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 50 (31 January 1981)


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Date: 1981-01-31
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 50 (31 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 50

Saturday, January 31, 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


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:

Austin
Cottreau
Doody
Lapointe
Lucier
Murray
Petten
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Hawkes
Irwin
Lapierre
Mackasey
McGrath
McRae
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 Saturday, January 31, 1981:

Mr. McRae replaced Mr. Tobin;
Mr. Robinson (Burnaby) replaced Mr. Ittinuar;
Mr. Crombie replaced Mr. Munro (Esquimalt-Saanich).

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

On Saturday, January 31, 1981:
Senator Cottreau replaced Senator Thériault;
Senator Doody replaced Senator Muir.


[Page 3]

MINUTES OF PROCEEDINGS

SATURDAY, JANUARY 31, 1981
(72)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:44 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Cottreau, Doody, Hays, Lapointe, Lucier, Murray, Petten, Tremblay and Wood.

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

Other Member present: Mr. King.

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, I980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

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

(a) adding after line 6 on page 8 the following new clause:

“25. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”; and

(b) renumbering the subsequent clauses accordingly. Mr. Epp moved,—That the proposed new Clause 25 be amended by striking out, everything immediately following the words “denying the existence of” and substituting the following:

“(a) any rights or freedoms that may pertain to any cultural community; or

(b) any other rights or freeedoms that may exist in Canada.”

After debate, by unanimous consent, the subamendment of Mr. Epp was withdrawn.

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

[Page 4]

On motion of Mr. Irwin, it was agreed,—That the proposed Constitution Act, 1980 be amended by striking out the heading preceding line 7, on page 8.

Clause 25 was negatived.

The Committee resumed consideration of the amendment Of Mr. Irwin,—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

(b) renumbering the subsequent clauses accordingly. and the subamendment of Mr. Robinson (Burnaby),—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.”

After debate, the question being put on the subamendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 20.

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

Clause 26 was negatived.

At 10:32 o’clock a.m., the sitting was suspended.

At 10:45 o’clock a.m., the sitting resumed.

Mr. Epp moved,—That this Committee recommend to the Senate and the House of Commons that Parts I and II (now Parts I and III) of Schedule B of the proposed Canada Act (as amended by the Committee) be proposed to the provinces as an amendment to the said Act pursuant to the provisions of Section 41 (as amended by the Committee) without delay, as soon as Parts V and VI of such Schedule B (as amended by the Committee) have been proclaimed by the Governor General of Canada under the Great Seal of Canada.

DECISION BY CHAIRMAN

THE CHAIRMAN: The motion proposed by the honourable member raises the whole question of the scope of this Committee’s inquiry.

The Chair has already commented on the question without giving a definite ruling.

The question to be determined is as follows: are we, as a Committee, limited or not by the contents of the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” as referred to this Committee on October 23, 1980, by the House of Commons and on November 3, 1980, by the Senate.

[Page 5]

We must therefore examine the Order of Reference of both Houses, the nature of the document referred to the Committee and the admissibility of the proposed motion.

Permit me first of all to read the relevant paragraph from our Orders of Reference from both Houses dated October 23, 1980 and November 3, 1980.

“That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon 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, 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”.

And so, the Committee is instructed to examine the question of whether or not such an address should be presented to Her Majesty, and if so, to recommend the necessary amendments.

It is very important to remember that the document referred to the Committee is not a bill. It has not been introduced in the House by a First Reading. Consequently, the principle has not been approved by the House of Commons or by the Senate and has not been debated in Second Reading. The Committee must then recommend in its report that the principle of the project be approved or rejected.

The proposal, that the Committee is called to consider is the division of the Proposed Resolution. In the case of a Bill, such an initiative would be acceptable only if an instruction to the said effect was contained in the Order of Reference. Beauchesne 761(1):

“An instruction is required to enable a committee to divide a bill into two or more bills…”

The Chair is of the opinion that this Committee is vested with all necessary authority to recommend the abandonment of the totality or part of the Proposed Resolution.

It would therefore seem that on October 23, 1980, and on November 3, 1980, the House of Commons and the Senate simply agreed to appoint a Committee to a study a document, without having first approved the principle of the project as set out in the document.

The rules relating to relevancy (Beauschesne 773(1)) in the study of a bill are more restrictive since its principle has previously been approved and debated by the House. These rules which provide that the Committee studying a bill cannot introduce any amendment that would go against the principle as adopted or widen its scope, do not apply in the case before us.

Furthermore, it must be pointed out that given the fact that the subject referred to the Committee is not a bill, the next stage will be totally different, than that of a Bill.

[Page 6]

It would seem that there is a difference between our Orders of Reference and that of a bill, referred to a Committee. Indeed, a bill once amended is returned to the House which studies it in its amended form. The amendments made by the Committee are then part of the bill and the report stage of such a bill is one of “reconsideration of events that have taken place in committee” (Beauchesne 787). Amendments rejected in committee and amendments to restore the original version of the bill can be introduced in the report stage of a bill.

On the other hand, our report like any other report from a committee, including those on a subject matter, may not be amended in a substantive manner by the House at report stage.

When a motion is made for concurrence in a committee report, it is competent for the House to adopt it, reject it or refer it back to the committee (Beauchesne 652(1)). The House would then have to revive the committee since it automatically ceases to exist at the moment its final report is presented.

The House would not have the possibility of further amending the contents of the Report.

That is indeed the reason for which the Order of Reference provides explicitly that the Committee can amend the proposed resolution being studied.

In our view, the Committee can consider whether the proposed Resolution is complete or whether other parts or provisions should be added or deleted. In this sense, the Committee would then be competent to suggest additions to the Proposed Joint Address as well as division of the proposed resolution in order to decide whether it should or not be recommended that an Address be presented to Her Majesty.

Whereas the motion moved by Mr. Epp to divide the proposed resolution constitutes an amendment to the proposed resolution;

Whereas the mandate of the Committee as set out in the Orders of Reference of both Houses dated 23 October 1980 and 3 November 1980, provides that the Committee must “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”;

Consequently, I am prepared to receive the amendment moved by Mr. Epp.

Accordingly, debate resumed on the motion of Mr. Epp,— That this Committee recommend to the Senate and the House of Commons that Parts I and 11 (now Parts I and III) of Schedule B of the proposed Canada Act (as amended by the Committee) be proposed to the provinces as an amendment to the said Act pursuant to the provisions of Section 41 (as amended by the Committee) without delay, as soon as Parts V and VI of such Schedule B (as amended by the Committee) have been proclaimed by the Governor General of Canada under the Great Seal of Canada.

At 12:28 o’clock p.m., the Committee adjourned to the call of the Chair.

[Page 7]

AFTERNOON SITTING
(92)

The Special Joint Committee on the Constitution of Canada met this day at 2:11 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Cottreau, Doody, Hays, Lapointe, Lucier, Murray, Petten, Tremblay and Wood.

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

Other Members present: Messrs. 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 Proceedings, Thursday, November 6, I980, Issue No. 1.)

The Committee resumed consideration of the motion of Mr. Epp,—That this Committee recommend to the Senate and the House of Commons that Parts I and II (now Parts I and III) of Schedule B of the proposed Canada Act (as amended by the Committee) be proposed to the provinces as an amendment to the said Act pursuant to the provisions of Section 41 (as amended by the Committee) without delay, as soon as Parts V and VI of such Schedule B (as amended by the Committee) have been proclaimed by the Governor General of Canada under the Great Seal of Canada.

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

YEAS:

The Honourable Senators

Doody
Tremblay
Murray

YEAS:

Messrs.

Crombie
Epp
Fraser
Hawkes
McGrath—8.

[Page 8]

NAYS:

The Honourable Senators

Austin
Cottreau
Hays
Lapointe
Lucier
Petten
Wood

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Lapierre
Mackasey
McRae
Nystrom
Robinson (Burnaby)—15.

At 4:48 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 9]

EVIDENCE

(Recorded by Electronic Apparatus)

Saturday, January 31, 1981

[Text]

The Joint Chairman (Mr. Joyal): Order, please. May I invite the honourable members to take their seats.

Yesterday afternoon when we had to discuss an amendment on Clause 24 I invited honourable members to stand the proposed amendment numbered 25 because that amendment deals in particular with another subject, the one in relation with aboriginal rights.

This morning before the opening of our session I went to make sure that all honourable members around the table receive a copy of that new Clause 25. I hope that all honourable members have that amendment. It is identified as G-29-2 and I will make sure that the Clerks of our Committee circulate additional copies, and the Chair will wait until it is obvious that all honourable members have that text.

That is the main amendment in relation Clause 24 and I would like to invite honourable members, too, to take the subamendment to that main amendment and the subamendment is numbered CP-9 Clause 24, page 8 and I will certainly repeat the number CP-9 Clause 24, page 8. It is a subamendment to that main amendment that you have just received a copy of.

If some honourable members do not have a copy I will make sure that it is printed and circulated too because the Chair will call first that subamendment CP-9, Clause 24, page 8 considering that the proposed amendment, numbered 25 that I just referred to has been moved in the usual way yesterday afternoon by Mr. Ittinuar.

This morning I would like to confirm that we are dealing with as the main amendment an amendment to Clause 25 identified paragraph 25 and first with the subamendment to that new paragraph 25 of Clause 25 that is moved by the Conservative Party. So I repeat that I would invite the honourable members to have the two amendments in front of them, the main amendment identified G-29-2 which is the main amendment we are dealing with and then the subamendment CP-9, Clause 24, page 8, honourable members will realize very easily that those two pages, even though they have not been circulated at the same moment during our deliberations, are in relation with exactly the same subject and should be dealt with accordingly.

I might invite Mr. Irwin to read again the proposed amendment G-29-2 which is the government amendment and that will certainly refresh the memory of honourable members and maybe help our viewers to understand what we are discussing this morning.

Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman. I move that the proposed constitution act, 1980 be amended by adding after the new Clause 24 the following new clause:

Other rights and freedoms not affected by Charter

[Page 10]

25. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Mr. Corbin.

[Translation]

Mr. Corbin: I move

That the proposed Constitution Act, 1980, be amended by adding after the new Clause 24 the following new clause:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin. [Text] I would like to invite the honourable Jake Epp to move the proposed subamendment in the usual way.

Mr. Epp: Mr. Chairman, I would move that the proposed amendment to Clause 24 of the proposed constitution act, 1980 be amended by striking out, in the portion set out as Clause 25, everything immediately following the words “denying the existence OF’ and substituting the following:

(a) any rights of freedoms that may pertain to any cultural community; or

(b) any other rights or freedoms that may exist in Canada.

And will ask Mr. Munro to continue.

[Translation]

Mr. Munro: Thank you Mr. Chairman.

I move

That the proposed amendment to Clause 24 of the proposed constitution act, 1980, be amended by striking out, in the portion set out as Clause 25, everything immediately following the words “denying the existence of” and substituting the following:

(a) any rights or freedoms that many pertain to any cultural community; or

(b) any other rights or freedoms Canada.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Munro. [Text] Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman. In introducing our amendment we do this not only with a great deal of pleasure but also with a lot of forethought.

Mr. Chairman, I think we have to go back somewhat, at least well before 1971., For many Canadians whose heritage is not either of the English or the French background, for many of them they have felt for a long period of time that if one refers to the fact that in our Confederation of 1867 that Canada was founded on the basis of two founding peoples, and as of yesterday I think we have rectified that historical record that there were three, that if that is a statement of historical fact, namely that it is a statement that points to the period of the 1860s and specifically to 1867, then that statement is correct, but it does not reflect the full history and the full heritage of our country, and that there were many areas of the country, especially so in Western Canada but notwithstanding that in other parts of Canada as well, that there were areas of

[Page 11]

Canada that were pioneered, first settled by people who came to this country whose background was not the ones I have already mentioned, but that they came to this country because of opportunity. They came to this country because of opportunities and the freedoms that Canada afforded them and so Canadian history has been dotted since these early days by people who came into the country to open up areas that at that time were isolated, areas that had a lot of promise but which needed the vigour and which needed the dedication of those who came.

I will not go into that history because I think every Canadian who has studied the development of our country recognizes the contribution of people whose names did not flow from the lips of Canadians in the traditional way as we have come to know them in Upper and Lower Canada.

That being the case, Mr. Chairman, in 1971 when it was declared that official government policy was one based on multiculturalism, many of us felt that multiculturalism had been a fact of our daily living well before any government declared it in a policy. For many of us our first language was not the language of either the English or the French but a language which our forefathers or our parents had brought from countries across the sea.

In the past some of us have tried to recognize in legislative form the multicultural fact.

I would say the most striking effort of that period was a debate on the new immigration bill.

We felt that the new immigration bill, when we looked at the objectives of immigration, that obviously, one of those objectives had to be the enhancement of the multicultural mosaic of Canada. It is one thing to give lip service to it; it another thing to recognize it.

I was concerned when the first draft of the government’s proposal did not include multiculturalism. We had a number of witnesses—and I would not mention the groups for fear of leaving others out because their testimony was of equal value—who said that if our constitution was to reflect the reality and history of Canada, the multicultural fact should be included.

The Minister, I now say, has included an amendment on his own, an amendment very close to ours.

I appreciate that the Minister has gone that route. It has been our purpose, which we have stated at the very outset—that is, we would be moving an amendment on the multicultural fact; and it is with that intention that we move it this morning.

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

The honourable the Minister of Justice.

Hon. Jean Chrétien (Minister of Justice): Mr. Chairman, I thank the hon. member for his presentation, but he just made my point at the end of his presentation. The next clause, which

[Page 12]

is Clause 26, deals exactly with this point. I therefore think that his amendment is now unnecessary.

Of course, I appreciate the fact that it was your intention to move it, but to have it in both Clause 25 and Clause 26 would only create some drafting complexities.

Perhaps we can agree that the point being made can find a solution in Clause 26.

The Joint Chairman (Mr. Joyal): The honourable Mr. Epp.

Mr. Epp: Mr. Chairman, I agree with the Minister. I believe it is included in his Clause 26, but I wanted to make the point about the purpose of our party, and I have done that; and with the consent of Committee members I will now withdraw our amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Jake Epp. I see there is agreement around the table so the subamendment as introduced is withdrawn.

The Joint Chairman (Mr. Joyal): The Chair will now come back to the main amendment. If there is no further intervention of the main amendment the Chair will call the vote.

Amendment agreed to.

On Clause 25—Primacy of Charter

The Joint Chairman (Mr. Joyal): I would now invite honourable members to take the next amendment, which is identified as G-30, Clause 25, page 8.

Perhaps honourable members would like to have at the same time on the table the text of the proposed motion, because the Chair would like to give some information or explanation surrounding that amendment so that honourable members may understand some technicalities with respect to it.

The proposed amendment, after being read by Mr. Irwin, will ensure that the heading preceding Clause 25 of the proposed motion will be removed. I think I will repeat the identification. It is an amendment identified as G-30, Clause 25, page 8. It is a very short amendment. The Chair will make sure that, when we are dealing with the proposed amendment additional copies of the following amendments which will be called this morning will be copied in sufficient numbers to ensure that all honourable members of the Committee have the proposed amendments.

Those amendments, as was suggested by our Joint Chairman, the honourable Senator Hays, were stood earlier this week so that we could go ahead with other provisions of the motion, and that is why honourable members might not have them to hand. Honourable members might have them somewhere else in their files.

However, I will make sure that other copies are circulated.

I would like to explain the contents of that proposed amendment, which is essentially a technicality and has nothing to do with substantive issues.

The amendment is to remove the heading preceding Clause 25 of the proposed motion.

[Page 13]

The heading reads: “General”, ou en français, «Dispositions generales»,

So what the amendment proposes is to remove the headings and then the Chair would call the vote on Clause 25, but as Clause 25 is to be deleted, instead of answering in the usual way when the Chair calls “Shall Clause 25 carry?”, honourable members will simply have to say “No”. That will be the procedure.

It will be the same with Clause 26. When the Chair calls Clause 26, instead of answering in the usual way, honourable members have simply to say, “No”, and the following clause or the preceding clauses are deleted. That is the essence of the technicality.

I have been given to understand that honourable members now have a copy of the amendments identified as G-30, Clause 25, page 8.

I would now like to invite Mr. Irwin to move the proposed amendment.

Mr. Irwin: Thank you, Mr. Chairman. I wish to move that the heading preceding Clause 25, and Clause 25 of the proposed constitution act, 1980 be amended by (a) by striking out the heading preceding line 7.

The Joint Chairman (Mr. Joyal): That is the essence of the proposed amendment. Would you like now to read it in French, Mr. Irwin.

[Translation]

Mr. Irwin: I move that

The heading preceding Clause 25, and Clause 25 of the proposed Constitution Act, 1980, be amended by

(a) striking out the heading preceding line 7;

Thank you, Mr. Chairman.

[Text]

The Joint Chairman (Mr. Joyal): I will put it to the vote now. The amendment is

That the heading preceeding clause 25 of the proposed constitution act, 1980 be amneded by striking out the head preceding line 7.

[Translation]

It is moved

That the heading preceding Clause 25 of the proposed Constitution Act, 1980, be amended by

(a) striking out the heading preceding line 7.

[Text]

Amendment agreed to.

The Joint Chairman (Mr. Joyal): Shall Clause 25 as amended carry?

Clause 25 negatived.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment, which is identified as G-31, new clause after Clause 25, page 8. It is the proposed amendment in relation to multiculturalism.

I will make sure that all honourable members have a copy because it is a substantive amendment.

The proposed amendment is G-31, a new clause after Clause 25, page 8.

[Page 14]

It is an amendment which was stood this week to allow honourable members to go further into the Charter before we completed that very clause.

I see that honourable members have a copy of the proposed amendment.

I would now like to invite Mr. Irwin to move the amendment in the usual way.

Mr. Irwin: I wish 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 enchancement of the multicultural heritage of Canadians; and

(b) renumbering the subsequent clauses accordingly.

[Translation]

Mr. Corbin.

Mr. Corbin: Mr. Chairman, I 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

(b) renumbering the subsequent clauses accordingly.

Thank you.

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

To that main amendment there is a subamendment. identified as N-32, a new clause following Clause 25, page 8.

I will repeat slowly. There is a subamendment identified as N-32, new clause following Clause 25, page 8. It is an amendment to the main amendment that was just moved by Mr. Irwin, and it is introduced by the New Democratic Party.

I would like to invite Mr. Robinson to move the subamendment in the usual way.

I repeat the identification to ensure that all honourable members have it, and in the case of those who do not have it, I will make sure that the Clerk distributes it so that it would be in your possession. It is identified as N-32, new clause following Clause 25, page 8.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

This is an amendment to what I understand to be new Clause 26 which was added by the government to deal with the multicultural question, this would have an additional component to the new Clause 26.

I move 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:

[Page 15]

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.

Et en français, il est proposé

[Translation]

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 muticultural heritage of Canadians, and

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

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

[Text]Mr. Robinson.

I would like to invite you to introduce the subamendment in the usual way.

Mr. Robinson: Mr. Chairman, the purpose of the subamendment is to provide some guidance to the courts that, when considering the Charter, they should also make it very clear that in any difficulties of interpretation or any ambiguities of interpretation that, not only is the Charter interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, recognizing the cultural plurality of Canada, but also in interpreting the Charter that it is interpreted in a manner which ensures that the distinct cultural, economic and linguistic identities of the aboriginal peoples of Canada are, indeed, preserved.

As I say, it is largely an interpretive section and not a substantive one, and the government has already proposed a number of substantive matters dealing with treaty and aboriginal rights, and this is merely a guide to the courts that in their interpretation of the proposed Charter of Rights they should make very sure both that our multicultural heritage is preserved and enhanced and also that the distinct culture of the aboriginal peoples of Canada, the Indians, the Inuits and Metis peoples of Canada, is preserved.

Thank you, Mr. Chairman.

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

The honourable the Minister of Justice.

Mr. Chrétien: Mr. Joint Chairman, yesterday we adopted Clause 24 for interpretation. I would not recommend that we accept this amendment because Clause 26 is for one clear purpose and it is related to the multiculturalism, the finishing and protections in the constitution.

So I do not want to complicate that clause, that is a different problem, of a different aspect, as we have a clause for aboriginal peoples that was agreed on yesterday and so on; so

[Page 16]

it is unnecessary; it is adding to what is a clear statement, and I think why complicate matters? Let us have the aboriginal problems dealt with in other clauses. This is multiculturalism and so on, for people to read it, it will be much less confusing; and it is absolutely unnecessary.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. Mr. Munro followed by Mr. Corbin and Mr. Hawkes. Mr. Munro.

Mr. Munro: Thank you, Mr. Chairman. This is a point of order I propose really. I think there is a lack of concordance between the English and French text here which Mr. Robinson might wish to examine more closely.

Under (a) in the French text, in the second line of the French text the words read: “du patrimoine culturel des Canadiens;” whereas in English it is “enhancement of the multicultural heritage of Canadians”.

The Joint Chairman (Mr. Joyal): You are perfectly right, Mr. Munro, I think the words should read “patrimoine multiculturel des Canadiens;” since in the English text we have “multicultural heritage”; and I think that everyone will understand that we are dealing with multiculturalism and not simply cultural heritage. It is quite clear.

Thank you, Mr. Munro. I see that Mr. Robinson is agreeing.

[Translation]

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I would like to ask the Minister or his officials if the adoption of this clause would introduce elements of discrimination, on the one hand, between the entrenchment of rights for multicultural groups as opposed to both official language groups who have rights which are totally or partially recognized by virtue of the clauses we have already adopted in this charter.

Mr. Chrétien: Well, we have examined that problem and the interpretation we have is to the effect that it does not create the kind of problem you are thinking about, Mr. Corbin. Perhaps Mr. Tasse would like to give a more detailed explanation.

Mr. Roger Tassé, Q.C. (Deputy Minister of Justice): Mr. Chairman, the Committee has already adopted a provision to the effect that we will continue to be protected or the charter will not affect the rights which otherwise might exist in Canada.

If I look at the brochure, Clause 25 which was discussed a little earlier protects those rights which exist in Canada.

So the rule we are talking about here would rather be a question of interpretation of the charter itself and, fundamentally, it is a suggestion the charter is making to the courts; when a question is raised about the interpretation of the charter, they will have to try to interpret the charter in a manner consistent with the objective we have in that clause.

Mr. Corbin: Twenty-five.

Mr. Tassé: Clause 26.

[Page 17]

Mr. Corbin: This question is important, Mr. Minister, because on the one hand you have heard the representations of Francophone linguistic minority groups who do not consider they have acquired language rights as equally as the Anglophones have all across the country.

On the other hand, I was also saying that we now want to guarantee those provisions of which the objective is to preserve and recognize rights to a multicultural heritage.

If I understand the term “multicultural” correctly, it does not necessarily imply there is a linguistic group. It must be interpreted in a very broad way and that might include, for example, a multicultural heritage which could also work in the English language, in the French language and in other languages of other ethnic groups.

Mr. Chrétien: Exactly. It does not necessarily tie in to a question of language.

For example, you could talk about French-speaking multiculturalism in Quebec or in certain areas. There are ethnic groups which belong to the French-speaking linguistic community such as Haitians, for example, who are Francophones but who also belong to an ethnic group whose skin colour is different from ours but who speak the same language and you have the same problem in English when you have people . . .

Mr. Mackasey: The Irish.

Mr. Chrétien: The Irish, the people who come from India, for example, or from Pakistan whose skin colour is different from ours but who, in Vancouver or in Toronto, are of the English language group which is the other official language of this country.

So the problem is quite different. Multiculturalism is not a question of the official languages of Canada which are French and English. French-speaking as well as English-speaking people can have very different heritages.

Mr. Corbin: Thank you, Mr. Minister. Thank you, Mr. Chairman.

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

[Text]

Mr. Hawkes: Thank you, Mr. Chairman.

My questions I think are directed to Mr. Robinson more than the Minister, to his subamendment, but in the main clause I think there is a very important principle that we not only preserve the multicultural nature of Canada but that that be enhanced; and in Mr. Robinson’s amendment and in his explanation I detected I think a thrust towards freezing at a moment in time the existence of the identity of the aboriginal peoples of Canada and a lack of a sort of a tone in his amendment that would enhance the development and the change.

I wonder if that is intended, Mr. Robinson? If it is, I think it is inconsistent with the kinds of briefs that were presented by the witnesses as they appeared before us.

Mr. Robinson: Mr. Chairman, through you to Mr. Hawkes, this amendment in fact was reviewed and supported representatives of the Indian, Inuit and Metis communities and is

[Page 18]

certainly not intended to in any way suggest that the identity that we are talking about, the linguistic, economic and cultural identity in any way should be frozen, but the emphasis I think in the amendment would really be ensuring the distinct identities of the aboriginal peoples of Canada. Naturally as that evolves through time we would seek to ensure that that would be enhanced just as subclause (a) deals with the preservation and enhancement of the multicultural heritage of Canadians.

As I say, this has been drafted in consultation with those groups who appeared before us, and certainly has their support.

Mr. Hawkes: If we could go a step further, the choice of cultural, economic and linguistic, I think perhaps the Minister overstated the case a minute or two ago when he sort of downplayed the importance of language in the enhancement and preservation of a cultural identity; but the one in your list, Mr. Robinson, that gives me particular trouble is the notion of economic identity, and I am wondering if you could give us some explanation. Is this a term which is characteristically found in legal documents of this kind and could you give us some sense of what you think that economic identity that should be ensured really is?

Mr. Robinson: Mr. Chairman, again through you to Mr. Hawkes, as I have indicated this amendment was drafted in consultation with representatives of the Indian, Inuit and Metis peoples and my understanding of the purpose of the reference to economic identity, as you will recall, Mr. Hawkes, again through you, Mr. Chairman, group after group who appeared before us stressed the importance of having an underlying economic base. If their other rights, particularly the cultural and linguistic rights, must be preserved and enhanced, but if they did not have an economic base that all else was secondary and perhaps the use of the words “economic identity” in this context is not as precise as might be desirable but the intent is to ensure that the Charter is interpreted in a way which would not in any way denigrate from this important question of the need for an economic base. I think perhaps in the context of the charter one might look back at the full area of mobility rights, for example; and when interpreting Section 6 on mobility rights one would want to ensure that that was interpreted in a way which did not erode the important economic identity of the aboriginal peoples and their ability to preserve and enhance their cultural and linguistic identities.

Mr. Hawkes: Through you, Mr. Chairman, I am wondering if Mr. Robinson is recalling the thrust of the testimony of those 17 groups, and the very clear statement by every one of those groups that the economic survival and enhancement was related to the enjoyment of property; and in fact economic survival was related to land claims and having a land base for the development and enhancement of their culture, I find this somewhat inconsistent to use a generalized term like economic identity when there was a set of specific words available in the phrase “enjoyment of property” which could be applied to aboriginal people and to all Canadians; and you and your party have seen fit to argue persuasively to the government to deny all Canadians, including aboriginal peoples, the kind of

[Page 19]

protection which that kind of clause would provide for them in a charter of rights.

I am wondering how you square their desire for defining their economic identity in terms of land with your desire to deny that in the Charter.

Mr. Robinson: Through you, Mr. Chairman, to Mr. Hawkes, I am sure that Mr. Hawkes would recognize, upon reflection, that were there to be the inclusion of the reference to enjoyment of property, whatever that means, that in many ways this could represent a significant threat to the economic base of native communities and not the opposite, an enhancement of that, because in this amendment put forward by the Conservative Party there was no suggestion that, along with the enjoyment of property, there were certain responsibilities; for example, to ensure that while INCO is enjoying its property, it is not in any way eroding the rights of native communities, who may live near the community where they are busy enjoying their property; and that while the corporate sectorion Northern British Columbia is enjoying its property, it is not polluting the beautiful waters of Northern British Columbia and thereby destroying the fishing grounds, as AMAX is proposing to do.

Under the guise of enjoyment of property, many of the rights which Mr. Hawkes, I am sure, believes native communities should enjoy could in fact be significantly eroded.

The Joint Chairman (Mr. Joyal): Mr. Hawkes, I would like to invite Mr. Robinson to conclude, so that the Chair will be in a position to call the vote on the proposed subamendment.

Mr. Robinson: Mr. Chairman, I really do not have anything to add to the remarks I made earlier. I believe that it is important that, as this Charter is interpreted, that we look not only at the preservation and enhancement of multicultural heritage of Canadians, but also that we should specifically flag the vital importance of ensuring the distinct cultural, economic and linguistic identities and that the courts should be signalled very clearly that we, as a Committee, and that we as Parliament recognize the fundamental importance of preserving and enhancing those cultures as well.

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

I see that honourable members are ready for the question. Amendment negatived.

I would like to invite honourable members to come back on the main amendment.

Mr. Nystrom, you had a question on the main amendment?

Mr. Nystrom: I just really wanted to say something in about one minute, Mr. Chairman. I believe that the main amendment is in here on multiculturalism, the coming from the part of the country that I do where, in my constituency, the English and French population combined are in the minority, and I think Saskatchewan as a province is the only province in the country where the English and French population are in the minority, and I just thought that coming from a province such as Saskatchewan, I wanted to point out how much the majori-

[Page 20]

ty of the people in my province appreciate making reference to the multicultural heritage of Canada.

I think it is something that is very useful and very, very unifying to include in the constitution of Canada and I just wanted to let the Committee members know of the appreciation that I think people of many different cultures and heritages have across this country.

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

Amendment carried.

The next question that the Chair wants to put is in relation to Clause 26 and it is the same situation in relation with Clause 25, that Clause has to be deleted so the Chair does intend to call the vote on Clause 26 and would invite the honourable members to answer no instead of answering in the usual way.

Clause 26 negatived.

So there is only one amendment that is left in the hands of honourable members in relation to the Charter, and that amendment was earlier this week moved by honourable David Crombie. The Chair understands that after discussions between honourable David Crombie and the honourable Minister of Justice, there is an agreement that an amendment would be introduced later on, but in relation with Clause 43.

At this point the Chair will not call back that amendment as introduced by honourable David Crombie because, as the Chair understands it, there will be another amendment with an opting-in proposal in relation to linguistic rights that would be introduced earlier on Clause 43, but the Chair is ready to hear the honourable Minister of Justice and honourable Jake Epp on the issue.

Mr. Chrétien: I would like to just confirm that indeed we have discussed with honourable Mr. Crombie and we have agreed on a text. I make the promise that when we come to that Clause that the text would be approved by the government table and the Committee will vote on it.

I cannot vote for the Committee but as the Minister, I confirm that we have an agreement.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Minister of Justice.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, what the Minister has said is correct. We have not seen a final draft of the amendment yet. I believe there are still some drafting difficulties with it, and I would suggest to members so that we could move ahead, when we get to Clause 43 and have disposed of that, we can look at Clause 21 in that context and if there is not further debate needed, we will just withdraw it at that time.

The Joint Chairman (Mr. Joyal): With unanimous consent, the proposed amendment as moved by honourable David Crombie, is withdrawn.

I am sorry, you prefer to wait until we are on Clause 43.

[Page 21]

Mr. Epp: I think, Mr. Chairman, for the work of the Committee, if we complete Clause 43, we could then dispose of Clause 21 in light of that discussion and that decision.

Amendment allowed to stand.

The Joint Chairman (Mr. Joyal): The Chair would like to invite honourable members to take the text of the proposed motion in relation to Part III entitled . . .

Mr. Epp: Mr. Chairman.

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

Mr. Epp: Mr. Chairman, before you call Part III it is our intention at this time to move our first splitting motion. As the Chair will recognize, or Confirm, 1 have had discussions with the Chair that I would be moving that motion and, Mr. Chairman, if you are ready to receive that motion at this time, I would like to proceed.

The Joint Chairman (Mr. Joyal): Yes, honourable Jake Epp, the Chair is ready to receive such a motion. If you would be kind enough to provide a copy of the proposed motion, the Chair is ready to give a ruling on the proposed motion.

Mr. Epp: Mr. Chairman, if you could give us a five minute recess, we will have the information for the amendment.

The Joint Chairman (Mr. Joyal): So the meeting . . .

Yes, Honourable Senator Austin.

Senator Austin: An inquiry, Mr. Chairman, of Mr. Epp.

I am aware of his desire to make this motion. I thought, however, that it would follow Clause 32 which is Part III and come before Part IV which is the interim amending procedure. Clause 32 is constitutional conferences.

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

Senator Austin: I will just repeat that, Mr. Epp, that I thought that a proper place for your motion would come after Part III constitutional conferences, and before we began Part IV interim amending procedure.

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

Mr. Epp: Mr. Chairman, I would prefer to do it after Clause 31, in view of the developments that took place yesterday.

The Joint Chairman (Mr. Joyal): Thank you. So with unanimous consent, our meeting is adjourned for five minutes, which is 10:37 a.m. The meeting is adjourned until 10:37 a.m.

The Joint Chairman (Mr. Joyal): We would now like to resume consideration of the proposed motion.

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman, it would be my general procedure, to put forward the arguments sustaining the resolution that I propose to move this morning.

There could be a procedural argument, and the general procedure would be for me to make the entire argument and wait for the Chair to rule.

[Page 22]

But, in view of discussions, I will forego the regular practice and move the motion and then await the Chair’s ruling. We will then proceed with the discussion.

Therefore, I would like to move that this Committee recommend to the Senate and the House of Commons that Parts I and II of Schedule B of the proposed Canada act, as amended by the Committee, be proposed—and I would like you to add the following three words—be proposed “to the provinces” as an amendment to the said act pursuant to the provisions of Clause 41 as amended by the Committee without delay, as soon as Parts V and VI of such Schedule B, as amended by the Committee, have been proclaimed by the Governor General of Canada under the Great Seal of Canada.

There is a footnote, Mr. Chairman, referring back to Parts I and II—now Parts I and III; the reason for that drafting is due to the changes yesterday regarding the aboriginal rights question.

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

I would now like to invite Senator Tremblay to move the proposed motion in French.

[Translation]

Senator Tremblay: Mr. Chairman, the hon. Jake Epp moves:

That this committee recommends to the Senate and the House of Commons that Parts I and 2 . . .

Because of the changes made yesterday it is now Parts 1 and 3 in the new numbering,

that Parts I and 2 of Schedule B of the proposed Canada Act, as amended by the committee, be proposed to the provinces . . .

There are two new words added to the text which has been distributed, “to the provinces”,

be proposed as an amendment to the said act pursuant to the provisions of Section 41, as amended by the committee, without delay, as soon as Parts 5 and 6 of such Schedule B, as amended by the committee, have been proclaimed by the Governor General of Canada under the great seal of Canada.

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

[Text]

Before I invite the hon. Jake Epp to continue with the proposed motion, the Chair has to make a decision whether the proposed motion is receivable.

The Chair is grateful to the hon. Jake Epp for having notified the Chair and honourable members of this Committee earlier in the preceding weeks of the intention of the hon. member, that such a motion would be moved in proper time.

The Chair has consulted with the two Clerks of our Committee and with learned counsel who are available on the Hill, and the Chair is in a position to make a ruling on such a motion.

The amendment proposed by the hon. Jake Epp raises the whole question of the scope of this Committee’s enquiry.

The Chair has already commented on the question without giving a definite ruling.

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The question to be determined is as follows:

Are we, as a Committee, limited or not by the contents of the document entitled Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada as referred to this Committee on October 23, 1980 by the House of Commons and on November 3, 1980 by the Senate.

We must therefore examine the Order of Reference of both Houses, the nature of the document referred to the Committee and the admissibility of the proposed amendment.

Permit me, first of all, to read the relevant paragraph from our Orders of Reference, from both the Houses dated October 23, 1980 and November 3, 1980. That reads:

That a special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon 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, 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.

And so, the Committee is instructed to examine the question of whether or not such an address should be presented to Her Majesty, and if so, to recommend the necessary amendments.

It is very important to remember that the document referred to the Committee is not a bill. It has not been introduced in the House by a First Reading. Consequently, the principle has not been approved by the House of Commons or by the Senate and has not been debated in Second Reading.

The Committee must then recommend in its report that the principle of the project be approved or rejected. The proposal that the Committee is called to consider is the division of the proposed resolution. In the case of a bill, such an initiative would be acceptable only if an instruction to the said effect was contained in the Order of Reference. Beauchesne’s 761(1) says:

An Instruction is required to enable a Committee to divide a bill into two or more bills,

The Chair is of the opinion that this Committee is vested with all necessary authority to recommend the abandonment of the totality or part of the proposed resolution.

It would therefore seem that on October 23, 1980 and on November 3, 1980, the House of Commons and the Senate simply agreed to appoint a committee to study a document, without having first approved the principle of the project as set out in the document.

The rules relating to relevancy—Beauchesne’s 773(1)—in the study of a bill are restrictive, since its principle has previously been approved and debated by the House. These rules which provide that the Committee studying the bill, cannot introduce any amendment that would go against the

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principle as adopted or widen its scope, do not apply in the case before us.

Furthermore, it must be pointed out that given the fact that the subject referred to the Committee is not a bill, the next stage will be totally different than that of a bill. It would seem that there is a difference between our Orders of Reference and that of a bill, referred to a Committee. Indeed, a bill, once amended, is returned to the House which studies it in its amended form. The amendments made by the Committee are then part of the bill and the report stage of such a bill is one of reconsideration of events that have taken place in Committee: Beauchesne’s 787.

Amendments rejected in Committee and amendments to restore the original version of the bill can be introduced in the report stage of a bill.

On the other hand, our report, like any other report from a Committee, including those on a subject matter, may not be amended in a substantive manner by the House at report stage.

When a motion is made for concurrence in a Committee report, it is competent for the House to adopt it, reject it, or refer it back to the Committee: Beauchesne’s 652 (1). The House would then have to revive the Committee since it automatically ceases to exist at the moment its final report is presented.

The House would not have the possibility of further amending the contents of the report.

That is indeed the reason for which the order of reference provides explicitly that the Committee can amend the proposed resolution being studied.

In our view, the Committee can consider whether the proposed resolution is complete, or whether other parts or provisions should be added or deleted.

In this sense the Committee would then be competent to suggest additions to the proposed joint address as well as division of the proposed resolution in order to decide whether it should or not be recommended that an Address be presented to Her Majesty.

I would like, then, to submit that:

Whereas the amendment moved by the honourable Jacke Epp to divide the proposed resolution constitute an amendment to the proposed resolution;

Whereas the mandate of the Committee as set out in the Orders of Reference of both Houses dated October 23, 1980 and November 3, 1980, provides that. the Committee must:

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.

Consequently, the Chair is prepared to receive the amendment moved by the honourable Jake Epp.

Mr. Epp: Mr. Chairman, before I get into the substance of our motion, I want to thank you for the clarity of the statement of the Chair.

[Page 25]

I want to thank you, and if I may say so, to commend you lot the way in which you have acted, not because the ruling was favourable, because I am not reflecting on that, but in terms of the manner in which you have approached the question —the clarity and also the confidences which you have kept as we have worked on the matter that we wanted to split the hill; the advice that you sought beforehand, and the advice you have given.

For that, I personally want to thank you, as I know all members of our party want to thank you for the manner in which you have approached the question.

I am not able, obviously, to respond to the various implications of the ruling. It was detailed and I am sure it will be studied by members on this side, but also by present Members of Parliament and of the Senate as well as future members and those who are interested in the parliamentary process.

As Mr. McGrath has pointed out, it is a landmark decision that you have read to the Committee and I, in no way, am competent, Mr. Chairman, to give all the implications or to become involved in that aspect of the matter.

But in terms of our motion and our work this morning, I believe that is now quite clear and I want to thank you for the manner in which you have approached the subject.

But, Mr. Chairman, as in all things when things break your way, it is never 100 per cent victory. I recognize by the fact that you have made this ruling that a point I had made earlier, namely, that the New Democratic Party, who had a motion on resources—a motion with respect to which you would rule in the same manner—namely, that they, or we, have the right to move a motion on resources in the same manner as I have moved the motion today.

That is why I say when you have won a victory on one side, there is of course, another side to the victory. But that is the manner of parliamentary procedure.

Mr. Chairman, coming directly to the motion and the reasons why we have moved it, as mentioned in your ruling, the reference to this Committee dated November 6 reads as follows in part:

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.

There are the relevant words this morning.

Mr. Chairman, not only has it been the responsibility of this Committee to look at manners in which the proposed resolution might be improved— and all members around this table have engaged in that process; but that does not detract from the fact that the very manner in which to guarantee either rights or equalization, areas not only within federal jurisdiction, but also provincial jurisdiction, the fact remains that while those improvements have been made at the Committee level, that in order for them to enjoy the widespread support of Canadians, and in fact, to have the legitimacy that a constitution needs in order for it to survive, the question of legitimacy

[Page 26]

is not answered by amendments to a resolution by this Committee.

So it is important, Mr. Chairman, that this Committee not only improve the package where, in its wisdom, it feels it should be improved, but also, and equally importantly, that this Committee provide and recomend a procedure whereby the legitimacy of the subject matter in fact can be enhanced, and it is on the question of legitimacy where the government’s proposal falls down. That is the matter that we want to address.

So Mr. Chairman, as I mentioned to this Committee on January 20, and I know it is always dangerous to quote oneself, but we did say at that time that Canadians want their constitution, that is, the power to amend their constitution, they want it to reside in Canada.

Additionally, it is our view that the majority of Canadians also want a Charter, and it is for that reason that we not only moved amendments but have participated in that process.

Some might have said: why did you participate at all? The reason was very clear. At that time, we were talking about the Committee’s approach to improve the Charter which could then be recommended to the Canadian people, but the point we must address this moring, Mr. Chairman, is the third one and that is this:

If we continue the process as estabished, as outlined by the government, will the package in fact find approval in Great Britain and will it enjoy the legitimacy it needs to have lasting value in the country.

and that is the central question, and in order to answer all three questions we proposed the motion that we have proposed this morning, namely that the Committee develop a patriation package which includes, as of yesterday, Part II, the new Part II, because we feel it is within federal competence and, on the basis of the 1929 amendments, that it is legitimate and a Canadian package. That is, a constitution that should be amended in Canada, a constitution that should be amended by Canadians and by those who have the responsibility to address those issues in the elected Parliaments and legislatures of the country.

It is on that point that we fundamentally disagree with the government in their approach.

We are concerned, Mr. Chairman, about the difficulties this whole matter has already raised in Great Britain, we are concerned abut the flurry of words, and threats and counter threats that we see appearing on the front pages of our newspapers and on our electronic media, and I only have to refer to the newspapers of this morning to verify the point I have just made.

We are concerned that if this course of action is continued, that the good relations between the Parliament and the people of Britain and the Parliament and people and legislatures of Canada could be seriously eroded, and we must be cautious

[Page 27]

that that result might not be the lot of this Committee and its recommendations.

So I see this motion, Mr. Chairman, as a means whereby all members of the Committee can recommend to the House and to the Senate a method whereby we can avoid that situation.

So we are suggesting, Mr. Chairman, not a deletion, but a rerouting; not a deletion of the terms that we have discussed these last days and weeks, but rather a rerouting of the proposals that are mentioned in the motion, to reroute it to leave it in our own country.

So, as I have said, Mr. Chairman, we believe that major constitutional changes should be made in Canada and it is totally unnecessary, it is embarrassing, it is difficult to ask another country to do so. Surely, we are mature enough to settle our problems in Canada and not involve other nations in our own affairs.

We also believe in the integrity of our nation as a federal state and if the government’s unilateral action is not illegal, and even its legality is questionable because a number of provinces have taken this matter to court and are planning to take it to the courts, it is most assuredly politically illegitimate and contrary to all our constitutional conventions.

The government’s actions will not only upset our federal system but will also destroy the spirit of cooperation which has made this country work and I am not one of those who believes when the Prime Minister says that because of the state of the Canadian federal system or the major players on that stage, that consensus cannot be found; I just do not accept that argument because our history proves the opposite and, Mr. Chairman, we have not acted by unilateralism to build this country, but acted rather by consensus by cooperation.

Further, Mr. Chairman, then there is another matter that has now been raised and that is the concern in Great Britain. I said earlier this Committee was charged with the responsibility to advise the House and the Senate on the manner in which we should proceed.

The Foreign Affairs Committee of Westminster, I would suggest, had a similar role, namely to look at the question and to advise British parliamentarians on the manner in which to proceed, and I will read just certain excepts of the report, Mr. Chairman, not in detail, but I believe, Mr. Chairman, it is important at least to get the gist.

Mr. Mackasey: Mr. Chairman, just for clarification on a point of order, are we entitled in this debate to read from papers that this Committee refused to accept the tabling of two days ago? I want to know your ruling on that, because in our reply we can do a pretty good job with that report as well.

This is a completely different issue that we are discussing, I do not want to make it a political argument at this time, I am asking for your clarification and your ruling at this moment.

The Joint Chairman (Mr. Joyal): Yes, honourable Bryce Mackasey, the Chair will certainly allow the honourable members to refer to some or other parts of any documents. The point is that that document is not in a sense under debate but

[Page 28]

there could be references in a speech or intervention to parts of that document, no doubt about. it.

Honourable James McGrath.

Mr. McGrath: On the same point of order, Mr. Chairman, I would just like to point out for Mr. Mackasey’s benefit that that document is now in the public domain and, consequently, any vote yesterday does not infringe upon whether or not we can quote from it.

The Joint Chairman (Mr. Joyal): And further to that, I would say to the honourable members and for the benefit of all the honourable members around the table, that that document being in the public domain, any honourable members of this Committee are entitled to refer to a press report or to any kind of textbook or authority, or any documents that are public, because what we have under consideration is not the content as such of that document, but that document could be alleged or could be used in parts of it to support an opinion that honourable members want to express in the Committee and I have understood that that is the way the honourable Jake Epp is referring to the document.

Mr. Mackasey: Mr. Chairman, I asked the question and I accept your ruling, and that is that we not use the content, we simply refer to the document. That is the fundamental difference, and I accept that.

The Joint Chairman (Mr. Joyal): Well, I think that honourable members will understand me very well when I say reference to the documents as such.

I think at this point the Committee does not have to take a decision on that document, that is the very difference between making references generally to the document and taking a decision upon that document. That is the over all purpose of this rulling.

Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I want to read just one part of the conclusions of the Committee to which I have referred. I am reading paragraph 14:

The primary desire of the U.K. government and parliament is to maintain and enhance the warm and friendly relations with Canada which have subsisted over many decades and through two world wars. The U.K. parliament cannot welcome the prospect of retaining indefinitely a role that might embroil it in disagreements within Canada over matters which, after all, are for the Canadian people to resolve.

Mr. Chairman, I repeat:

which, after all are for the Canadian people to resolve

Mr. Chairman, one can argue about polls, and we have done that around this Committee table and we do it in the House, but I am convinced that while the majority of Canadians support the various elements of the proposal, the Charter for example, equally, equally they are as concerned that the constitution be amended in Canada and that we take the pride,

[Page 29]

we take the responsibility to do that work because we are a sovereign country, we are a sovereign people.

I maybe should mention as an aside as well, we go back to the records of 1931, and I think it is important because of the debate that has gone on in the country, it was not on British insistence or British suggestion that the Statute of Westminster, Section 7(2), retain in Britain the power to amend the British North America Act; that was a Canadian request, not a British request.

Mr. Chairman, then, in support of the arguments, I look, for example, at paragraph 111, and there are many sections I could read, I will not strain the patience of the Committee, but I quote:

The considerations set out in this chapter, taken with the preceding chapter, lead us to the conclusion that the U.K. Parliament is not bound, even conventionally, either by the supposed requirement of automatic action on federal requests, Or by the supposed requirement Of unanimous provincial consent to amendments altering provincial powers. Instead, the U.K. Parliament retains the role of deciding whether or not a request for amendment or patriation of the BNA Act conveys the clearly expressed wish of Canada as a whole, bearing in mind the federal nature of that community’s constitutional system.’ In all ordinary circumstances, the request of the Canadian government and Parliament will suffice to convey that wish. But where the requested amendment or patriation directly affects the federal structure of Canada, and the opposition Of provincial governments and legislatures is officially represented to the U.K. authorities, something more is required.

It is that something more, Mr. Chairman, which I referred to, and I am pleased that not only in this country, but also in Britain there is a strong recognition of the federal state.

Mr. Chairman, because of our history, because of our reality, the Fathers of Confederation did not call for a unitary state, but a federal state with division of powers, where one government was not superior to the Others, but each had jurisdiction as described in the division of powers, sections 91 and 92 primarily.

In Britain as well this recognition is given, and I say to you that if the federal government persists in proceeding with the method that it now has, not only is it giving encouragement, aiding and abetting those who say that their role can no longer be in this country, but as seriously they are saying to those of us who are deeply committed to the Canadian nation, deeply committed to federalism, that federalism is going to be changed in a unilateral manner and that I cannot accept.

So, Mr. Chairman, there are many other parts of the report I could read, I believe I have given you the gist of what is in the report. I want only to repeat one matter, and I say it to the Minister with all the sincerity I can muster, and that is this:

[Page 30]

Mr. Minister, let us work together to build a consensus as we have done on a number of clauses, but for heaven’s sake let us not jeopardize the goodwill and the work that has been gone on, not only in this Committee but between the federal government and the provinces in the past, let us not jeopardize the integrity of the nation, but let us accept and use the method that we have suggested; if you feel that there should be a different wording to achieve the same result, we are amenable to that as well, but I say to you, as one who believes in the federal system: let us build our constitution in Canada and not somewhere else.

Thank you.

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

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

Mr. Epp has made a very eloquent appeal this morning about this clause and about Canada and about federalism. I, too, want to say that I believe it is very important that we respect the federalist nature of Canada, that we have to respect the fact that we do have two orders of government in this country, that each within their own sphere of jurisdiction is supreme and that we should not forget the fact that this is very important, not forget the fact that people in this country feel very close to both the federal parliament and to their provincial legislatures. I think this is particularly true in Western Candada, the Province of Quebec and perhaps the province of Newfoundland, for all kinds of historical reasons.

With that in mind I want to say that our role throughout this whole debate, going way back to October, was that we supported most of the principles that were in this resolution, we want to have a Charter of Rights enshrined in our constitution, we think that is very important to protect Canadians now and many, many years into the future.

We of course supported the fact that we should patriate our constitution with an amending formula. We of course supported the addition to the resolution of something on equalization, language rights, aboriginal rights and for me yesterday it was a very historical moment to see the treaty and aboriginal rights of our first peoples, original peoples of this country, affirmed, confirmed and enshrined in our constitution. And we are also looking forward, with the agreement of the government, to enshrining in our constitution some very important things on resources.

So what we are trying to do is to build a consensus, to build a constitution that will bring Canadians together, a constitution that will stand the test of time, that will make people of all regions feel good about this country and open a new chapter in Canada that will bring people together and that will unify us.

What I want to do this morning in saying that we are still optimistic about that consensus and because of that we will not be supporting the Conservative amendment, because we are still hopeful that we can build that consensus in this country, but I want to ask a couple of questions of the Minister about all kinds of rumours that are going around, and I am sure he

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has been answering some of these questions to the press this morning and it might be useful to put some of the answers on the record, that I hope we can have a Charter of Rights and enshrine it in the constitution and I make that very, very clear, and that is the position of our party; and I want a national consensus, I want people to feel very good about their constitution, about what we are doing and I am very optimistic that we can.

However, we have been hearing all kinds of rumours about problems in Britain for a long, long time. We now have one Kershaw Report, we have contradictory statements coming from our Prime Minister and the British officials and I have no reason to doubt either of them in terms of telling the truth. Our Prime Minister got up in the House and said that there would not be any problems in Britain with the resolution, that it would go through, that he had been assured by Prime Minister Thatcher to that effect.

We have now had reports that British officials are saying that there was no discussion about a Charter of Rights when the two Prime Ministers met a few months ago, that the British Prime Minister was under the assumption that we have the agreement of a majority of the provinces, certainly a consensus of the provinces, and that there was no commitment in a three-line whip, and I was not at the press conference yesterday, Mr. Chairman, when the Prime Minister was grilled by the press but I saw some of the articles today in the paper, in the Globe and Mail in particular, giving a different version from Britain than has been given by our Prime Minister.

A lot of these things have been in the rumour mill for a long, long time and it is causing a lot of confusion, and I recall the very first questions I asked in this Committee back on November 8, I think it was Friday, November 8, and I was concerned then about some of the rumours that were starting to come to us, and because of some of the contacts I have in the federal government and outside I heard the government were working on some contingency plans if things did not go well and one of them was a unilateral declaration of independence, and I asked that of the Minister and he did not deny it was a possibility or possible contingency plan for the federal government.

So what I want to ask the Minister today is whether or not, and I know and I trust and I believe what Jean Chretien said, he is always a very straight forward person, whether or not he can clarify some of the confusion and cut through some of the rumours, can he guarantee us that the government does not intend to drop the Charter of Rights and dump the Charter of Rights? Is it the intention of the government to go right on through with this, that is my first question, Mr. Chrétien.

The second question is: can he categorically assure us, categorically assure us that the government’s commitments, commitments from the Prime Minister of Britain and from British officials are to the effect that they indeed will go ahead, if this resolution goes through the Senate and the House of Commons and patriate the constitution with the package we have before us? And I ask those questions, Mr. Minister, simply to try and clarify a lot of the gossip and

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rumours and stories in the press on whether or not we are actually doing something that is going to see the light of day or whether or not we are dealing with fiction, and I think it is very important that the Minister have a chance to clarify some of the questions that I have been asking.

Mr. Chrétien: On the first question, you ask me if we were working on contingency plans, and we are not. We have only one plan, it is the one that is in front of this Committee.

We intend to go to London with the package that this Committee and the House of Commons and Senate will propose and approve. This is the plan.

I was not there when Prime Minister Trudeau met Mrs. Thatcher but she was informed that we were to move, and the British Parliament, the government had been informed of our intentions by the Prime Minister and early in October, I guess even before we moved with this proposition that has been in my judgment fantastically improved by this Committee, they have been informed of the package since October, so the situation is the same.

The Prime Minister spoke to Mrs. Thatcher in the spring or June, I do not remember exactly, and the British government had been informed of the activities of the government and they know about this resolution, this resolution that contains a Charter of Rights for all Canadians. And when this resolution quits this Committee next week we are going after that in the House of Commons and after that we are going to London, and I do not want to raise the debate, I have answered your questions, I can put a lot of arguments but I do not want to argue at this time, I just want to listen to the debate before I argue.

Mr. Nystrom: Supplementary question. The Justice Minister, Mr. Chretien, said that he was not with the Prime Minister and I know that and respect that, he was not in London, it was Mr. MacGuigan and Mr. Roberts if I remember correctly, and I understand that, but I wonder, since he puts in that qualifier, which of course he should because he was not there, can he assure this Committee that under no circumstances are there plans or possibilities of dropping the Charter? I mean, is there an absolute guarentee from the British that what goes through Parliament, if indeed this goes through Parliament, will actually come back from Britain?

Mr. Chrétien: I am telling you that the Prime Minister has informed the Government of Great Britain that we were go ahead and they have our package since October and the situation remains the same. The word given by Mrs. Thatcher to Mr. Trudeau in light of this Charter and so on that has been studied in Parliament in Canada for four months, they are aware of it and the situation has remained the same.

We have no indication that Mrs. Thatcher, who gave her word to Mr. Trudeau, has informed Mr. Trudeau that she was not to keep it.

Mr. Nystrom: Well, in that case what you are saying, then. what appears in the Globe this morning is not founded according to your information.

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I wonder if you can give us another commitment, Mr. Minister, that that resolution would not be sent to Britain unless the Charter is in it? In other words, if the British do say to us that there are problems would you still go ahead and send the resolution with the Charter? I am still a little bit unclear as to whether or not you are really sure that there is an absolute commitment from Britain with regard to the Charter?

Mr. Chrétien: I am telling you we are dealing with this problem in Canada. It is the parliamentarians of Canada at this time who are looking at the Charter and this constitutional package, and what will be voted by the House of Commons and the Senate will be what will go to London.

You ask me what our plans are. Our plans are to have the report of this Committee, as has been agreed, by February 6, and that the report of the Committee—I do not know the form exactly, I have not seen your reports, but this resolution will be voted by Parliament and what will be voted by Parliament, because we cannot presume what will be the end result of the House, I have a slight idea because I think that this is strongly supported by the members of my party and there is no problem. There are a few members, like all of us, have some hesitation about this and that; as I said so often, perfection is the enemy of the good; but there is no problem in my party and in the determination of the government to get this package through the House of Commons as quickly as possible so that we can—we have spent enough time on it, and with the Charter and with the aboriginal rights and with equalization payments, and if you propose your resources amendment we said we would accept it; if you do not propose it, we will not have to accept it. And we are going with that package, after it is voted by the House of Commons and the Senate, to London.

Mr. Nystrom: I hope the Minister understands, Mr. Chairman, I am sure he does, I am not challenging him. I just want to give him a chance to put some of these things on the record because of the rumours.

I would like to ask you then one final question. If the British do say, and I am not going to prejudge the British at all, but one reads all the reports, that they will only pass the resolution that allows us to patriate with an amending formula, could you still give us a guarantee that if Parliament does pass this as is, for the Charter, that you would still be sending that over to Britain.

Mr. Chrétien: Of course. I said that the package will go as ordered by Parliament because I have every confidence that the British Parliament and government will act properly and expeditiously and will approve whatever the Parliament of Canada has agreed to. There is absolutely no doubt that they will pass the package that will include a strong and progressive charter of rights; the aboriginal rights, the equalization payments; the resource amendments; because, you know, we are Canada. We speak on behalf of all Canadians. We have been elected by them.

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I am extremely sorry that we did not have an agreement last summer, but nobody can fault me of not having tried.

Mr. Nystrom: I would just like to thank the Minister for being straightforward, Mr. Chairman, and perhaps just leave it at that.

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

Mr. Mackasey: Thank you, Mr. Chairman.

I congratulate the Chairman on his ruling pertaining to the amendment before us. The legitimacy, and I was not surprised particularly because it refects the precedent, it reflects Beauchesne’s, it reflects Borinot, it reflects wisdom on the part of the Chair, and more importantly, it reflects our recognition of the impartiality of the Chairman in his particular role which is to be impartial; so we have no quarrel at all with the ruling, particularly since it sets a precedent for perhaps an equally contentious amendment when we get to deal with resources.

Mr. Chairman, I want to say at the outset that I accept without reservation the version of a Prime Minister’s Canada as to the understanding that he reached with Margaret Thatcher some time last summer. I do not have to be there. I know the integrity of our Prime Minister, and I have full confidence in his version of the event.

Mr. Chairman, it is significant at this very difficult moment, Mr. Epp reminded us, and I have no quarrel with Mr. Epp’s very learned presentation, it is one that I would expect from Mr. Epp. It reflects his sense of integrity and his sense of dedication and his sense of concern for the federal system.

He would agree with me that that does not preclude the rest of us who have an equally strong attachment to the federal system and an equally strong respect for our traditions.

The fact, for instance, that this morning’s headlines were focussed on differences of opinions between Canada and Great Britain, what might happen in the future. It is the decision of the press that that is priority. To me, as a humble member of this Committee yesterday, almost as an outsider looking in, the significant thing this morning that should have blared across the headlines of the papers is that yesterday history was written in this very room. The Canadians that were listening; the countless witnesses; countless people; the aboriginal people, no less than 16 groups; and countless other people for the first time sat down and rectified an injustice that has been a blot on the Canadian scene.

Contrast that with the insensitive way in which the rights of the aboriginal people were treated in the report of this British committee made up of British parliamentarians and their wilful lack of understanding and sensitivity of what goes on in this country.

I will not refer to the content. I had asked a question of the foreign affairs committee of Great Britain. Its decision and its finding and its recommendations had to reflect cold legalism. It reflected a document, nothing more. It could not capture the passion of this country or what keeps us together, despite our vastness and our underpopulation. It could not for a moment,

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Mr. Chairman, understand the desire of Canadians to amend its constitution in this country, and I will come back to that.

We are, Mr. Chairman, amending the Canadian constitution in Canada and by Canadians. That is precisely what we are doing at this very moment.

An hon. Member: Hear, hear!

Mr. Mackasey: All we are asking Great Britain to do is legitimize our amendments by an amendment of the British North America Act, legal step that must be taken, if we are to respect legality.

Mr. Chairman, I could speak with passion about this country, as can Mr. Epp, without any moment of questioning his sincerity. He is sincere, and I am sincere.

Mr. Chairman, if the amendments before us go through, and I am not talking now about legal legitimacy of what we are doing. That is for the courts to decide as Mr. Epp reminded us. I am talking about the political reality of what we are doing, a fundamentally different thing. We are attempting as a last resort, the Minister has pointed out on innumerable occasions and he spearheaded this, we are attempting through this resolution, Mr. Chairman, to do what has escaped Canadians for almost a century. Escaped Canadians because the fathers of Confederation omitted to include in the BNA Act an amending formula so that we could indeed amend a constitution periodically by Canadians and in Canada.

And that philosophy prevails that the Statutes of Westminster were drawn from when Britain was quite prepared to hand back to us everything, including the right for us to amend our constitution, and it is because even that far back we were unable to agree on an amending formula that Great Britain reluctantly remained the custodian of the constitution in the BNA Act.

Mr. Chairman, if I had any doubt about the political reality of what we are doing, that was totally dispelled yesterday when each and every one of us said, we have on behalf of the Canadian people taken the first small step towards rectifying the injustice that has been done to the aboriginal people of this country. It is a big step, Mr. Chairman, a big step.

The amendment, this is my judgment, others can differ, would take that Charter as proposed, amendments included, including that very fundamental addition yesterday, including such amendments that guarantee French speaking Canadians for the first time the right to be educated in their own language anywhere in this country, a constitutional right, not a provincial privilege. All these amendments and improvements to the charter, which has gone on week after week, would be nullified, Mr. Chairman, because it is unreal and unrealistic to think the provinces would take this version of a bill of rights back to their bosoms and sit down quietly and accept it. There is nothing in the history of provincial attitudes or provincial conferences that would indicate the slightest concern on their part to adopt a charter of human rights that would take into

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consideration aboriginal rights first. Nothing, nothing, in fact we got last September to the very dying moments of that provincial federal conference with attempts by provincial premiers to trade fish for human rights, oils against injustice, and even what we have done in the last few weeks is a very faltering step to removing some of the injustices in this country, and I come back to the French speaking Canadians of Ontario and other provinces.

Mr. Chairman, why were we so reluctant to do other things in the constitution. Because we understand the political realities of this country. We understand the impossibility of asking provincial premiers to accept the reality of this country; and the reality, Mr. Chairman, that Canadians want us to get on with the job; and this amendment simply delays getting on with the job.

There are, as Mr. Epp reminded us, two definitions of legitimacy. One is the legal one and the courts will deal with that. We are prepared, as a Party, to deal with the political realities of what we are doing. But when you read the statements very recently again of Sterling Lyon, as one, of other premiers, there is no disposition on the part of the provincial premiers at this stage, nothing in their attitudes, with some exceptions, which would indicate their willingness to introduce into the constitution a bill of rights which will deal with the fundamental concerns of Canadians.

And I say with due respect, in conclusion, Mr. Chairman, much as I respect my British counterparts in the House of Commons and their committee, they would do us all a service if they would mind their own business and let us get on with our work, and then deal with our resolution when they have it before the British House of Commons.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Bryce Mackasey. The Chair has a long list of speakers and in no way would like to restrain honourable members, but I want to inform them that I have a long of speakers, so that might help honourable members to comment or put forward views in the proper way.

I would like first to invite l’hon. sénateur Tremblay, followed by Senator Austin.

[Translation]

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

Earlier, Mr. Nystrom put a certain number of questions to the Minister. If I may, I would like to pursue that line of questioning in order to clarify a point which still seems nebulous to me.

Indeed, the Minister quite clearly and unequivocally told Mr. Nystrom that the government intends to proceed with the whole package produced by the Committee and the Canadian Parliament.

However, with respect to the commitment by the British Prime Minister to the Prime Minister of Canada, that the British Parliament will proceeed with any address or request from the Parliament of Canada, I am not quite clear on the

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answer the Minister gave Mr. Nystrom. It would seem that the British prime Minister would have assured the Prime Minister of Canada during a meeting that took place in June.

The Minister added that since October, all pertinent information has been transmitted to the British authority.

He did not say that since October, the same assurances have been given, and I certainly understand why. Through his nebulous answer, we can see that in View of the information that the Prime Minister of Canada could provide in June, the Prime Minister of Great Britain could easily give those assurances. However, it would seem that in June, the Prime Minister of Canada could not possibly describe the content of the October draft resolution, since he himself ignored its content. The Prime Minister of Canada could not know the content of the resolution, until after the summer conferences.

Have there in fact been any indications that those assurances given in June based on the general description of the possible content, have been maintained since the unveiling of the October resolution which might easily have influenced the assurances given by the British Prime Minister?

I seem to note, in the way the Minister answered, that no assurances had been given on the content of the October resolution, even if assurances were given on a hypothetical resolution in June, and of course the two would not necessarily coincide since the Prime Minister of Canada could not know in advance the content of the October resolution.

Could the Minister clarify this point?

Mr. Chrétien: Well, I think your description of the events are quite accurate. In June, the Canadian Prime Minister, Mr. Trudeau, when he met Mrs. Thatcher could not transmit to her the definitive resolution which has still not been approved by the Parliament of Canada.

I suppose, since I was not there, that they discussed the problem in general terms and Mr. Trudeau, most likely, I was not there, expressed the intention of the government which had been clearly stated, and I was there, on the 9th of June at his residence at 24 Sussex; I was not at the meeting, but I was in the ante-chamber and the Prime Minister stated clearly during his press conference, following his meeting with the premiers at 24 Sussex, that we were to proceed with important constitutional changes in Canada. He must have, and I know that he has informed her, that we would hold meetings throughout the summer with the provinces in order to try to come to an ultimate agreement so that the constitutional changes could be done with the mutal consent of the provinces and the federal government. Those negotiations were held.

So indeed, Mrs. Thatcher could not be informed on all aspects. Moreover, Mrs. Thatcher herself, in answer to a

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member from South Ayeshire stated in the British House of Commons on December 9 the following:

[Text]

“We have not yet received any request from Canada. When a request comes we shall try to deal with it as expeditiously as possible and in accordance with precedent.”

[Translation]

So, she knows very well that the Parliament of Canada is discussing the matter, she admits here. We have yet to vote on that resolution, then she will receive it in the weeks that will follow, and legally, the British Parliament must approve it.

She even says that it must be done “in accordance with precedents”. You or I can give it the interpretation we wish, but I am certainly reassured, since there have been many precedents to amend the constitution of Canada, as you well know, Mr. Tremblay, and in every case, the British Parliament has amended the constitution of Canada only on request of the federal Parliament following a joint address of the House of Commons and the Senate. They have always done so, and we have no indication that they will not do so again. The matter has been discussed at length, and I would not like to go over the cases of 1869 when Nova Scotia wished to secede from Canada, and that they voted for separation, or even their rejection of a quite legitimate request by the legislative assembly of Quebec to abolish the Upper Chamber, because it had to be done through a joint address of the Chamber of Commons and the Senate.

The precedents are indeed clear.

Senator Tremblay: I have a supplementary question, Mr. Chairman.

It seems quite clear to me now that we have no assurances on the content of the resolution before us.

So, it is in the light of precedents, if such exists, that we are betting that the content of our address to the British Parliament might or might not create some problems to that body.

Well, Mr. Minister, I must say that with the same logic that we have applied in deciding that we should not ask Great Britain to do for us what we should do ourselves, so should we decide the content of our request, and not take the risk of having Great Britain tell us that it is not acceptable. Even in this respect, your approach is colonialist.

In the Canadian approach, we must. consider all aspects of the matter, particularly the federative character of our country, and not include in our request to London, matters for which we are responsible, even if there is the slightest risk that we might be turned down by the British Parliament, because it is not correct to request such a thing, or that it is not strictly within the best traditions of the British Parliament, in a word, for all those reasons that the British committee whose report is before us, has raised.

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In this respect, Mr. Minister, if we are to act as a truly sovereign country, we are to maintain the perception that we have of our federative country, we must take seriously what seems to me an indication of the reaction of Great Britain on the content of the resolution that you insist on transmitting.

In relations with other states, one does not always wait to be brutally chided or rejected, but rather one takes into account the discrete indications provided before taking an irremediable step.

It is with this view of the relations between sovereign states, that I appeal to you to reconsider the whole issue, and not to put Great Britain in a most delicate situation, similar to the one in which you have placed the provinces, through your unilateral action which they have rejected.

That is all I have to say for the moment, Mr. Chairman.

Mr. Chrétien: I will respond to the senator with pleasure.

I am totally stunned by the motion before us today, in view of the decision of the Committee yesterday to request the British Parliament to confirm aboriginal rights of Canadians in the Canadian constitution. Within the logic of this debate, as ex-Minister of Indian and Northern Affairs for some time, I know very well to what extent the recognition of aboriginal rights in the Canadian constitution will affect the provincial legislatures, since to some degree we are imposing a mortgage on the Crown lands of certain provinces. .

I believe the Conservative Party is not being logical now, and obviously opportunistic, since it is asking the British Parliament, through Mr. Epp’s motion this morning, to enshrine aboriginal rights in the Canadian Constitution. It is because of the legal situation it must indeed acquiesce to the request of the Canadian Parliament.

As to the transmittal of information to the British Government, Mrs. Thatcher is quite aware that the document that she has in hand has not been approved by the House of Commons, that it does not really exist since it is not approved, but I have no doubt that Mrs. Thatcher is well informed. I do not doubt that on December 9, when you made this statement, she knew of the existence of the committee in Canada, she was familiar with the proposed resolution which had been sent to her before October 6; she knew, when she addressed the House of Commons in London, that the matter was before the Manitoba courts, and that other provinces were considering placing the issue before the courts, and she makes this statement in the light of all the information that she possesses, since she has diplomats here in Canada which are following the situation quite closely, and since we also have a high commissioner in London, who has most competently informed the British Government—I am sure the Conservative members will not

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deny that Mrs. Wadds is an excellent Canadian Ambassador in London, who, in the exercise of her duties, has adequately informed the British Government of what is occurring in Canada. I have not spoken to her personally, but I do not doubt that on behalf of the government, she has accurately transmitted the information . . .

[Text]

Mr. McGrath: Why question her integrity!

Mr. Chrétien: I did not, I praised her. I said she is a competent person, and that I am sure that in the exercise of her duty she has informed the British Parliament of what we are doing. That is what I said in French.

If there was a translation error, then it was not mine. I repeat in English.

So of course when Mrs. Thatcher, on December 9, said that she had not received a resolution, she is right; but she knows what is going on.

So when Senator Tremblay asks me whether I have properly informed the British, I think we have.

[Translation]

Senator Tremblay: With your permission, I believe the minister wrongly interprets what I have said. I am not questioning that the information has been transmitted, because that is precisely what you said, I only put in question the assurances that the British Prime Minister might have made. Of course, she has been informed, and perhaps that is why she has not given any assurances.

Mr. Chrétien: The assurances which Mrs. Thatcher gave to Mr. Trudeau were quite simple, I imagine. However, when our Parliament has passed the resolution, as she stated herself in the House of Commons at Westminster—and I quote the telegram in English—Mrs. Thatcher says that:

[Text]

“We have not yet received any request from Canada. When a request comes we shall try to deal with it as expeditiously as possible and in accordance with precedent.”

[Translation]

We know the precedents, they are clear. In all cases since 1867, the British Parliament has always acquiesced to the requests of joint resolutions by the House of Commons and the Senate of Canada.

Certain requests had the approval of the provinces, others did not. In 1930, the request to transfer resources to the western provinces was made unilaterally. The British Parliament accepted it nevertheless. Certain provinces could have objected; they were not even given the opportunity.

So it is with this in mind that we know that Mrs. Thatcher, as she stated, will deal with the matter expeditiously and in accordance with the precedents.

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

[Text]

I would like to invite the honourable Senator Jack Austin followed by the honourable Mr. Robinson.

[Translation]

Mr. Chrétien: Mr. Chairman, I would like to take advantage of this opportunity, since, as you said earlier, this is a very

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important debate, to clear up a little point. Senator Tremblay spoke about the British Committee and the fact that according to what the press is saying, it is as though the British government itself had given its official position. This Committee does not speak in the name of the House and, as minister, I would like to clear up the situation so that Canadians understand exactly what is happening. This committee has no official status and has received no mandate from the House. It simply formed itself on its own and it has since received three official representation: one from the government of Quebec, one from the Province of Newfoundland and one from British Columbia. The members of the committee heard three witnesses, all experts, of which two admitted that provincial governments had called upon them for professional services. However, it was made clear that none of them had been hired by the government of Canada. There was no consultation whatsoever with us concerning the matter. And the New Democratic Party has even officially informed me that they were not consulted either by the Committee. I do not put the blame on the committee. They have got their problems. But I would not want people to think that that Committee is a voice of the government of Great Britain, with whom the Canadian government must deal.

We have been given certain assurances by Prime Minister Thatcher and we have confidence in her.

This is why we are not attaching any undue importance to this committee. I respect their point of view, but they did not have at their service a Canadian expert. I would much more trust the opinion of the members of our Canadian House of Commons and of the joint Committee which has been discussing this matter since October.

[Text]

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable the Minister of Justice.

Before I invite the honourable Senator Austin, followed by Mr. Robinson, the Chair would like to submit respectfully to honourable members that some honourable members have referred previously to the premier of one of the provinces of Canada and to the Prime Minister of Great Britain.

The Chair would like to point out that as a matter of courtesy it is only right that these two people should be referred to with their proper title. One is “the honourable” and the other is “the right honourable”.

I think that even though we may have a discussion in a very animated way, I think we should continue to use the same kind of proper address when we refer to these people, because I think they deserve it.

The honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I would like to begin by commenting on the last part that the Minister of Justice made to us a few moments ago.

He very properly gave us the necessary advice and clarity with respect to the role of this self-appointed British committee in terms of a self-appointed mandate which it took on.

I was going to make those points, but the Minister made them well.

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

The Joint Chairman (Mr. Joyal): A point of order, Mr. McGrath.

Mr. McGrath: Mr. Chairman, I hesitate to interrupt the honourable member. But, surely he is not trying to describe the Select Committee of the British House of Commons as a self-appointed committee!

What we are talking about here is a select committee on foreign affairs. It is not a self-appointed committee, but a standing committee.

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

Senator Austin: Mr. Chairman, I appreciate the advice of Mr. McGrath. But what they said is their own first report at Appendix A is:

It would be as well also if I were to make clear that we are undertaking this work not, and indeed by no means, at the request of British Ministers.

I stand corrected on the point that the committee is constituted by the Parlement of Britain; but not constituted to take on this work and it had no order of reference to do this particular work.

Then, Mr. Chairman, may I refer to another portion of the Committee’s articulation. It begins at Paragraph 9 at Roman numeral X. I think this one sentence disposes of all of the discussion with respect to the work of the British Committee in so far as we might be concerned. It says:

9. Your Committee did not seek to arrive at a final conclusion on any disputed question.

So, the British Committee was appointed, yes, by Parliament, but giving themselves a mandate to discuss this question of the Canadian constitution, not a mandate from the British Parliament or the Government of Britain; and has entered into a discourse and admits itself that it has come to no final conclusion on any disputed questions.

It is a very interesting document to read; but I would submit it is of no direct relevance and of very doubtful validity for us.

Mr. Chairman, I want to acknowledge, as Mr. Mackasey has done, the genuineness of Mr. Epp’s presentation, and the reasonableness of his view of the Canadian Federation.

As Mr. Mackasey said, if I may use my own language, reasonable men can differ, and there is a fundamental difference here between the view on that side and this side on the nature of our Federation and the process and the validity of the process which is before us.

I want, really, to put all of this into two simple questions. The first is: What should Canadians do? Secondly, what should the British do in these circumstances?

As far as I am concerned on the second question—what should the British do—I believe simply that they should respond to the request of the Senate and the House of Com-

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mons if, in the wisdom of those two Chambers, a request is made for the amendment of the BNA Act and the establishment of a Canadian constitution; they should respond in accordance with the wish of this Parliament. To do otherwise would be to take on the role of deciding for Canadians what is in the interests of Canada.

My deeply held conviction about our federal process, is that this Parliament has this right, not only legally, but in terms, as Mr. Epp has used, in terms of political legitimacy.

We have this right to extenguish and to request the British Parliament to extinguish the anacronistic appendage of retaining the bare trust, a phrase we have heard before—the bare trust to act on behalf of Canada and the Parliament of Canada.

I do not believe for one moment that the British could be taken to be doing anything but attempting to exercise a colonial role if they took any substantive position in this matter.

I want to be very clear about that—about what the British should do. They should do what this Parliament asks them to do. I know that is not a provision that members of the Conservative party accept.

As I have said earlier, we have reason to differ and reasonable men may differ.

What should Canadians do? That is the second question. That is the principal issue before this Committee at this moment.

Canadians should endeavour to establish a constitutional process that is fair and equitable to Canadians everywhere in Canada; not an interesting question perhaps for those who are strictly interested in dry terms, but a question of fundamental emotional and reasonable conviction for Canadian. What have we seen in the Canadian process? We have seen interminable discussions amongst first Ministers over many years about fundamental issues.

As Mr. Mackasey said, we have been unable to address burning, deep-seated resentments in Canada relating to such questions as aboriginal rights and without the process that the government initiated Canada would not have addressed that question, this Committee would not have addressed that question, we would not have seen the coming together of the native groups, and we certainly would not have seen the coming together of all of the political parties to deal with that issue.

I want to say the same thing about the confirmation of multicultural interests in Canada. I want to say the same thing about the human rights of Canadians which we have debated here. I want to say that in my belief the inclusion of a Charter is a matter which fundamentally Canadians agree to politically. We have polls adduced in evidence showing opinions of Canadians running from 68 per cent to 96 per cent with

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respect to the substantive question that this Committee has been dealing with all approving, overwhelmingly approving the Charter. That is political legitimacy, Mr. Chairman.

I want to make answers to two other questions evident.

The question of the provincial process. Mr. Epp said to us that unless the provinces agree, this process is a politically illegitimate child. I do not agree with the parentage of this process at all. I feel strongly that. the case is evident that the provincial Premiers are unable and unwilling to agree to fundamental changes and therefore this Parliament must use the legal means available to it to bring those changes about in the interest of the Canadian people. We have had a deadlock for many years, Mr. Chairman, in terms of the negotiations about and amending process; about, in fact, all of the items that are before us now. I do not want to enumerate them, but there is a deadlock, particularly about the amending process and the rights in the Charter.

The deadlock had to be broken. The government, on its political responsibility, seeks to break the deadlock in the manner that is before this Committee now. I believe that in truth, as was said by Prime Minister, the right hon. R. B. Bennett at the time of the Treaty of Westminster, Statute of Westminster, any government of Canada and Parliament of Canada seeking to proceed on its own to bring about such changes is proceeding at its political peril. Well, perhaps the government is proceeding at its political peril, that we will know in the due course of these events. But it is certainly proceeding according to its rights and, Mr. Chairman, in conclusion, I would simply say that inevitably, as with the flag debate, as with other critical debates in this country, the judgment of the people of Canada will be the final arbiter of the political legitimacy of what we propose to do here.

Thank you, Mr. Chairman.

An hon. Member: Hear, hear!

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

I would like to invite the honourable James McGrath followed by Mr. Robinson.

Mr. McGrath: Thank you very much, Mr. Chairman. I realize your list is long and I shall endeavour to be brief.

Mr. Chairman, we have arrived at a critical stage of our proceedings. We have concluded the examination of the provisions of the Charter and I believe that as a result of our deliberations we now have a Charter considerably improved over the one that was originally presented to the Committee. And that speaks well, Mr. Chairman, for the work of the Committee.

Of course, there is no contradiction in what I say in terms of what Mr. Epp proposes, because Mr. Epp’s motion proposes that we reroute the Charter, that we not send it to Great Britain with the package. That we reroute it and send it back

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to the First Ministers’ conference table where it belongs because there are many provisions in that Charter that change the balance of power of our federation and infringe upon provincial jurisdiction.

Mr. Chairman, it is a happy, or an interesting coincidence. It could not be described as a happy coincidence because this is a sad day, I think, for the country, but it is an interesting coincidence that we should conclude our clause by clause examination of the Charter on the very day that the Select Committee on Foreign Affairs of the British House of Commons should release its report. A report which goes right to the heart and soul of what we are doing, which cuts right through the Order of Reference of the House and, hence, we have your ruling which, I indicated this morning, I believe to be a landmark ruling.

It cuts right to the heart of our Order of Reference. Our Order of Reference being whether or not we should recommend that the proposed resolution be submitted to her Majesty and the Parliament of Westminster. That is why we have to look at the British Select Committee’s report in that context.

Mr. Mackasey said that the British could do us all a favour if they would mind their own business and let us get on with the work. Well, Mr. Chairman, the British would very much like to mind their own business, but there happens to be the Statute of Westminster. And the Canada sections of the Statute of Westminster do not give them that luxury at this time.

What we are doing here is an embarrassment to the British Parliament and I hope that we do not continue on this course and end up embarrassing the Parliament of Canada by having a resolution passed by the Parliament of Canada and rejected by the Parliament of Westminster. That, Mr. Chairman, I do not believe anybody would like to see.

Mr. Mackasey talke about the Charter being made in Canada. It is true that the Charter of Rights has been produced by Canadians and has been improved by this Committee, but Mr. Chairman, it has not been approved by Canadians. So the charge then is a valid one that Mr. Trudeau is asking the British Parliament to do in Britain what he cannot do in Canada.

That is the crucial point that has to be made and has to be repeated.

Mr. Chairman, I refer to the Statute of Westminster. It might do well for us to reflect on some of the, briefly, on some of the evidence presented to this Committee. But first of all, I would like to go back to the White Paper of 1964, the famous Favreau paper on the constitution, and the fourth principle of that paper: a Canadian Parliament will not request an amendment affecting federal-provincial relations without prior consultations and agreement with the provinces.

An hon. Member: Guy Favreau, where is he now?

Mr. McGrath: Mr. Chairman, that was the definitive position of the Government of Canada up to this point in time on

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how we should proceed with amending our constitution. That of course is within the parameters of the amendment of 1951.

But I go back to the Statute of Westminster, Mr. Chairman. I would like to refer to a submission made, a written submission made to this Committee by Professor Elmer A. Dreidger, Q.C. Professor of Law, University of Ottawa and a former Deputy Minister of Justice, a man who occupied the same position now occupied by Mr. Strayer or Mr. Tasse. And what did he have to say, Mr. Chairman, and I think it is worth quoting. I quote from page 4 of Professor Dreidger’s submission.

As to the question is it not arguable that subsection 2 of Section 2 of the Statute of Westminster, 1931 constitutes an abdication by the British Parliament of all its jurisdiction with respect to Canada except that which is reserved in subsection (1) of Section 7. The areas where the British Parliament now has exclusive jurisdiction are set out in the exceptions in head (1) of Section 91. Could it not be argued that as to all other subjects jurisdiction has been abdicated by the British Parliament and it cannot now take it back?

Mr. Chairman, you could go on to argue that Britain could repeal the Statute of Westminster and restore its imperialist colonial power in other areas if it want to—whether or not it could enforce that, of course, is another question.

But I would like to continue with Professor Dreidger, and I quote:

The Charter contains many provisions that are outside the subject matters on which the British Parliament now has exclusive jurisdiction. It is therefore a question whether the British Parliament now has jurisdiction to enact these provisions as with schedules to the Canada Act.

Mr. Chairman, we believe that the Canadian people support the principle of an entrenched Charter of Rights. We know that the majority of the Canadian people do not support the principle of an entrenched Bill of Rights by the Statute of Westminster. 64 per cent responding to a Gallup poll indicated that they were opposed to the process.

We know, Mr. Chairman, that a majority of the provinces have opposed the process and, indeed, have taken the federal government to court on the process. These are facts.

That is why it is logical and sequential that Mr. Epp should move the motion he did today because we dealt with many areas of provincial jurisdiction. Indeed, our amendment which was voted down by this Committee to include property rights smacks right to the heart of provincial jurisdiction. But we could do that, Mr. Chairman, because it has been our position throughout that the Charter should go back to the First Ministers for final approval; And the provincial legislatures in accordance with Section 7(2) of the Statute of Westminster which clearly protects their rights in that area. A fact which the British Parliament cannot and, I submit, will not ignore.

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Mr. Chairman, I am not going to get into controversy as to whose version we accept: the version of the Prime Minister as contained in the press today, or the version coming out of Whitehall in London. Perhaps that matter should, and 1 suspect ultimately will, be settled on the floor of the House of Commons but I submit to you that it may be very useful, and this is an option that I will reserve, to ask the Prime Minister to appear before this Committee to give us his version of what went on in London in June of last year when he met with Prime Minister Thatcher and what went on in the subsequent meetings between Mr. Roberts and Mr. MacGuigan. I think that is very germane to what we are attempting to do in this Committee, to our Order of Reference. An I serve notice on you now, Mr. Chairman, that I will raise that question at the next meeting of the steering committee.

Finally, Mr. Chairman, I would like to conclude. I was reminded this morning when I heard the Minister of Justice replying to one of my colleagues saying that the government was determined to proceed on the unilateral course it has set out for itself, the thought struck me, you know, as we are here in the process of constitutional renewal, of the famous John Hancock quote of the fathers of the United States constitution when he said, “if this be treason, let’s make the most of it.” And what the Minister was saying this morning, I suspect, was if this be illegal, let us make the most of it.

Mr. Chairman, I would like to end by quoting one of the government’s expert witnesses. Honourable members will recall we had five expert witnesses who came before this Committee; two of them selected by the government, two of them selected by the Official Opposition and one selected by the NDP. And I would like to quote from Professor Maxwell Cohen at page 34:82 of our Proceedings, Issue number 34, January 8, and quote:

I do not believe that any recommendation which goes to the heart of the federal system and portends its destruction would be a lawful document either morally, politically or legally.

And he goes on to state:

That seems to me to be not a convention, not a rule of law but it seems to be instead a way of looking at what was intended by the very nature of the union itself.

Mr. Chairman, we put forward our amendment as a serious amendment. We believe there is still a chance for the government to get back to the table with the First Ministers. We believe there is still a chance for the government to avoid the humiliation of having this joint resolution rejected by the Parliament of Westminster and it is with that in mind that we move our amendment today and, Mr. Chairman, I seriously commend that amendment to all honourable members of this Committee.

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

The Chair sees the clock and would not like to invite an honourable member and have to interrupt him during the course of this intervention and if it is so agreeable, the Chair would like to call the adjournment at this point. But honour-

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able members will remember that we had agreed to come back at 2:30 p.m. and to adjourn at 6 o’clock and considering that it is Saturday, I wonder if honourable members would not be agreeable to resume consideration at 2 o’clock and adjourn at 5 o’clock this afternoon.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): I wonder if it is a problem.

Some hon. Member: Agreed.

The Joint Chairman (Mr. Joyal): So, I would not say it is a personal birthday gift, but it might bring some hope for honourable members for a short rest.

[Translation]

The meeting is adjourned until 2:00 p.m.

[Text]

AFTERNOON SITTING

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

May I invite the honourable members to take their seats so that we could resume consideration of the proposed motion on an amendment as moved by honourable Jake Epp.

I have a long list of speakers for our afternoon session on the proposed amendment. I will read the names so that if some other honourable members want to speak, the Chair could write them down.

The Chair would like to call first Mr. Robinson, followed by Mr. Ron Irwin and then honourable David Crombie, and I have other names on my list, monsieur Lapierre, Mr. Hawkes, Mr. Paul McRae a Madam Coline Campbell, and honourable John Fraser, of course.

I would like to invite Mr. Robinson on the amendment as moved this morning by honourable Jake Epp. Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

In speaking to the amendment which is proposed by Mr. Epp and by the Conservative party, I would like to start by saying that I do not think anybody around this table would disagree with the concerns that Mr. Epp expressed about the nature of Canadian federalism and about the important and essential role of the provincial governments in the Canadian Federation.

But I would like to spend just a couple of minutes in looking at the effect of this amendment. What would it means if this Committee were to adopt the amendment which is proposed by Mr. Epp and the Conservative party? What it says is fairly straight forward. I suggest that we should send a resolution to the United Kingdom Parliament without a charter of right and without any reference to equalization. I suggest what the Conservative Party is attempting to do here is to deal with the process and to ignore the substance, and they are attempting, in doing so, to deal with the concerns of Canadians about that process. I certainly for one recognize that Canadian do have some concerns about this process.

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I reject the interpretation, however, of the Gallup polls of this country, which are somehow suggesting that Canadians do not accept what we are doing here in Parliament today. I suggest also that the approach taken by the Liberal government so far has not been one which has made the acceptance of this process any easier. I say that with respect, but the invocation of closure, the December 9 deadline, which we can all see now was patently unrealistic, the inflammatory memorandum of Michael Kirby before the First Minister’s conference—all of these have not made any easier the acceptance by Canadians of this process, but I think what we must recognize, sitting around this table, is that this constitution and constitutional change in this country is too important to leave to the politicians because a constitution surely must belong to the people of Canada.

I think all of us, I think all Canadians would have preferred, had it been possible, to arrive at a consensus to have had the provinces, together with the federal government, approaching Westminster for constitutional change. In any event, I think many Canadians would have felt it desirable to have tried to involve a broader cross section of Canadian in some form of constituent assembly before we arrived at this point, but that is in the past, that is history, and what we must now decide, as members of this Committee, is how we are to approach the proposed Conservative amendment.

I suggest that, as I said, I can understand why, because of a certain blundering, and I use that word advisedly, a certain blundering on the process so far by the Liberal government, there is a perception on the part of the Canadian people that perhaps this process is not the most desirable. But we are here now and we must deal with the process as it stands. We are working in Canada, and I suggest that that has to be very fundamentally and very clearly understood.

We are no longer a colony and we will not accept, Mr. Chairman, the suggestions of those who say that what is being done in this Parliament with representatives of Canadians from right across the country is somehow illegitimate. We will not accept, Mr. Chairman, the suggestions that we are somehow a colonial country and that the Right Honourable Margaret Thatcher, I would respectfully suggest would have to be in cloud cuckooland to ignore a request of this duly constituted Parliament after the kinds of deliberations that we have gone through, and I say that advisedly; but I also say that the British Parliament and the British Prime Minister must have more respect for the fact that we have grown up as a country. We are adults now in this country and we will reject any suggestion that we are to retain some sort of colonial vestige, and that the British know better than the Canadians what is best for us. They would reject just as strongly, Mr. Chairman, any suggestion that we might interfere in their Parliamentary processes.

Mr. Chairman, I suggest also that going to the United Kingdom Parliament is largely a formality. We are doing here in Canada what must be done. I recognize that there is not perhaps the kind of consensus that would have been desirable, but the Right Honourable Margaret Thatcher, Mr. Chairman, has to understand that we will not tolerate any arrogant or

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high handed interference in the affairs of the people of Canada.

Now Mr. Chairman, what are the Conservatives asking us to do in this amendment? What they are saying is that we should send a patriation package and an amending formula, they want a different amending formula and I will talk about that in a moment, but as far as the charter of rights is concerned, we will let the premiers decide; we will let the premiers decide whether we get a charter of rights or not. Well, Mr. Chairman, the Conservative party knows very well what the premiers will say to a charter of rights because in September, seven or eight of the premiers of this country, one after the other, said, “No, we do not accept the right of the people of Canada to have certain fundamental rights and freedoms spelled out in a constitution”. They have rejected that, Mr. Chairman, and the Conservative party knows very well that if this is to go back to the premiers that we will never have a charter, and if the Conservative Party is concerned about the perceptions of Canadians and the acceptance of this package by Canadians, they will also know, Mr. Chairman, that the vast majority of Canadians, 80 or 90 per cent of Canadians want a charter of rights. They want to have the right to go to the government and say that this particular right is being abused; there has to be an independent tribunal.

So Mr. Chairman, we know where Sterling Lyon stands on a charter of rights; we know where Bill Bennett stands on a charter of rights; I regret to say that we also know where Alan Blakeney stands on a charter of rights. But Mr. Chairman, rights do not belong to provincial governments. Rights do not belong to federal governments. These fundamental rights and freedoms surely belong to the people of Canada.

Some hon. Members: Hear, hear.

Mr. Robinson: Mr. Chairman, least of all do these fundamental rights and freedoms belong to the Parliament at Westminster.

Now Mr. Chairman, as I say, what would be the effect of the Conservative proposal? Well, forget about the handicapped, forget about the Japanese Canadians who came before us and said that they want this kind of protection, because, Mr. Chairman, we know very well the effect of the Conservative proposal. It would mean that in one province perhaps the handicapped might have rights; in another province, they might not. In Hull, the handicapped might have rights. They might cross the Ottawa River, come to Ottawa and have no rights whatsoever.

Mr. Chairman, that is the proposal of the Conservative party because we have to look beyond this amendment at what they say we should be doing in terms of an amending formula, and that amending formula, Mr. Chairman, would create a checkerboard of rights right across this country. I say that all Canadians have these rights and I do not accept that provincial premiers should be able to bargain and clicker about the rights of the people of Canada. I do not accept, Mr. Chairman, and I do not think that the groups that have appeared before us, the hundreds of groups and briefs, that the handicapped, the aboriginal peoples of this country would accept for a moment that they should have to subject themselves to the will

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of the provincial premiers who have already stated very clearly where they stand on this subject.

I do not think, Mr. Chairman, that the women of Canada will accept for a moment that they should have to come on bended knee to ten male premiers and one male Prime Minister and ask these men for their rights, for equal status for women, and that is what, Mr. Chairman, the Conservative proposal is. Wait for the premiers. Well Mr. Chairman, I reject that proposal.

We all know what the premiers had to say about legal rights in this country. We all know, Mr. Chairman, that it was because of provincial opposition that the legal rights package was as weak and as watered down as it was. We know what the Attorney General of the Province of Ontario had to say about legal rights. He said, “Forget it. We will give you a package that is less effective than starting out with anything at all.”

We know, Mr. Chairman, that to adopt the approach of the Conservative party is to reject the concept that francophones all across this country have certain fundamental rights. We know it is to reject and to put at the will of the provinces the concept of multiculturalism. Do the premiers want it or do they not? Well, Mr. Chairman, that principle is one which is so fundamental that I do not want to have to depend on the Bill Bennetts and the Sterling Lyons to tell me whether or not my ancestry will be protected and recognized.

Mr. Chairman, to conclude, I suggest we reject this motion. I think as a Committee we have no responsible alternative, having listened to the witnesses that appeared before us. If we are serious about these concerns, if we recognize that there are certain fundamental rights and freedoms, surely it makes a charade of that to suggest we should go back to the very premiers who, four months ago said, “No, we reject that.”

Mr. Chairman, this would represent a negation of everything we have done as a Committee and surely it would also represent a denial of the hopes and the expectations, not just of the witnesses who appeared before us, but of millions and millions of Canadians who have come to expect these rights. I suggest, Mr. Chairman, we have no business in betraying their trust.

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

I would like to invite Mr. Ron Irwin, followed by the honourable David Crombie.

Mr. Irwin: Mr. Chairman, I am going to be a little quieter than the previous speaker but I do not want the Opposition to mistake that for lack of intensity.

I have been here for three or four months and I would say, as Laurier said many years ago, I am here as a Canadian, not as an Ontarian, not as a Manitoban, not as someone from B.C.; Laurier said, “A Canadian first, last and always.”

My concepts are simple. I want a strong, central government, a democratic process. I want sharing and I want some respect enshrined in the constitution for certain concepts and

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dignities of Canada. This is something that is as old as the Conservative party. If they look at what Sir John A. MacDonald said in 1865 when he was talking about the original British North America Act, he talked so forcefully about a strong, central government, and what MacKenzie King said, who was no great orator, in 1941 when he was explaining why Canada went to War on the side of the English. He said:

I have tried to tell you why we believe that everything which free men value and cherish on this side of the grave is in peril in this War; the right of men, rich and poor to be treated as men; the right of men to make laws by which they will be governed; the right of men to work where they will and what they will; the right of womenkind to the serenity and sanctity of the home; the right of children to play in safety under peaceful heavens; the right of old men and women to the tranquility of their sunsets; the right to speak the truth in our hearts.

Is that not many of the things that we have tried to enshrine in this constitution finally?

Now will we get there if we support the amendment by the honourable Jake Epp? It suggests we go back to the provinces. Why should we go back to the provinces after 53 years? Is there something now, this month, that would change all the things that have happened in the past?

I have a brochure from the Quegec government saying no; I have a brochure from the Alberta government saying no; I have a brochure from the Newfoundland government saying “hang tough” and saying no. I have a news release from Mr. Lyon who makes two suggestions at Westminster; one, refuse the package, and two, divest itself of the power to amend the British North America Act or recognize a unanimity requirement for the constitutional amendments. So he is saying, Manitoba has to agree or there will be no bill of rights, but he said two months ago he is not in favour of entrenched rights.

“Lévesque is pleased”, that is what the Globe and Mail says. Charron said today he is so happy, or words to that effect, with what happened in London. By the way, Mr. Chairman, while I am dealing with that, I am really disappointed with the media; not with the media who come here to write these stories, but their editors and people who set their mastheads who put what happened in London on the front page and put what happened to the Indians, not even as a headline on page 8, but as an insert that would have been larger for an impaired driver. Now that is 103 years of fighting by the Indians and where does it land—at page 8 as an insert.

Now that is the type of coverage that these rights are getting. I spent three years in this type of thing with the CRTC. It is not a thing I am going to cry about and say because we got a good headline, it is good reporting, and if we got a bad headline, it is bad reporting. I will tell you this: this is not balanced reporting and this has been what has happened right through this thing.

Now we are asked whether or not such an address should be made, and the answers are quite simple. It should be made and

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if it is not made now it will never be made by the provinces. We are asked to improve the package. The suggestion is that we improve the package, this is what is said. Are we going to improve equalization, handicapped, the rights of natives, the language minority rights, the court system, the freedom of association, the religion, the nondiscrimination because of sex, age and origin rights if we send it to honourable Premier Lyon, the honourable Premier Lévesque.

Well if you consider not inserting it at all is an improvement, that is your answer. Now maybe it may be an embarassment, which is suggested in the report from Sir Anthony Kershaw, maybe it may be an embarassment that two statesmen have agreed that this should come forward.

If I am going to cause some dissension between the federal government and the provinces or the federal Government of Canada and the Government of England because I stand for the people and the rights of this country, then so be it. I am prepared to stand up and every member of this party is prepared to stand up on that, Mr. Chairman.

I am sorry that this Kershaw Committee was involved. I would wonder what would happen if we had a Standing Committee in the House of Commons to do the same thing, a Standing Committee not having any mandate or resolutions from the House, any direction from the House, to go off on its own, have a hearing, set its own mandate, set its own terms of reference and then report.

The point is made that if one of our Committees decided to discuss Scottish nationalism without the authority of the government or without a direction from the opposition, what would happen. Well, one of two things: we would have been thought either as nosy busybodies or a Committee having a lack of common sense or a committee that just wanted to make a lot of noise and receive a few headlines, and that is exactly what would happen in this House of Commons.

The Committee on which we sit has a mandate of not only the House of Commons but of the Senate, after one month of debate. We just did not form a group and decide to have a hearing. We are acting with Parliamentary direction from the House of Commons and the Senate of Canada.

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

Mr. Irwin: Mr. Chairman, I did not interrupt the honourable member and I wish the same courtesy. I do not intend to interrupt him.

The Joint Chairman (Mr. Joyal): I do apologize, Mr. Ron Irwin, but on a point of order the Chair has no other choice than to hear the point of order, and rule that there is a point of order.

Honourable James McGrath.

Mr. McGrath: No, Mr. Chairman, the honourable gentleman does not want to entertain my point of order so I will not interrupt him. Perhaps I can at the end of his speech.

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

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Mr. Irwin: Now what does this report from England suggest, from this ad hoc group? I did not know what the Prime Minister meant when he talked about an ad hoc group; now I do, by reading the terms of reference. They had no mandate from the Prime Minister of England, and I think it would be unfair to criticize the Parliament of England per se and the Right Honourable Prime Minister of England per se, because this Committee was acting on its own without any mandate or direction.

What do they say? They say that before we can even request patriation, we should have at least that degree of provincial concurrence expressed by government legislatures or referendum majority, and then they go on. They say, “for example, the two largest provinces”. What they are saying, amongst other things, is that before we can even request patriation, according to them, we must have the consent of a province whose government is now set on a course of the destruction of Confederation.

It is unbelievable that they would expect us to have the concurrence of Premier Levesque before we can go to England to ask for patriation. Unbelievable!

Mr. Chairman, my friends talk about the Gallup poll. Now, I do not like quoting from any specific writers, because I think the writers who have come here have been good; and I say again that it is a policy of the newspapers to bury some of their range. But I would advise them to read Mr. Michael Volpy of the Vancouver Sun who has had a series of articles—some very critical, some complimentary, but most incisive. On the polls he says that such polls do nothing to help Canadians and their political leaders come to grips with difficult, complex, political issues.

I think we are the ones who have to make that decision, and, Mr. Chairman, I am prepared to make that decision.

I have listened to the Indians. I say they are right and they should have fairness. I have listened to the handicapped, and I say they are right. I have listened to the freedom associations and I say that is right. I have listened to the plight of the aged and I say it is time we helped them. Ask those people! Do not ask the Premiers of Canada. Ask those people who want their rights protected, and then come back here and tell me that we are not doing the right thing.

You have heard a message from southern Ontario telling Sir Anthony Kershaw to mind his own business. You are getting one from northern Ontario. I say the same thing! Let us decide the issue; and Sir Anthony Kershaw should not only mind his business, but he should mind the whole Committee’s business.

Thank you, Mr. Chairman.

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

Mr. McGrath: Are you ready to entertain my point of order, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes, Mr. McGrath. Mr. McGrath: I will be brief.

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Senator Austin, Mr. Mackasey and now Mr. Irwin, have gone to considerable lengths to try and discredit the work of the British Select Committee, a report of which has become so germane to this discussion. They have tried to say that it is an ad hoc committee which took upon itself to do this study; that it is an ad hoc kind of thing, and that now they are going to try and impose this report on the House of Commons.

Mr. Chairman, I think it is very important to set out for the record exactly what we are dealing with here.

We are dealing with the report of the Foreign Affairs Committee of the House of Commons of Westminster. If you turn on the inside you get the Order of Reference. Let me read the Order of Reference, Mr. Chairman.

The Foreign Affairs Committee is appointed under SO No. 86A to examine the expenditure, administration and policy of the Foreign and Commonwealth Office and of associated public bodies.

The Committee consists of eleven Members, of whom the quorum is three. Unless the House otherwise orders all Members nominated to the Committee continue to be members of it for the remainder of the Parliament. The Committee has power:

(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time:

(b) to appoint persons with technical knowledge either to supply information which is not readily available or to elucidate matters of complexity within the Committee’s order of reference.

That, Mr. Chairman, is the Order of Reference. It is not an ad hoc Committee, nor is it an ad hoc report, but a very prestigious Committee of the House of Commons of Westminster, reporting under its Order of Reference from that House.

Thank you.

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

Mr. Mackasey: I am not sure what the point of order is, but I will speak to it. I say that because I was going to speak on a point of privilege, if you prefer.

I just wanted to make it clear to Mr. McGrath who in his generalizing has perhaps overlooked the fact that I read specifically into the record the title of that particular Committee. I did not refer to it as an ad hoc Committee. I was very cautious, very careful not to do so.

I had asked the Chairman earlier what his rulings would be on a reference to this particular document, because I saw exactly what would happen: as we went on we would be debating not the reasoned amendment, the legitimate amendment delivered by Mr. Epp with conviction, but I was afraid that we would get into discussing the document.

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We have now gone from the title to the terms of reference.

I was very specific, Mr. Chairman—and I must make that point—in referring to the Committee as a Foreign Affairs Committee. I stayed away from the contents, and I expressed my opinion, which members may not share—and I will make it very clear that they have set their own terms of reference; it is their own business. They have the right.

I, as a Canadian, have a right to express my own opinion, my humble opinion that what we are doing is legal and still none of their business.

That is my opinion and I stand by it.

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

Senator Austin: Mr. Chairman, on the same point, and using a phrase Mr. McGrath has employed in our Committee over the last several weeks—and I know he did not intend to mislead the Committee; it was clear and was established this morning—and I would like to thank him for the intervention that the Committee is a Standing Committee of the British Parliament.

But the Committee had no authority from the British Parliament or from the British Government to proceed. It proceeded of its own motion.

As Mr. Mackasey has said, it is entitled to proceed of its own motion.

If I may refer you to page small (iii), the very words are: “Your committee decided on November 5, 1980.”; and I would say, as Mr. Mackasey has said, to poke its head into Canadian affairs.

So I believe the distinction is clear now to this Committee, if it was not before.

Thank you, Mr. Chairman.

Mr. McGrath: Mr. Chairman, if I may, I can satisfy the Committee and the public by asking for the unanimous consent that the report of the Committee be appended to today’s Proceedings.

Some hon. Members: No, thank you.

The Joint Chairman (Mr. Joyal): Mr. Nystrom on the same point of order. The Chair is in a position really to rule on that debate. I will hear from Mr. Nystrom and I will suggest directions to honourable members afterwards.

Mr. Nystrom: Thank you, Mr. Chairman.

I think Senator Austin has pretty well summed up the fact that it is not an ad hoc committee. The terms of reference are vey clear. It is a very pretigious committee of the British Parliament and it states that they have the power to send for persons, papers and records and to sit notwithstanding any adjournment of the House, et cetera, et cetera.

It goes on, as Mr. Austin has said, on page 7 that the Committee has made its own decision to make its own enquiry, and they clearly have the power to do that.

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I do not think there is any point in arguing any further. It certainly is not ad hoc. It is a committee which has the power to do an investigation and they did it. One can draw any conclusion of our own on whether the report is good, bad, nosey or not. But that is not relevant.

We have clarified without a shadow of doubt their terms of reference.

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

I think the point has been well covered. As I have said, the Chair will be in a position to express its own view and give directions to honourable members.

The point has well been made that by reading some of the extracts of the proposed report that honourable members are in a position to make up their minds of the nature of that very committee and the terms of reference of that very committee.

I thank Senator Austin for reading page 7 and the honourable James McGrath for properly introducing the nature of the report.

I think members are now in a position to know what kind of body they are referring to.

At this point I think there is no need to entertain any further discussion on that very point, and I would like to thank the honourable James McGrath for having made it.

Seeing that Mr. Irwin has concluded, I would like to invite the honourable David Crombie followed by Mr. Lapierre.

Mr. Crombie: Thank you very much.

Mr. Chairman, I might say before offering my thoughts on Mr. Epp’s amendment that as I listened to Mr. Irwin, and to some extent, Mr. Robinson, I suppose I will have to feel grateful that tonight I will be able to sleep safely in my bed, knowing that Mr. Irwin and Mr. Robinson and his confreres will keep me safe from the Right Honourable Margaret Thatcher and Sir Anthony Kershaw; and just in case people think there is some imminent invasion from the British, I thought I might direct some comments to what it is Mr. Epp is really saying.

I think I agree, perhaps, with Mr. Mackasey and I want to say right away, that having discovered that, I have rethought the matter and I do agree with Mr. Mackasey; I want to say that by and large the British role is simply one to expedite what we would like to have happen.

Quite frankly, Mr. Chairman, I think the British see it that way, too.

Notwithstanding Mr. Robinson’s offer of keeping me safe from the Right Honourable Margaret Thatcher, I must decline, because I do not think it is necessary, Mr. Robinson; 1 think the British would simply like us to do what we are supposed to do. They are not intending to force us into anything. They would clearly like us to please look after our own responsibilities, to do our own laundry, wash it, dry it and send it over for the last time.

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That is clear to me, because when our Prime Minister quoted their Prime Minister about what the British role was—and Senator Austin asked what should the British do. The Right Honourable Margaret Thatcher said, “We shall deal with it as expeditiously as possible and in accordance with precedent.” Now that is all the British are supposed to do.

The Joint Chairman (Mr. Joyal): If I may, the honourable David Crombie—and I know I can count on your cooperation—but some honourable members have been making reference to “the British” in reference to members of the British House of Commons and House of Lords. I think we have to be fair to the British people, and by giving them the courtesy that is due. These are members of the Westminster Parliament and of the House of Lords; the Canadian public is listening and watching also and we have to bear in mind that proper references should be made to our friends and neighbours in the Commonwealth.

I would invite honourable members, if possible, and when possible, to refer to them properly.

Mr. Crombie: Thank you very much, Mr. Chairman, for the stricture. Any comments I have made, I would like to make sure that the record would read “The Committee of which Sir Anthony Kershaw was the Chairman.

Throughout the whole of our history—in this century at any rate—any time we wanted to change the constitution, the government of Great Britain has acceded to our request by and large. That was the convention, the rule, the custom. It can become a little mystifying when we look at a lot of the historical record; but by and large, it simply meant that once Canadians had agreed on where they wanted to go, the government of the United Kingdom would accede to an amendment to the British North America Act, because we left them as the final judge in 1931.

What is important to understand about that is what Canadians are supposed to do.

It is not a question of what the British Government was to do, but what Canadians were supposed to do, Mr. Chairman.

All Canadians are supposed to do in this matter is decide that there is substantial agreement. That is all. That is all that is at stake.

Is there in Canada substantial agreement before we request the British government to amend the British North America Act. Now, anyone interested in the matter would be somewhat shaken in the judgment that there is substantial agreement amongst Canadians when they read that there are eight of the 10 provinces opposed; not one, as it was in 1907; not two, but eight of the ten Canadian provinces are opposed!

The amendment that is going over, if the government has its way, is one which is supposed to be in part a response to the

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referendum in the province of Quebec. All three political parties in the province of Quebec are opposed to the unilateral action of the government!

That is a second thing that would shake anyone when it is said that all Canadians or a substantial number of Canadian agree.

Thirdly, the Official Opposition of the Canadian Parliament disagrees! One member of the “gang of two” used to agree, but we are not sure where the New Democratic Party is anymore on the matter; but certainly the Official Opposition opposes the unilateral actions of the government.

I like the polls that support me. The poll by the Gallup Company—that is what they are ca1Ied—is that 64 per cent of Canadians are opposed to the unilateral action by the government. That shakes anyone to hear that a substantial number of Canadians are in agreement with this project.

The defence that the Prime Minister of Canada and members of the Liberal Party have used against the proposition that there are eight provinces who are opposed, against the proposition that the Official Opposition are opposed, against the proposition that the three political parties in the province of Quebec are opposed, and against the proposition that 64 per cent of Canadians are opposed, the Prime Minister says, “Aha! The Canadian Parliament—they agree!” But, Mr. Chairman, the Canadian Parliament agrees to what, so far at any rate?

Your ruling today—and I congratulate you on it—to allow us to debate this matter, also laid bare the poverty of the democratic process that the Canadian Parliament is going through; because what you said—and I direct you to page 2 of your ruling—when this matter was in the House a number of people felt that that was being dealt with substantively, that is to say were dealing with the content of the constitutional amendment.

It is stated:

on October 23, 1980, and on November 3, 1980, the House of Commons and the Senate simply agreed to appoint a Committee to study a document, without having first approved the principle of the project as set out in the document.

As it stands right to this day, Mr. Chairman, the Canadian Parliament has not even dealt with the principle of this constitutional amendment. They have only agreed to have the Committee study a document.

Now, if I turned to page 3 of your ruling, to show you the poverty of the democratic process that the Canadian Parliament has gone through on that page, in the third to last paragraph—and may I ask when this Committee gets through with it and it goes to the House of Commons, will the House of Commons then be able to deal with it? Will it be able to deal with the principles of it, to amend and change it—and the members of the House of Commons who are not in this Committee; the other 283 altogether, minus 50 or whatever

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the number: will those people who represent Canadians across this country have a chance to make amendments?

Well, your ruling is quite clear on that. It says:

The House would not have the possibility of further amending the contents of the Report.

In short, they can talk all they like, but they cannot change it. Those are the representatives of the people of the country from coast to coast!

So, Mr. Chairman, not only are the provinces opposed to it—eight of them out. often; not only is the Official Opposition opposed to it—and I think, with respect, a substantial number of people who are democrats; not only are those institutions opposed to it, but the only answer that the Prime Minister of this country has ever given is that the Canadian Parliament has agreed with it. Mr. Chairman, that is not true. They have not even dealt with it yet. By the time we are through, the only thing the Canadian Parliament will be able to do with what, comes out of this Committee is to talk about it; they cannot change it

That is the reason why that for decades upon decades there has been a custom in this country that, before we approach the British Parliament to amend the Canadian constitution, that we make sure that we have had substantial agreement amongst Canadians. I do not have to go through the litany again. You should know it by now: eight provinces say “no”; the Official Opposition says “no”; 64 per cent of Canadians say “no” by poll, yet, the Canadian Parliament is not able to deal with it.

Now, that is why the convention, the custom, the usage is being violated. It is being violated for the first time in the history of this country. Every time there has been an amendment which changed the respective powers of the federal and provincial governments, every time there has been substantial agreement except this time.

And I might say, Mr. Chairman, there was a very good reason we have had that custom these 160 years, I guess. It protected minorities in this country; it protected, I might say, right from 1774, protected the province of Quebec.

Unilateral action by the federal government was the thing that was abhorred by every responsible Quebec politician because he knew that the ability to maintain that culture and that language and not just to survive, but to flower, was to make sure that a federal government could not, by its own action, take away those rights. That is what is at stake.

I hear my friend down here, Mr. Robinson, say: If you are opposed to this you are not only a bad Canadian, you are against disabled people and the rights of women. The Charter, let us talk about the Charter, that we should forget our precedents, we should forget the protection this country has

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offered provinces for 150 years because we should have the Charter, said Mr. Robinson.

Mr. Chairman, in this country there are thousands of women and men who work in municipalities and work in provinces and they work within municipal legislation and they work within provincial legislation, to bring services to disabled people and other people who need help, with far greater energy and effort than it takes to simply say: vote on. It is the provinces of this country who deliver that service, it is the municipalities within those provinces that really make it happen at the street level where it really works. The map is not the territory; if you are going to have a map, make sure it shows the territory where it really happens. People get services from municipalities and provinces.

So do not assume simply because you adopt a Charter of Rights, that you have done it. The delivery to Canadians of that service requires the involvement of the provinces and if you think you are going to get it by imposing it, then you may collect a few votes from those who think you are helping them, but you are sure not helping them.

Mr. Chairman, there are many of us who feel that they are just as much a Canadian as Mr. Irwin is, and they feel they care just as much for people who need help in this country as Mr. Robinson says he does. We have one additional thing that we worry about and that is the way in which this country changes, the means by which it views the means by which it changes is as important as what you change.

In the final analysis, every political act is a moral act and you will not ever get a good end with a bad means and that is why we are opposed to it.

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

I would like to invite Mr. Jean Lapierre, followed by Mr. Hawkes.

[Translation]

Mr. Lapierre.

Mr. Lapierre: Thank you, Mr. Chairman.

Let me say, from the bottom of my heart, that this motion we are dealing with, in my opinion, goes against what we have been defending for the past several months.

Some six or seven months ago, most of the members on our side of the table made the commitment to meet the challenge of Canada independence and the renewal of the Canadian Constitution.

Not only during the referendum but afterwards, we promised, particularly in Quebec, to set into motion the long-awaited process of change and rid ourselves of the vestages of British colonialism.

When I hear our friends opposite claim, after three months of hearing witnesses in this committee in order to obtain the best possible charter of rights, that such a charter will not be a Canadian one, since we must go to London for approval, I feel

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compelled to remind them that this charter was not presented by Lord Chretien nor by the British.

This charter, in spite of the legal fiction through which it is to be inserted-in our Constitution, is a truly Canadian charter drawn up by all of us around the table.

The amendments which we accepted from both the Conservatives and the NDP reflect the participation of these parties in the drawing up of this Canadian charter.

Mr. Epp, Mr. Crombie and Mr. McGrath make use of polls to cast doubt on our political legitimacy. I could easily cast doubt on the legitimacy of a number of other people, including your leader, if I were to rely on polls, and yet he is a man whom we like and who in our opinion should remain in spite of the polls. If we were to govern through opinion polls, a good many accomplishments would never be realized in Canada.

There has been much emotional talk about the danger of destroying the spirit of cooperation with the provinces. I appreciate this acknowledgement of our willingness to cooperate with the provinces. For many years you have been decrying the lack of cooperation of the provinces, it is our intention to maintain the good relationship which you recognize today.

We were even told that we would be encouraging separatism if we went ahead. I believe that we would be encouraging it even more if we drew back, as you are suggesting. You refer to the possibility of a consensus. Your consensus strikes me as being utopic. We could draw a parallel with your oil price agreement. It was just as utopic as the consensus you are proposing.

In this morning’s Devoir, Mr. Charron, a minister in the province of Quebec, claims that he is willing to return to negotiations and discuss once again an amending formula and patriation, provided certain guarantees are given relating to the division of powers. In other words, the confusion would start all over again.

A possible consensus could be obtained on the condition that the entire issue of the division of powers, something which has been attempted for the past 53 years, would be reopened.

I am even more saddened, and as a Quebecker I am probably less attached to the mother country, when I hear Mr. Epp ask whether our good relationship with Britain might not be affected should approval not be forthcoming. Quite frankly, even if our good relations were to be affected, I am not willing to kowtow just to be sure of obtaining such approval. Maybe we should change our resolution to please Britain!

Senator Tremblay said that we should not take the risk of undergoing a refusal from London or being told that our procedure was improper. No matter what. this report says, do you think that we Canadians would accept such behaviour?

Canadians of my generation anyway would not put with Westminster telling us what to do and what not to do and I am sure that the minorities outside of Quebec will not be relying on Westminster for their language guarantees.

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The proposal you are making today seems quite inoffensive; the whole matter would be turned over to the provinces. After all our hard work, we will go back to the drawing board, giving up on the legitimate aspirations of the handicapped, the Indians, women and minorities and the whole issue will be postponed indefinitely. You know full well, as Mr. Robinson so rightly stated, that nearly all the provinces do not want this charter and do not want to acknowledge basic rights for all Canadians.

Hiding behind this proposal is your upcoming motion on the amendment, the famous Vancouver consensus which is even worse than the present suggestion since we would end up with a checkerboard Canada and, as my colleague points out, even the British did not accept or recognize that consensus.

I believe that if we want to maintain our dignity and show our maturity, if we want to take over our own destiny, we must remain firm in our intent. If history is to judge us, then the electorate will have its say in four years and I am willing to meet that challenge.

Senator Tremblay often uses a poker game as an example. We are willing to play this game and we shall see in due time how reliable polls are as an indication of the support we enjoy from the people of Canada.

Let me refer to another type of poll. Elections could be held right now and we would still be returned to power with our draft resolution. That kind of poll carries more clout.

There has been no lack of support for our proposal as people realize with what determination and leadership we are dealing with this issue. What is even worse in the amendment which flows from this one is that we would be taking the risk of removing Quebec’s veto. The only way in which we would be able to maintain our right of veto would be through the revenge of the cradle since, with less than 20 per cent of the population, the amending formula could be changed at any time.

This is a considerable challenge, I realize, but I find unacceptable such unwillingness to recognize Quebec’s distinct personality as a French-speaking entity in North America. With the Victoria formula, Quebeckers would always be entitled to have their say.

Personally, I could speak at greater length about Her Majesty. Let me just make one suggestion: if she desires to remain as gracious, let her deliver the goods at once.

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

[Text]

Mr. Hawkes, followed by Miss Campbell.

Mr. Hawkes: Thank you, Mr. Chairman.

I guess I am glad that I follow Mr. Lapierre, because I think that in terms of parliamentary experience, he and I are the two youngest members from the House of Commons who have attended a very large portion of these hearings. I sat and I watched and I listened and part of the watching was noticing

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that Mr. Lapierre wears his parliamentary pin and it has been some months since I could bring myself to put my parliamentary pin on. That does not relate to the substance of what we are talking about here this afternoon, but it does relate to the process and to my concerns which range from the rapidly evolving and developing feeling of alienation in my part of the country that is in fact, the consequence of process and not so much of substance; a sense of feeling that our voice is not to be heard in the Parliament of Canada, that our voice is not to be heard, not listened to in this Committee.

I said to the Minister in my first intervention, I think, in this Committee that 99 out of the 100 people elected in my province to serve in the Parliament of Canada or the provincial legislature were totally and unalterably opposed to the process. I think the basis of that feeling comes from one simple fact, that what we are doing is cutting the people of that province off from a sense of partnership in the Canadian community that is really important to us, and I wondered out of this process, and I made a kind of brief summary, but it was I think, three weeks or something approaching three weeks from the time that anybody other than, perhaps, the Minister of Justice and his officials, but anybody who sits in this room saw the exact wording of the proposed resolution, within three weeks we had experienced closure in the House of Commons, when that motion was introduced only 17 members of the party in which I serve had the chance to speak to it, and Mr. Crombie rightly brought up that the Chairman’s ruling today gives us a pretty clearn indication that when the resolution goes back to the House, at best it is unknown how many people might get to speak, but certainly it seems clear that none of us will have a chance to amend.

We are dealing here with the fundamental law of the country and we have got that kind of procedural situation where the work of this Committee, then, must be accepted or rejected by the House of Commons without amendment.

And how were we allowed to conduct our work in this Committee? I think I would like to remind all honourable members that because television is here in the room with us Canadians are getting their first experience of democracy in action.

Mr. Irwin mentioned democracy, and what conclusions are they drawing when they watch us? The first thing that hits them is that we have a deadline, not that we have some sense of ample opportunity to consider the content and the substance and the exact wording, but that we are working to deadline and maybe next week we will be working all night to deadline, who knows.

I went away for two days, the first two days of this week, and came back on Wednesday to find that the majority of this Committee had imposed a three minute rule on my interventions or anybody’s interventions in relationship to the specifics of a clause or an amendment. Closure of deadline, closure of participation; and I remember the sense of closure, if you like, which was felt by witnesses, not only in the time constraint of when they appeared before us and the time available to state

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their case, but in the quite often felt sense of time constraint, that they had not had adequate time to prepare their representation before us.

If we examine the testimony from that period when we were hearing witnesses, you will see a lot of paragraphs and statements where people said: we are only going to deal with this clause and that clause because those are the most important clauses as far as our special interest group is concerned, but we wish we had. more time because we think we could make a contribution to many of the other clauses.

It was procedurally because of the constraints of time, because of what I believe to be a real denial of a very important democratic principle, that even they, even our witnesses, were subjected to a similar sense of closure.

Then the members of our side asked the members of this Committee, through the steering committee and in public forum, to be allowed to bring forward the kinds of expert witnesses that could provide testimony on specific clauses and specific issues, and those included some Ministers of the Crown with specific responsibilities such as the Minister of Indian Affairs, and again our democracy experienced closure.

Now, I sit here some six days before we are supposed to report back to the House of Commons and the Senate and I ask myself whether or not this package of material that the government is in such a hurry to send through the House of Commons and the Senate and off to England, whether it is a completed piece of work, and I remember the number of times that the Minister of Justice has indicated that perhaps it is not a completed piece of work, and I get worried, just in relationship to 2 areas of the Charter that I will deal with. Let me just remind members of some of the things that have been examined and, in my view, have been left unfinished. One of the fundamental principles that makes this nation go around is a democratic principle, and there is a section in the Charter that deals with democratic rights. We had the acting Minister of Justice before us when I asked a question about one of those clauses and his testimony sits before us where he indicates that yes, the way that clause is worded it is conceivable that 11 members of the House of Commons voting in unison could deny Canadians the right to a general election and the opportunity to change a government. That is the consequence of the exact wording of that clause.

I asked questions of the Acting Minister of Justice and this week of the Minister of Justice about one of the language rights clauses, that clearly is arguable in a court of law because of its wording, that all other rights contained in the Charter can be set aside by government for one single purpose, and that is not a clause that makes me very comfortable in terms of its inclusion in the Charter of Rights.

Yesterday we dealt with equalization, and the Minister admitted that the wording of the equalization clause will enshrine in the law of this country, the way it is worded, the right for the federal government not to make payments to provinces. The exact wording of that clause has that effect and it runs contrary to the stated intentions of the Minister, and yet it was adopted and it was accepted.

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I think I could go on at some length but I will not, but one of the themes that we have forgotten that has come up several times in our discussion, and I do not know how we deal with it, but I think it is important and I think it is fundamental, and it is clear to all of us who have sat in this room that we are turning over to the courts considerably more power than they have previously enjoyed. We are turning over to them or seeking to turn over to them an unfinished document with some wording that should be changed and probably some concepts which should be changed, but we are not dealing, and we have been warned by witnesses and by questions of members of this Committee, we are not dealing with our institutional system of appointments to that court, and yet we are turning over jurisdictions that take the responsibilities of the members of that court far beyond anything we have previously asked them to do.

It is in that context, the context of a process which I think runs fundamentally counter to what I believe would be the proper functioning of a Parliament on an issue of this importance, it is in that context that I have no sense of pride and that I have personal difficulty in wearing the member of Parliament’s pin.

I would urge members to vote either for this resolution or something like it, because I think there is wisdom to be gained by the process or something similar, that we are recommending through this motion. When the honourable David Crombie points out that the delivery of services to handicapped people in this country is done at the provincial or municipal level, he is really saying to all of us that it is not too late to invoke a process where we could benefit from the wisdom of those who have experience with those problems. If we were to do that, then I would think that we might more properly be meeting the kinds of obligations which each of us accepted in the oath we took to serve in this Parliament.

Thank you, Mr. Chairman.

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

I have been informed that honourable Senator Austin wants to intervene on a point of order.

Senator Austin: Mr. Chairman, I did not want to interrupt Mr. Hawkes because I felt it would be unfair to him and he might feel it was some form of harassment, but I cannot let go the entirety of his statement. I do not want to comment on all of it, but I would like to ask you two questions, Mr. Chairman, and then I would like to continue.

Could you tell the Committee how much time Mr. Hawkes has been allowed to make the statement that he has just completed?

The Joint Chairman (Mr. Joyal): If such a question is put to the Chair, the Chair will have to give all the time that has been used by all the honourable members around the table. The Chair has said earlier that it will invite honourable members to take a part in the discussion this afternoon on the proposed motion and earlier this morning, on the very ground that it will be an open discussion taking into account that it raised the basic point in terms of what we have to decide,

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which is whether or not the House and the Senate should proceed with the proposed recommendation or a proposed address, and being a very large question, the Chair has listened very carefully to all the arguments that were invoked by all the interveners to sustain the way that they will decide to vote finally on the proposed motion.

The Chair has not applied the strict rules of time allocation of five minutes per member because none of the honourable members around the table have spoken for less than five minutes; most of them have spoken . . .

Senator Austin: Mr. Chairman, I withdraw my question and thank you for your explanation.

The point I want to make is that the rule with respect to three minutes time allocation of members of the Committee has not applied, to my knowledge, to Mr. Hawkes and has been very generously applied by you. In addition, Mr. Hawkes, in complaining about it, is probably unaware that the rule was agreed to unanimously by the three parties and I believe that agreement came forward on the part of the Conservative Party because they wanted to show their willingness and desire to expedite in a fair way the business of this Committee. That is one example of a complaint I feel is most unjustifiably leveled at the members of this Committee.

Mr. Hawkes complained, for example, at the failure of Ministers to appear, and called that closure. With great respect, parliamentary rules do not require Ministers at large to be summoned by a committee. We have the responsible Minister of the Crown here. He is here to answer all quetions that may be asked of the government in the context of this joint resolution, and the suggestion that somehow some other Minister not being present is closure by the government is, I believe, not fairly made.

I do not want to continue. It would be at least as long a statement as Mr. Hawkes has made on his merits, but I feel that I could not fail to intervene to say that his complaints, in many cases, are not fair and justified.

The Joint Chairman (Mr. Joyal): Thank you, honourable Senator Austin. Before the Chair suggests some direction, I would like to hear honourable James McGrath.

Mr. McGrath: Mr. Chairman, I regret very much that Senator Austin has chosen to interrupt the proceedings with what can best be described as a spurious point of order, if it is in fact a point of order, because what he has done is to single out one member of the Committee unfairly, in my opinion, after that member of the Committee intervened, and his intervention was not out of keeping with the interventions we have had throughout the day. I think that point has to be made, and I fail to see, and indeed I am at a loss to understand, why Senator Austin, who is usually very fair, would single out Mr. Hawkes in this particular instance because others could have been singled out just as easily in terms of the argument that Senator Austin wanted to make.

The other point I wanted to make, Mr. Chairman, is that we agreed in the steering committee to the three minute intervention per clause and amendments, but clearly that was on clause

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by clause consideration of the bill. We have completed a very important part of the bill, namely part one and part two, and we had an amendment to make which was a substantive amendment regarding the entire charter, regarding the entire 31 parts. I am just saying to you, Mr. Austin, through you, Mr. Chairman, that clearly the three minutes provision agreed to by the Steering Committee did not apply to this particular debate.

That is the point I wanted to make, and I want merely to conclude by saying, Mr. Chairman, that I regret very much that Senator Austin has intervened at this particular time to take time away from his colleague, Miss Campbell, and to unfairly single out one member of the Committee whose intervention today has not been out of line with the other interventions.

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

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I think we should get on with this, and I just want to clarify. I think there is some difference of opinion. Mr. Hawkes certainly should not be limited to three minutes today; none of us were because of the ruling of the Chair that today we would have some flexibility as long as we remained reasonably on the issue because of the significance of the motion, which is an extremely significant one, and one that the Conservative party has indicated they will bring forward and very germane to the whole concept of how they see it.

But I must say, in fairness to Senator Austin, that he was applying or trying to set the record out on the inference by Mr. Hawkes that when he went away for two days and came back to a form of closure that limited his petition to three minutes, when in fact, as Senator Austin has made the point, this was an all-party agreement at the Steering Committee, and if there was some restriction to three minutes on Mr. Hawkes, there were three minutes on everybody else.

I would really urge the Committee now to get on to a more fundamental thing, which is discussing the motion.

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

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I think we can put this matter to rest. I agree fully with what Mr. McGrath said. In fact, it was Mr. McGrath, on behalf of our party, who put the three minute suggestion forward. We abide by that.

Also you will recall, Mr. Chairman, I believe all members agreed to it at the time and said that not only would it serve us well, but we allowed the Chair to use the flexibility the Chair in its wisdom thought it needed. I believe in terms of what Mr. Hawkes has said that that three minutes was obviously not applied to the debate today, it is a motion as apart from an

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amendment, if we want to get very technical, where we are at, and I think we should let the matter rest.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp. I think that the point has been well made and at this point I would like to invite Miss Campbell, followed by honourable John Fraser.

Miss Campbell.

Miss Campbell: Thank you, Mr. Chairman.

I take it that the implication that it was on my time is not really my time on a point of order. Somebody assumed it might be.

Mr. Chairman, let me begin by saying that the motion that we have been discussing and calling an amendment—it would, in my view, be a type of an amendment—has allowed everyone who has spoken to reiterate the concerns that have been expressed, both pro and con, on the government’s proposal. Of course, from the government side, and with the support of the New Democratic Party, the charter of rights has a full role to play in Canada. Full, when I say that, for every province, for the federal government and in particular for all Canadians.

The motion that Mr. Epp has proposed is the Conservative position on the charter of rights which has been reiterated and reiterated and said “made in Canada”, a charter of rights made in Canada. Well, Mr. Chairman, I think the 25 members who have sat around this table since the end of October would hope that the witnesses who came before us, who cared enough to want to come and appear before us, thought that we were making a charter of rights in Canada. The amendments that we have seen in the last two weeks to the charter of rights would show again that these amendments have been amendments that Canadians wanted to see.

The most recent two this week were very touching I think for everybody here, the handicapped, and the fact that it took this long for the aboriginal rights of the people in Canada to be recognized, but at least we are recognizing them and there will be no bargaining those rights of this charter with the provinces after.

Let me reiterate what would happen if we accepted this motion. We would come back after patriating the constitution, and again next week we would have the debate on the amending formula, which that amending formula, if it was the Conservative amending formula, would allow three provinces if they did not agree with the charter of rights, to opt out. Therefore, when I went across Canada, I would not have the same rights across Canada. Well if I am a Canadian, I expect to have the same basic rights right across Canada. I may not approve with waiting three years for equal rights for men and women, as I said yesterday, and as somebody made a statement against, however as far as this charter of rights goes, every group that appeared before us on the charter of rights said it is an opportunity for the members of this Committee to entrench, not to allow the proposal to come back from the United Kingdom without a charter of rights.

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Now that shows how much further ahead we are than the United Kingdom, where there is a lot of concern for a charter of rights if you read the British papers; and perhaps one day they, too, will be able to have another select committee of their own that will go into whether or not the United Kingdom should have a bill of rights.

But leaving that aside, the Charter of Rights that we have here to allow the provinces to redo or cut back or opt out once we have done this work, seems to me to be wasting the Canadian time.

The other aspect that I watched through the summer was the ability of the provinces to use the charter of rights as a tradeoff position for redistributing, perhaps, on the economic side, of the powers that exist between the federal government and the provincial government. I do not feel, and I am sure all Canadians, every Canadian, does not feel that his rights should be bargained off at an economic level.

When I say “economic level”, we can all agree that there has to be a looking at and a redistribution of the powers within Section 91 and Section 92. After all, we have come a long way since 1857, but we also need a charter of rights that answers the needs of every Canadian across Canada if Canada is going to stay together.

Certainly the nature of Canada, the regionalism of Canada because of the economy in those regions brings about ideas that favour separatist ideas. I come from Nova Scotia. Joe Howe’s was the first of the ideas that said separate. We are not separated and I do not think it would ever be done in Nova Scotia—perhaps economically we can debate that question and we will debate it and debate it and debate it, but I think that most Nova Scotians would prefer to remain in Canada than to be floating somewhere in the Atlantic Ocean a little bit north of Maine. That is a direct reference to the idea that if you go to the United States, what are we but another appendage to Maine. A bit north and west, I am sorry.

But once and for all, this motion is insidious. as I have said before. It is being made in Canada, excuse me for saying that. The insidiousness of the motion is that we are not making a charter of rights in Canada, and in my humble opinion, as a Canadian, if I have not been working to make a charter of rights in Canada that is for all Canadians, I do not know what I have been doing over the last three months.

The opportunity, as I have said, has been with this Committee. I hope we take that opportunity. When the Minister goes to the United Kingdom I wish him luck.

But I personally feel that a select committee which has no reference from the British House of Commons, though it may have been appointed by the British House of Commons; and with only a reference—and I quote from Appendix 8:

All we should do is to consider whether proper procedures according to United Kingdom law have or will be followed.

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I think they heard witnesses on three days. They met for a total of eight days, and I do not think they came even to Canada to see perhaps what this great country is all about.

Now, their report is argumentative for anybody who has a chance to read it. It is argumentative. For anybody who wants to read it. There are pros and cons. I am sure the Conservative party can argue that the Victoria Formula, as they do argue, is not the right formula. The report states that it should be the Victoria Formula.

There are other areas of argumentation in it.

But for us to spend the day discussing this motion how to divide the charter and allow the provinces to decide or opt out when they come back with an amending formula and to discuss this report, which, if the Select Committee is lucky the British Government may provide a written report within the next few—well I think they must reply; but they do not have to follow it in any way; it is just an opinion of a select committee that had no reference as a standing committee in the British Parliament would have for a public bill or reference from the House to study.

That is where the “ad hoc” comes in in that this Select Committee could decide what subjects it wants to study. There is a list if one wants to look at what they have studied: the problems in Zimbabwe, Afghanistan and the problem of the Soviet invasion, and the British Government answered in four pages at that time.

And to think that we have spent this morning and this afternoon discussing a report that not even the British Parliament has to consider as serious is in my view—when the motion itself severes the charter of rights, when we have spent days listening to witnesses; that we had an opportunity to entrench a charter of rights so that it would give equal opportunity to all Canadians across Canada, it seems to me we had better get on with this motion and defeat it.

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

The honourable John Fraser.

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

I hope I will not be overly long. I hope the comments I have been listening to with great interest, very real interest today will not necessitate a very long reply.

But I would like to comment on the drift of some of the comments of some honourable members in this Committee.

Mr. Chairman, through you, I have observed—and it is obvious to anybody who has been watching and listening—that a great deal of time has been taken up on a report of a committee in the Parliament of the United Kingdom which, clearly, is within its rights in studying this matter and which has made certain observations and recommendations.

Some members of this Committee—I guess out of a sense of frustration, because it has come from the government’s side, and, to a lesser degree from the New Democratic Party—have said that this is wrong. Why should a committee at Westmin-

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ster have any views on this? They have quarrelled with the views that the Committee has expressed.

But I have to say to honourable members, through you, Mr. Chairman, that does it really matter to us here, looking at this motion what a committee at Westminster has said? The Parliamentarians at Westminster and the Government of the United Kingdom are the ones who have to decide whether they agree with that committee report and whether they would act on it, whether they would be persuaded by it, whether they will ignore it.

That is their responsibility and not ours.

The second thing I have to say is this: when government members here would shift the discussion with the suggestion that they are not going to be pushed around by the Parliamentarians at Westminster, they are forgetting that Westminster is not trying to push us around.

Everything that the committee report says, if you want to look at it and argue about it, is that they are constitutionally bound to make certain considerations.

But the gist of everything that is coming out of the United Kingdom is: “Look, we, the Parliamentarians of Westminster do not want to get drawn into this debate. Please, Canada, would you get your house in order and show that there is at least a significant amount of support for the process that you are going through and which you are asking us for one final time to ratify at the Parliament of Westminster.”

I do not wish to single out individual members, Mr. Chairman, because the more one does that, the more remarks are taken personally and it destroys the high degree of civility that you and your Joint Chairman have set for us.

But I have to say this: in looking at the proposal which the Conservative Party is making, it is very important not to get into the error of thinking that because government members do not agree with us, that somehow or other they have to fight with the parliamentarians of Westminster. What I have heard today is an invitation to join in a battle with Westminster. Now, that is not something which, as Canadian parliamentarians, we ought to be proposing or even suggesting by way of innuendo. That is not our quarrel.

I have to say to my honourable friends that they believe passionately that what they are doing is in the interests of Canada. We also believe that what we are doing is in the interests of Canada.

But the fight, if there is one, is a fight here in this country. It is an argument between Canadians who have a different view. That is what the debate is about.

It is not a debate with the parliamentarians in Westminster.

To go on endlessly about whether Sir Anthony Kershaw should have had the temerity to do a study and make some recommendations is surely missing the point by a country mile—I should say, 4,000 odd Canadian miles; because the reason that some government members have shown considerable frustration here today is not because of what Sir Anthony Kershaw’s report says, but because there is a very great

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difference of opinion among their fellow-Canadians as to what they are doing.

That, Mr. Chairman, is the point.

Mr. Chairman, I think it demeans us all to try to get away from that point by looking to some sort of external bogeyman that Canadians can get into a rage about.

To say, Mr. Chairman, that when in the early stages it was reported to Canadians that the Parliament of Westminster would probably go along with the proposals that the Right Honourable the Prime Minister was proposing, our party did not suddenly engage in an attack upon the Parliament at Westminster. There are none of that from our party! And when the Right Honourable the Prime Minister somehow or other brings out President de Gaulle’s comments into the debate and tries to liken what is going on in Westminster and poor Sir Anthony Kershaw’s Committee with the interference with the President of another great country, which is an ally and our friend—France—there seems to be a lot of realization that it is not a parallel.

I would say that 99 per cent of the population of the United Kingdom wishes to heaven that in 1931 we had not left this issue with them. But they are stuck with it.

We do not have—and never have had—any such relations since the time of the end of the French empire in North America.

We have never had those relations with France, so it is not a parallel. What a French President said many years ago was greeted by all Canadians of whatever ethnic origin as mischievous and unnecessary. But certainly, our problem now is that there is still a legitimacy in the relationship, a constitutional legitimacy in the relationship between our country and the Parliament at Westminster, and we are just trying to find an appropriate way to end that.

I would hope that my friends on the government side and my good friend, Svend Robinson, would realize that that is not where the batle is. The battle is here, in Canada, and we are trying to engage in that battle within the parliamentary process, within the Canadian community.

Now, Mr. Chairman, again it has to be appreciated by honourable members that, despite how frustrated they are-because there is a series of frustrations that have met government forces in this.

I would say the first frustration was that they did not expect, getting the public mood, that by the end of the summer the Progressive Party would say “No, there is something missing, basically missing in this process and we are going to oppose it”.

I think another frustration was that it became eminent in the minds of Canadians, in the Opposition and also, in fairness, in the minds of many of the government members that the December 9 deadline was not reasonable.

Another frustration was opening up the proceedings to television and radio. That, again, was finally allowed, and I say with the good sense of many of the government members.

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There is, of course, a feeling of frustration when a report comes out of the United Kingdom which does not accord with the position that the government takes; but really that ought to be a minor irritation.

There is frustration, because there seems to be now doubt, at least for several days now as to exactly what was the understanding between our own Prime Minister and the Right Honourable Mrs. Thatcher in Great Britain as to the rapidity with which this could be dealt with in the Parliament of Westminster.

These are all frustrations, and they should be recognized for what they are.

But surely the real frustration that my colleagues in the government have is that a great many Canadians do not agree with them, and the majority of provinces do not.

Let me turn to something else which has been said. Miss Campbell said this with conviction, and I will agree with her. She said that we are Canadians here and we have taken a proposal and we have improved it. There is no question in my mind but that we have improved it.

Yesterday we took a very significant step in Canada. It is long overdue. We said that a committee of parliamentarians of all parties from every part of the country have finally said, “Yes, there are aboriginal rights and we must be bound by them”.

Now, at the same time—and let me comment on something; because the argument of the government members, and, to a lesser degree, some of the members of the New Democratic Party, is that if what we have done here is put back with the unanimous recommendation of this Committee to the provinces for further consideration, that there could be no movement from some of the more rigid positions of only some of the provincial premiers.

Now, I do not happen to agree that that is so. I will deal with that in a minute.

But just to let my good friends on the government side realize that one of the reasons why I do not agree with it necessarily, that there will be any kind of absolute rejection of this proposal by the provinces, is that people change as a consequence of persuasion and of representations made to them—as a consequence of discussions they have with their own colleagues and colleagues in opposite parties.

Somebody yesterday said that we had come a long way in finally making that very significant statement which moves to start to correct the injustice to our Indians, our Inuit and our Metis.

But nobody has come farther on that issue and faster than the Prime Minister of Canada; because it was only a few years ago—in fact someone yesterday said only a few days ago—that the Prime Minister of Canada, the Right Honourable Pierre Elliott Trudeau, was adamant that there was no place for the recognition of aboriginal rights in the laws of Canada.

So, as I say, if that Right Honourable gentleman can change his mind on something on which he has such strong convictions, then it is not impossible, and I would say, knowing the

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Right Honourable gentleman’s tendency to stick with a position—it is not at all unreasonable to think that what we have laboured here to do will, when it is put before the Premiers, meet with a very high degree of accord.

I have to say also through you, Mr. Chairman, that we are not just dealing with Premiers. That is not the purport of this amendment that we are proposing.

This would go, not just to premiers but to legislatures; and it would go to them in the light of whatever public opinion exists on this vital matter, and if honourable friends on the government’s side are correct in saying—as I think they are—that the majority of Canadians do want rights entrenched, then those Premiers and their legislatures are going to have to be guided by that.

So, I do not take the gloomy prospect my honourable friends put forward, suddenly believing that, for the first time in Canadian history, there can be no changes; that there is a rigidity somehow in the attitudes of some people that would never be subject to persuasion or change.

If we really believe that, then just passing the Charter of Rights will not make any difference. If one really believes that, then we have passed from the parliamentary system of changing governments and changing arguments by the civil and simple process of politics to a different system—one of intransigence, internal confrontation, rebellion and eventually civil war.

That has not been our tradition, Mr. Chairman. I do not believe for one moment that our tradition of civility, of consensus, of co- operation, and of persuasion within the democratic process is in any danger at all. I look to that process as the means by which to bring about the changes which I think are necessary and which honourable members on my side have indicated are necessary.

But we want to do it in a spirit in which everybody is involved—everybody who ought to be involved.

Miss Campbell has said that we are Canadians making these decisions. Surely that should be enough. I say, Mr. Chairman, we are Canadians, and we are, in my view, pointing the way and making some substantive decisions; but we are not yet doing it in conjunction with our other partners in Confederation. That is why we do not have yet that kind of unanimity and enthusiastic support for some of the things which are being discussed around this table and in this Committee.

Mr. Chairman, it is very important to remember that honest and patriotic men and women can differ. I have heard that comment come from Mr. Bryce Mackasey.

By that, I take it that he was imputing to himself both honesty and patriotism; and I certainly would not disagree with him, and I would toss that gently back to my colleagues.

There is a difference in agreement here as to how we get the enthusiastic support for changes that we all know are necessary, because we want those changes to work, we want them to be fair and to be acceptable.

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We would invite those changes rather than command them, and we would invite them under circumstances in which those changes would be supported by this party; and we would use every bit of persuasion to bring them about—and with the certain knowledge that if most of the Canadian people want those changes, that wish will be expressed by the legislature of those provinces.

And our plea is let us not be too hasty. Let us not assume that no change is taking place in attitude in this country. Let us legitimize the process of change so that we obtain from the other partners in our Confederation the good will that you have to have before you can persuade them to change positions which they have taken, or to even admit that they are prepared to accept changes which perhaps they would admit quite readily if they felt better about the way they were being invited to make those changes.

So, Mr. Chairman, I do hope that we will remember that we are having a Canadian debate around this table and the intrusion of what a committee in another Parliament, Westminster, has said, that is something for the Right Honourable Mrs. Thatcher and the other Parliamentarians in Westminster to sort out. Let us keep recognizing that we still have a real debate in this country among Canadians and it is that debate that has got to be resolved, one way or another; and all we are saying is that we do not believe you resolve it and maintain the affection for the Canadian whole, from those who may at the moment disagree or may not be quite ready to express their agreement, if you do it in a unilateral way.

That has been our position right along and Mr. Chairman, I am sure through you, that other members would have to concede that what we are proposing today is not as a consequence of Sir Anthony Kershaw’s deliberations. What we proposed has been our position constantly throughout and has been the position that the party has taken after we first saw the constitutional proposal on October 2 and expressed in Mr. Clark’s comments that night.

Mr. Chairman, I thank you for your indulgence in letting me speak as long as I have but I do hope that we will differ at least reasonably among ourselves and with that degree of civility that is encumbent upon us.

Thank you, sir.

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

Mr. Paul McRae.

Mr. McRae: When I came here eight years ago, and ever since I have been here, I have had a strong commitment to the mandate that my constituents gave me and I believe it is respect to parliamentary process and the rules of this House, this commitment is two-fold: first to use every influence within the rules to make sure we get good legislation, good solid legislation; and secondly, when we do have that kind of legislation, to make every effort within the rules of this House to see that it goes forward and it comes into effect.

To do the first and to do something that would prevent that legislation coming into effect to my mind would be an act of

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hypocrisy, would be very much against the mandate that I have been given.

If I were to support the proposition put forward to us today by the Conservative Party, I would, in effect, be committing an act of hypocrisy. I would be trying to attempt to prevent what I think is fine, good legislation from actually coming into effect.

Now, Mr. Speaker, this whole Committee, and I have only been a member of this Committee for the last day or so, this whole Committee has worked very hard, very honestly and come up with a very fine document, a very fine Charter of Human Rights. It is something that we all, whether we are members of this Committee or whether we are Canadians anywhere, can be extremely proud of. It is the kind of legislation that I like, I want to work with.

It is an honest document. It came about honestly by all of these members working here, not just one party against the other but it was an honest document, a document arrived at honestly.

It gives guarantees to all Canadians against arbitrary acts of governments at all levels. It gives something that our first Canadians have not had, some recognition of their aboriginal rights. It gives to Canadians of ethnic, various ethnic comunities a substantial feeling that they do belong and that their communities belong in this country, that multiculturalism is something that is real. It gives to handicapped Canadians something that they can say, we are like other Canadians. It fights discrimination to other large groups of Canadians. It gives Canadians the right to go and look for jobs in every part of this country.

It is something that all Canadians want and when Mr. Crombie talked about Canadians being against the process, he did not talk about Canadians being for this Bill of Rights; he did not talk about perhaps, what is it, 80 per cent of the people who want this Bill of Rights. That. I think is what is substantial here.

Now, by this amendment, and I listened to Mr. McGrath, who is one of the people I always listen to carefully, and Mr. McGrath talked about the process, with the provinces being against the process. I agree that they are. But you know, if that was the only problem, I am sure that it would be possible to sit down and work out a new process. It is not the process that is the problem, it is the substance. The provinces have indicated, six or seven premiers have indicated that they do not want a Charter of Human Rights. It is as simple as that.

And if we follow the amendment that is put forward today, in all honesty, I am not saying it should not be done but if we were to take this step, and I am asking the honourable members to think about this, we would be following a process whereby Canadians substantially would not have a Charter of Human Rights. Some provinces might have, some provinces might not have, but basically speaking those people, those Canadians who believe in this, the 80 per cent of those Canadians who want this Charter of Human Rights are not

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going to have this Charter of Human Rights if we follow this process, this alternative process.

Therefore, I have to ask whether or not the Conservative Party in carrying this thing out to the nth degree, really are honest in saying that they want this good Charter to become lost. That is the question I have to seriously, seriously ask.

Furthermore, it goes further than this. If it were possible to follow the process that the Minister has outlined, that the government has outlined, and being the Bill that we have all put together to the Parliament of Great Britain, the House of Commons of Great Britain, and that went to the House of Commons in Great. Britain unanimously from all of the members of the House of Commons of Canada, would that not make those members, whether they be in the Labour Party or the Scottish Nationalist Party or the Conservative Party or the Liberal Party far more disposed to move this bill rapidly?

So I ask the Conservatives, the leaders of Her Majesty’s Opposition, to think. very, very carefully about whether they really in effect want this Bill of Rights, because I do not believe that the route that they are choosing, the process they are choosing can have any other effect but denying all of those Canadians the rights that are in this Charter.

Thank you.

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

I would like to invite Mr. Bockstael and then the honourable Jake Epp to conclude on the proposed motion.

Mr. Bockstael.

Mr. Bockstael: Thank you, Mr. Chairman.

To first of all correct what might have been a misunderstanding, one of the members of the opposition suggested that only 15 MPs of the 282 that form the Parliament of Canada had an opportunity to deal with the constitution. The record will show that from November 6 to January 9, 107 MPs took part in the discussion and the list has certainly been added to considerably since then. Also 47 Senators took part in the discussion.

I contend in the 230 hours that we have been sitting here, we Canadians have been making and shaping a Canadian constitution in Canada, except—and I must qualify that—when the opposition succeeded in taking us off on tangents to discuss whether we should have TV or not, to discuss whether we should have an extension or not and now, they have succeeded today, after agreeing to spend Saturday talking about clause by clause make-up of the constitution so we could get on with the job, they have succeeded in taking us off on another tangent to discuss a report from England over which we have absolutely no control.

Some hon. Members: Order, order.

The Joint Chairman (Mr. Joyal): Mr. Bockstael, the Chair has not interpreted the debate that we had since this morning, to debate the content of the report. The Chair has already ruled that what is under consideration now is not the content of the report that each honourable member around this table has knowledge of. The Chair has allowed them to make

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references to that report in support of one opinion or the other and I think that the Chair has done it properly.

But it is not, I think, correct to state that today since this morning, since the motion under consideration has been properly moved that we are only discussing the content of the report. I think that the honourable John Fraser who has just spoken, has made it clear that not too much importance should be given to that report in the context of our present discussions, and I would like you to take that into consideration at this point, and would like to invite you to continue.

Mr. Bockstael: Okay. Thank you, Mr. Chairman.

Yesterday we celebrated the recognition of Indian rights that had been negotiated by the Liberal government and we hurried to pat one another on the back. The members of the NDP party said although they did not take part in the negotiations between the government and the aboriginal and Metis people it was their contention it was always what they wanted. It was what the honourable Ed Broadbent wanted.

And then the Official Opposition said this is in line with the resolution we have submitted. The government’s recommendations are entirely in keeping with what our party has always wanted and we can go back as far as to the honourable John Diefenbaker who in the sixties gave the native people the right to vote.

And earlier in our discussions in the past week we heard the Official Opposition say we sense the mood of the Canadian public, The Canadian public wants a bill of rights, they want a Charter, they want it made here.

We have all seen cartoons that said the government giveth and the government taketh away. Well, we saw here today the hooker that the Conservative Party is putting into this proposal.

Yesterday they said they were so happy to give these native rights, to accord status of women their rights, to accord all of these different groups who came here as witnesses what they wanted. And today they say, but, we will now send it to the provinces and delay it for a few more years so that they will never have it.

You know, earlier in the discussion the opposition, when the honourable Minister of Justice was here, said you know if the formula and the implementation is going to take two years and a year referendum it will be 1985 or 1986 before the Canadians can enjoy this. Well, this way, by sending it back to the provinces, it will be 1990 before any Canadian enjoys what is before us, and I say that we should vote against this resolution that the opposition propose. That is it.

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

I would like to invite the honourable Jake Epp to conclude.

Mr. Chrétien: Mr. Chairman.

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I do not want to make a long statement but I think that on behalf of the government I would like to make a few comments.

Of course, you know, we cannot accept this amendment because all the members agree on the effect. I do not like to state it again that we have said early in June that we were to move and in October we came in front of this House and we have debated since October in this Committee all the aspects of this resolution. And I do think that we will carry on and that we cannot split it at this moment.

Of course it is very nice to say that another meeting with the provinces will solve the problem. I am sorry to say that I have tried on behalf of the government very strongly, and very sincerely, and in the best circumstances possible when there was a lot of good will in the nation and the good spirit of May 21, you know, was a pretty awful situation by September.

So, we have tried. And we hear that some Premiers already say that we need unanimity. How can we seriously go that route and say we are for a Charter of Rights when at the same time, the one, I think that the most honest of the Premiers on that is Mr. Lyon, who always said that under any circumstances he will not accept the bill of rights. So I think that it is just wishful thinking to think that that might go.

There were some statements that were made, especially by Mr. Crombie, who spoke about the voice of Quebec and all that. I do think that the people do not understand that it is my duty to say, as Mr. Lapierre pointed out, that through the amending formula that I hope we will be looking into soon, they will have a veto right for the first two years and if themselves, and other provinces, and even then if they want to keep under the Victoria formula, the same situation, they will have forever something they never had—a right of veto.

And there is another statement I would like to mention that is very important. In all that we have been very careful to make sure that there was, and I read some aspects of the report coming from England but I do not want to comment too much on that because as Mr. Fraser so rightly said, it is their problem, they can have their opinion and I made some comments about it.

We have very carefully made sure that there is no change in the balance of power in what we are doing. We have given rights to the Canadian citizens; linguistic rights, mobility rights, nondiscrimination rights and so on; but we have not changed the balance of power.

When it is all over, the federal government will not have a single more power than they had before and the provinces will have more powers. We accepted yesterday an amendment here that changed the balance of power, when we accepted to

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guarantee the provinces financial pay in equalization payments. That is a Change of power. We have given them a legal obligation to call on the federal government to receive some money. That is a change in the balance of power.

Today we can tell them no more equalization payments; we want to spend the money ourselves, with our own programs. Tomorrow we will not be able to do that any more. It will be in the constitution forever and will disappear only if we have the consent of the province. This is a change in the powers.

There will be another change of power that will be coming. When we will accept the amendment of the NDP, that is something I have offered, myself, during the summer to the provinces and it is a transfer of power from us, the federal government, to the provinces. The indirect taxation on resources and interprovincial trade, with federal paramountcy, this is a change of power in favour of the provinces. These are the only two.

The rest is power that we have given to the citizens of Canada. The obligation that we are imposing in this Charter is obligation on all the Parliaments, the legislative assemblies and Parliament of Canada. We are not gaining any power at all. The people of Canada are gaining a lot of power.

You know it is very nice to speak about this poll and I do think I would like to say something about because they asked in that poll, do you prefer to have these things done in Canada or, the way it was phrased more or less, in England. Of course, they said no. Me, too. I prefer to do all that in Canada. It would have been so nice that we collectively, all the provinces, and all the federal parliamentarians would have been able to give the linguistic rights to the Canadians in agreement, the mobility rights in agreement to all Canadians, to have one citizenship in Canada. It would have been very nice; to give the right of nondiscrimination in our society to all Canadians.

You know that is a great moment when we can have a nondiscrimination situation in Canada, because there are all sorts of people across this land who have suffered discrimination based on colour, based on language, based on religion. And that will be over. It would have been very nice to do that. I would have preferred that.

But when you go to the substance of the problem, the Canadians have replied to polls too, you know where it is said, in the poll we had last summer, that 90 per cent of Canadians wanted a bill of rights. We speak about the alienation of the West, for example, the Canada West Foundation had polls, so as not to use mine, when 96 per cent of the people in western Canada said that Canadians should have the right work wherever they want in Canada—96 per cent.

What about 78 per cent of the people in Western Canada who wanted to have a Bill of Rights giving the same rights to

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all Canadians because they remembered that the fighters for bills of rights in Canada are always coming from the Western provinces, the Tommy Douglas’s and the Diefenbakers and so on. Because of the multiculturalism aspect of that society there, they feel it is important.

What about the 60 per cent of the people in Western Canada, the rich part of Canada, who said yes, we should enshrine in the constitution the equalization payments to give the same opportunity to the provinces who are not fortunate like we are. That is the view of the Canadians on these problems. We can argue forever about the process, but we know that if we take that route, none of those things would come into the Canadian society.

Of course, I am sorry that we have to go unilaterally, but there is a time in history, and it is rare, when we have an occasion to make Canada a real modern society.

And in conclusion, we had the example yesterday. Twenty years ago there were Canadians who did not have the right to vote; tomorrow they will have all their rights confirmed in the Canadian constitution. This is what this motion will solve. You cannot have it both ways. You cannot have the British Parliament approve the entrenchment of aboriginal rights in the constitution that in fact will put a mortgage on the Crown land of many provinces. Who are the ones today who say that we should not entrench with the power of the provinces when we are telling today of the provincial government, some of them who have never wanted to deal with the native rights, that you will have an obligation.

I know what it is. I had to take my own government in Quebec to court in giving money to the Indians to stop the Quebec government to bulldoze away the rights of the Cree in the James Bay area at the time they were building those great hydro electric dams there. It was not an easy political move for me to do that and stop what is to be known as the greatest development project that there was to be in Quebec, in North America, in order to protect a few thousand Indians there who were to be bulldozed into the James Bay.

It is the responsibility of the Canadian to do what is right, not to die in the process; to do what is right and this is the way we will be judged by the Canadian people. This is why I recommend the members of this Committee to say no to the resolution.

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

I would like to invite honourable Jake Epp.

Mr. Epp: Mr. Chairman, in concluding this debate, I was going to address my comments, my last comments to the

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Minister but in view of his speaking last, I will comment directly to his first.

The Minister says that he cannot accept a process whereby Canadians will not only have the ability and the power to amend their constitution and change the constitution in Canada, but the Minister is also saying that he is willing to create difficulties between Canada, the federal government and the provinces; he is willing to create difficulties between Canada and the Government of Great Britain. He has staked out very clearly today that he is going to take those risks.

He is but reiterating what the Prime Minister said yesterday in his press conference, where the Prime Minister was quoted as saying that even the very nature of the Commonwealth was in jeopardy and where he was suggesting that it maybe was Great Britain who would have to consider leaving the Commonwealth. What a shame for a Prime Minister to say that.

When the Minister said that he sincerely tried this summer to bring about agreement, I agree with him. While I was not one who participated directly in those talks, as he well knows, I was at a number of places during those weeks where those discussions took place. I know from the testimony of the Premiers and from those Ministers who participated, and I say this to the Minister and I am quite free about it, the testimony the Minister received was that he sincerely tried, but the testimony he also received was that he would have got an agreement if his Prime Minister would have allowed him to get an agreement.

An hon. Member: Hear, hear.

Mr. Epp: And the Minister, I am sure that he recognizes and realizes in his heart what I speak is the truth. That is the dilemma and I agree with him that men and women of good will around this table or any other forum can come to an agreement, and it is that very conviction that forces me, convinces me to say that the charge that no agreement can be found, that that is a valid charge; it is not. The Minister sitting here today is testimony to the fact that he, along with the provinces, would have had an agreement.

The Minister says that through the unilateral action of the Prime Minister and, as I have being sitting here, Mr. Chairman, have sometimes felt just a pang of feeling for the Minister that he has had to defend what I believe is a process which he is not totally convinced as to the validity of, personally.

He says that they will not change the balance of powers. I feel, Mr. Chairman, that the balance of powers is very seriously going to be changed, not only in the areas the Minister mentioned and by saying on one hand that powers being transferred to the provinces or that powers being transferred from the provinces to the federal government or, in fact, that the package is neutral, does not deny the fact that it is a unilateral action. There are various areas I could discuss with the Minister, and for brievity I will not do that, but I will just mention one.

[Page 84]

Education is within provincial rights. Clause 42, the referendum procedure which would allow the federal government, after the legislatures had spoken, legitimately elected legislatures, after they had spoken, it would allow the federal government to go over the heads of the legislatures and go directly to the people. One might say, “Well is that not democratic?” Oh yes, but who can trigger it—only one side of the federal partnership, the federal government. The provinces cannot, and I believe it was Mr. Nystrom who said that is a loaded dice in the hands of the federal government and Mr. Minister, you can never convince me, ever, that. that is not changing the balance of power in the federation.

The Minister also says that this party, through this resolution, is opposed to the Charter. Mr. Minister, I want to say to you and I know you are an honourable man, yo know and I know that this party has come out in favour of a Charter of Rights, and what Mr. Bockstael mentioned I will deal with later, but I want to say to you that we are committed to a Charter of Rights.

You say it is the responsibility of members to take political risks. You mentioned some that you had taken in Quebec. I, and other members on this side of the table, can also mention political risks, if we want to, in terms of the Charter and the position we took; and we took it, and we are not moving away from it. But that does not change the fact that that can just be put into isolation, that there are no other details and no other factors which apply to the case.

What, for example, Mr. Minister, happens if Britain, being now put in that invidious position, says to the Parliament of Canada and the people of Canada, the legislatures of Canada, that we will not get involved in your domestic affairs and we now serve notice to you that on a given date, and for arguments’ sake, it be January 1, 1982, that we serve notice to you now that if you can get an amending formula in Canada, we will include it in the patriation package, but we serve notice to you now that on January 1, 1982 we repeal Section 7 of the Statute of Westminster, and that is it. Then where are you? Then where is your package; where is your Charter; where is the protection?

The answer to that question you have not given because there is no answer, and, Mr. Minister, it is obvious at that point you then deal with the Canadian people and you then deal with the Canadian Parliament, and you then do in Canada what you are asking the British to do.

Mr. Bockstael, if I might just spend a minute with you. I do not believe it is tangential that the people of Canada should have the right to see what is happening to their constitution. I do not believe it is tangential that they should not be able to see it through the eyes of television. I do not believe it is tangential that they should hear it through the ears of radio, and I do not believe that spending 230 hours debating the constitution is an inordinate amount of time to discuss the basic law by which we will live together.

Some hon. Members: Hear, hear!

[Page 85]

Mr. Epp: Mr. Chairman, there are other comments I could make regarding the debate. I know that the debate has been not only a serious one but has touched the very intense emotions that all of us feel about the country. I say to you, just in closing, Mr. Chairman, I want to repeat just one point that my friend, the Honourable David Crombie, made and that is the poverty of the process.

The Parliament of Canada has not either passed a resolution or a bill at this moment. All it has been is a proposed resolution; all it is is a document; one might argue no different than a white paper; one might argue no different than a green paper till such a time as a resolution comes forward. The resolution that comes forward could be different from what we have discussed on the Committee, and we will have no opportunity to amend; and you say the Parliament of Canada is going to do this. It is going to finalize the project. We have no power to amend. In fact, if I read the ruling of the Chair, and I have had a little bit of time to do that now, because of the fact that the other place, the Senate, does not have as strict rules as we have in the House, they could, for instance, amend and debate; we cannot. Then where does that leave us?

You say the elected representatives of the people have had an opportunity—be careful with that statement. So I say to ton, Mr. Chairman, we have offered the motion, not only in defence of the nature of what we believe this country to be, a partnership, a union between the federal government and the provinces.

Oh yes, Mr. Irwin, wherever you might be, we want a strong federal government but we want that federal government not only to act legitimately but also to have the respect in other parts of the country and in the provinces that when they take an action, that it is within the traditions and the law of the country.

An hon. Member: Hear, hear.

Mr. Epp: So Mr. Chairman, what we have suggested is a my to protect that which this Committee has put forth, to protect the Canadian federal system and to avoid in Britain what we believe would be detrimental for all.

Thank you.

Mr. McGrath: Could we have a recorded vote.

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

I would like first to thank honourable Jake Epp and I understand that on request that there will be a recorded vote on the proposed motion.

Motion negatived: yeas, 8; nays, 15.

The honourable Minister of Justice.

Mr. Chrétien: I have just a few remarks to make. The first one is that there is one page in the report that has come from a foreign nation that was inadvertently omitted from the report.

[Page 86]

It is page 40, so it will be distributed for all the members so that their report will be complete.

[Translation]

I have also a Point of Order to make, Mr. Chairman.

[Text]

I think that today we would like to . . .

The Joint Chairman (Mr. Joyal): I am sorry, I have to interrupt you, there is un [Translation]point of order.

[Text]

The honourable James McGrath on a point of order.

Mr. McGrath: Mr. Chairman, the Minister of Justice and the Attorney General of Canada should know that, as he is not a member of the Committee, he is not permitted to raise a point of order. I am surprised that the Attorney General of Canada would not know that, however, if the Clerk wants to make a ruling and advise the Chair, or if the Committee wants to give unanimous consent, then we can hear the Minister.

Mr. Chrétien: Mr. Chairman, it is a question of privilege. Mr. McGrath is. . .

Some hon. Members: Order, order.

Mr. Chrétien: It is a question of privilege. Today we have one of our colleagues who has a birthday as I would like a question of privilege. [Translation] Mr. Chairman, we will ask you to turn around!

[Text]

The Joint Chairman (Mr. Joyal): The Chair might hold that this Committee will sit to 7:30 p.m.

[Translation]

M. Chrétien: Then, happy birthday, Mr. Chairman.

[Text]

Mr. McGrath: Mr. Chairman, I have a point of order. As a member of the Committee, I am free to make a point of order, Mr. Chairman.

Mr. Chairman, I would like to read a horoscope of one who was born today. Mr. Chairman, the horoscope, and for the purpose of the record, it is in the Globe and Mail of January 30 at page 17:

Those born on this date are independent, creative and highly tolerant of the foibles of others.

I am not kidding, Mr. Chairman, and it goes on to say:

A somewhat aloof exterior covers a warm and friendly heart.

Mr. Chairman, as I read that horoscope, where one born today is tolerant of the foibles of others, I thought of you and the way you have presided over this Committee. I thought it would be appropriate, indeed I was singled out because I am the most even tempered, moderate member of this Committee, and for that reason, I was singled out to read the honour roll. The honour role, Mr. Chairman, is for those who have broken 300, 300 being 300 minutes in the time of the Committee of the 230 hours we have met.

Mr. Chairman, the honour roll is as follows: Nystrom, Epp, and a very special place for the one who broke 400, Mackasey.

Mr. Mackasey: And hoping to break 500.

Mr. McGrath: The record should show that our honourable colleague, out of 230 hours, has spoken for a grand total of

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428 minutes and 24 seconds. Mr. Chairman, there is a booby prize for the most loquacious, long-winded witness and that, of course, goes to the Minister of Justice.

Mr. Chairman, we thought, and I was asked in keeping with the moment of the occasion to present something to you that would be appropriate, and you know, there is a tradition in the culture that I come from where, if one goes to Ireland and kisses the Blarney Stone, one is perceived to have the gift of gab for the rest of his life. We all know, Mr. Chairman, there is one here who not only kissed the Blarney Stone; he swallowed it.

The Irish, Mr. Chairman, being the ingenious people that they are, obviously had to devise a way to deal with those who swallow the Blarney Stone, and so they came up with the blackthorn shillelagh. So I am going to present to you, Mr. Chairman, and there is a saying in Ireland that a man without a blackthorn shillelagh is a man without expedience, I am going to present it to you, Mr. Chairman, because you possess the charm of a Frenchman, the patience of an Englishman and the wit of an Irishman. I am going to present this shillelagh to you so that you can keep Mr. Mackasey in order.

The Joint Chairman (Mr. Joyal): I am in such a hurry to call the honourable Bryce Mackasey back to order that I really want to open the box immediately.

Mr. Mackasey: I have a point of order.

The statistics quoted are totally inaccurate and my remarks have been distorted by Mr. McGrath continuously, as well as my record.

I want Mr. McGrath to know, for the record, while the Chairman is opening his parcel, that I spoke for 428 minutes as of January 9 and I must be over the 500.

The Joint Chairman (Mr. Joyal): We are certainly in a greater need for what is in this box if he has spoken for more than 500 minutes.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, on a very brief point of order, as all my points of order are, and as one who holds the record for being the most long-winded member and having made more interventions in the limited time that I have been here than anybody else, I also wish to present a very special token of our appreciation for the Chairman’s serenity, and an item which I hope will assist the Chairman in the dying days of this Committee and I trust that the Chairman will see fit to use it when appropriate.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. I do appreciate it.

I would say on behalf of our Joint Chairman . . .

The Joint Chairman (Senator Hays): I do not need that.

The Joint Chairman (Mr. Joyal): This is the most needed thing when one of us will not be in the Chair. So I will share it with you.

I will open this one. That is the constitution of Canada. It is your basic express trucking company and unfortunately it is full of Alberta oil.

Mr. Hawkes: At subsidized prices.

[Page 88]

The Joint Chairman (Mr. Joyal): At subsidized prices.

You are fortunate it is not Christmas.

I do thank you very much for this one. I do not know who has done the drawing of it but it certainly is something that will be hanging in my office with the other pieces of the collection that every one of you are invited to see.

I would like to thank you very much indeed, and especially I want to thank all those who not only sit around this table, but all those who are on the backstage, and that is very important.

I would like you to give me the opportunity to thank especially the Clerks and the services that work with them, and you know that we sit sometimes until 10:30 p.m. or II o’clock or even almost 12 o’clock, and those people work until 3 o’clock in the morning or 4 o’clock, and the next morning at 9:30 a.m. they are back with us with the same kind of spirit and mind to try to help us to do our job and perform our responsibilities.

That I think has to be said and to be emphasized on such a day because I think that if there are some people who should share that cake today in that kind of spirit, I think that the first invitation should be extended to them.

Some hon. Members: Hear, hear!

The Joint Chairman (Mr. Joyal): I should ask Senator Hays to comment. You see, some people told us that on TV we look very serious and really, they cannot recognize us when they see us on the TV, and if everything that has been said and shared between the honourable Senator Hays and myself during all those proceedings was said, I think there will be a revolution and a civil war.

By misfortune sometimes, some of those words come out in the open and you might have heard some of them, and I think that when they come from Senator Hays they come from the grandfather of all of us here in this room.

What I have learned from listening to all of you, especially on such a day as today, I have listened to you very carefully and I think that in all fairness the Chair has to listen and I have to listen too as a member of Parliament because I have to make up my mind myself. In all fairness, I do not want only to thank you for, of course I should say the strong hammer and the small sports car and of course, the soother as extended to me by Mr. Robinson, but I want to thank you wholeheartedly for your frankness and for your spontaneity to express your own views.

I say that, I think on behalf of many Canadians who have been listening to us, and that I think is the most important gift that one can share with some others, is to state his view frankly and openly on such important issues as those that we have to decide upon, and to share one’s thoughts and to share one’s ideas and one’s ambitions about this country I think is the most precious gift that could be extended to one.

[Translation]

So I would like to thank in particular, as I said earlier, all the people, all the individuals helping us in doing our job and, especially, the clerks and the television crew. it is the first time that we have television in a Committee and it is very important that it be a success.

[Page 89]

I would like specifically to thank the members of the Committee for the success in their work up to date since we had to establish our credibility for all the Canadians coming before us.

Also, our work and our results had to be such that they be of use to our other colleagues in the House of Commons and in the Senate and this, I think, had to be the basic goal of all the hours that we spent together. And, if during those hours, we have been able, I think, to put in such a lot of work, we have also established among ourselves a feeling of respect, friendship and tolerance which should be the basic foundation to the Canadian House that we try to build.

I really thank you very sincerely [Text] and invite you to join me with the cake.

The Joint Chairman (Senator Hays): I wonder if I might just say a word.

I just want to say a word about Serge and I still cannot pronounce his last name, and that matters little when a French Canadian and an Albertan get along as we do; I think that augurs pretty well for Canada.

You know we have been here for 51 days. I have missed two hours and we have sat for about 236 hours. I do not think we have had one cross word; we have had a thousand laughs that people have not been able to see and maybe that was a good thing.

I predicted one time for John Turner, going on a plane in 1963, going up to address the Rotary Club in Montréal, I predicted for him that one day he could be the Prime Minister of Canada and I have so much admiration for Serge and his great ability, I have now a feel that that might happen to him before John.

Mr. Mackasey: I have a prediction that Senator Hays might yet end up as an ambassador to the United States.

The Joint Chairman (Mr. Joyal): Before I have the opportunity to cut the cake, I will have to complete with our proceedings of the day and of course to adjourn this meeting until—well,they have said that I have to cut it first.

So this meeting is adjourned until Monday morning at 9:30 a.m.

[Translation]

The meeting is adjourned.


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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