18—Parliamentary statutes and records.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment relating to Clause 18, identified as G-24, Clause 18, page 6. and I would invite M. Corbin to move the proposed amendment.

[Translation]

Mr. Corbin: Thank you, Mr. Chairman.

I move

[Page 82]

That Clause 18 of the proposed Constitution Act, 1980, be amended by re-numbering Clause 18 on page 6 as Sub-Clause 18(1) and adding thereto the following Sub-clause:

[Text]

«(2) Les lois, les archives, les comptes rendus et les procès-verbaux de la Législature du Nouveau-Brunswick sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur.»

in English, Mr. Chairman, I would like to move that Clause 18 of the proposed constitution act, 1980, be amended by renumbering Clause 18 on page 6 as Clause 18(1) and adding thereto the following subclause:

(2) The statutes, records and journals of the Legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Thank you, Mr. Chairman.

[Translation]

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

[Text]

Clause 18 as amended agreed to.

On Clause 19—Proceedings in courts established by Parliament.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment, identified as G-25, Clause 19, page 6, an amendment dealing with Clause 19 of the proposed motion and invite monsieur Corbin to present the amendment.

[Translation]

Mr. Corbin: Thank you, Mr. Chairman.

I move

That Clause 19 of the proposed Constitution Act, 1980 be amended by re-numbering Clause 19 on page 6 as Sub-Clause 19(1) and adding thereto the following Sub-Section:

[Text]

«(2) Chacun a le droit d’employer le français et l’anglais dans toutes les affaires dont sont saisis les tribunaux du Nouveau-Brunswick et dans tous les actes de procédure qui en découlent.»

Mr. chairman, I move that Clause 19 of the proposed constitution act, 1980 by renumbering Clause 19 on page 6 as Clause 19(1) and adding thereto. the following subclause:

(2) Either in English or French may be used by any person in or in any pleading in or process issuing from any court of New Brunswick.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you monsieur Corbin.

Clause 19 as amended agreed to.

On Clause 20—Communications by public with federal instructions.

[Page 83]

The Joint Chairman (Mr. Joyal): In relation to Clause 20, the Chair has received two amendments, one introduced by the government party and the second introduced by the Official Opposition, the Conservative Party.

I would like to invite, first, the amendment introduced by the government party, and invite Mr. Corbin to present the amendment in the usual way.

[Translation]

Mr. Corbin: Thank you, Mr. Chairman.

I move

That Clause 20 of the proposed Constitution Act, 1980 be amended by striking out lines 36 to 39 on page 6 and lines 1 to 3 on page 7 and substituting the following:

[Text]

«20. (1) Le public a, au Canada, droit à l’emploi du français ou de l’anglais pour communiquer avec le siège ou l’administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l’égard de tout autre bureau de ces institutions là où, selon le cas:

a) l’emploi du français ou de l’anglais fait l’objet d’une demande importante;

b) l’emploi du français et de l’anglais se justifie par la vocation du bureau.

(2) Le public a, au Nouveau-Brunswick, droit a l’emploi du français ou de l’anglais pour communiquer avec tout bureau des institutions de la Législature ou du gouvernement ou pour en recevoir les services.»

In English, I would like to move that Clause 20 of the proposed constitution act, 1980 be amended by striking out lines 36 to 39 on page 6 and lines 1 to 3 on page 7, and substituting the following:

same right with respect to any other office of any such institution where

(a) there is a significant demand for communications with and services from that office in such language; or

(b) Due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick, in English or French.

Thank you, Mr. Chairman.

[Translation]

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

Is there any discussion on the amendment as moved by Mr. Corbin?

[Text]

Mr. Nystrom.

Mr. Nystrom: I just wanted to ask the Minister’s officials a question or two on Clause 20.

[Page 84]

The wording here refers to “any head or central office of an institution of the Parliament or Government of Canada”, in terms of bilingual services.

Can you explain a bit more what thatmcans, “any head or central office”? Of course, “head office” is a head office, but does “central office” mean a regional office, or head office? Do the words mean the same thing?

Mr. Tassé: Well, we wanted to make sure that we covered all possible arrangements which may be made for the distribution of government services.

It could be a department like the Department of Veterans Affairs, which would be a head office of an institution of government.

But it could also cover the head office or central office of government agencies; it could be a board, a corporation.

In effect, I suppose we wanted to make sure here that we were not missing any central agency of government in a broad and general sense. That is why we have used these two words.

Mr. Nystrom: And in proposed Clause 21(a) as well, there are the words “significant demand”. The reason I ask these questions is that we have always had controversy of what “where numbers warrant” means, and so on. I was wondering whether there is anything you would like to put on the record about that which may be helpful?

Would “significant demand” be ultimately decided by the courts?

Mr. Tassé: That is correct, Mr. Nystrom. if in the original Clause 20 as tabled in Parliament, that determination in the final analysis was to be made by Parliament.

But under this revised text, the court will ultimately decide these questions, whether there is in effect, a significant demand or not.

The Joint Chairman (Mr. Joyal): The honourable Senator Roblin.

Senator Roblin: Mr. Chairman, might I be so bold as to ask a question about the French text, because I have a problem in understanding it.

In the English text for proposed Clause 21 (a), the last words are “language or”, so that (a) and (b) are in the position of “either or”; but when I look at the French text, I see the last words of proposed Clause 21(a) are “demande importante” and the “ou” is left out. Is that appropriate?

Mr. Tassé: Senator Roblin, if you are working from the brochure that was distributed, there are words there that are missing compared with the amendment that is formally before this Committee and I think you are right. We have added words to make sure that in effect it is an alternative. It is either (a) or (b) and the words we have added are the following: “selon Le Cas!”

[Page 85]

Senator Roblin: You restore my confidence in my bilingual capacity.

[Translation]

Mr. Chrétien: I would like to congratulate you, Senator. That is very impressive.

Senator Roblin: You are very kind, Mr. Minister. Thank you very much.

The Joint Chairman (Mr. Joyal): If there are no further questions or comments on the proposed amendment, I would like to put the question.

The amendment is carried.

The Joint Chairman (Mr. Joyal): Now, I would like to come back to Clause 20.

Clause 20 is carried.

[Text]

I would like then to invite honourable David Crombie to move the next amendment, the one identified CP.-8.4, new Clause 21.

[Translation]

I would like to invite Mr. David Crombie to move the amendment and. subsequently, Senator Tremblay to read it in French.

Mr. David Crombie.

[Text]

Honorable David Crombie.

Mr. Crombie: Thank you very much, Mr. Chairman. I will read the motion in English and Senator Tremblay will read it in French, that the proposed constitution act, 1980 be amended by adding thereto immediately after line 28 on page 7 the following:

Extension application of certain language rights

21(1) the legislative assembly of each province to which Clauses 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

(2)) has application in the province, or

(b) has application in the province to the extent and under the conditions stated in the resolution.

Effect of Proclamation

(2) Where the legislative assembly of a province authorizes the issuance of a proclamation declaring that a subsection referred to in subclause (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 subclause is to apply in the province without any limitations or conditions, amend the subclause to include the province as a province named in the subclause: or

(b) if the subclause is to apply in the province to the extent or under conditions stated in the resolution authorizing the issue of the proclamation, subject to Clause 22 so apply in the province and, for all purposes.

[Page 86]

including the purpose of amendment, be deemed to be a provision of this Charter.

Now, I will explain all that as best I can, Mr. Chairman, when we have heard from Senator Tremblay and I would like to thank him for his involvement.

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

It has been moved by Mr. Crombie that,

That the proposed Constitution Act 1980, be amended by

(a) adding thereto immediately after line 28 on page 7 the following:

At this point, I think a correction must be made in the text I have here.

The number of the clause I have here is 30, and I believe it should read 21.

So, I will read the correct version.

«21. (1) L’assemblée législative d’une province non expressément visée par les paragraphes 16(2), 17(2), 18(2), 19(2) ou 20(2) a la faculté d’adopter une résolution autorisant le gouverneur général à déclarer, par proclamation sous le grand sceau du Canada, que tel de ces paragraphes:

a) ou bien s’applique ti la province sans conditions; b) ou bien s’applique à la province aux conditions précisées dans la résolution.

(2) En consequence de la résolution, la proclamation peut être prise indépendamment detoute autre disposition de la présente loi relative aux procédures de modification de la Constitution du Canada. Cette proclamation:

a) modifie le paragraphe en cause par insertion du nom de la province, s’il s’agit d’une application sans conditions;

b) est considérée à toutes fins utiles, notamment à des fins de modification, comme une disposition de la présente charte, s’il s’agit du cas visé à l’alinéa (1)b),

[Translation]

Mr. Chairman, your earlier remarks concerning our listeners really applied to this amendment. I apologize for the digression.

so apply in the province and, for all purposes, including the purpose of this amendment, be deemed to be a provision of this Charter.

(b) re-numbering the subsequent clauses accordingly.

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

[Page 87]

I will now recognize Mr. David Crombie to explain the amendment in the usual fashion.

[Text]

Mr. Crombie: Thank you very much, Mr. Chairman. Thank you, Senator.

Mr. Chairman, I would like to go over this fairly slowly so that we can all understand it.

Our concern here is not so much a political one as what we have considered to be a perhaps inadvertent situation created by other amendments.

The Minister’s view. I gather the law officers of the Crown view as well. is that Clause 43 will allow a province to opt in with respect to language rights. That is what I understand it to be.

Mr. Tassé: Perhaps I should make things clear.

Senator Tremblay: All right.

Mr. Tassé: In respect of the language provisions of Section 133, a province could come in and bind itself by the procedure set out in Clause 43 in respect of Clause 16 to Clause 20, All the charter provisions are mentioned in Clause 50 and Clause 50 provides an amendment can be made only to the charter by way ofan amendment on the Clause 41.

Mr. Crombie: And Clause 42.

Mr. Tassé: Or Clause 42.

Mr. Crombie: All right. that is right. That is a little presumptuous. Very good. Mr. Tassé.

Mr. Tassé: Thank you.

Mr. Crombie: There is the nub of our problem because if a province would like to opt in, here is our first problem. if a province would like to opt in to say, Clause 17, Clause 18 and Clause 19, Clause 17 for example, just to refresh your memory. Clause 17 deals with, and I will read it out.

Everyone has the right to use English or French in any debate in the legislature of a particular province.

Clause 19 deals with the Courts. If you wish to just go into, say, Clause 17 for the courts but they are not ready yet for the legislature. that is a problem because the assumption is that we could use. or the only way it can be done is through Clause 50(b). Clause 50(b) says an amendment to the constitution of Canada in relation to any of the following matters may be dealt with only in accordance with procedures prescribed by Clause 41 and Clause 42.

What that means is that you have to go through the whole amending process involving a whole bunch of other provinces and the Victoria Formula. Or whatever one we pick. Well, it is only by Clause 41 and Clause 42. and Clause 41 and Clause 42 list a very long procedure by which you amend just to get into Clause 17 or Clause 19. that is the first problem. Why go through all that just to get in one clause? And it is only affecting the province that wants it.

So our first point is that a particular province would like to say: yes, it shall be a right to use both official languages in a legislature, they should not have to go through the entire amending procedure involving all of the other provinces, which it needs to do under Clause 50(b).

[Page 88]

That is our concern. What we would like to do, therefore, and that is why the first part of our recommendation is to give prior approval, allow a province through our amendment to say: when you are ready, you declare it, the thing is done. That is precisely what we did in Section 146 of the British North America Act with respect to Newfoundland 113 years ago. It was a good idea then, it is a good idea now.

It said when Newfoundland is ready it does not have to go through a whole rigamarole, it simply has to declare it because Section 146 was sitting there waiting for them to do it whenever they wanted to. That is what we would like to do with the ability of a province to opt in with respect to language rights if they want to, say, just pick Clause 17.

Now, another way to do it is for a province to get all the way into Section 133, then you can use the amending formula in Section 43, but if you do not want to get into all of Section 133, how do you just get a part of it? The fact of the matter is you cannot. That is the problem. The only way you can do it in Section 43 is to get all of Section 133.

What I would like to be able to do is to provide flexibility for a province to be able to get into a portion of Section 133. because every little bit counts, and it is difficult to do that, in fact impossible to do it through Clause 43.

Now, if I am wrong on that point my argument fails because the only way you can use Clause 43 to amend the constitution in order to bring in a language right, the only way you can do that is by taking in the whole of Section 133 of the British North America Act, and that to me seems first of all not giving sufficient flexibility to a province, and secondly, it seems that we ought to give prior approval so that when they are ready they can declare it without going through the rigamarole. That is the point of the amendment.

Senator Tremblay may wish to explain that in English.

The Joint Chairman (Mr. Joyal): I have already well understood it in French, Mr. Crombie.

[Translation]

Senator Tremblay: Thank you, Mr. Chairman.

I do not want to bring about any needless repetition, but I would just like to be sure of the interpretation of the formulae for amending Section 133 and any provisions of the Charter. My colleague, Mr. Crombie, brought out quite clearly that with the permission of Parliament, a province could decide under Clause 43 to apply Section 133 within its jurisdiction. However, before one of the provisions of Clauses 16 through 20 can apply, since they are part of the Charter, the general amending procedure must be used. That is, Clauses 41 or 42 if the proposed resolution is adopted, Is that correct?

Mr. Tassé: That is correct, Mr. Chairman. Under Clause 50.

Senator Tremblay: That is right.

So, now that that has been established, the two purposes of our amendment become quite clear. First, it would allow a flexibility which does not exist in the proposed resolution and, second, it is based on the freedom, on the self-determination of the provinces, to which I referred earlier. The minister also

[Page 89]

mentioned it. Earlier. he insisted that Clause 43 be maintained. So, I was not sure that I had read correctly beforehand, but I am happy with the correction you have made. In fact, it is not Clause 43 which applies. If it were Clause 43, however, the minister stated that it needed pepping up and that Parliament should therefore have consented.

I would have said that it was a matter of extending a protected freedom to the provinces. Now that it is clear that a province binds itself through Clause 41, it is more than a protected freedom which is being granted, it is a freedom which is controlled by all the other provinces. It is really up to the province to decide whether to apply one of the provisions of Clauses 16 through 20, either in whole or in part, as it relates to the particular circumstances.

This type of flexibility is essential in my opinion given the context in which we live. Circumstances and mentalities vary, obviously, from one region to another and they evolve at their own pace.

Our amending formula takes all this into account and indicates clearly that it is our desire to see the provinces opt in, but that they do so freely according to the terms and conditions which are appropriate to their sociological context.

I have difficulty understanding the rigidity of the proposed resolution, of Clauses 16 through 20 as they have been carried and I would have some difficulty understanding why our amendment, which is much more flexible, would not be accepted.

As it stands, the proposed resolution is an obstacle to the objectives we wish to attain. On the other hand. our formula would allow things to move along more quickly, taking into account the fact that provinces evolve at their own pace in accordance with their particular situation.

Thank you.

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

Mr. Jake Epp.

[Text]

Mr. Epp: Thank you for recognizing me after 6 o’clock, Mr. Chairman. It would be my suggestion I think the matter has been well presented and possibly members can reflect over the dinner hour and we can then reconvene at that time.

The Joint Chairman (Mr. Joyal): I was going to suggest that we adjourn at this point because I am quite sure honourable members would like to think that over during the following hours.

[Translation]

The meeting is adjourned until 8 o’clock.

[Page 90]

[Text]

EVENING SITTING

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

We are resuming consideration of the proposed motion on an amendment moved by the honourable David Crombie on behalfof the Conservative Party.

When we adjourned at 6 o’clock, I had a list of four speakers: the honourable Bryce Mackasey. Mr. Nystrom, the honourable John Fraser and Madam Campbell.

[Translation]

The Joint Chairman (Mr. Joyal): So, it is with greatest respect, Miss Campbell, that I give you the floor.

[Text]

Miss Campbell: I am sorry, but the mover of the amendment is not here—Mr. Crombie, and I am just wondering if he is coming back. When I was cut off before, he had made quite an admirable statement which I was really impressed by as I am sure everybody on the Committee was as to the sense of direction that he felt the Province of Ontario should be going.

But I will direct my question at Senator Tremblay.

[Translation]

Does Clause 21 provide for an opting-in as well as an opting-out? If a province wants to opt out, must it go through Sections 43 or 50?

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

As far as I understand the wording, the provisions only regard opting-in.

Miss Campbell: Not opting-out?

Senator Tremblay: No.

Miss Campbell: So, the formula provided for in the resolu- tion must be used to opt out.

[Text]

The sénateur Tremblay: Yes, if the. . .

[Translation]

No, let me think. Is it allowed?

Miss Campbell: I know, Senator Tremblay, that you were not the mover of the amendment, but . . .

Senator Tremblay: Well, my interpretation is as follows. Once the province has decided to opt in, using the formula we have proposed, it would be added to the list of provinces already bound. Its name would appear along with those of the other provinces who have amended the constitution.

The opting in would be equivalent to amending the constitution.

Consequently, that province, in order to make another amendment, would have to use one of the amending formulae since it would no longer be allowed to make any changes unilaterally.

I think that is how the system would work.

Miss Campbell: You have not mentioned any ways of opting out.

Senator Tremblay: That is provided for in the amending formulae since opting out would be considered an amendment

[Page 91]

to the constitution. The entire constitution can be amended through one of the appropriate formulae.

Mr. Chrétien: I would like to make a remark at this point.

Obviously, the opting in principle is all very well, but it also involves opting out. All our efforts may, at some point, create some confusions and some irregularities in the constitution. The principle of a Charter resides partially in the fact that it can only be amended using a method provided for in the constitution. So, in answer to Senator Tremblay, my objection is that under Mr. Crombie’s proposal, the changes could be made in only one province. But very soon, they will want to. We are not seeking a change to the constitution of the province, but a change to the constitution of Canada. In the constitution there are certain aspects dealing with the provinces that can only be amended by them.

So when one day, fortunately, another province joins, it will also be tied to the constitution of Canada. enshrining its linguistic rights under Sections 16 to 20 and to Sections 133 of the constitution of Canada.

That is why we insist that the debate be held not only provincially but, in order to clearly establish the generosity of the province in the eyes of other citizens of Canada, that an amendment also be made, using the amending formula, an amendment to the constitution of Canada with the consent of the federal government.

With respect to the technical objection concerning ties to the Canadian constitution, of course Section 133 would be different than under the Charter of Rights. Sections 16 to 20 promote a new concept which did not exist previously.

Section 133 has been discussed at length, but at this time, I want to point out that constitutional obligations with respect to bilingualism for New Brunswick will be greater than similar obligations for the Province of Quebec under Section 133.

If they so wish, provinces will have the choice to adhere to the principle under Section 133, as Quebec has done, or to a modified Section 133, and still have the choice in addition to be tied, to the constitution, through the Charter of Rights, through Sections 16 and 20, so that a future amending formula will be the same as the amendments to the Rights.

We have considered possibilities to overcome this objection, and I would think that probably we could accept an amendment to the amending formula clause, which might be as follows. I will read the text in French, and I can read it in English, but as we are not yet on that clause. I simply want to familiarize the committee. I can even table the amendment, so

[Page 92]

that after the lunch hour, the committee will know exactly the direction that we are taking. The motion is as follows:

It is moved that the Constitution Act, 1980, be amended by:

(a) the addition after line 29, on page 13 of the following:

“amendments concerning certain language rights.”

44. Notwithstanding the provisions of Section 50, any amendment to the constitution of Canada wherein the name ofa province is inserted into Sub-section 16.2, 17.2, 18,2, 19.2 or 20.2, may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and the House of Commons and of the Legislative Assembly of each province to which the amendment applies;

(b) by re-numbering the sections following.

So there is a text of an amendment, which would allow opting in Sections 16 to 20, within the context of the amending formula. Amendments could be made first by the province, but also with the approval of the Parliament of Canada and provide the necessary publicity, because within the present context, should this problem arise tonight, Parliament would willingly approve, but in my opinion, it would be most helpful for the other provinces to approve through their federal members of Parliament. ln speaking to their constituents or to the population of their province they could say: in a House debate in which I represented you, I congratulated province (x), (y) or (2) which showed the same generosity as the province of New Brunswick recently.

[Text]

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

Miss Campbell: Well, my question following goes to the Minister.

Mr. Fraser: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes, Mr. Fraser.

Mr. Fraser: I do not mean to interrupt my honourable friend. But, Mr. Chairman, I am left confused. We have been talking about an amendment which has been introduced by the Conservatives. In answer to my honourable friend’s statement, the Minister has now come in and read out at least a draft of a proposed amendment or at least a proposal which the Minister is indicating may be put in front of us.

Well, at this point I have to ask, Mr. Chairman, where are we going? Because, having listened to the Minister for the last nearly 10 minutes, he has raised a lot more questions than he has answered as far as I am concerned.

I do not know where we get back to the Minister to talk about this.

[Page 93]

My good friend. Coline Campbell—I do not know whether she is questioning us about our amendments or now whether she is going to be questioning the Minister about his amendments.

I would submit, with great respect, Mr. Chairman. that we look to you to sort of unravel this, because it seems to be getting a bit mixed up.

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

Miss Campbell: On that point of order, Mr. Chairman. I would just say that it has been the understanding of this Committee since early this week that we can question the mover of any amendment, and that is what I was doing, except that the mover was not here and the Minister answered. I was just following up on the answer the Minister had given and also Senator Tremblay.

The Joint Chairman (Mr. Joyal): I am sorry, but it is still the responsibility of the Chair to give proper light to the honourable John Fraser who has just put a question to the Chairmen.

In answer to your question, Mr. Fraser, I would suggest to you the following. We are dealing with an amendment. That amendment has been dealt with in accordance with the rules of procedure that we have followed up to this point. At this point the Chair has repeatedly stated on different occasions that honourable members who address the Chair or the witness through the Chair, to that amendment or subamendment should confine their questions or comments to the amendments or the contents of the amendments.

I have heard the honourable the Minister of Justice say that at this point he would have difficulty in accepting that amendment on behalf of the government because he is thinking about something else.

But at this point if questions are put to the Minister on the content of the draft or proposal that he intends to move, or to one of his representatives around the table, the Chair will not allow this.

We are on an amendment that was well moved by the honourable David Crombie and explained later on by the honourable Senator Tremblay.

At this point I would invite honourable members to direct their intervention, questions and comments to the contents of the proposed amendment as moved by the honourable David Crombie. The Chair will not entertain any question or comment on the proposed draft as read by the honourable the Minister of Justice.

The honourable the Minister of Justice.

Mr. Chrétien: I would like to make a suggestion. I am impressed by the arguments of the honourable Mr. Crombie and I am trying to be helpful. Perhaps we can make a suggestion. I just preferred to do it for the reasons I have give,. the way I want. Why do we not suspend the amendment, put it aside—if you want. My own view is that I would recommend to members of the Committee not to accept Mr. Crombie’s amendment if you were to vote right away.

[Page 94]

But in the meantime it would give us time to compare the two and see what is the best. But if we were to vote on the Crombie amendment right away, then I think I would have to recommend to my group that they should vote against it; but in the spirit that I have something else to offer.

The Joint Chairman (Mr. Joyal): I would certainly request the consent of the mover. [Translation] Senator Tremblay.

Senator Tremblay: Subject to the mover’s consent. that is exactly the sort of thing I was going to suggest in order to overcome this procedural problem, and it is now up to you, Mr. Chairman, since I note in the minister’s statement, a desire to accommodate matters precisely as we had proposed. However, I believe that we should study both proposals closely. The minister wants to postpone the fate of our amendment; he wishes us to consider both proposals when he tables his own amendment.

I think, that in that way, we shall be able to analyze the merits of our seemingly common objective more objectively.

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

[Text]

Do I see that Mr. Nystrom is sharing the views of the honourable Senator Tremblay and the views expressed by the honourable the Minister of Justice?

[Translation]

Miss Campbell, on the same point of order

[Text]

Miss Campbell: On the same point of discussion, Mr. Chairman, I would like, at least when the mover of the amendment to Clause 21 comes back. the opportunity of putting one more question to him before the order goes.

The Joint Chairman (Mr. Joyal): I will keep your name on the list, Madam Campbell.

I see there is unanimous consent that we should stand the amendment at this point and come back later on in our discussion.

Amendment allowed to stand.

The Joint Chairman (Mr. Joyal): Well, we then move on Clause 21, and on Clause 21 the Chair hasnot been informed that there is any amendment in relation to that clause.

Clauses 21 and 22 agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 23.

On Clause 23—Language of instruction

The Joint Chairman (Mr. Joyal): On Clause 23 there are a certain number of amendments. Those amendments would be dealt with in the following order. I would like first to call the amendment numbered G-27, Clause 23, page 7.

I would like to say for the benefit of our viewers that Clause 23 that we will be dealing with is entitled Minority Language Educational Rights. «Droits à l’instruction dans la langue de la minorité».

[Page 95]

[Translation]

With respect to this section, the first amendment is proposed by the government, and I would ask Mr. Corbin to present the amendment in the usual manner.

Mr. Corbin.

That Clause 23 of the proposed Constitution Act, 1980 be amended by striking out lines 16 to 42 on page 7 and substituting the following:

[Text]

23.(1) Les citoyens canadiens:

(1) dont la première langue apprise et encore comprise est celle de la minorité Iinguistique française ou anglaise de la province où ils résident,

b) qui ont reçu leur instruction, au niveau primaire, en français ou en anglais au Canada et qui résident dans une province où la langue dans laquelle ils ont reçu cette instruction est celle de la minorité linguistique française ou anglaise de la province, ont, dans l’un ou l’autre cas, le droit d’y faire instruire leurs enfants, aux niveaux primaire et secondaire, dans cette langue.

(2) Les citoyens canadiens dont un enfant a recu ou recoil son instruction au niveau primaire ou secondaire, en français ou en anglais au Canada, ont le droit de faire instruire tous leurs enfants, aux niveaux primaire et secondaire, dans la langue de cette instruction.

(3) Le droit reconnu aux citoyens canadiens par les paragraphes (1) et (2) de faire instruire leurs enfants, aux niveaux primaire et secondaire, dans la langue de la minorité francophone ou anglophone d’une province:

a) s’exerce partout dans la province ou le nombre des enfants des citoyens qui ont ce droit est suffisant pour justifier à leur endroit la prestation, sur les fonds publics, de l’instruction dans la langue de la minorité;

b) comprend, lorsque le nombre de ces enfants le justifie, le droit de les faire instruire dans des établissements d’enseignement de la minorité linguistique, financés sur les fonds publics».

l now go to the English text, Mr. Chairman, and I move that Clause 23 of the proposed constitution act 1980 be amended by striking out lines I6 to 42 on page 7 and substituting the following:

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

[Page 96]

have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

(3) The right of citizens of Canada under subclause (1) and (2) to have their children receive primary and second- ary school instruction in the language of the English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Merci, monsieur Corbin.

I have received a communication of another amendment that will be considered a subamendment to the proposed amendment. It is identified N-28, Clause 23, page 7.

[Translation]

You are informed that there is another amendment proposed by the New Democratic Party and identified as N-28, Clause 23, Page 7, which might be considered as a sub-amendment. I would ask Mr. Nystrom to propose the amendment, and to present his arguments in the usual manner.

Mr. Nystrom: Thank you, Mr. Chairman.

M. Nystrom: Thank you, Mr. Chairman.

[Text]

I move that the proposed amendment to Clause 23 of the proposed constitution act, 1980 be amended by striking out everything immediately following the words “citizens of Canada” and substituting the following:

In a province, who are members of the English speaking or French speaking minority population of that province, have a right to have their children receive their instruction in their minority language at the primary and secondary school levels wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) In each province, the legislature may, consistent with the right guaranteed by subsection (1), enact provisions for defining the term “English speaking or French speaking minority population” and for determining whether the number of children of citizens of Canada who have a right guaranteed by subsection (1) resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

Mr. Chairman, it is moved that

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Que le projet de modification de l’article 23 du projet dc Loi constitutionnelle de 1980 soit modifié par substitution, à cet article, de ce qui suit:

23. (1) Les citoyens canadiens qui appartiennent à la minorité francophone ou anglophone d’une province ont le droit de faire instruire leurs enfants, aux niveaux primaire et secondaire, dans la langue de leur minorité en toute région de la province ou le nombre d’enfants des citoyens de la meme minorité qui y resident est suffisant pour y justifier la mise à la disposition de ces enfants, sur les fonds publics, d’établissements d’enseignement propres a la minorité Iinguistique.

(2) La législature d’une province peut, en conformité avec le droit garanti par le paragraphe (1), légiférer pour définir la notion de ‘minorité francophone ou anglophone’ et pour determiner si le nombre d’enfants justifie, dans une région donnee de la province, l’exercice de ce droit.

The Joint Chairman (Mr. Joyal): Mr. Nystrom, as I said earlier, your subamendment will be considered first and I would invite you to introduce the amendment in the usual manner.

Mr. Fraser: Would you please try to explain what that means?

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

The first question of me was a question put by John Fraser, what does it all mean?

First of all, we have had the Minister of Justice and the Prime Minister and some other members saying what we are doing in Clause 23 is what the premiers asked us to do in Montreal at the Premiers Conference in February of 1978, and what they will quote to us is the following, and I quote from the communique of the premier:

The Premiers reaffirm their intention to make their best efforts to provide education to their English or French-speaking minorities, and in order to ensure appropriate levels of services they also agreed to the following principles that should govern the availability as well as the accessibility to the services

Then they also quote, No. 1:

Each child of the French-speaking or English-speaking minority is entitled to an education in his or her language in the primary school or the secondary school in each province wherever numbers warrant

Now, they always say that this is the justification for Clause 23, that the premiers have asked for it, that the premiers are unanimous in saying that we should be implementing it and because of that they want to enshrine it in the constitution.

Now, as a number of members have pointed out. including Louis Duclos, the Liberal member from Montmorency, when he spoke before this Committee a couple of times, is that the

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Minister never quotes the second principle. The second principle is, and I quote:

It is understood due to exclusive jurisdiction of provincial governments in the field of education and due also to the wide cultural and demographic differences, that the implementation of the foregoing principle would be as defined by each province

And what we are doing in this amendment, Mr. Chairman, is to implement that principle as well which says that the provinces should have the right to determine what numbers warrant, and that the provines should also have the right to determine what an English-speaking or French-speaking minority population is in their respective provinces.

Now, some people may say: well, does that not nullify the intent of what the government is trying to say in Clause 23? And I would argue, Mr. Chairman, that it does not, because we are saying that each provincial legislature may do this but consistent with the rights that are guaranteed in the subclause; in other words, the right that minorities are entitled to their schools.

So what we are saying here is that if the provincial government is unreasonable, for example, in a city, say, in Western Canada, in a city like Regina, I will use my own province, it has a few thousand francophones, there is certainly enough francophones there to warrant schools and if the province were to say: well, they do not warrant schools, we do not have enough even though there are several hundred children of school age, then of course the francophones in the province would have the right to appeal to the courts because they were not being treated reasonably.

So what we are saying here is that we have that protection, so if there is an unreasonable provincial government they have the right to appeal to the courts, but they do recognize, as the premiers unanimously recognized, that education does fall under the jurisdiction of the provinces and because of that they should have the majority of the say in determining what numbers warrant, determining what a minority is or what a minority is not, because if we do not insert an amendment like this, that will ultimately fall to the courts.

In some cases, as I said, where provins are not being responsible, it may still go to the courts, but this in my opinion would give the provinces a much greater right.

It would also recognize, as the communique says, that we have many different cultures in our country, we have demographic differences in our country, and a certain number of people in some provinces might be a reasonable number to warrant facilities because people are living in little villages that are close together or farms that are small where you can organize a busing program that is very easily and very readily available.

However, that may not be the case in a place like the prairies where people live a long way apart, and what we are trying to say here is that we have to have a bit of flexibility, we have to recognize the reality of Canada, that provinces and regions are different.

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One other point, Mr. Chairman, since I see I have one minute to go, is that we took the wording out of the federal-provincial conference discussion paper entitled Revised Discussion Draft of September 3, 1980. Charter of Rights and Freedoms, the draft of the discussion that took place over at the Conference Centre, On page 8, in Section 22 on language and education they had almost the exact same wording as I am proposing today except when it came to defining English-speaking and French-speaking minorities.

In terms where numbers warrant, they had almost exactly the same wording as I am proposing in the amendment to this Committee tonight. I am sorry, my time has run out, Mr. Chairman, otherwise I would go on and elaborate a bit more.

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

[Translation]

Senator Tremblay.

Senator Tremblay: I will comment later, please leave my name on the list.

The Joint Chairman (Mr. Joyal): Certainly.

The honourable Bryce Mackasey.

[Text]

Mr. Mackasey: Mr. Chairman, perhaps Lorne might bear with me just a little bit because it is the first time I have seen his amendment.

It seems to me that it restricts Clause 23(1). As a government proposal, Clause 23(1) is very specific, Mr. Chairman, in designating to some degree who should be considered English speaking or French speaking for educational reasons. It goes on to mention or attempt to define what is English speaking and what is French speaking based on the realities of this country as well, based on some of the things that have caused tensions in recent years. It is an attempt to prevent unintentional hardship, if you like, because in the government Clause 23(1) they make certain that someone who has received their primary school education in Canada in English or in French and resides in the province, et cetera, have the right to have their children receive primary or secondary school instruction in that language in that province.

Now, it seems to me that the New Democratic Party proposal turns the clock back in the sense that we are simply saying that the provinces will make up their mind, and the purpose of this constitution really is to protect Canadian citizens against provincial legislation and it can happen and has happened that it is restrictive and discriminatory against French speaking Canadians and English speaking Canadians, and I do not think the record of the provinces is such that we can trust them as is suggested in that amendment of the New Democratic Party.

I am not being negative here, I will accept Subclause (2) very well, but coming back to the first one, we are simply saying that who is to be considered English speaking or French speaking will be left to the provinces.

Well, our Clause 23(1) reflects the experience of one province. It reflects the difficulty of coming up with a formula that is fair and equitable when there is less than freedom of choice.

[Page 100]

The moment there is less than freedom of choice, somebody is left out of that freedom, for legitimate reasons, concerned reasons, I am not arguing that point, but it has led in Quebec, since I talked about Quebec, to a problem.

Families in Quebec, especially new Canadians whose child is not an English or French Canadian for no other reason had to go to an English school, suddenly want their children to go to a French school.

Now, what Clause 23(1) in our resolution attempts to make certain of is no province in its zeal or lack of zeal makes it impossible for an individual who is educated in one of those two languages, English or French, deny that person the right to have his or her child educated in that.particular language; continuity. Or someone who has a child already in the French school system and wants the rest of the children in the French school system, and that is what I never did like about the St. Andrew Montreal proposal as I recall of the Premier’s and what the New Democratic Party amendment would do would make it possible once again for the provinces to say to someone who considered themselves English speaking, because they are English speaking, or consider themselves French speaking because they are French speaking, because of language, because of culture, because of background, because of education, it makes it possible for a province to say, sorry, but our legislation is not designed that way, for all intents and purposes as far as the provincial legislation is concerned you are not French speaking but you are English speaking, or you are not English speaking but you are French speaking,and you are helpless because provincial legislation is so designed.

What this is doing is preventing a province from being that discriminatory or that precise about your language. It is giving the parents of children the freedom to select.

Now, total freedom, we are not committed around this table or Parliament to freedom of choice because Quebec fears freedom of choice, with reason to understand, but I am rather disappointed, frankly in the New Democratic Party. . .

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

Mr. Mackasey: Fine, Mr. Chairman. I have just got to say that I cannot accept that amendment at all as an individual.

Thank you very much.

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

Mr. Fraser: Thank you, Mr. Chairman.

I cannot help but comment on my friend Mr. Mackasey, who has of course espoused the principle of freedom of choice and I recognize that he has done that for many years and that has gone contrary to things that have happened in his former province, the Province of Quebec, but it cannot go without being noticed that the government is, interestingly enough, not prepared to unilaterally change that but then Mr. Mackasey comes along and says that the New Democratic Party provi-

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sion which gives some flexibility to the provinces is thereby wrong and there is an inconsistency there which I suppose Mr. Mackasey can justify only on the fact that there is lack of agreement.

Mr. Mackasey: Well, John, not true. There is inconsistency in your position. Your position today is very inconsistent with the position that you took the other week on Section 133 when you lectured all of us for the lack of courage of our convictions.

My conviction is that this country needs freedom of choice, it is not practical and it is not possible politically, but at least what we have done is given Canadians of all persuasions, including new Canadians particularly, a maximum degree towards freedom of choice without having a totality on our hands and Ijust cannot understand . . .

[Translation]

The Joint Chairman (Mr. Joyal): Excuse me, Mr. Mackasey, but I must call you to order. I know that he opened the door slightly, but I must ask you to observe the rules that we all have agreed upon.

[Text]

Mr. Fraser: Mr. Chairman, I should not have opened the door even a tiny bit for Mr. Mackasey. I want to direct some questions to Mr. Nystrom.

I wonder if Mr. Nystrom can tell us why in subclause (2) of the amendment it says this:

(2) In each province, the legislature may

And I underline the word may;

consistent with the right guaranteed by subclause (1) enact provisions for defining the term English speaking or French speaking minority population.

I look at the French version of subclause (2) and it says:

La legislature d’une province peut

Now I am not a linguist, as Mr. Tassé said the other night in great modesty, but I say it out of absolute, unabashed honesty but it looks to me as if one is “may” and the other is “can”. What is not there is ”shall” and if you leave it as permissive, the word “may” as permissive, do you not get into the position where the right that you assert in the first paragraph, that is the right to education in either language, does not take effect until and only if the province does what you say it may do “enact provisions for defining the term English speaking or French speaking minority population”.

Here, to my friend Mr. Mackasey’s great surprise, I am going to come back and say that the assertion he was making was right. I do make a note of the fact, Mr. Chairman, that it was a bit inconsistent, but his assertion was right, and I am wondering if Mr. Nystrom would tell us in the Committee why the word “may” has been used and whether or not we are in a position, with these two sections, that the right asserted in the first section is never going to take effect unless the province

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decides to do certain things. It is not a case of “shall”, I have no objection to that, if it was “shall” then your proposition is that the province shall make the decision as to how it is done but if you say “may” then I have to point out as I read it the province does not have to do it; and I come back again, with great respect, to the French language and those who have been trying to teach me the French language, it seems to me that the word “pouvoir” is not permissive. I am just wondering if you can explain that.

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

[Translation]

Mr. Nystrom: Mr. Chairman, the person who translated the text for me told me that the word «peut» means the same thing as the word «may» in English. As you well know, I am not an expert on the matter and I have a very heavy accent in French.

[Text]

My understanding is that they mean the same thing. In terms of the word “may” nullifying what we are trying to get, I understand from legal advice that I have that it is permissive in terms of a legislature making those definitions but the first section says that the minorities have a right to have their children instructed in their own minority language, where the numbers of children warrant such instruction.

What Subclause (2) says is that in each province the legislature may, consistent with the right guaranteed above, in other words, minorities have a right to have their children educated in their language where numbers warrant; and a province may, in accordance and in consistency with that right, if they so wish, enact provisions themselves to make those determinations.

I want to say, Mr. Fraser, we took it out of the draft of the federal government this summer, and I will just read the relevant part. it says:

In each province, the legislature may, consistent with the right provided in Subclause (1)

Which is making those guarantees:

enact provisions for determining whether the number of children of citizens of Canada who are members of an English speaking or a French speaking minority in the province

It goes on. The reason for that of course, Mr. Chairman, is that the country is so diverse, that there is a different reality in each province, and we have had so many tensions over language, particularly in Quebec, in terms of testing of children and so on, that we want to allow as much flexibility as possible for the province but still it must be consistent with the principle.

Mr. Fraser: Mr. Chairman, one last question.

The Joint Chairman (Mr. Joyal): Very short, Mr. Fraser, because I have already invited Mr. Mackasey and Mr.

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Nystrom to be brief and I have to apply the same rule to everyone.

Mr. Fraser: Mr. Chairman, I will be very short. I am wondering if through you, Mr. Chairman, to the Minister, we could ask the advice of the law officers of the Crown and Mr. Tasse who has I believe at least some command of both languages, despite his modesty, and I can only end by, and this must come as a source of great amusement to my francophone friends, but I think that pouvoir as it is used may very well be may, but I think it should be shall and I would use the word devoir; and that is all I am saying.

Mr. Chrétien: I would like to clarify the point at this time and the Chairman was warning me at the end of the last session that I was commenting a bit too long sometimes, and the problem is we have debated this problem for a long time and we had a lot of questions. Basically this amendment is not acceptable to the government because in fact we have decided that we were to give the Canadian citizens some rights in education.

Francophones outside Quebec were to have exactly the same rights as the Canadian anglophones in Quebec and we are not taking if for the federal government, we are not taking anything away from the provinces, we are giving the rights to the citizens to have equal treatment across the land in terms of education. This will just revert back to that situation that effectively we are afraid that with that, for the so-called regional diversity and so on, the end result will be that the right will not be granted.

We had a text that we have debated for weeks here and I do think the time has come to vote.

The Joint Chairman (Mr. Joyal): The Honourable John Fraser, the Honourable Jake Epp followed by Mr. Robinson.

[Translation]

Senator Tremblay, you have the floor.

Senator Tremblay: Thank you, Mr. Chairman.

As far as the amendment presented by the NDP is concerned, I quite honestly think that we must recognize that it represents quite a praiseworthy effort directed at respecting more what we had come to call the St. Andrews-Montreal consensus. But I do not wish to pronounce myself on the content of the amendment. I would, however, like to give my view on the underlying principle that comes into play here. It is quite clear to me that education is a field which belongs exclusively to the provincial authorities.

And, as the language of instruction is directly related to education, I believe it also comes under the provincial government.

Furthermore, as my colleague Mr. Epp announced earlier, we plan on moving a motion at the opportune time so that the whole of the Charter not be sent back to London once it has gone through Canadian Parliament, but to the provinces, as the Canadian ParlIament’s proposition, Therefore, so as to

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avoid any misunderstanding, I would like to make clear that I have no intention of questioning the quality of the content of the two proposals before us, i.e. the amendment moved by the government and the amendment presented by the NDP. I would simply like to affirm the principle according to which this matter…

Mr. Lapierre: On a point of order, Mr. Chairman.

If Senator Tremblay has no intention of discussing the amendments, or anything else, I think he should be called to order.

Senator Tremblay: I explained quite clearly that I was not referring to the quality of the content of the amendments but to their institutional meaning in the context of a federation.

The Parliament of Canada cannot make a decision on a matter such as this without taking into account the provinces. This is why even the minority groups that appeared before us showed true dissatisfaction concerning the government’s proposal, saying it was insufficient, and I believe these same groups would also have certain reserves about the text of the amendment presented by the NDP.

However great may be the efforts made here in order to resolve such a complex and serious problem, I feel that we should not make a decision unilaterally. I suspect that the intention of the government is to act unilaterally, and I wish to show my categorial opposal to that. Consequently, I will vote against the NDP amendment without giving my opinion on its merits, in the same way as, when the occasion rises, I will say what I think of the government proposal without speaking to the quality of its content. I believe these two working documents should be dealt with in negotiations with the provinces because it is a matter that comes under exclusive provincial jurisdiction.

Thank you, Mr. Chiarman.

The Joint Chairman (Mr. Joyal): Thank you, honourable Senator Tremblay.

[Text]

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I would just like to add a couple of words to the remarks of my colleague Mr. Nystrom in both responding to the question of John Fraser and also indicating why it is we are supporting this particular amendment.

First of all, with respect to the question asked by Mr. Fraser, I understand the purpose of his question but I think it should be very clearly understood that in a sense subclause (2) is an enabling provision; subclause 2 is an enabling provision and what it says essentially is that where a province decides it is permissive, where a province decides that it whishes to determine the definition of the English speaking or French speaking minority population, or to determine itself the definition of where numbers warrant, that we will respect the right of that province to make that determination. If for some

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reason the province chooses not to take advantage of this permissive subclause (2), then clearly we are back at the original position that the government has proposed, that the courts will determine where numbers warrant, and the courts will determine the question of the definition of English speaking or French speaking minority populations if there is any ambiguity.

So Mr. Chairman, as I say, it is a permissive provision, it respects the right of the provinces in this important area when we consider that in the area of education traditionally, we have been dealing directly in provincial jurisdiction. This represents an intrusion into that provincial jurisdiction to establish a principle which we accept and we support. But in accepting that principle, surely it is also desirable to respect the right of the provinces to have the final say on how that principle is to be implemented within that province.

As my colleague Mr. Nystrom has indicated, we have finally achieved in Quebec relative peace and harmony on the linguistic front. . . .

Mr. Mackasey: That is not true.

Mr. Robinson: We have achieved relative peace and harmony on the linguistic front through the provisions of Bill 101; one can dispute that, but I think no commentator at this point would disagree that we have come an awfully long way on the linguistic front. Now Mr. Mackasey, you will have your turn, you said you did not interrupt. Now I am just waiting. Thank you.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I will invite you to address your comments on the very content of the amendment as moved by your party and not open other subject of discussion or debate. That has been the rule that I have requested the honourable members of this Committee to follow, and I would invite you to do so.

Mr. Robinson: Mr. Chairman, I will attempt to apply that rule and I want to say that I raised Bill 101 and it is partly because of respect for the decision of the legislature of the Province of Quebec that we wish to enact and amendment which was as close as possible to respecting the principles of Bill 101, at the same time recognizing the importance of this principle nationally.

I suggest Mr. Chairman, it would be inflammatory to return to the days of tests and determinations by the courts of these fundamental questions. And Mr. Chairman, I would like to conclude by coming back to a question which I raised earlier in these proceedings.

Last year some 40 per cent of the people of Quebec, overwhelmingly francophones, voted oui in the referendum. One of the purposes of this particular proposal, one of the reasons we are moving as quickly as we are in this matter, is to deal with the legitimate concerns of those people. . .

The Joint Chairman (Mr. Joyal): I am sorry. Mr. Robinson. it is not the proper forum to make a speech. You have to address yourself to the content of the amendment as moved and I do not see any relation or any mention in this amend-

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ment of the referendum issue. There will be other aspects of the proposed motion dealing with the referendum and I am quite sure that honourable members will have views to put forward on that occasion, but at this point I want to invite the honourable members to restrict themselves to the content of the proposed motion.

Mr. Robinson: Well, Mr. Chairman, with great respect, I would suggest that the way in which we respond to that referendum is linked with the contents of the constitutional proposal before us. But I will not belafour that point.

I will conclude then, Mr. Chairman, by repeating that we have in this particular proposal, recognized the principle but we are also attempting to respect the rights of the Province of Quebec in particular, to administer this principle in a way which will recognize the importance of linguistic minorities, but at the same time will not represent an intrusion, an undesirable intrusion into provincial jurisdiction in education.

The Joint Chairman (Mr. Joyal): Thank you Mr. Robinson. Mr. Nystrom to conclude on the proposed motion.

I am sorry, Mr. Nystrom, before I invite you to conclude, I see on my list that I have Mr. Jean-Robert Gauthier [Translation] If you would like to say a few words about the proposed amendment.

Mr. Gauthier: Thank you, Mr. Chairman.

I would first of all like to tell you that I am utterly dismayed by the proposal made by the New Democratic Party. It seems to me that these people who seem to think they are great experts would have realized that this boils down to constitutionalizing gerrymandering.

[Text]

And I will speak English, because I think what you are intending with this motion or this amendment is to constitutionalize gerrymandering and I cannot accept that you will constitutionalize gerrymandering in this country, because when you talk about areas of this country to be defined by provinces, when you say you have to reside in that area, sir, you have to be living in another world. Basically I will not make a speech because I think the amendments that the government is coming in with are much more comfortable to me. I just wanted to make that point Mr. Chairman that I just can not go for this.

[Translation]

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

Mr. Nystrom, I would ask you to conclude.

[Text]

Mr. Nystrom: Well, perhaps we were too much influenced by the government’s wording where they said in the original draft, in the area of the provinces, and the drafts over the summer that referred to areas. that I think Mr. Gauthier makes a very good point in terms of areas. I think that is another reason why we should respect provincial rights as much as possible in an area like education where it is now under the jurisdiction of the province. because an area in one province may be different than an area in another province and perhaps you have an excellent point in the Province of Ontario. As I said before, all the provinces are different, We have different demographics, we have different geography and

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all we are saying here is that a province if it wishes, like the government itself was proposing last July, they stated, and it was not jerrymandering at that time I suppose, a province may if it wishes, make the determination of where numbers warrant.

What are the reasons for it? The government said “We have to respect the communique of the premiers at St. Andrews; We have to respect the conference of the premiers in Montreal in February, 1978”; that is the argument they always use whenever they talk about Clause 23.

What I am saying is that if we are to respect that argument, then let us respect the total argument; because the first of the two principles is the one that is in Clause 23, but they say in their communique that it is understood due to the exclusive jurisdiction of provincial governments in the field of education and due to the wide cultural and demographic differences that the implementation of the foregoing principles will be defined by each province.

They wanted even more than we are willing to give them here.

They are able to do that. But if they are unreasonable of course, there is still an appeal to the courts. That gives you that extra protection. If we want to bring this country together, I think you have to realize that when we are intruding unilaterally into the exclusive provincial field, we have to make sure that we are not taking away all their power and all their influence.

In conclusion, Mr, Chairman, I want to say that the situation in Quebec is very relevant and the big controversy there has been language and primarily language as it concerns education.

I would not want to see that huge sore reopened, because one thing I have learned about Quebec in the last few years is that the population in general are fairly pleased with the situation now.

Today in Quebec the linguistic and educational climate is much more stable, and people are much more satisfied now than they were in the days of Bill 22 and Robert Bourassa, and I think a resolution like this makes sure you do not get into language testing, and I think this is the way we should go.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. I would like to call the vote on the proposed subamendment.

An hon. Member: Mr. Chairman, may we have a recorded vote?

The Joint Chairman (Mr. Joyal): Yes.

Subamendment negatived: Yeas 2; Nays, 22.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back to the main amendment, and on that very amendment, Mr. Bockstael would like to ask a question or make a comment.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Bockstael.

Mr. Bockstael: Thank you, Mr. Chairman.

[Page 108]

I would like to ask the minister a few questions.

Mr. Minister. I have three minutes at my disposal to discuss the three paragraphs contained in section 23.

I am grateful for the opportunity you have given me to explain to you some of the fears of the people of Manitoba. It seems this section would complicate the situation in Manitoba and cancel out all the progress that has been made in the last 80 years.

You are aware that from 19l6 to 1970 it was illegal in Manitoba to receive one’s entire education in French. Because of this, a great number of parents did not have the opportunity to go to school in French. This brings me to my first question. As far as Article 23, subsection (a) is concerned, is one’s first language the language one learned at home or at school?

Mr. Chrétien: At home.

Mr. Bockstael: I see.

Since a good number of French Canadian families received their education in both official languages, would it be necessary to have their children pass tests in order that they be accepted into the French school system?

Mr. Chrétien: One’s mother tongue is the language one learned at home. That has nothing to do with the type of education people have received.

Mr. Bockstael: Manitobans who do not belong to the francophone minority have the possibility, at least in certain school boards, to follow immersion courses. The majority therefore also want to learn French. But nothing in this section gives them that right and the province could therefore, at its discretion, eliminate that right completely. Could we not do something about that?

Mr. Chrétien: We are not determining education for the majority, but for the minorities.

The fact that many anglophones now take advantage of immersion courses which have become very popular in Manitoba, Alberta, Saskatchewan, British Columbia etc., pleases me immensely; and it is the provinces that run these programs. Here, in the charter, we aim to protect the rights of the minority. Therefore, the provinces may continue and as a matter of fact will be encouraged to continue offering the program they now have. The charter will have no effect whatsoever on immersion courses.

Mr. Bockstael: A last question, Mr. Chairman.

When you were drawing up the constitution resolution, following a request made by Mr. Yalden. we had talked about removing any mention of educational facilities. As far as I am concerned. that meant that even if there was a very limited number of people interested in being taught in French, they could have access to it by other means, such as technical equipement, televisions etc.

In the amendment we are now discussing, we have brought back in the matter of educational facilities. which would be

[Page 109]

granted to those areas where it is necessary to have separate schools because of language differences. That seems now accepted in the context of the charter. Is that a correct interpretation of the text?

Mr. Chrétien: We had a long discussion about this during a meeting the other day. You will recall the intervention made by Senator Tremblay on the different terms used in the text. There were a few problems with regard to the interpretation of the new term we had chosen so what we did here was use the word “services”, which means that we could envisage other methods, and not only school programs. That would open the door to television, correspondence courses, et cetera. We thought, by using that term, that the provincial governments could have refused to construct the buildings, so we added what was there before. We think that is contained in the word “services”. Therefore both aspects are covered by the text,

I do not know if this explanation was necessary or not, but it might serve to eliminate the doubts that certain observers might have. Therefore, the text guarantees the provision of educational facilities, i.e. buildings, and of other teaching methods in the minority language.

Mr. Bockstael: That covers both possibilities then.

Mr. Chrétien: Exactly. And this way, we respond to the objection made by Mr. Yalden. But the term we had chosen created a certain amount of confusion, and that is why we added the word facilities.

Mr. Bockstael: Thank you.

[Text]

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

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, I would like to put a couple of questions to the Minister.

is it correct to say. Mr. Minister, that there were provinces which corresponded or were in contact with you which could accept Clause 23(3) and feel that there are difficulties with your new Clause 23(3)?

Mr. Chrétien: There was some argument with some of the provinces about the terms we were selecting, yes.

Like any text, there is always some problem, but they were not of such a nature that we had to go back.

My reading of the situation is that they would have pre ferred the other text; but there was enough consultation. I know they would have preferred the other text, but they would be willing to live with this one.

Mr. Epp: Would you consider an amendment to your new amended Clause 23(3) to go back to your first amended Clause 23(3)?

Mr. Chrétien: Excuse me, but I did not quite follow you.

Mr. Epp: Would you consider changing your second amended Clause 23(3) and accept your first amended Clause 23(3)?

[Page 110]

Mr. Chrétien: No.

Mr. Epp: That being the case, Mr. Minister, could you define for me what you believe the courts would decide to be educational facilities?

Mr. Chrétien: Sometimes when you talk in terms of education, there is a need for a school or classrooms, and so on, the court will look into the matter to see if the decision of the schoolboard or the provincial government is reasonable.

They would be able, according to other provisions in the Charter, to order some remedy if they feel it was not reasonable.

Of course, in French I used the word “prestation”—that is “provisions” in English—I think we wanted to meet the problem raised by Mr. Yalden about the new techniques which can be available, if it is too costly to have the facilities, and with the modern technology it would be easier and easier.

So I think, as I have said often, the courts will compare the situation and the lawyers will say, “Look, in the City of Shawinigan,” my home town, “there is a very small anglophone minority and they have a Catholic high school and a protestant high school”, and we have, you know 20 per cent unemployment in our district. So they can afford to do that. So it would be very difficult for, say, the City of London, Ontario, to say, “We cannot afford to do that” because per capita, it has the highest income in the land. It is as simple as that.

The courts will decide and it would be out of the political arena, where the matter is sometimes dealt with by some people who do not comprehend or do not want to comprehend.

I think we are redering a great service to Canadians by taking some of these problems away from the political debate and allowing the matter to be debated, argued, coolly before the courts with precedents and so on.

It will serve the population, in my judgment very well.

Mr. Epp: Where does that leave the schoolboards which are elected by the people?

Mr. Chrétien: The schoolboards are under the provincial authorities and they are created by the provinces.

if the courts look into their actions and decide, well, they will determine what should be done.

Mr. Epp: They would be able to override the decisions of the schoolboards who are living within the education act of that province. is that correct?

Mr. Chrétien: If the decision that is made is judged by the courts to be unreasonable, the constitutional rights of the citizen will prevail.

Mr. Epp: But you have answered my question directly, Mr. Minister.

[Page 111]

Mr. Chrétien: Do not ask me what will be the judgment of the court in one specific case.

Mr. Epp: I did not ask you that. I asked you what was the role of the school boards who work within the education acts of the respective provinces. They have a responsibility not only to the parents, but to taxpayers and rate payers of that region. What happens to their decision if it has been made under the terms of the school board at the education act of that province?

Mr. Chrétien: The school boards decision have to comply with the constitution of Canada. They know they have to comply with provincial legislation and they will comply with those provisions of the Canadian constitution.

They know, when looking at any particular problem, what is the provincial law and what is the constitutional obligation, and they will pass their judgment if their judgment is considered by the court as being not reasonable, the court will so rule.

Mr. Epp: Mr. Minister, according to the amendment you now have and which some provinces are, in fact, supporting generally speaking—supporting your general proposition—and objecting to this clause, and could have accepted your earlier amendments to Clause 23(3); what you are saying, for example, is that educational facilities mean that any community where English and French facilities are being housed under the same school roof, that, in fact a new shcool might have to be built—that is what you are saying.

What you are also saying by this provision—and I am not saying it will happen in I00 per cent of the cases, that it could happen; I think you will have to agree with that; also, what you are saying is that you are right in the heart of Clause 93 education rights and you are saying by a constitution amendment which you are imposing that the school boards are going to be forced to use public funds other than either their education acts call for or their rate payers call for.

What you are doing is driving local control right out of the hands of the local school boards.

Mr. Chrétien: When you speak purely about the right of education of the provinces in matters of education, well I gave you the example earlier. In the constitution, the residents of my home town, Shawinigan, if they are anglophones, they are entitled to two schools—one Catholic, one Protestant. That is in the constitution.

In Shawinigan we have a Catholic high school and Protestant high school. They have a constitutional right to keep their denominational school. It is in the constitution.

So if you think about it, the school board in Shawinigan has no choice. They have to respect the religious wishes of the citizen. There is a handful of Protestants in Shawinigan, and they have constitutional rights.

So, what we are doing now is that we are giving in the constitution, constitutional rights based upon the mother tongues of the citizens for the anglophones in Quebec who

[Page 112]

have had it for a long time, and even if they were not obliged to honour them—you know it was on a question of religion, not on a question of language; and we are giving exactly the same right that the francophones have outside of Quebec and anglophone will have in Quebec.

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

I have many speakers on my list. I will certainly call all of them. But I would like first to remind honourable members that we are dealing with the amendment. and according to our rules of procedure each speaker is allowed three minutes. The Chair has tried to apply that rule with balance, but nevertheless would like to remind honourable members of it.

Mr. Robinson.

Mr. Robinson: No, Mr. Chairman, thank you.

The Joint Chairman (Mr. Joyal): Mr. Nystrom.

Mr. Nystrom: Mr. Chairman, I would like to ask the Minister some questions for clarification.

The concern about language tests has come up a number of times. I would like the Minister or perhaps his officials to perhaps give us a legal definition of what some of these things mean.

We are talking about citizens of Canada whose first language learnt or still understood is that of the English or French linguistic minority.

How do we determine what is the first language learnt or still understood?

Would there have to be a testing procedure, or would it differ from province to province, or will the courts make the decision?

Mr. Tassé: Mr. Nystrom, we are talking about the parents. The parents will have to show that the language they first learnt in Quebec, for example, was the English language, and in another province the French language before they can qualify for the right.

They will also have to show that this is a language that they still understand.

Now, I would think a school board or a provincial school authority could establish administrative presumptions which could facilitate the determination of people, and citizens would have that right.

In fact, it may well be that in practice the test which is provided for in (b) might operationally be a test that a province or board might wish to apply. In other words, they might be satisfied that a person who has received his primary school instruction in English or French would be qualified for the right, or a person who has lived in a certain part of Canada, either French or English, would qualify subject to the contrary being proven by the person.

Because, eventually if a citizen is happy with the decision made by the school authorities, that could be challenged. But we would think that in effect those cases where there would be challenge, the citizen would not be satisfied with the decision made after he has presented his case, would be few in number.

[Page 113]

Mr. Nystrom: So you can see there could be different regulations in different areas.

Mr. Tassé: Yes, Mr. Nystrom, in fact that is correct. The provinces will have to administer these tests.

These clauses only provide the broad parameters within which the rights have to be applied, The administration of these clauses would entirely be left, I would presume, to provincial legislation.

But the provincial legislation would have to be consistent and would have to give away to the tests that are specifically spelled out in the clause.

Mr. Nystrom: You are talking about tests and I recognize the difficulty of this.

Mr. Tassé: Perhaps I should use in that context criteria rather than test.

Mr. Nystrom: Do I have time for two more quick questions on this area, it is very complicated?

You said that what may happen is they go down to option B, which is parents who receive their primary school education in Canada, either in English or French, Again, there is a bit of a double standard there because you have always had a better English school system in Quebec then you have had a French school system outside of Quebec and yet many people outside of Quebec who are francophones have never had a chance to go to a French school, and indeed . . .

Mr. Chrétien: That is why we need the first test because some francophones outside of Quebec never had the opportunity to go to a French school because there was none but they were speaking French at home. So this is why we needed the two tests, because if we had the test only on the education they have received, that would mean the family, the father in French and kept his language but never went to a French school because there was none, would be forced to send his kids to English schools.

Mr. Nystrom: Back to the first wording again, Jean . . .

The Joint Chairman (Mr. Joyal): That will be your last question to the Minister of Justice.

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

Back to the first test again, which is citizens of Canada whose first language learned and still understood, I see Albert Roy, and old friend of mine who is an MPP from Ontario here in the audience. he comes from Saskatchewan, and I know in Saskatchewan you have cases because the francophones are such a tiny minority where their first language learned is French but they no longer understand it. Then what happens?

Mr. Chrétien: If you do not speak the language anymore, it is perhaps the language you have learned but you have lost, so you will have a different tongue at that time. There is the term to employ, you have been assimilated, that is a very—you know language, strictly speaking.

[Page 114]

Mr. Nystrom: But then your children are penalized because of the fact we did not have proper legislation for the parents?

Mr. Chrétien: Yes, it is just like I am a Catholic, if I become a Protestant my kids will be baptized in a different church. There is nothing I can do about it. they will be Protestant, that is all.

Mr. Nystrom: But eventually they can decide where they want to go.

Mr. Chrétien: Anyway, if they are Catholic or Protestant, they are always Chrétien.

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

[Translation]

Monsieur Gauthier.

Mr. Gauthier: In the three minutes allotted to me, I would first like to congratulate the minister on being so flexible and so “Christian”! I think he recognized the dangers inherent in the original text for those of us who belong to the French-speaking minority outside of Quebec; I am most grateful to him for eliminating the residence and area factors.

As you know, Mr. Minister, we are always quite reasonable people, In fact, i feel that a Charter of Rights goes to the limit of what is reasonable; you know that as well as I do. Perhaps earlier when Mr. Epp was wondering what the situation was with the school boards or, as we say in Ontario, the school districts, I could have reminded him of a series of experiences we have had with school boards in Ottawa, Cornwall, Sturgeon Falls, Essex, Elliott Lake, Penetang; I can go on and on, if.you wish. Each time, Mr. Minister, we had sufficient numbers, and each time we ran into many problems.

So I am not at all impressed by Mr. Epp’s argument as to whether they should have to conform to a Constitution and whether it could cause difficulties for them. I hope that the right to education, as expressed in the amendments proposed this evening, especially in your division of sub-clause (3) of Clause 23—l think this was a very wise move; I will read it to you, and you can correct me if I have misunderstood. In sub-clause (a), I have the right to

. . . education in the language of the minority where num bers warrant. . .

obviously; earlier, certain alternative systems which Mr. Yalden would like to see provided, were mentioned, including correspondence schools or teaching by technical means, such as cable, satellite, correspondence, et cetera. Paragraph (b) of sub-clause (3) of the Clause says that where the numbers of those children so warrants, they have the right to instruction in educational facilities.

I think that this wording is quite positive, and I am glad to see that it has been used.

So, Mr. Chairman, I have nothing more to add; in other words, I would be most happy to vote on this amendment, and I would like to thank the minister for it.

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

The honourable Senator Asselin.

[Page 115]

Senator Asselin: Mr. Chairman, I have a couple of comments to make to the minister, perhaps in question form.

Mr. Minister, Clause 23 is entitled “Minority Language Educational Rights”; the word “instruction” is also used. In your opinion, are education and instruction under provincial authority?

Mr. Chrétien: And they will remain there.

Senator Asselin: By legislating the terms of Clause 23, are you not moving into an area reserved exclusively to the provinces?

Mr. Chrétien: I explained earlier that the Canadian Constitution states clearly that education is under provincial jurisdiction. At the same time, basic religious rights have been enshrined which limit the extent of provincial jurisdiction as far as confessional schools are concerned. What we are doing here is providing language rights to Canadian citizens through the Constitution. We are finally providing French speakers outside of Quebec with the same rights which the Quebec legislature has always given English speakers in Quebec; I do not see any problem with that. You may say that that is constitutional change, but constitutional change. but constitutional changes are always proved: they require a resolution from the House of Commons and the Senate, and must be ratified by the British Parliament.

So it was necessary to protect the English-speaking minority in Quebec, but even more necessary to finally give inalienable rights to French speakers outside of Quebec; finally, they will have them.

I have taken this opportunity to say the above because I think that what we are doing has been misunderstood in Quebec. I was pleased to hear Mr. Gauthier say that he had fought so hard for French speakers in Ontario as has his friend. Mr. Roy, M. P. P. in Ontario and native of Saskatchewan . . .

Senator Asselin: On a point of order.

Mr. Chrétien: No, no.

Senator Asselin: No, no. I do not want to stop the minister from talking, but I would not want . . .

Mr. Chrétien: I just want to say. . .

Senator Asselin: Mr. Chairman, I do not want the three minutes alloted to me to be used up by a statement from the minister.

The Joint Chairman (Mr. Joyal): Senator Asselin, if you wish to go ahead.

When we tell a member his time is up, we always take into account, of course, the amount of time used up in asking the question as well as the way in which it is answered.

Senator Asselin: So, Mr. Minister, it does not bother you at all to have intervened, through this charter, in several areas where the provinces have exclusive rights, without even consulting the provinces? Does that not bother you a little?

[Page 116]

Mr. Chrétien: I think, Mr. Senator, that when you say “without consulting them” . . .

Senator Asselin: At least, without their agreement.

Mr. Chrétien: You said “consulted’.

Senator Asselin: And I add “without their agreement”.

Mr. Chrétien: We spent the summer consulting them.

Senator Asselin: And I add “without their agreement”.

Mr. Chrétien: Ah, that is entirely different.

We could have gone on consulting them for another 113 years before certain people would have granted those rights; we would have gone on consulting them for another 113 years before French speakers outside of Quebec would have been able to get the rights they are going to get. English speakers in Quebec were granted those rights through the will of the peopleof Quebec and not because of the constitutional obligation, Now everyone in Canada has equal educational rights, English speakers in Quebec as well as French speakers outside of Quebec.

We may have stepped on certain people’s toes, but when I give equality to citizens in a country like ours, in an area as important and vital to the very nature of my country which is a country with two official languages, what can I say; far from apologizing, I am most pleased and most proud.

Senator Asselin: Mr. Minister, do you admit that to some extent, that clause amends Quebec’s Bill 101?

Mr. Chrétien: Well, one aspect of Bill 101 will be affected. At the present time, Bill 101 says that when an English-speaker moves to Quebec, when an English-speaking Canadian moves to Quebec. he does not have the right to go to an English school; he can receive permission. With this clause, an English-speaking Canadian who now moves to Quebec will have the right to go to an English school.

Right now, this will not be much of a problem; instead of moving to Quebec, they are leaving!

At the same time, the tradeoff is that we are finally giving 900,000 French-speakers outside of Quebec the right to education in French.

I do not think that is a very high price for the Quebec legislature to pay in order to confirm in the constitution what English-speakers had in Quebec until 101, in exchange for the definitive right to French-language education for French-speakers outside of Quebec.

Senator Asselin: Mr. Minister, perhaps if you had said that this afternoon when we were discussing the possibility of imposing bilingualism on Ontario, I might be able to follow your statements, your reasoning. Your reasoning is totally backwards for two very important reasons which we have discussed. This afternoon, you did not want to get involved in bilingualism for Ontario, and this evening you admit that you do want to get involved in an area which is the exclusive domaine of the provinces, education; you will be affecting a provincial law, Quebec’s Bill 101.

[Page 117]

Please explain your reasoning.

Mr. Chrétien: I say that this will have a marginal effect on Bill 101, which in my opinion, went much too far. In any case, I do not want to get involved in that. i would just like to say that you are talking about two entirely different things. This afternoon you said that we are not giving anything, that we refuse to do anything about the provinces or Ontario. in Ontario, from today on, we will be providing a constitutional right to French-language education. In my mind, that is the fundamental issue.

As Mr. Crombie stated so eloquently, I would have liked to give institutional bilingualism constitutional status in Ontario or in the other provinces; given the realities of our situation, we did not want to go too far, and we chose education. We cannot do everything at once, and I think we balanced the Quebec problem somewhat by constitutionalizing what Quebec had done until 1976 as a tradeoff for finally achieving language rights for French-speakers outside of Quebec. Canadian French-speakers should understand, especially those in Quebec who for many generations paid taxes in their villages to help the people in Maillardville. Sturgeon Falls, etc. You do not know just how proud I am to have this enshrined in the constitution today.

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

The hon. Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I do not want to get into rhetoric like the minister, I would just like to correct a statement he made: he said that the right to education in one’s own language is already in the constitution, or something along those lines, quoting the example of English-speaking Catholics who have education in their own language.

In any case, the statement was equivocal, and I would like to correct it. This was not a right at all. Only separate schools are now protected by the constitution, and I would just like to say that if English-speaking Catholics have their educational system, and I am correctly calling it a system because it was complete up to the university level, it was simply because Quebec had the openmindedness to provide it.

I would, however, like to add a comment. At some point you said that you wanted to protect the minorities, that the majorities were not the problem. There are two types of majority in this country. There is the fragile majority in Quebec, the French-speaking majority, and the less fragile English-speaking majority in the country as a whole.

I would like to point out something that is of true concern to Quebecers; whatever you may say about the change of direction started by Bill 22 and pursued more vigorously by Bill 101, in spite of some things that may be debatable, generally speaking, Bill 101 was intended as a change in direction to make the French-speaking Quebec majority less fragile.

[Page 118]

It seems to me, Mr. Minister, that Quebecers might perhaps be better prepared to accept the trade-off you are proposing by imposing the contents of Clause 23 if you showed from time to time some awareness of the fact that the French-speaking Quebec majority is a majority under constant threat.

Would you be prepared to say something this evening along those lines to balance what you said earlier?

Mr. Chrétien: Well, that is very easy to answer. First, in answer to the first objection you made when I spoke of the English Catholic school and the English Protestant school in my area, I was not saying that they had been provided with their schools because of their language; they were given their schools because of religion. What I wanted to say to Mr. Epp was that the taxpayers in small places like Shawinigan, La Tuque, Sherbrooke and Drummondville have to pay for those minority schools. Some may say that it is expensive. He asked the following question: What will happen to taxpayers in other municipalities? Nothing more nor less will happen to them than happens to taxpayers in our areas. The problem is exactly the same. It is a fact which will have to-be lived with; towns in Quebec with no English speakers will not have highschools, and towns where there are English speakers will have high» shools. Those are the facts, and in our area we do not question them, we pay for the schools. It is part of the obligations we have as citizens. So that answers the first part the question.

As to the fragile minority in Quebec, we could go on and on about that. Generally speaking, most of the people in my party were generally in favour of free choice. In that context, Clause 23 was the closest we could come to an answer to Bill 101. I will go even further. The education proposals of the party which I support in Quebec, Mr. Ryan’s party, go further than what we insist on having in Quebec at the present time.

I have never believed that the French language or the French culture in Quebec could have been imposed on me by law. I have it in my blood and in my mind, and I think that the culture and language of Quebec are in far less danger than in the past. If there is a language problem in Quebec, it exists to the west of St-Laurent Street in Montreal.

In towns like Brompton, Drummond, Stanstead there are no more English speakers; in the past, there were. These used to be English-speaking communities; there are no more English speakers.

So the problem of the fragile majority in Quebec has been greatly exaggerated; perhaps the discussion on that issue has been useful, and perhaps has finally provided us with the opportunity to give true equality in education to Canada.

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

[Text]

Honourable James McGrath.

[Page 119]

Mr. McGrath: I want to make this comment, Mr. Chairman.

I have got great respect for the Minister but we are operating under pretty severe time constraints and the Chair has to be pretty vigilant in imposing the time constraints on all of us and I say to you with great respect that that same discipline should be imposed on the Minister. He has on a number of occasions tonight used up a considerable amount of time, in many instances repetition. and if the Minister continues like this then we are just not going to make the kind of progress that we had hoped we could make and I think. Mr. Chairman, that point has to be made because I think the Minister should discipline himselfthe way we have to.

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

The Minister has already stated previously this evening that I have informed him very respectfully and I have informed oflicers of his department too, that according to our balance and use of time. that sometimes the answer seems to be long, and he has been fair and honest enough to recognize it tonight and make sure that the intervention you have just made and the repetition of the same admonition that I have conveyed to him lastnight has been heard and I am quite sure that he will try to spend the best effort as all honourable members around this table have done and I am not looking to anyone in particular, but as all honourable members around this table have done and his behaviour would be examplary for our next session.

Mr. Chrétien: Mr. Chairman. I will remain silent as much as I can. and I find a fantastic change in the attitude because some weeks ago I was not speaking enough. I have to be a witness for a couple of years if I had to listen. Now I will shut up with pleasure; let us vote.

Mr. McGrath: I am not going to let the Minister get away with that.

I heard the Minister say on the media today that no way was he going to allow the Committee to extend its time for a week. He said that today to the media.

Now, that is fine, he is entitled to that. he is the government, they have to manage the business of this House and this Committee and they have to take that responsibility, but what I am saying to the Minister is surely if he is going to impose that kind of closure on this Committee, then that imposes a special discipline on him to make his answers as precise and as concise as possible.

That is not to say that he has to remain silent. that is to say he should address the questions and try and cut down on the rhetoric.

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

As I have no other speakers on my list at this point I would like to then invite honourable members to express their vote on the proposed amendment.

An Hon. Member: Recorded vote.

[Page 120]

The Joint Chairman (Mr. Joyal): A recorded vote being requested I will invite the Clerk of Senate to call the vote in the usual way.

Amendment agreed to: Yeas, 14; Nays, 10.

The Joint Chairman (Mr. Joyal): I would like then to call Clause 23.

Clause 23 as amended agreed to.

The Joint Chairman (Mr. Joyal): I would invite, then, honourable members to take the next amendment, it is an amendment numbered N-29, new clause after Clause 23, page 27. It is an amendment moved by the New Democratic Party and I would like to invite Mr. Robinson to move the proposed amendment.

Mr. Chrétien: Mr, Chairman, I do think this question of rights, I think that has to be postponed until the next session on native rights, with the permission of the Committee.

The Joint Chairman (Mr. Joyal): So I understand that there is an agreement to stand Clause 24 and the amendment thereto until further agreement that that amendment be called.

Clause 24 allowed to stand.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to move to the next amendment, which is an amendment numbered G-28, new Clause after Clause 23, page 7. It is an amendment moved on behalf of the government party and I would like Mr. Irwin to move the proposed amendment.

Mr. Irwin: Thank you, Mr. Chairman. Before I get into the amendment there has been one change of words on the form that has been distributed. On the fourth last line of Subclause (2) the word “may” has been deleted and “shall” has been inserted at the request of the NDP, to which we have consented.

Mr. Fraser: Mr. Chairman, through you, could I please ask Mr. Irwin to repeat that.

Mr. Irwin: In subclause (2), the fourth last line, second word from “may” to “shall” which is probably better wording.

In other words, the net result is if there is a finding that it would bring justice into disrepute then the evidence shall be excluded rather thangthe permissive may.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Corbin, would you like to make the correction in the French text?

Mr. Corbin: Perhaps I could do so when it is read?

The Joint Chairman (Mr. Joyal): Fine.

[Text]

Mr. Irwin: Thank you, Mr. Chairman. I wish to propose that the Constitution Act 1980 be amended by adding immediately after line 22 on page 7 the following heading and section:

24.(1) Enforcement. Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court or competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances

[Page 121]

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[Translation]

Mr. Corbin: Mr. Chairman, I would like to point out that there are two changes to the French text of the proposed amendment. In subclause (2), the words “au cas ou” should be replaced by the word “lorsque”. and would read as follows:

[Text]

(2) lorsque dans une instance visee

[Translation]

and in the same subclause, line 6, which reads:

[Text]

éléments de preuve peuvent être écartés

[Translation]

the words “peuvent être” should be replaced by “sont” to read:

[Text]

éléments de preuve peuvent être écartés

[Translation]

If that is quite clear, I will move the amendment to the French text.

[Text]

Que le projet de loi constitutionnel de 1980 soit modifié par adjonction, après la ligne 39, de la rubrique et du passage qui suivent:

Recours 24. (1) Toute personne victime de violation ou de négation des droits et libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal competent pour obtenir la reparation que le tribunal estime convenable et juste, eu égard aux circonstances;

(2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuves ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice.

[Translation]

Thank you.

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

I realize that there is a sub-amendment to this main amendment, number N-30, [Text] new clause, following Clause 23, page 7.

N-30, new clause following Clause 23, page 7. That is the number of a subamendment in relation to the main amendment. It is a subamendment moved by the NDP party and I would like to invite Mr. Robinson. I will repeat the number of the subamendmentn to make clear that everybody has it, N-30, new clause following Clause 23, page 7, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. In view of the fact that the government has agreed to accept our proposed change to revise proposed Clause 24 to change the original word may to shall and in view of the fact that the Minister has confirmed and I believe that he is right that under new Clause 24(1) there would clearly be jurisdiction n the court to award compensation. I am prepared to withdraw proposed amendment N-30.

[Page 122]

[Translation]

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

We will now comme back to the main amendment proposed by Mr. Irwin.

[Text]

Mr. Fraser: Mr. Chairman, through you, as the government knows the Conservative Party has also an amendment to this clause and that is on CP l0, Clause 26, page 8.

The Joint Chairman (Mr. Joyal): Mr. Fraser, I have it.

Clause 25 allowed to stand.

On Clause 26—Laws respecting evidence.

Mr. Fraser: I wonder if my honourable colleagues have the amendment in front of them. and what I propose to do, Mr. Chairman, is to withdraw this amendment. I would ask your indulgence to explain why.

First of all this amendment which we filed was designed to remedy the mischief which we felt was in the original draft of the government and was to make sure that there would be the exclusion of evidence which would bring the administration of justice into disrepute.

Mr. Chairman and others will remember the concerns of witnesses that appeared in front of us in this regard.

I also want to point out that Mr. Irwin said that he wished and he just did this this moment to change the word “may” in the government amendment to “shall” and I point out, Mr. Chairman, that our amendment had already taken that into account and our amendment read:

Notwithstanding subclause (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.

Mr. Chairman, you will forgive me for indicating that I think that this is now the third time that our view has prevailed although, this case perhaps in not such formal terms. I am corrected by my Chairman. This is the fourth time after several months and we are of course absolutely ecstatic that all parties around the table have seen the wisdom of our representations.

Having said that, Mr. Chairman, I will withdraw the motion because the mischief we were trying to address has now been remedied and the word shall is in so it is now mandatory, and we are very pleased with what has happened.

The Joint Chairman (Mr. Joyal): Honourable John Fraser, ifall parties agree suddenly to the same idea I think it is a new pentecostal.

Mr. McGrath: You notice the Minister is not here.

The Joint Chairman (Mr. Joya): So the Chair is very happy to see that all the virtues are now within the honourable members, and I am in a position of course to accept your suggestion.

Mr. Fraser: It may be a fear of purgatory, Mr. Chairman.

[Page 123]

The Joint Chairman (Mr. Joyal): Mr. Robinson, yes, on the proposed amendment.

Mr. Robinson: Mr. Chairman, in view of the fact that the representative of the government has not spoken on this, I just wanted to indicate perhaps, Mr. Chairman, prior to commenting briefly on the proposed amendment I would like to indicate that we have unconfirmed sources who stated to us that Mr. Epp and Mr. Austin were seen on a bus discussing these amendements and I not that their track record is better than ours, as Mr. Fraser has proudly pointed out, so I see that those discussions were apparently fruitful.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Chairman, I want to indicate If I was on a bus with Senator Austin only he would be aware of it, and secondly I want to point out to Mr. Robinson that when we move amendments we also work on success.

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

Miss Campbell: Yes, Mr. Chairman, I have a number of questions on this. I am certainly in favour of the new Clause 24(1) and I do have a couple of questions that I would like to bring up to the officials while they are here.

It seems to me by using the term shall instead of may you are extending the tainted fruit doctrine. Is there anything that refutes that, or not? In other words. you are giving to the courts a narrowly defined interpretation of that.

Mr. E. G. Ewaschuk (Q.C., Director, Criminal Law Amendments Section Department of Justice): Yes, what in effect it means is that there may be an area where you have a constitutional violation which may be unreasonable in the sense that it is inadvertent, but there may not be something willfully reprehensible. On the other hand, you get to a certain level where it is in fact very willful and very reprehensible.

If you hit that level, the judge having considered, an example may be a police officer stole the gun because he just did not go down to get a search warrant, he broke in, he stole the gun, it was tested for ballistics and fingerprints and it turns out that in fact this is the murder weapon. Now, the judge will have to weigh all those circumstances, the fact of the conduct of the police officer, it may have been unreasonable but it may not have been willful. In my example it was willful, but it is a murder charge. He is going to take all those circumstances into consideration. If he comes to the conclusion that the admission of the evidence would bring the administration of justice into disrepute, considering the seriousness of the case, the seriousness of the breach by the police, the manner in which the evidence was obtained, then having made that determination.,yes. the evidence must be excluded.

Miss Campbell: My other question is that this definitely looks very similar to the first clause of the Law Reform Commission report but they added a second clause because they were so concerned with the actual direction that the court should take in interpreting evidence, and you are probably well aware that they gave specific directions in determining whether evidence should be excluded under this clause: all the

[Page 124]

circumstances surrounding the proceedings and the manner in which the evidence was obtained shall be considered, including the extent to which human dignity and social values were breached in obtaining the evidence, the seriousness of the case, the importance of the evidence, whether any harm to an accused or others was inflicted willfully or not and whether there were such circumstances justifying the actions, such as a situation of urgency requiring action to prevent the destruction or loss of evidence.

In other words, the may seems it seems to me would be more in line with what the Law Reform Commission was alluding to in that second paragraph for the direction of the court, but perhaps your explanation covers that.

My question, not having read the second clause of the Law Reform, and we are limited as to time, is does the reference in this Clause 24(2) to the Charter and the Rights and Freedoms extended in there, would that do you think go a long way in eliminating some of the concerns that were in that second clause of the Law Reform Commission.

Mr. Ewaschuk: I think that certainly they will be taken into consideration. They are there for reflection. They are academic writings as to what the administration of justice means at least as far as the admission of evidence, whether or not it would bring it into disrepute, and we have the celebrated Wray case in 1969 when the Supreme Court of Canada said that real evidence, if it is more than of tenuous value must be admitted notwithstanding that its submission would bring the administration ofjustice into disrepute.

So what this clause in effect is doing is taking the dissent in Wray, it was a 5-4 judgment. and would say no, in relation to constitutional violations if the court finds that the admission of the evidence, having regard to all of the circumstances, would bring the administration of justice into disrepute, then they shall exclude it.

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

Senator Austin: Mr. Chairman, one question of Mr. Ewaschuk, could you provide the Committee with a general definition of that test “bring the administration of justice into disrepute”. Is there a general principle that you could articulate that would give us a dividing line?

Mr. Ewaschuk: Well, somebody told me today—I am on a task force to revise the rules of evidence—and Doctor Tellefson from the federal Department of Justice is the head of it and he says the test is as articulated by the former Justice Black in the United States that the admission of this evidence would make me vomit, it was obtained in such a reprehensible manner. I said to Doctor Tollefson, it might be a little tough writing that in, but that is the type of case, he is saying. where the conduct is very blameworthy, repugnant, very reprehensible. what the police did in the circumstances and therefore although, and this is the other argument, they being law breakers allow another lawbreaker, an accused, to go free, that once it has reached this certain level of reprehensibility it should be excluded.

[Page 125]

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin. I see that the honourable members are ready for the vote.

[Translation]

The amendment is carried.

[Text]

Clause 26 allowed to stand.

On Clause 25—Primacy of Charter.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the amendment numbered G-31, a new clause after Clause 25, page 8.

I invite honourable members to do so, because the amendments numbered G-29, CP-9 and G-30, are in relation to Clause 24 of the proposed motion.

As honourable members have previously agreed that that clause should be stood until further advice from honourable members. and then those amendments will be called when you are dealing with Clause 24.

So that they will be considered at the proper time when we are dealing with Clause 24.

I would now like to invite honourable members to take the amendment G-31, a new clause after Clause 25, page 8.

I would like to repeat for the benefit of honourable mem bers. The next amendment we will be dealing with is the amendment numbered G-31, a new clause after Clause 25. page 8.

Now, to this amendment, there is a subamendment numbered N-32, a new clause following Clause 25, page 8. lt is an amendment introduced by the New Democratic Party.

I would like to invite honourable members to take C-3]

and to ask Mr. Irwin to move the amendment in the usual way.

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

I am pleased to move that the proposed constitution act. 1980 be amended by (a) adding immediately after line 10 on page 8, the following:

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

and renumbering the subsequent clauses accordingly.

Mr. Corbin will read it in French.

M. Corbin: Monsieur Ie président, je propose

Que l’article 26 du projet de Loi constitutionnelle de 1980 soit modifié par

a) adjonction, après la ligne 8, page 8, de ce qui suit:

«26. Toute interprétation de la présente charte doit concorder avec l’objectif de promouvoir le maintien et la valorisation du patrimoine multiculturel des Canadiens».

b) les changements de numéros d’article qui en découlent.

[Translation]

Thank you.

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

[Page 126]

I would invite Mr. Robinson to present the New Democratic Party amendment in the usual manner.

[Text]

Mr. Robinson: Mr. Chairman, in the light of our earlier decision to stand clauses pertaining to the particular treaty and aboriginal rights of native people, I would ask that this proposed amendment as well he stood at this time.

The Joint Chairman (Mr. Joyal): if that is agreeable to honourable members, i will stand the proposed amendment and subamendment.

Subamendment allowed to stand.

Amendment allowed to stand.

Clause 25 allowed to stand.

On Clause 27—Application to territories and territorial authorities.

The Joint Chairman (Mr. Joyal): The next amendments I would like to call are the amendments dealing with the Clause 27. it is the amendment numbered or identified as CP-11, new clause following Clause 26, page 8.

I have an amendment identified as G-32-1, a new clause following Clause 26, page 8.

I would like to invite the honourable James McGrath to move the proposed amendment, and then I would invite the honourable Senator Petten to move the next subamendment.

The honourable James McGrath.

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

Mr. Chairman, the amendment is as follows: I move that the proposed constitution act, 1980, be amended by (a) adding thereto, immediately after line 15 on page 8, the following clause:

Newfoundland Terms of Union

27. No provision of this Charter affects or abrogates or derogates from Section 17 of the Schedule to the Newfoundland Act.

and (a) renumbering th subsequent clauses accordingly.

Mr. Munro will read it in French.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Munro.

Mr. Munro: The French version is as follows: It is proposed

[Text]

Que le projet de Loi constitutionnelle de 1980 soit modifié par:

a) adjonction, après la ligne 14, page 8, de ce qui suit:

«27. Les dispositions de la présente charte ne port tent pas atteinte à l’article 17 de l’annexe de la Loi sur Terre-Neuve.»

b) les changements de numeros d’article qui en decoulent.

[Translation]

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

[Text]

I would like to invite the honourable Mr. Petten to move the amendment.

[Page 127]

Senator Petten: Mr. Chairman, I move that the proposed amendment to the new clause following Clause 26 of the proposed Constitution act, 1980 be amended by striking out everything immediately following the words “this Charter” and substituting the following:

Abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada, in respect of denominational. separate or dissentient schools.

I would now ask my colleague to read the french version.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Thériault.

Senator Thériault: I move

[Text]

Que le projet de modification du nouvel article qui suit l’article 26 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, au passage qui suit le membre de phrase «la présente charte», de ce qui suit:

«ne portent pas atteinte aux droits ou privilèges garantis en vertu de la Constitution du Canada concernant les écoles separées et autres écoles confessionnelles.»

[Translation]

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

[Text]

I call on Mr. Tobin to introduce the amendment in the usual way.

Mr. Tobin: Mr. Chairman, I understand we are going to deal with the amendment to the amendment first.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Tobin: Thank you, Mr. Chairman.

Mr. Chairman, the government believes the rights of religious schools in the various provinces. including Newfoundland, will not be adversely affected by the Charter provisions.

However we want to leafe no room for doubt on this issue as with the existing language rights dealt with in Clauses 21 and 22.

I might say at the outset that I and my colleagues support the amendment initially put by the Conservative Party with respect to denominational schools in Newfoundland.

It is our intention, however. to broaden this clause to include denominal schools, separate or dissentient schools in all provinces of Canada.

I might add that we would also provide rights to schools, to separate or denominational schools that exist in this country, but whose rights are not guaranteed under the constitution of Canada by virtue of having the words “guaranteed by” and the operative term is “under”.

The Conservative amendment as it stands is too narrow, since it deals only with denominational school rights in Newfoundland. There are other provinces which equally have rights to separate or religious schools guaranteed by Section 93 of the British North America Act, and it’s equivalent in the terms of union with other provinces.

Mr. Chairman, in addition there are religious schools authorized or recognized by law which are not covered by

[Page 128]

constitutional guarantees, such as the Pentecostal schools in Newfoundland and no doubt there are others in other provinces of Canada.

In other provinces, while the religiously operated schools are not authorized by law, they do receive benefits by law. such as government provided text books and exemptions from property taxation. Consequently, if this issue is to be put beyond doubt with respect to any religious schools authorized by the constitution or by provincial law. there should be a provision in the charter which gives the same assurance to all such schools.

Mr. Chairman, I point out in the amendment we move, the words “abrogates or derogates from any rights or privileges guaranteed by or under the constitution of Canada”—”under” meaning under the authority of the constitution of Canada; and therefore any provincial statute or legislation which gives religious schools rights in the provinces would be protected from any challenge by the charter by the very nature of the fact that provincial legislation ultimately flows from the authority granted to the provinces in the constitution.

Mr. Chairman, I might say—and I join all my colleagues from Newfoundland from both parties on this Committee-that I am disappointed that we are not, in addition to this amendment. also making provision for guaranteeing the Pentecostal Assemblies of Newfoundland the same rights and privileges under the constitution as are enjoyed by other members of the Denominational Educational Committee in Newfoundland.

But I would like to point out for the benefit ofthe Pentecostal Assemblies of Newfoundland that the word “under” in our proposed amendment would have the effect of protecting them from any challenge by any group based on the Charter of Rights until such time as this government moves under Clause 34 to amend Term 17 of the Terms of Union of Newfoundland with Canada.

Mr. Chairman, I think that pretty well covers my intervention at this point. I might say, for the benefit of colleagues, that I have talked to the legal counsel of the Denominational Educational Committee of Newfoundland tonight and he has told me that this amendment is acceptable to the DEC as was the amendment initially proposed by Mr. McGrath. He understands that it broadens the scope of the amendment initially moved by the Conservative Party.

Thank you, Mr. Chairman.

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

The honourable James McGrath.

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

Mr. Chairman, very briefly. I first of all agree with what Mr. Tobin has said, that the amendment to the amendment is acceptable to the Denominational Educational Committees in Newfoundland. lt broadens the scope of it, and indeed it is well worth recording here that we had representations from the Roman Catholic School Trustees and representations from the Roman Catholic Bishops of Ontario; and from the Protestant School Board of Greater Montreal, and there was one other—and they raised concerns about denominational or

[Page 129]

separate school rights and the effect the Charter would have on them.

In that sense, Mr. Chairman, I want to say that I am glad that our representations and particularly the representations made to this Committee—the last witness that this Committee heard was the Denominational Educational Committees of Newfoundland—that the Committee heard them. The government obviously representations to protect—and I underline the words “to protect” or to reaffirm a right that we already had, that was already ours without question under the Terms of Union and, hence, the constitution of Canada.

We merely wanted that reaffirmed. lntially, the Denominational Educational Committees, representing all of the schools of Newfoundland, were concerned that the proposed amendment put forward by the Minister did not go far enough.

Consequently, we tried to address their concern by putting the amendment that I moved tonight, and now, of course that has been further amended by the government, which, of course, broadens the scope of the amendment.

I just would like to reiterate that the protection that Newfoundland has enjoyed for the past 30 years under Section 17 of the Terms of Union, Newfoundland will continue to enjoy; but we can draw some little consolation from the fact that we have extended that protection to other provinces as well, and I think that is worth noting.

I would like to say in conclusion, Mr. Chairman, that I would like naturally to thank the government for meeting the concerns of the Newfoundland Denominational Educational Committees and the government of Newfoundland and the members of the Committee.

I would like merely to record one caveat, that is that the Pentecostal Assemblies of Newfoundland, which, initially were not included under the protection of Term 17, because the Newfoundland government passed a resolution in the Legislature 10 years ago and the Parliament of Canada has not acted on that resolution in an address to the British Parliament to effect the necessary change to include the Pentecostal Assemblies in Term 17.

But I believe this matter can be addressed separately.

I am aware of the representations that have been made to the government by the Pentecostal Assemblies of Newfoundland. I want to support that representation in the very strongest terms, leaving no doubt whatsoever that the Pentecostal people of Newfoundland will enjoy the same constitutional protection that all the other denominations will now be able to continue to enjoy as a result of my amendment and the subamendment put forward by the government.

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

Mr. Tobin to conclude.

Mr. Tobin: Mr. Chairman, I would like simply to add a few words.

I want to say, again, on the question of amending Term 17 to extend the rights and privileges enjoyed by other denominations to the Pentecostal Assemblies of Newfoundland, this was

[Page 130]

an initiative that certainly members of this Committee from Newfoundland wanted to pursue at this time.

I am sure that Mr. McGrath supported that initiative and all members do.

However, the difficulty with it was that we were advised—and I say this certainly not looking for any argument at this point—but we were advised at this point by the Government of Newfoundland, by Premier Peckford, that that amendment should be pursued in a separate motion to the House of Commons; and so it is out of respect to his wishes at this time that we do not include the amendment to Term 17 in the patriation package.

I can say, however, that it certainly is my intention—and I understand and have an agreement from Justice that such an amendment be made as quickly as possible before patriation through Clause 34.

One last note of clarification. It is worth noting for the pentecostal assemblies of Newfoundland, that under the amendment to the amendment, the charter of rights cannot be used by virtue of the fact that the pentecostals have rights granted by the provincial legislature; the charter of rights cannot be used to challenge those rights. That is at least a stop-gap measure until the amendment to term 17 can be brought about.

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

I understand that honourable members are ready for the question.

Subamendment agreed to.

The Joint Chairman (Mr. Joyal): So, do I understand, the honourable James McGrath. that the other amendment, the first one at this point should be withdrawn with unanimous consent?

Mr. McGrath: Yes, Mr. Chairman. I thought that was implicit in my remarks.

The Joint Chairman (Mr. Joyal): Therefore the other amendment with unanimous consent is withdrawn.

Mr. McGrath: Mr. Chairman, there is a procedural point here.

The Joint Chairman (Mr. Joyal): Yes, Mr. McGrath.

Mr. McGrath: There is a procedural point here and a very important one. and it has been brought to my attention as well as the attention of the Chair by the Clerk. I cannot withdraw my amendment, That is the point. It has to remain.

The Joint Chairman (Mr. Joyal): Yes. I understand because of the change in our numbering we will have to adopt the main amendment in order to make sure that our subamendment is ofcourse attached to the main proposal.

Mr. McGrath: That is right.

The Joint Chairman (Mr. Joyal): I will then call the vote on the main amendment, the one that has been introduced properly by the honourable James McGrath and numbered CP-11, new clause following Clause 26. page 8.

I will read it:

[Page 131]

That the proposed constitution act 1980 be amended by

(a) adding thereto immediately after line 15 on page 8 the following clause: Newfoundland terms of union

27. No provision of this Charter affects or abrogates or derogates from Section 17 of the Schedule to the Newfoundland Act; and

(b) renumbering the subsequent clauses accordingly.

Mr. Tobin: Just a quick point of order, Mr. Chairman. I just want to understand the procedure properly. In order to have the package completed, the amendment and the amendment to the amendment, we now have to vote on the main amendment.

The Joint Chairman (Mr. Joyal): That is what I have already stated.

Amendment, as amended, agreed to.

The Joint Chairman (Mr. Joyal): It being 10:30 p.m., the meeting is adjourned to 9:30 tomorrow morning.

[Translation]

The meeting is adjourned till 9:30 tomorrow morning.


WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Deputy Minister;
Dr. B.L. Strayer, Assistant Deputy Minister, Public Law;
Mr. Fred Jordan, Senior Counsel, Public Law.


Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14* 15 16 17 18 19
20 21 22 23 24 25 26* 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57

*On Order — Available Soon


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